CRIMINAL PRACTICE DIRECTIONS 2015 (Consolidated)

CRIMINAL PRACTICE DIRECTIONS 2015

CRIMINAL PRACTICE DIRECTIONS 2015 [2015] EWCA CRIM 1567

CONSOLIDATED WITH AMENDMENT NO. 2 [2016] EWCA CRIM 1714

CONSOLIDATED WITH AMENDMENT NO. 3 [2017] EWCA CRIM 30

CONSOLIDATED WITH AMENDMENT NO.4 [2017] EWCA CRIM 310

CONSOLIDATED WITH AMENDMENT NO.5 [2017] EWCA CRIM 1076 CONSOLIDATED WITH AMENDMENT NO.6 [2018] EWCA CRIM 516

CONSOLIDATED WITH AMENDMENT NO.7 [2018] EWCA CRIM 1760 CONSOLIDATED WITH AMENDMENT NO.8 [2019] EWCA CRIM 495

CONSOLIDATED WITH AMENDMENT NO.9 [2019] EWCA CRIM 1603

CONSOLIDATED WITH AMENDMENT NO.10 [2020] EWCA CRIM 605

CONSOLIDATED WITH AMENDMENT NO.11 [2020] EWCA CRIM1347

TABLE OF CONTENTS

CPD I General Matters ........................................................................................................................... 6

A 6

1A The overriding objective ...................................................................................................... 7

3A Case management ................................................................................................................. 8

3B Pagination and indexing of served evidence .................................................................... 14

3C Abuse of process stay applications ................................................................................... 15

3D Vulnerable people in the Courts ........................................................................................ 16

3E Ground rules hearings to plan the questioning of a vulnerable witness or defendant.. 18

3F Intermediaries .................................................................................................................... 19

3G Vulnerable defendants ....................................................................................................... 24

3H Wales and the Welsh Language: Devolution issues ......................................................... 26

3J Wales and the Welsh Language: Application for evidence to be given in Welsh ........... 26

3K Wales and the Welsh Language: Use of the Welsh Language in Courts in Wales ........... 27

3L Security of Prisoners at Court ............................................................................................ 29

3M Procedure for application for armed police presence in the Royal Courts of Justice,

Crown Courts and magistrates’ court buildings ........................................................................... 31

3N Use of live links and telephone hearings .......................................................................... 35 Annex 1 Guidance on establishing and using live link and telephone facilities for criminal

court hearings .................................................................................................................................. 39 3P Commissioning medical reports ........................................................................................ 45

3Q Failure to comply with requirement to give name, date of birth and nationality .......... 49

3R Hearing to inform the court of sensitive material ........................................................... 51

5A Forms ................................................................................................................................... 52

5B Access to information held by the Court .......................................................................... 52

5C Issue of medical certificates ............................................................................................... 60

6A Unofficial sound recording of proceedings ...................................................................... 61

6B Restrictions on reporting proceedings ............................................................................. 62

6C The use of live text-based forms of communication (including Twitter) from court for

the purposes of fair and adequate reporting ................................................................................ 64 6D Taking notes in court.......................................................................................................... 66

6E Access to courts .................................................................................................................. 67

II Preliminary proceedings ................................................................................................................. 68

7A First court attendance after charge and detention .......................................................... 68

8A Defendant’s record ............................................................................................................. 70

9A Allocation (mode of trial) ................................................................................................... 71

10A Preparation and content of the Indictment ...................................................................... 71

10B Voluntary bills of indictment ............................................................................................. 76

III Custody and bail ............................................................................................................................. 77

14A Bail before sending for trial ............................................................................................... 77

14B Bail: Failure to surrender and trials in absence ............................................................... 77

14C failure to surrender to bail: consequences and penalties ............................................... 79

14D Relationship between the Bail Act offence and further remands on bail or in custody 81

14E Trials in absence ................................................................................................................. 82

14F Forfeiture of monies lodged as security or pledged by a surety/estreatment of

recognizances .................................................................................................................................. 82 14G Bail during trial ................................................................................................................... 83

14H Crown Court judge’s certification of fitness to appeal and application to the Crown

Court for bail pending appeal ......................................................................................................... 84

IV Disclosure ........................................................................................................................................ 85

15A Disclosure of unused material ........................................................................................... 85

V Evidence ............................................................................................................................................ 86

16A Evidence by written statement ......................................................................................... 86

16B Video recorded evidence in chief ...................................................................................... 88

16C Evidence of audio and video recorded interviews ........................................................... 88

17A Wards of Court and children subject to current Family proceedings ............................. 91

18A Measures to assist a witness or defendant to give evidence ........................................... 92

18B Witnesses giving evidence by live link ............................................................................. 92

18C Visually recorded interviews: memory refreshing and watching at a different time

from the trial court .......................................................................................................................... 93 18E Use of s.28 Youth Justice and Criminal Evidence Act 1999 ............................................. 99

19A Expert evidence ................................................................................................................ 112

19B Statements of understanding and declarations ............................................................. 115

19C Pre-hearing discussion of expert evidence..................................................................... 116

21A Spent convictions.............................................................................................................. 118

22A Use of Ground Rules Hearing when dealing with s.41 Youth Justice and Criminal

Evidence Act 1999 evidence of complainant’s previous sexual behaviour .............................. 118

23A Cross-examination advocates .......................................................................................... 120

VI Trial ................................................................................................................................................ 123

24A Role of the justices’ clerk/legal adviser .......................................................................... 123

24B Identification for the court of the issues in the case ...................................................... 126

24C Trial adjournment in magistrates’ courts ....................................................................... 127

25A Identification for the jury of the issues in the case ........................................................ 135

25B Trial adjournment in the crown court ............................................................................ 136

26A Juries: introduction .......................................................................................................... 136

26B Juries: preliminary matters arising before jury service commences ............................ 137

26C Juries: eligibility ................................................................................................................ 137

26D Juries: precautionary measures before swearing .......................................................... 139

26E Juries: swearing in jurors ................................................................................................. 139

26F Juries: ensuring an effective jury panel .......................................................................... 140

26G Juries: preliminary instructions to jurors ....................................................................... 140

26H Juries: discharge of a juror for personal reasons ........................................................... 141

26J Juries: views ...................................................................................................................... 142

26K Juries: directions to jury before retirement ................................................................... 142

26L Juries: jury access to exhibits and evidence in retirement ............................................ 146

26M Jury Irregularities ............................................................................................................. 146

26N Open justice ....................................................................................................................... 156

26P Defendant’s right to give or not give evidence ............................................................... 156

26Q Majority verdicts .............................................................................................................. 157

VII Sentencing .................................................................................................................................... 159

A Pleas of guilty in the Crown Court ................................................................................... 159

B Determining the factual basis of sentence ...................................................................... 159

C Indications of sentence: R v Goodyear ............................................................................ 165

D Facts to be stated on pleas of guilty ................................................................................ 167

E Concurrent and consecutive sentences .......................................................................... 167

F Victim Personal Statements ............................................................................................. 167

G Families bereaved by homicide and other criminal conduct ........................................ 169

H Community Impact Statements ....................................................................................... 169

I Impact Statements for Businesses .................................................................................. 170

J Binding over orders and conditional discharges ........................................................... 172

K Committal for sentence .................................................................................................... 175

L Imposition of life sentences ............................................................................................. 175

M Mandatory life sentences ................................................................................................. 176

N Transitional arrangements for sentences where the offence was committed before 18

December 2003 ............................................................................................................................. 178

P Procedure for announcing the minimum term in open court ....................................... 182

Q Financial information required for sentencing .............................................................. 183

R Medical Reports for sentencing purposes ...................................................................... 185

