NOTES TO ACCOMPANY 6th UPDATE, MARCH 2008

Changes made by The Criminal Procedure (Amendment No. 3) Rules 2007

Changes to the Consolidated Criminal Practice Direction (amendment no. 17)

  • Settling the Indictment – arraignment in two-stage trials.

Changes made by The Criminal Procedure (Amendment No. 3) Rules 2007

  • New rules added to Part 2 of the Criminal Procedure Rules 2005 explain the arrangements for the coming into force of the rule changes.
    • The first of these provides that the changes in Parts 57 to 62 (Proceeds of Crime Act 2002 – rules for various proceedings) apply in proceedings that begin on or after 1st April 2008.
      This date coincides with the date of the changes brought about by the Serious Crime Act 2007, which abolish the Assets Recovery Agency and transfer certain functions to the Serious Organised Crime Agency.
    • The remainder come into force on Monday, 7th April 2008. These are:
      • new rules about case management (in Part 3), about civil behaviour orders after a verdict or finding (Part 50), appeal or reference to the House of Lords (in Part 74); and
      • the amendment rules affecting Part 56 (Confiscation proceedings under the Criminal Justice Act 1988 and Drug Trafficking Act 1994), Part 65 (Appeal to the Court of Appeal: general rules), Part 68 (Appeal to the Court of Appeal about conviction or sentence) and Part 71 (Appeal to the Court of Appeal under the Proceeds of Crime Act 2002).
    Note that new rules added to Part 2 of the Criminal Procedure Rules 2005 provide that the new rules in Part 50 will apply in cases where a defendant is charged on or after 7th April, 2008 and in other cases if the court so orders; and that the rules in Part 74 apply where an appeal, application or reference to which Part 74 applies, is made on or after 7th April, 2008.

The Amendment Rules make these main changes to the Criminal Procedure Rules 2005:

Part 3 – Case management

  • First, they introduce new rules about case management ( Part 3). These set out the sanctions a court may impose for failure to comply with a procedural rule or procedural direction; and a new rule requiring the Crown Court to conduct a plea and case management hearing unless it is unnecessary. A replacement rule requires the court to establish the issues the parties intend to explore at the trial or at the appeal. To clarify the court's case management powers, new explanatory notes are provided about costs orders and the consequences of failure to comply with a rule or direction.
    Part 3 of the Criminal Procedure Rules 2005 sets out the general duties and powers of the court, and the duties of the parties, relevant to the pre-trial preparation of a criminal case; and the rules in that Part set out the specific powers that the court may exercise for that purpose. However, the rules in that Part of the Criminal Procedure Rules 2005 contained no sanctions for a party’s failure to comply with a procedure rule or with a case management direction made by the court. The court's powers to make a costs order in consequence of such a failure, to adjourn the case or, in some circumstances, to exclude evidence or to draw adverse inferences from the late introduction of an issue or evidence, are powers that are conferred by other legislation and under some other procedure rules.
    In the case of R. (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin), the Administrative Court considered rules 3.5 and 3.10 of the Criminal Procedure Rules and held that the absence of any appropriate sanction within Part 3 rendered ineffectual the case management direction that was in issue in that case. Having considered that judgment, the Criminal Procedure Rule Committee has decided to amend rules 3.5 and 3.10 and the note to rule 3.5, to make the court’s powers to impose sanctions explicit.
    The Rule Committee has taken the opportunity also to amend rule 3.8, to make it clear that in the Crown Court there should usually be held a plea and case management hearing. This is an important pre-trial hearing, for which the Consolidated Criminal Practice Direction issued by the Lord Chief Justice has long provided; but not, until now, the Criminal Procedure Rules themselves.

Part 50 – Civil behaviour orders after verdict or finding

  • Second, they introduce new rules ( Part 50) about the procedure for applying in criminal cases for an anti-social behaviour order or other civil behaviour order.
    There are new rules for magistrates’ courts and for the Crown Court. Until now there have been no procedure rules governing applications for ASBOs and comparable ‘behaviour’ orders in criminal proceedings. Magistrates’ courts and the Crown Court in practice have adopted the procedure prescribed for civil proceedings in magistrates’ courts.
    The lack of proper rules for criminal cases was criticised in a judgment of the Court of Appeal (R. v Wadmore and Foreman, [2006] EWCA Crim 686). The Committee has prepared some simple but comprehensive rules to meet that criticism, in close consultation with criminal justice system stakeholders and in particular with Home Office officials and with officials of the Office for Criminal Justice Reform and of Her Majesty’s Courts Service.