S Variations of sentence ...................................................................................................... 189

VIII Confiscation [empty] .................................................................................................................. 190

IX Appeal ............................................................................................................................................ 190

34A Appeals to the Crown Court- Information from the parties .......................................... 190

34B Appeals to the Crown Court- Information from the magistrates’ court........................ 191

39A Appeals against conviction and sentence – the provision of notice to the prosecution

191

39B Listing of appeals against conviction and sentence in the Court of Appeal Criminal

Division (CACD) ............................................................................................................................. 193

39C Appeal notices containing grounds of appeal ................................................................ 194

39D Respondents’ notices........................................................................................................ 197

39E Loss of time ....................................................................................................................... 197

39F Skeleton arguments .......................................................................................................... 198

39G Criminal Appeal Office summaries .................................................................................. 198

39H Criminal Appeal Office bundles & indexes for full court hearings ................................ 199

44A References to the European Court of Justice .................................................................. 200

X Costs ................................................................................................................................................ 201

[Costs Practice Direction] ............................................................................................................. 201 XI Other proceedings......................................................................................................................... 202

47A Investigation orders and warrants ................................................................................. 202

47B Investigation orders and warrants in the crown court ................................................. 203

48A Contempt in the face of the magistrates’ court .............................................................. 206

50A Extradition: General matters and case management .................................................... 207

50B Extradition: Management of Appeal to the High Court ................................................. 209

50C Extradition: Representation Orders................................................................................ 213

50D Extradition: Applications, etc .......................................................................................... 215

50E Extradition: Court Papers ................................................................................................ 218

50F Extradition: Consequences of non-compliance with directions ................................... 219

XII General Application ..................................................................................................................... 220

A Court dress ........................................................................................................................ 220

B Modes of address and titles of judges and magistrates ................................................. 220

C Availability of judgments given in the Court of Appeal and the High Court ................. 221

D Citation of authority and provision of copies of judgments to the Court and Skeleton

Arguments ...................................................................................................................................... 223

E Preparation of judgments: neutral citation .................................................................... 228

F Citation of Hansard ........................................................................................................... 229

XIII Listing .......................................................................................................................................... 229

A Judicial responsibility and key principles ...................................................................... 229

B Classification ..................................................................................................................... 232

C Referral of cases in the Crown Court to the Resident Judge and to the President Judges

235

D Authorisation of Judges .................................................................................................... 237

E Allocation of business within the Crown Court.............................................................. 238

F Listing of trials, Custody Time Limits and transfer of cases ......................................... 240

G Listing of hearings other than trials ................................................................................ 242

Annex 1 General Principles for the deployment of the judiciary in the magistrates’ court246

Annex 2 Sexual offences in the youth court ........................................................................... 248

Annex 3 Cases involving very large fines in the magistrates’ courts ................................... 249

Annex 4 Case management of terrorism cases ...................................................................... 250

Annex 5 Management of cases from the Organised Crime Division of the Crown

Prosecution Service ....................................................................................................................... 254

INDEX ................................................................................................................................................. 257

CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION I

GENERAL MATTERS

CPD I General Matters

A

A.1 The Lord Chief Justice has power, including power under section 74 of the Courts Act 2003 and Part 1 of Schedule 2 to the Constitutional Reform Act 2005, to give directions as to the practice and procedure of the criminal courts. The following directions are given accordingly.

A.2 These Practice Directions replace the Criminal Practice Directions given on 7^th October, 2013 [2013] EWCA Crim 1631; [2013] 1 WLR 3164 as amended by the Directions given on (i) 10^th December, 2013 [2013] EWCA Crim 2328; [2014] 1 WLR 35, (ii) 23^rd July, 2014 [2014] EWCA Crim 1569; [2014] 1 WLR 3001, (iii) 18^th March, 2015 [2015] EWCA Crim 430; [2015] 1 WLR 1643; (iv) 16^th July, 2015 [2015] EWCA Crim 1253; [2015] 1 WLR 3582; (v) 4^th April, 2016 [2016] EWCA Crim 97; (vi) 16^th November, 2016 [2016] EWCA Crim 1714; (vii) 31^st January, 2017 [2017] EWCA Crim 30; (viii) 3^rd April, 2017 [2017] EWCA Crim 310; (ix) 2^nd October, 2017 [2017] EWCA Crim 1076; (x) 2^nd April, 2018 EWCA Crim 516 and (xi) 1^st October 2018 [2018] EWCA CRIM 1760; (xii) 1^st April 2019 [2019] EWCA Crim 945; (xiii) 10^th October 2019 [2019] EWCA Crim 1603;

A.4 Annexes D and E to the Consolidated Criminal Practice Direction of 8^th July, 2002, [2002] 1 W.L.R. 2870; [2002] 2 Cr. App. R. 35, as amended, which set out forms for use in connection with the Criminal Procedure Rules, remain in force. See also paragraph I 5A of these Practice Directions.

A.5 These Practice Directions supplement many, but not all, Parts of the Criminal Procedure Rules, and include other directions about practice and procedure in the courts to which they apply. They are to be known as the Criminal Practice Directions 2015. They come into force on 5^th October, 2015. They apply to all cases in all the criminal courts of England and Wales from that date.

A.6 Consequent on the rearrangement of the Criminal Procedure Rules in the Criminal Procedure Rules 2015, S.I. 2015/1490:

(a) the content of these Practice Directions is arranged to correspond. Within each division of these Directions the paragraphs are numbered to correspond with the associated Part of the Criminal Procedure Rules 2015. Compared with the Criminal Practice Directions given in 2013, as amended, the numbering and content of some divisions is amended consequentially, as shown in this table:

(b) the text of these Practice Directions is amended:

(i) to bring up to date the cross-references to the Criminal Procedure Rules and to other paragraphs of these Directions which that text contains, and

(ii) to adopt the abbreviation of references to the Criminal Procedure Rules (‘CrimPR’) for which rule 2.3(2) of the Criminal Procedure Rules 2015 provides.

A.6 In all other respects, the content of the Criminal Practice Directions 2015 reproduces that of the Criminal Practice Directions 2013, as amended.

1A The overriding objective

CrimPR Part 1 The overriding objective

CPD I General matters 1A: THE OVERRIDING OBJECTIVE

1A.1 The presumption of innocence and an adversarial process are essential features of English and Welsh legal tradition and of the defendant’s right to a fair trial. But it is no part of a fair trial that questions of guilt and innocence should be determined by procedural manoeuvres. On the contrary, fairness is best served when the issues between the parties are identified as early and as clearly as possible. As Lord Justice Auld noted, a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.

CrimPR Part 3 Case management

CPD I General matters 3A: CASE MANAGEMENT

Case progression and trial preparation in magistrates’ courts

3A.4 CrimPR 8.3 applies in all cases and requires the prosecutor to serve:

i. a summary of the circumstances of the offence;

ii. any account given by the defendant in interview, whether contained in that summary or in another document;

iii. any written witness statement or exhibit that the prosecutor then has available and considers material to plea or to the allocation of the case for trial or sentence;

iv. a list of the defendant’s criminal record, if any; and

v. any available statement of the effect of the offence on a victim, a victim’s family or others.

The details must include sufficient information to allow the defendant and the court at the first hearing to take an informed view:

i. on plea;

ii. on venue for trial (if applicable);

iii. for the purposes of case management; or iv. for the purposes of sentencing (including committal for sentence, if applicable).

Defendant in custody

Defendant on bail

3A.7 If the defendant has been released on bail after being charged, the case must be listed for the first hearing 14 days after charge, or the next available court date thereafter when the prosecutor anticipates a guilty plea which is likely to be sentenced in the magistrates’ court. In cases where there is an anticipated not guilty plea or the case is likely to be sent or committed to the Crown Court for either trial or sentence, then it must be listed for the first hearing 28 days after charge or the next available court date thereafter.

Guilty plea in the magistrates’ courts

3A.8 Where a defendant pleads guilty or indicates a guilty plea in a magistrates’ court the court should consider whether a pre-sentence report – a stand down report if possible – is necessary.

Guilty plea in the Crown Court

3A.9 Where a magistrates’ court is considering committal for sentence or the defendant has indicated an intention to plead guilty in a matter which is to be sent to the Crown Court, the magistrates’ court should request the preparation of a presentence report for the Crown Court’s use if the magistrates’ court considers that:

(a) there is a realistic alternative to a custodial sentence; or

(b) the defendant may satisfy the criteria for classification as a dangerous offender; or

(c) there is some other appropriate reason for doing so.

3A.10 When a magistrates’ court sends a case to the Crown Court for trial and the defendant indicates an intention to plead guilty at the Crown Court, then that magistrates’ court must set a date for a Plea and Trial Preparation Hearing at the Crown Court, in accordance with CrimPR 9.7(5)(a)(i).

Case sent for Crown Court trial: no indication of guilty plea

3A.11 In any case sent to the Crown Court for trial, other than one in which the defendant indicates an intention to plead guilty, the magistrates’ court must set a date for a Plea and Trial Preparation Hearing, in accordance with CrimPR 9.7(5)(a)(ii). The Plea and Trial Preparation Hearing must be held within 28 days of sending, unless the standard directions of the Presiding Judges of the circuit direct otherwise. Paragraph 3A.16 below additionally applies to the arrangements for such hearings. A magistrates’ court may give other directions appropriate to the needs of the case, in accordance with CrimPR 3.5(3), and in accordance with any standard directions issued by the Presiding Judges of the circuit.

Defendant on bail: anticipated not guilty plea

3A.12 Where the defendant has been released on bail after being charged, and where the prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court, then it is essential that the initial details of the prosecution case that are provided for that first hearing are sufficient to assist the court, in order to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be heard in the magistrates’ court or the Crown Court). In these circumstances, unless there is good reason not to do so, the prosecution should make available the following material in advance of the first hearing in the magistrates’ court:

(a) A summary of the circumstances of the offence(s) including a summary of any account given by the defendant in interview;

(b) Statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report;

(c) Details of witness availability, as far as they are known at that hearing;

(d) Defendant’s criminal record;

(e) Victim Personal Statements if provided;

(f) An indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant;

(g) Any information as to special measures, bad character or hearsay, where applicable.

3A.13 In addition to the material required by CrimPR Part 8, the information required by the Preparation for Effective Trial form must be available to be submitted at the first hearing, and the parties must complete that form, in accordance with the guidance published with it. Where there is to be a contested trial in a magistrates’ court, that form includes directions and a timetable that will apply in every case unless the court otherwise orders.

3A.14 Nothing in paragraph 3A.12-3A.13 shall preclude the court from taking a plea pursuant to CrimPR 3.9(2)(b) at the first hearing and for the court to case manage as far as practicable under Part 3 CrimPR.

Exercise of magistrates’ court’s powers

3A.15 In accordance with CrimPR 9.1, sections 49, 51(13) and 51A(11) of the Crime and Disorder Act 1998, and sections 17E, 18(5) and 24D of the Magistrates’ Courts Act 1980 a single justice can:

a) allocate and send for trial;

b) take an indication of a guilty plea (but not pass sentence);

c) take a not guilty plea and give directions for the preparation of trial including:

i. timetable for the proceedings;

ii. the attendance of the parties;

iii. the service of documents;

iv. the manner in which evidence is to be given.

Case progression and trial preparation in the Crown Court

Plea and Trial Preparation Hearing

3A.16 In a case in which a magistrates’ court has directed a Plea and Trial Preparation Hearing, the period which elapses between sending for trial and the date of that hearing must be consistent within each circuit. In every case, the time allowed for the conduct of the Plea and Trial Preparation Hearing must be sufficient for effective trial preparation. It is expected in every case that an indictment will be lodged at least 7 days in advance of the hearing. Please see the Note to the Practice Direction.

3A.17 In a case in which the defendant, not having done so before, indicates an intention to plead guilty to his representative after being sent for trial but before the Plea and Trial Preparation Hearing, the defence representative will notify the Crown Court and the prosecution forthwith. The court will ensure there is sufficient time at the Plea and Trial Preparation Hearing for sentence and a Judge should at once request the preparation of a pre-sentence report if it appears to the court that either:

(a) there is a realistic alternative to a custodial sentence; or

(b) the defendant may satisfy the criteria for classification as a dangerous offender; or

(c) there is some other appropriate reason for doing so.

3A.18 If at the Plea and Trial Preparation Hearing the defendant pleads guilty and no pre-sentence report has been prepared, if possible the court should obtain a stand down report.

3A.19 Where the defendant was remanded in custody after being charged and was sent for trial without initial details of the prosecution case having been served, then at least 7 days before the Plea and Trial Preparation Hearing the prosecutor should serve, as a minimum, the material identified in paragraph 3A.12 above. If at the Plea and Trial Preparation Hearing the defendant does not plead guilty, the court will be expected to identify the issues in the case and give appropriate directions for an effective trial. Please see the Note to the Practice Direction.

3A.20 At the Plea and Trial Preparation Hearing, in addition to the material required by paragraph 3A.12 above, the prosecutor must serve sufficient evidence to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within paragraph 3A.21. In addition, the information required by the Plea and Trial Preparation Hearing form must be available to the court at that hearing, and it must have been discussed between the parties in advance. The prosecutor must provide details of the availability of likely prosecution witnesses so that a trial date can immediately be arranged if the defendant does not plead guilty.

Further case management hearing

3A.21 In accordance with CrimPR 3.13(1)(c), after the Plea and Trial Preparation Hearing there will be no further case management hearing before the trial unless:

(i) a condition listed in that rule is met; and

(ii) the court so directs, in order to further the overriding objective.

The directions to be given at the Plea and Trial Preparation Hearing therefore may include a direction for a further case management hearing, but usually will do so only in one of the following cases:

(a) Class 1 cases;

(b) Class 2 cases which carry a maximum penalty of 10 years or more;

(c) cases involving death by driving (whether dangerous or careless), or death in the workplace;

(d) cases involving a vulnerable witness;

(e) cases in which the defendant is a child or otherwise under a disability, or requires special assistance;

(f) cases in which there is a corporate or unrepresented defendant;

(g) cases in which the expected trial length is such that a further case management hearing is desirable and any case in which the trial is likely to last longer than four weeks;

(h) cases in which expert evidence is to be introduced;

(i) cases in which a party requests a hearing to enter a plea;

(j) cases in which an application to dismiss or stay has been made;

(k) cases in which arraignment has not taken place, whether because of an issue relating to fitness to plead, or abuse of process or sufficiency of evidence, or for any other reason;

(l) cases in which there are likely to be linked criminal and care directions in accordance with the 2013 Protocol.

(m) cases in which a substantial quantity of unused prosecution material has been disclosed, or will be disclosed, or in which the disclosure of such material raises complex questions of law or procedure.

3A.22 If a further case management hearing is directed, a defendant in custody will not usually be expected to attend in person, unless the court otherwise directs.

Compliance hearing

3A.23 If a party fails to comply with a case management direction, that party may be required to attend the court to explain the failure. Unless the court otherwise directs a defendant in custody will not usually be expected to attend. See paragraph 3A.26-3A.28 below.