Part 74 – Appeal or reference to the House of Lords

  • Third, they introduce new rules ( Part 74) about the procedure for applying to the Court of Appeal for permission to appeal, or to refer a case, to the House of Lords.
    The rules about appeal to the House of Lords are replaced. A new Part 74 prescribes the procedure for applying to the Court of Appeal for permission to appeal, or to refer a case to, the House of Lords.
    These new rules revise and simplify the rules in Part 74, to make them consistent with the rules in Parts 65 to 70. The new rules are shorter and clearer than those that they replace. They have been rewritten in the style of other new criminal procedure rules and, like those, include notes that refer the reader to other relevant provisions (including the legislation that confers the rights of appeal). They maintain and set out explicitly existing procedures of the Court of Appeal that are familiar to court users and that have been found to work well.
    Background: In the fourth set of amendments to the Criminal Procedure Rules 2005 (The Criminal Procedure (Amendment No. 2) Rules 2007, S.I. 2007 No. 2317) the Rule Committee revised and simplified the rules in Parts 65 to 70 about appeals from the Crown Court to the criminal division of the Court of Appeal. The revised Part 65 contained general rules about procedure in the Court of Appeal and the revised Parts 66 to 70 adopted a common procedural framework for different types of appeal, with adaptations to accommodate the unique requirements of each type.
    These new rules were formulated in consultation with the Registrar of Criminal Appeals and staff of the Criminal Appeal Office (who have to apply them).

In addition, the Amendment Rules make these other changes:

Part 56 – Confiscation proceedings under the Criminal Justice Act 1988 and Drug Trafficking Act 1994

  • Minor amendments to Part 56 at rule 56.4 (Application to the Crown Court to discharge or vary order to make material available) and the related note, to reflect the change of name of Customs and Excise.

Part 65 – Appeal to the Court of Appeal: general rules

  • amended rules in Part 65, to take account of the new rules in Part 74;
    The general rules about appeal from the Crown Court to the Court of Appeal in Part 65 of the Criminal Procedure Rules 2005 are amended by rules 24 to 29 of these Amendment Rules to take account of the revised Part 74. They make clear that those general rules apply also where the rules in Part 74 apply. They insert a new rule 65.6(4), to accommodate the practice of the Court of Appeal under which a written application for permission to appeal or to refer a case to the House of Lords may be considered by members of the court in private before announcing their decision at a hearing.

Part 68 – Appeal to the Court of Appeal about conviction or sentence

  • Part 68 is amended to take account of the provisions of the Serious Crime Act 2007 that confer rights of appeal in respect of a serious crime prevention order.
    Rule 68.1 of the Criminal Procedure Rules 2005 (which concerns appeal to the Court of Appeal about conviction or sentence) and the notes to that rule are amended by rules 30 and 31 of these Amendment Rules, to take account of the right of appeal under section 24 of the Serious Crime Act 2007 in respect of a decision about a serious crime prevention order.

Part 71 – Appeal to the Court of Appeal under the Proceeds of Crime Act 2002 – general rules

  • amendments of the rules in Part 71, to take account of the changes to Part 65;
    A replacement Part 71 of the Criminal Procedure Rules 2005 is introduced. The purpose of the change to this Part is to correct the cross-references to Part 65 contained in those rules.

Parts 57 to 62 – various rules applying to proceedings under the Proceeds of Crime Act 2002

  • amendment of rules in Part 57, Part 58, Part 59, Part 60, Part 61 and Part 62, to take account of the provisions in the Serious Crime Act 2007 that abolish the Assets Recovery Agency and that amend the provisions of the Proceeds of Crime Act 2002, to which the rules in Parts 57 to 62 apply.
    The changes to the rules about Proceeds of Crime Act cases in Parts 57 to 62 will come into force on 1st April, 2008, to coincide with the date on which the associated provisions of the Serious Crime Act 2007 are expected to come into force.
    However, to accommodate continuing cases begun by the Assets Recovery Agency before that date, rule 4 of these Amendment Rules adds a new paragraph to rule 2.1 of the Criminal Procedure Rules 2005. This has the effect of applying the old rules to such cases and providing for them to be conducted by the Serious Organised Crime Agency.

Changes to the Consolidated Criminal Practice Direction (amendment no. 17)

The amendment was handed down on 30 November and came into force on 3 December, 2007.

The latest amendment to the Practice Direction affected paragraph IV.34, 'Settling the Indictment'. The amendment introduced replacement paragraphs about

  • settling the indictment;
  • ‘Multiple offending: trial by jury and then by judge alone’; and
  • ‘Multiple offending: count charging more than one incident’.

Multiple offending: trial by jury and then by judge alone

The amendment provided for the signing of the indictment in respect of which an application is to be made under section 17 of the Domestic Violence, Crime and Victims Act 2004, for a two-stage trial and arraignment.

Under sections 17 to 21 of that Act, the court may order that certain counts will be tried by jury in the usual way and if the jury convicts, that other associated counts will be tried by judge alone. The use of this power is likely to be appropriate where justice cannot be done without charging the defendant with a large number of separate offences and the allegations fall into distinct groups, such as by reference to the identity of the victim, the dates of the offences, or some other distinction in the nature of the offending conduct. It is essential to make clear, from the outset, the association asserted by the prosecutor between the counts to be tried by a jury and those which would be tried by a judge alone, if the jury convicted the defendant on the counts before them.