Conduct of case progression hearings

3A.24 As far as possible, case progression should be managed without a hearing in the courtroom, using electronic communication in accordance with CrimPR 3.5(2)(d). Court staff should be nominated to conduct case progression as part of their role, in accordance with CrimPR 3.4(2). To aid effective communication the prosecution and defence representative should notify the court and provide details of who shall be dealing with the case at the earliest opportunity.

Completion of Effective Trial Monitoring form

3A.25 It is imperative that the Effective Trial Monitoring form (as devised and issued by Her Majesty’s Courts and Tribunals Service) is accurately completed by the parties for all cases that have been listed for trial. Advocates must engage with the process by providing the relevant details and completing the form.

Compliance courts

3A.26 To ensure effective compliance with directions of the courts made in accordance with the Criminal Procedure Rules and the overriding objective, courts should maintain a record whenever a party to the proceedings has failed to comply with a direction made by the court. The parties may have to attend a hearing to explain any lack of compliance.

3A.27 These hearings may be conducted by live link facilities or via other electronic means, as the court may direct.

3A.28 It will be for the Presiding Judges, Resident Judge and Justices’ Clerks to decide locally how often compliance courts should be held, depending on the scale and nature of the problem at each court centre.

Note to the Practice Direction

In 3A.16 and 3A.19 the reference to “at least 7 days” in advance of the hearing is necessitated by the fact that, for the time being, different circuits have different timescales for the Plea and Trial Preparation Hearing. Had this not been so, the paragraphs would have been drafted forward from the date of sending rather than backwards from the date of the Plea and Trial Preparation Hearing.

3B Pagination and indexing of served evidence

CPD I General matters 3B: PAGINATION AND INDEXING OF SERVED EVIDENCE

3B.1 The following directions apply to matters before the Crown Court, where

(a) there is an application to prefer a bill of indictment in relation to the case;

(b) a person is sent for trial under section 51 of the Crime and Disorder Act 1998 (sending cases to the Crown Court), to the service of copies of the documents containing the evidence on which the charge or charges are based under Paragraph 1 of Schedule 3 to that Act; or

(c) a defendant wishes to serve evidence.

3B.2 A party who serves documentary evidence in the Crown Court should:

(a) paginate each page in any bundle of statements and exhibits

sequentially;

(b) provide an index to each bundle of statements produced including the following information:

i. the name of the case; ii. the author of each statement; iii. the start page number of the witness statement;

iv. the end page number of the witness statement.

(c) provide an index to each bundle of documentary and pictorial exhibits produced, including the following information:

i. the name of the case ii. the exhibit reference; iii. a short description of the exhibit; iv. the start page number of the exhibit;

v. the end page number of the exhibit;

vi. where possible, the name of the person producing the exhibit should be added.

CPD I General matters 3C: ABUSE OF PROCESS STAY APPLICATIONS

CPD I General matters 3D: VULNERABLE PEOPLE IN THE COURTS

facilitate the participation of any person, including the defendant (CrimPR 3.9(3)(a) and (b)). This includes enabling a witness or defendant to give their best evidence, and enabling a defendant to comprehend the proceedings and engage fully with his or her defence. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends. Regard should be had to the welfare of a young defendant as required by section 44 of the Children and Young Persons Act 1933, and generally to Parts 1 and 3 of the Criminal Procedure Rules (the overriding objective and the court’s powers of case management).

http://www.cps.gov.uk/publications/docs/best_evidence_in_criminal_proceedings.pdf

3E Ground rules hearings to plan the questioning of a vulnerable witness or defendant

CPD I General matters 3E: GROUND RULES HEARINGS TO PLAN THE QUESTIONING OF A

VULNERABLE WITNESS OR DEFENDANT

asking only ancillary questions relevant to their client’s case, without repeating the questioning that has already taken place on behalf of the other defendant(s).

CPD I General matters 3F: INTERMEDIARIES

Role and functions of intermediaries in criminal courts

Links to publications

• http://www.theadvocatesgateway.org/images/toolkits/16intermediariesste pbystep060315.pdf

• https://www.judiciary.gov.uk/wp-content/uploads/2013/11/5-childrenand-vulnerable-adults.pdf

Assessment

defendants who are most in need. The decision should be made on an individual basis, in the context of the circumstances of the particular case.

Intermediaries for prosecution and defence witnesses

Link to publication

• http://www.theadvocatesgateway.org/images/procedures/registeredintermediary-procedural-guidance-manual.pdf

Intermediaries for defendants

3F.11 Statutory provisions providing for defendants to be assisted by an intermediary when giving evidence (where necessary to ensure a fair trial) are not in force (because s.104 Coroners and Justice Act 2009, which would insert ss. 33BA and 33BB into the YJCEA 1999, has yet to be commenced).

3F. 12 The court may direct the appointment of an intermediary to assist a defendant in reliance on its inherent powers (C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin)). There is however no presumption that a defendant will be so assisted and, even where an intermediary would improve the trial process, appointment is not mandatory (R v Cox [2012] EWCA Crim 549). The court should adapt the trial process to address a defendant's communication needs (R v Cox [2012]

EWCA Crim 549). It will rarely exercise its inherent powers to direct appointment

of an intermediary but where a defendant is vulnerable or for some other reason experiences communication or hearing difficulties, such that he or she needs more help to follow the proceedings than her or his legal representatives readily can give having regard to their other functions on the defendant’s behalf, then the court should consider sympathetically any application for the defendant to be accompanied throughout the trial by a support worker or other appropriate companion who can provide that assistance. This is consistent with CrimPR 3.9(3)(b) (see paragraph 3D.2 above); consistent with the observations in R v Cox (see paragraph 3D.4 above), R (OP) v Ministry of Justice [2014] EWHC 1944 (Admin) and R v Rashid [2017] EWCA Crim 2; and consistent with the arrangements contemplated at paragraph 3G.8 below.

3F.13 The court may exercise its inherent powers to direct appointment of an intermediary to assist a defendant giving evidence or for the entire trial. Terms of appointment are for the court and there is no illogicality in restricting the appointment to the defendant’s evidence (R v R [2015] EWCA Crim 1870), when the 'most pressing need' arises (OP v Secretary of State for Justice [2014] EWHC 1944 (Admin)). Directions to appoint an intermediary for a defendant's evidence will thus be rare, but for the entire trial extremely rare, keeping in mind paragraph 3F.12 above.

Ineffective directions for intermediaries to assist defendants

3F. 23 Further guidance is available in publications such as Ground Rules Hearings and the Fair Treatment of Vulnerable People in Court (Toolkit 1; The Advocate’s Gateway, 2015) and General Principles from Research - Planning to Question a Vulnerable Person or Someone with Communication Needs (Toolkit 2(a); The Advocate’s Gateway, 2015). In the absence of an intermediary, these publications include information on planning how to manage the participation and questioning of the defendant, and the formulation of questions to avert misunderstanding (for example, by avoiding ‘long and complicated questions…posed in a leading or ‘tagged’ manner’ (R v Wills [2011] EWCA Crim 1938, [2012] 1 Cr App R 2)).

Links to publications

• http://www.theadvocatesgateway.org/images/toolkits/1groundruleshearin gsandthefairtreatmentofvulnerablepeopleincourt060315.pdf

• https://www.theadvocatesgateway.org/images/toolkits/2-general-principlesfrom-research-policy-and-guidance-planning-to-question-a-vulnerable-personor-someone-with-communication-needs-141215.pdf

Intermediaries for witnesses and defendants under 18

Attendance at ground rules hearing

3F.27 Where the court directs questioning will be conducted through an intermediary, CrimPR 3.9 requires the court to set ground rules. The intermediary should be present at the ground rules hearing to make representations in accordance with CrimPR 3.9(7)(a).

Listing

3F.28 Where the court directs an intermediary will attend the trial, their dates of availability should be provided to the court. It is preferable that such trials are fixed rather than placed in warned lists.

Photographs of court facilities

3F.29 Resident Judges in the Crown Court or the Chief Clerk or other responsible person in the magistrates’ courts should, in consultation with HMCTS managers responsible for court security matters, develop a policy to govern under what circumstances photographs or other visual recordings may be made of court facilities, such as a live link room, to assist vulnerable or child witnesses to familiarise themselves with the setting, so as to be enabled to give their best evidence. For example, a photograph may provide a helpful reminder to a witness whose court visit has taken place sometime earlier. Resident Judges should tend to permit photographs to be taken for this purpose by intermediaries or supporters, subject to whatever restrictions the Resident Judge or responsible person considers to be appropriate, having regard to the security requirements of the court.

3G Vulnerable defendants

CPD I General matters 3G: VULNERABLE DEFENDANTS

Before the trial, sentencing or appeal

appropriate. The court should also be ready at this stage, if it has not already done so, where relevant to make a reporting restriction under section 39 of the Children and Young Persons Act 1933 or, on an appeal to the Crown Court from a youth court, to remind media representatives of the application of section 49 of that Act. 3G.6 The provisions of the Practice Direction accompanying Part 6 should be followed.

The trial, sentencing or appeal hearing

CPD I General matters 3H: WALES AND THE WELSH LANGUAGE: DEVOLUTION ISSUES

3H.1 These are the subject of Practice Direction: (Supreme Court) (Devolution Issues) [1999] 1 WLR 1592; [1999] 3 All ER 466; [1999] 2 Cr App R 486, to which reference should be made.

3J Wales and the Welsh Language: Application for evidence to be given in Welsh

CPD I General matters 3J: WALES AND THE WELSH LANGUAGE: APPLICATIONS FOR EVIDENCE TO BE GIVEN IN WELSH

3J.1 If a defendant in a court in England asks to give or call evidence in the Welsh language, the case should not be transferred to Wales. In ordinary circumstances, interpreters can be provided on request.

3K Wales and the Welsh Language: Use of the Welsh Language in Courts in Wales

CPD I General matters 3K: WALES AND THE WELSH LANGUAGE: USE OF THE WELSH LANGUAGE IN COURTS IN WALES

3K.1 The purpose of this direction is to reflect the principle of the Welsh Language Act 1993 that, in the administration of justice in Wales, the English and Welsh languages should be treated on a basis of equality.

General

Preliminary and plea and case management hearings

3K.7 An advocate in a case in which the Welsh language may be used must raise that matter at the preliminary and/or the plea and case management hearing and endorse details of it on the advocates’ questionnaire, so that appropriate directions may be given for the progress of the case.

Listing

3K.8 The listing officer, in consultation with the resident judge, should ensure that a case in which the Welsh language may be used is listed

(a) wherever practicable before a Welsh speaking judge, and

(b) in a court in Wales with simultaneous translation facilities.

Interpreters

3K.9 Whenever an interpreter is needed to translate evidence from English into Welsh or from Welsh into English, the court listing officer in whose court the case is to be heard shall contact the Welsh Language Unit who will ensure the attendance of an accredited interpreter.

Jurors

3K.10 The jury bailiff, when addressing the jurors at the start of their period of jury service, shall inform them that each juror may take an oath or affirm in Welsh or English as he wishes.

3K.11 After the jury has been selected to try a case, and before it is sworn, the court officer swearing in the jury shall inform the jurors in open court that each juror may take an oath or affirm in Welsh or English as he wishes. A juror who takes the oath or affirms in Welsh should not be asked to repeat it in English.

3K.12 Where Welsh is used by any party or witness in a trial, an accredited interpreter will provide simultaneous translation from Welsh to English for the jurors who do not speak Welsh. There is no provision for the translation of evidence from English to Welsh for a Welsh speaking juror.

3K.13 The jury’s deliberations must be conducted in private with no other person present and therefore no interpreter may be provided to translate the discussion for the benefit of one or more of the jurors.

Witnesses

3K.14 When each witness is called, the court officer administering the oath or affirmation shall inform the witness that he may be sworn or affirm in Welsh or English, as he wishes. A witness who takes the oath or affirms in Welsh should not be asked to repeat it in English.

Opening / closing of Crown Courts

3K.15 Unless it is not reasonably practicable to do so, the opening and closing of the court should be performed in Welsh and English.

Role of Liaison Judge

3K.16 If any question or problem arises concerning the implementation of these directions, contact should in the first place be made with the Liaison Judge for the Welsh language through the Wales Circuit Office:

HMCTS WALES / GLITEM CYMRU

3rd Floor, Churchill House / 3ydd Llawr Tŷ Churchill

Churchill Way / Ffordd Churchill

Cardiff / Caerdydd

CF10 2HH

029 2067 8300

3L Security of Prisoners at Court

CPD I General Matters 3L: SECURITY OF PRISONERS AT COURT

Applications for use of approved restraints

Additional security measures

Crown Prosecution Service and the defence before proceeding. The application will only be granted if:

(a) there are good grounds for believing that the prisoner poses a significant risk of trying to escape from the court (beyond the assumed motivation of all prisoners to escape) and/or risk of serious harm towards those persons in court or the public generally should an escape attempt be successful; and

(b) where there is no other viable means of preventing escape or serious harm.

High-risk prisoners giving evidence from the witness box

3L.11 High-risk prisoners giving evidence from the witness box may pose a significant security risk. In circumstances where such prisoners are required to move from a secure dock to an insecure witness box, an application may be made for the court to consider the use of additional security measures including:

(a) the use of approved restraints;

(b) the deployment of additional escort staff or police in the courtroom or armed police in the building. The decision to deploy an armed escort is for the Chief Inspector of the relevant borough: the decision to allow the armed escort in or around the court room is for the Senior Presiding Judge (see below);

(c) securing the courtroom for all or part of the proceedings;

(d) giving evidence from the secure dock; and

(e) use of live link if the prisoner is not the defendant.

3M Procedure for application for armed police presence in the Royal Courts of Justice, Crown Courts and magistrates’ court buildings

CPD I General Matters 3M: PROCEDURE FOR APPLICATIONS FOR ARMED POLICE PRESENCE IN THE ROYAL COURTS OF JUSTICE, CROWN COURTS AND MAGISTRATES’ COURT BUILDINGS

3M.1 This Practice Direction sets out the procedure for the making and handling of applications for authorisation for the presence of armed police officers within the precincts of any Crown Court and magistrates’ court buildings at any time. It applies to an application to authorise the carriage of firearms or tasers in court for security purposes. It does not apply to officers who are carrying CS spray or PAVA incapacitant spray, which is included in the standard equipment issued to officers in some forces and therefore no separate authorisation is required for its carriage in court. Likewise, no separate authorisation is required for officers carrying tasers as part of their operational equipment where they are attending court on routine court business or to give evidence. If, however, the carrying of tasers is part of a tactical deployment for security purposes then an application must be made in accordance with the following provisions to ensure the court is aware of the arrangements sought.

Emergency situations

3M.4 This Practice Direction does not apply in an emergency situation. In such circumstances, the police must be able to respond in a way in which their professional judgment deems most appropriate.

Designated court centres

(a) South Eastern Circuit (London only): Westminster Magistrates’ Court and Belmarsh Magistrates’ Court.

Preparatory work prior to applications in all cases

changes to the premises and that there are no circumstances that might affect security arrangements.

Applying in the Royal Courts of Justice

Applying to the Crown Court

Urgent applications to the Crown Court

3M.20 If the temporary deployment of armed police arises as an urgent issue and a case would otherwise have to be adjourned; or if the trial judge is satisfied that there is a serious risk to public safety, then the Resident Judge will have a discretion to

agree such deployment without having obtained the consent of a Presiding Judge or the Senior Presiding Judge. In such a case:

(a) the Resident Judge should assess the facts and agree the proposed solution with a police officer of at least Superintendent level. That officer should agree the approach with the Firearms Division of the police.

(b) if the proposed solution involves the use of armed police officers, the Resident Judge must try to contact the Presiding Judge and/or the Senior Presiding Judge by email and telephone. The Cluster Manager should be informed of the situation.

(c) if the Resident Judge cannot obtain a response from the Presiding Judge or the Senior Presiding Judge, the Resident Judge may grant the application if satisfied:

(i) that the application is necessary;

(ii) that without such deployment there would be a significant risk to public safety; and

(iii) that the case would have to be adjourned at significant difficulty or inconvenience.

3M.21 The Resident Judge must keep the position under continual review, to ensure that it remains appropriate and necessary. The Resident Judge must make continued efforts to contact the Presiding Judge and the Senior Presiding Judge to notify them of the full circumstances of the authorisation.

Applying to the magistrates’ courts

Urgent applications in the magistrates’ courts

3M.24 If the temporary deployment of armed police arises as an urgent issue and a case would otherwise have to be adjourned; or if the Chief Magistrate is satisfied that there is a serious risk to public safety, then the Chief Magistrate will have a discretion to agree such deployment without having obtained the consent of the Senior Presiding Judge. In such a case:

(a) the Chief Magistrate should assess the facts and agree the proposed solution with a police officer of at least Superintendent level. That officer should agree the approach with the Firearms Division of the police.

(b) if the proposed solution involves the use of armed police officers, the Chief Magistrate must try to contact the Senior Presiding Judge by email and telephone. The Cluster Manager should be informed of the situation.

(c) if the Chief Magistrate cannot obtain a response from the Senior Presiding Judge, the Chief Magistrate may grant the application if satisfied:

(i) that the application is necessary;

(ii) that without such deployment there would be a significant risk to public safety; and

(iii) that the case would have to be adjourned at significant difficulty or inconvenience.

3M.25 The Chief Magistrate must keep the position under continual review, to ensure that it remains appropriate and necessary. The Chief Magistrate must make continued efforts to contact the Senior Presiding Judge to notify him of the full circumstances of the authorisation.

3N Use of live links and telephone hearings

CPD I General matters 3N: USE OF LIVE LINK AND TELEPHONE FACILITIES

is by definition public and the use of links such as Skype or Facetime, which are not generally considered secure from interception, may not be objectionable. If it is to participate in a hearing in private, and especially one at which sensitive information will be discussed – for example, on an application for a search warrant – then a more secure service is likely to be required.

the Criminal Procedure Rules define ‘court’ as ‘a tribunal with jurisdiction over criminal cases. It includes a judge, recorder, District Judge (Magistrates’ Court), lay justice and, when exercising their judicial powers, the Registrar of Criminal Appeals, a justices’ clerk or assistant clerk.’ Neither CrimPR 3.25 (Place of trial), which applies in the Crown Court, nor CrimPR 24.14 (Place of trial), which applies in magistrates’ courts, each of which requires proceedings to take place in a courtroom provided by the Lord Chancellor, applies for the purposes of a pre-trial hearing. Thus for the purposes of such a hearing there is no legal obstacle to the judge, magistrate or magistrates conducting it from elsewhere, with other participants assembled in a courtroom from which the member or members of the court are physically absent. In principle, nothing prohibits the conduct of a pre-trial hearing by live link or telephone with each participant, including the member or members of the court, in a different location (an arrangement sometimes described as a ‘virtual hearing’). This is dependent upon there being means by which that hearing can be witnessed by the public – for example, by public attendance at a courtroom or other venue from which the participants all can be seen and heard (if by live link), or heard (if by telephone). The principle of open justice to which paragraph 3N.17 refers is relevant.

3N.9 Sections 57A to 57F of the Crime and Disorder Act 1998 allow a defendant who is in custody to enter a plea by live link, and allow for such a defendant who attends by live link to be sentenced. In appropriate circumstances, the court may allow a defendant who is not in custody to enter a plea by live link; but the same considerations as apply to sentencing in such a case will apply: see paragraph 3N.13 beneath.

3N.10 The Crime and Disorder Act 1998 does not allow for the attendance by live link at a contested trial of a defendant who is in custody. The court may allow a defendant who wishes to do so to observe all or part of his or her trial by live link, whether she or he is in custody or not, but (a) such a defendant cannot lawfully give evidence by such means unless he or she satisfies the criteria prescribed by section 33A of the Youth Justice and Criminal Evidence Act 1999 and the court so orders under that section (see also CrimPR 18.14 – 18.17); (b) a defendant who is in custody and who observes the trial by live link is not present, as a matter of law, and the trial must be treated as taking place in his or her absence, she or he having waived the right to attend; and (c) a defendant who has refused to attend his or her trial when required to do so, or who has absconded, must not be permitted to observe the proceedings by live link.

3N.11 Paragraphs I 3D to 3G inclusive of these Practice Directions (Vulnerable people in the courts; Ground rules hearings to plan the questioning of a vulnerable witness or defendant; Intermediaries; Vulnerable defendants) contain directions relevant to the use of a live link as a special measure for a young or otherwise vulnerable witness, or to facilitate the giving of evidence by a defendant who is likewise young or otherwise vulnerable, within the scope of the Youth Justice and Criminal Evidence Act 1999. Defence representatives and the court must keep in mind that special measures under the 1999 Act and CrimPR Part 18, including the use of a live link, are available to defence as well as to prosecution witnesses who meet the statutory criteria. Defence representatives should always consider whether their witnesses would benefit from giving evidence by live link and should apply for a direction if appropriate, either at the case

management hearing or as soon as possible thereafter. A defence witness should be afforded the same facilities and treatment as a prosecution witness, including the same opportunity to make a pre-trial visit to the court building in order to familiarise himself or herself with it. Where a live link is sought as a special measure for a young or vulnerable witness or defendant, CrimPR 18.10 and 18.15 respectively require, among other things, that the applicant must identify someone to accompany that witness or defendant while they give evidence; must name the person, if possible; and must explain why that person would be an appropriate companion for that witness. The court must ensure that directions are given accordingly when ordering such a live link. Witness Service volunteers are available to support all witnesses, prosecution and defence, if required.

3N.12 Under sections 57A and 57D or 57E of the Crime and Disorder Act 1998 the court may pass sentence on a defendant in custody who attends by live link. The court may allow a defendant who is not in custody and who wishes to attend his or her sentencing by live link to do so, and may receive representations (but not evidence) from her or him by such means. Factors of which the court will wish to take account in exercising its discretion include, in particular, the penalty likely to be imposed; the importance of ensuring that the explanations of sentence required by CrimPR 24.11(9), in magistrates’ courts, and in the Crown Court by CrimPR 25.16(7), can be given satisfactorily, for the defendant, for other participants and for the public, including reporters; and the preferences of the maker of any Victim Personal Statement which is to be read aloud or played pursuant to paragraph VII F.3(c) of these Practice Directions.

Youth defendants

3N.13 In the youth court or when a youth is appearing in the magistrates’ court or the Crown Court, it will usually be appropriate for the youth to be produced in person at court. This is to ensure that the court can engage properly with the youth and that the necessary level of engagement can be facilitated with the Youth Offending Team worker, defence representative and/or appropriate adult responsible for the youth’s care. The court should deal with any application for use of a live-link on a case-by-case basis, after consultation with the parties and the Youth Offending Team. Such hearings that may be appropriate, include, onward remand hearings at which there is no bail application or case management hearings, particularly if the youth is already serving a custodial sentence.

3N.14 It rarely will be appropriate for a youth to be sentenced over a live link. However, notwithstanding the court’s duties of engagement with a youth, the overriding welfare principle and the statutory responsibility of the youth offending worker to explain the sentence to the youth, after consultation with the parties and the Youth Offending Team, there may be circumstances in which it may be appropriate to sentence a youth over the live-link:

a) If the youth is already serving a custodial sentence and the sentence to be imposed by the court is bound to be a further custodial sentence, whether concurrent or consecutive;

b) If the youth is already serving a custodial sentence and the court is minded to impose a non-custodial sentence which will have no material impact on the sentence being served;

c) The youth is being detained in a secure establishment at such a distance from the court that the travelling time from one to the other will be significant so as to materially affect the welfare of the youth;

d) The youth’s condition-whether mental or otherwise- is so disturbed that his or her production would be a significant detriment to his or her welfare.

3N.15 Arrangements must be made in advance of any live link hearing to enable the youth offending worker to be at the secure establishment where the youth is in custody. In the event that such arrangements are not practicable, the youth offending worker must have sufficient access to the youth via the live link booth before and after the hearing.

Conduct of participants

3N.16 Where a live link is used, the immediate vicinity of the device by which a person attends becomes, temporarily, part of the courtroom for the purposes of that person’s participation. That person, and any advocate or legal representative, custodian, court officer, intermediary or other companion, whether immediately visible to the court or not, becomes a participant for the purposes of CrimPR 1.2(2) and is subject to the court’s jurisdiction to regulate behaviour in the courtroom. The substance and effect of this direction must be drawn to the attention of all such participants.

Open justice and records of proceedings

3N.17 The principle of open justice to which CrimPR 6.2(1) gives effect applies as strongly where electronic means of communication are used to conduct a hearing as it applies in other circumstances. Open justice is the principal means by which courts are kept under scrutiny by the public. It follows that where a participant attends a hearing in public by live link or telephone then that person’s participation must be, as nearly as may be, equally audible and, if applicable, equally visible to the public as it would be were he or she physically present. Where electronic means of communication are used to conduct a hearing, records of the event must be maintained in the usual way: CrimPR 5.4. In the Crown Court, this includes the recording of the proceedings: CrimPR 5.5.

Annex 1 Guidance on establishing and using live link and telephone facilities for criminal court hearings

CPD I Annex:

GUIDANCE ON ESTABLISHING AND USING LIVE LINK AND TELEPHONE FACILITIES FOR CRIMINAL COURT HEARINGS

1. This guidance supplements paragraph I 3N of these Practice Directions on the use of live link and telephone facilities to conduct a hearing or receive evidence in a criminal court.

2. This guidance deals with many of the practical considerations that arise in connection with setting up and using live link and telephone facilities. However, it does not contain detailed instructions about how to use particular live link or telephone equipment at particular locations (how to turn the equipment on; how, and exactly when, to establish a connection between the courtroom and the other location; etc.) because details vary from place to place and cannot practicably all be contained in general guidance. Those details will be made available locally to those who need them. Nor does this guidance contain detailed instructions about the individual responsibilities of court staff, police officers and prison staff because those are matters for court managers, Chief Constables and HM Prison Governors.

Installation of live link and telephone facilities in the courtroom

3. Everyone in the courtroom must be able to hear and, in the case of a live link, see clearly those who attend by live link or telephone; and the equipment in the courtroom must allow those who attend by live link or telephone to hear, and in the case of a live link see, all the participants in the courtroom. If more than one person is to attend by live link or telephone simultaneously then the equipment must be capable of accommodating them all. (These requirements of course are subject to any special or other measures which a court in an individual case may direct to prevent a witness seeing, or being seen by, the defendant or another participant, or members of the public.)

4. Some of the considerations that apply to the installation and use of equipment in other locations will apply in a courtroom, too. They are set out in the following paragraphs. In the case of a live link, attention will need to be given to lighting and to making sure that those attending by live link can see and hear clearly what takes place in the courtroom without being distracted by the movement of court staff, legal representatives or members of the public, or by noise inside the courtroom. The sensitivity and positioning of the courtroom microphones may mean that even the movement of papers, or the operation of keyboards, while barely audible inside the courtroom itself, is clearly audible and distracting to a witness or defendant attending by live link or telephone.

Installation and use of live link and telephone facilities in a live link room

5. Paragraph 6 applies to the installation and use of equipment in a building or in a vehicle which is to be used regularly for giving evidence by live link. It applies to a room within the court building, but separated from the courtroom itself, from which a witness can give evidence by live link; it applies to such a room at a police station or elsewhere which has been set aside for regular use for such a purpose; and it applies to a van or other vehicle which has been adapted for use as a mobile live link room. However, that paragraph does not apply to the courtroom itself; it does not apply to a place from which a witness gives evidence, or a participant takes part in the proceedings, by live link or telephone, if that place is not regularly used for such a purpose (but see paragraph 7 beneath); and it does not apply in a prison or other place of detention (as to which, see paragraph 12 beneath). The objective is to ensure that anyone who participates by live link or telephone is conscious of the gravity of the occasion and of the authority of the court, and realises that they are required to conduct themselves in the same respectful manner as if they were physically present in a courtroom.

6. A live link room should have the following features:

(a) the room should be an appropriate size, neither too small nor too large.

(b) the room should have suitable lighting, whether natural or electric. Any windows may need blinds or curtains fitted that can be adjusted in accordance with the weather conditions outside and to ensure privacy.

(c) there should be a sign or other means of making clear to those outside the room when the room is in use.

(d) arrangements should be made to ensure that nobody in the vicinity of the room is able to hear the evidence being given inside, unless the court otherwise directs (for example, to allow a witness’ family to watch the witness’ evidence on a supplementary screen in a nearby waiting room, as if they were seeing and hearing that evidence by live link in the courtroom).

(e) arrangements should be made to minimise the risk of disruption to the proceedings by noise outside the room. Such noise will distract the witness and may be audible and distracting to the court.

(f) the room should be provided with appropriate and comfortable seating for the witness and, where the witness is a civilian witness, seating for a Witness Service or other companion. A waiting area/room adjacent to the live link room may be required for any other persons attending with the witness. There must be adequate accommodation, support and, where appropriate, security within the premises for witnesses. If both prosecution and defence witnesses attend the same facility, they should wait in separate rooms. It may be inappropriate for defence witnesses to give evidence in police premises (for example in a trial for assaulting a police officer) and in that case parties and the court should identify an alternative venue such as a court building (not necessarily the location of the hearing), or arrange for evidence to be given from elsewhere by Skype, etc. Care must be taken to ensure that all witnesses, whether prosecution or defence, are afforded the same assistance, respect and security.

(g) the equipment installed (monitor, microphone and camera, or cameras) in the room must be good enough to ensure that both the picture and sound quality from the room to the court, and from the court to the room, is fit for purpose. The link must enable all in the courtroom to see and hear the witness clearly and it must enable the witness to see and hear clearly all participants in the courtroom.

(h) unless the court otherwise directs, the witness usually will sit to take the oath or affirm and to give evidence. The camera(s) must be positioned to ensure that the witness’ face and demeanour can be seen whether he or she sits or stands.

(i) the wall behind the witness, and thus in view of the camera, should be a pale neutral colour (beige and light green/blue are most suitable) and there should be no pictures or notices displayed on that wall.

(j) the Royal coat of arms may be displayed to remind witnesses and others that when in use the room is part of the courtroom.

(k) a notice should be displayed that reminds users of the live link to conduct themselves in the same manner as if they were present in person in the courtroom, and to remind them that while using the live link they are subject to the court’s jurisdiction to regulate behaviour in the courtroom.

(l) the room should be supplied with the same oath and affirmation cards and Holy books as are available in a courtroom. The guidance for the taking of oaths and the making of affirmations which applies in a courtroom applies equally in a live link room. Holy books must be treated with the utmost respect and stored with appropriate care.

(m) unless court or other staff are on hand to operate the live link or telephone equipment, clear instructions for users must be in the live link room explaining how, and when, to establish a connection to the courtroom.

Provision and use of live link and telephone facilities elsewhere

7. Where a witness gives evidence by live link, or a participant takes part in proceedings by live link or telephone, otherwise than from an established live link room, the objective remains the same as explained in paragraph 5 above. In accordance with that objective, the spirit of the requirements for a live link room should be followed as far as is reasonably practicable; but of course the court will not expect adherence to the letter of those requirements where, for example, a witness who is seriously ill but still able to testify is willing to do so from his or her sick bed, or a doctor or other expert witness is to testify by live link from her or his office. In any such case it is essential that the parties anticipate the arrangements and directions that may be required. Of particular and obvious importance is the need for arrangements that will exclude audible and visible interruptions during the proceedings, and the need for adequate clarity of communication between the remote location and the courtroom.

Conduct of hearings by live link or telephone

8. Before live link or telephone equipment is to be used to conduct a hearing, court staff must make sure that the equipment is in working order and that the essential criteria listed in paragraph I 3N.4 of the Practice Directions (‘appropriate’ facilities) are met.

9. If a witness who gives evidence by live link produces exhibits, the court must be asked to give appropriate directions during preparation for trial. In most cases the parties can be expected to agree the identity of the exhibit, whatever else is in dispute. In the absence of agreement, documentary exhibits, copies of which have been provided under CrimPR 24.13 (magistrates’ court trial) or CrimPR 25.17 (Crown Court trial), and other exhibits which are clearly identifiable by reference to their features and which have been delivered by someone else to the court, may be capable of production by a witness who is using a live link.

10. Where a witness who gives evidence by live link is likely to be referred to exhibits or other material while he or she does so, whether or not as the producer of an exhibit, the court must be asked to give directions during preparation for trial to facilitate such a reference: for example, by requiring the preparation of a paginated and indexed trial bundle which will be readily accessible to the witness, on paper or in electronic form, as well as available to those who are in the courtroom. It is particularly important to make sure that documents and images which are to be displayed by electronic means in the courtroom will be accessible to the witness too. It is unlikely that the live link equipment will be capable of displaying sufficiently clearly to the witness images displayed only on a screen in the courtroom; and likely to be necessary to arrange for those images to be displayed also at the location from which the witness gives evidence, or made available to him or her by some other means. It is likewise important that there should be readily accessible to the witness, on paper or in electronic form, a copy of his or her witness statement (to which she or he may be referred under CrimPR 24.4(5), in a magistrates’ court, or under CrimPR 25.11(5), in the Crown Court) and transcript of his or her ABE interview, if applicable.

Conduct of those attending by live link or telephone: practical considerations

11. A person who gives evidence by live link, or who participates by live link or telephone, must behave exactly as if he or she were in the courtroom, addressing the court and the other participants in the proper manner and observing the appropriate social conventions, remembering that she or he will be heard, and if using a live link seen, as if physically present. A practical application of the rules and social conventions governing a participant’s behaviour requires, among other things, the following:

(1) in the case of a professional participant, including a police officer, lawyer or expert witness:

(a) a participant should prepare themselves to communicate with the court with adequate time in hand, and especially where it will be necessary first to establish the live link or telephone connection with the court.

(b) on entering a live link room a participant should ensure that those outside are made aware that the room is in use, to avoid being interrupted while in communication with the court.

(c) a participant should ensure that they have the means to communicate with court staff by some means other than the proposed live link or telephone equipment, in case the equipment they plan to use should fail. They should have to hand an alternative contact number for the court and, if using a mobile phone for the purpose, they should ensure that it is fully charged.

(d) immediately before using the live link or telephone equipment to communicate with the court the person using that equipment and any other person in the live link room must as a general rule switch off any mobile telephone or other device which might interfere with that equipment or interrupt the proceedings. If the device is essential to giving evidence (for example, an electronic notebook), or if it is the only available means of communication with court staff should the other equipment fail, then every effort must be made to minimise the risk of interference, for example by switching a mobile telephone to silent and by placing electronic devices at a distance from the microphone.

(e) a person who gives evidence by live link, or who takes part in the proceedings for some other purpose by live link, must dress as they would if attending by physical presence in the courtroom.

each person in a live link room, whether he or she can be seen by the court or not, and each person present where a telephone conference or loudspeaker facility is in use, must identify themselves clearly to the court.

(g) a person who participates by telephone otherwise than from a room specially equipped for that purpose must take care to ensure that they cannot be interrupted while in communication with the court and that no extraneous noise will be audible so as to distract that participant or the court.

(h) a person who participates by telephone in a call to which he or she, the court and others all contribute must take care to speak clearly and to avoid interrupting in such a way as to prevent any other participant hearing what is said. Particular care is required where a participant uses a hands-free or other loudspeaker phone.

(i) a witness who gives evidence by live link may take with him or her into the live link room a copy of her or his written witness statement and (if a police officer) his or her notebook. While giving evidence the witness must place the statement or notes face down, or otherwise out of sight, unless the court gives permission to refer to it. The witness must take the statement or notes away when leaving the live link room.

(j) where successive witnesses are due to give evidence about the same events by live link, and especially where they are due to do so from the same live link room; where the events in question are controversial; or where there is any suggestion that arrangements are required to guard against the accidental or deliberate contamination of a witness’ evidence by communication with one who has already given evidence, then the court must be asked to give directions accordingly. Subject to those directions, the usual arrangement should be that a witness who has been released should remain in sight of the court, by means of the live link, in the live link room while the next witness enters, and then should leave: so that the court will be able to see that no inappropriate communication between the two has occurred.

(2) in the case of any other participant:

(a) the preparation of any live link room and the use of the equipment will be the responsibility of court staff, or of the staff present at that live link room if it is outside the court building. Where the participant is a witness giving evidence pursuant to a special measures direction, detailed arrangements will have been made accordingly.

(b) mobile telephones and other devices that might interfere with the live link or telephone equipment must be switched off.

(c) a witness or other participant should take care to speak clearly and to avoid interrupting or making a sound which prevents another participant hearing what is said, especially where a hands-free or other loudspeaker phone is in use.

(d) the party who calls a witness, or the witness supporter, or court or other staff, as the case may be, must supply the witness with all he or she may need for the purpose of giving evidence, in accordance with the relevant rules and Practice Directions. This may, and usually will, include a copy of the witness’ statement, in case it becomes necessary to ask him or her to refer to it, and copies of any exhibits or other material to which he or she may be asked to refer: see also paragraph 10 above.

Prison to court video links

12. The objective of the guidance in the preceding paragraphs applies. It is essential that the authority and gravity of the proceedings is respected, by defendants and by their custodians. Detailed instructions are contained in the information issued jointly by the National Offender Management Service and by HM Courts and Tribunals Service, with which prison and court staff must familiarise themselves. The principles set out in that guidance correspond with those of the Criminal Practice Directions, as elaborated in this guidance.

13. Where a defendant in custody attends court by live link it is likely that he or she will need to communicate with his or her representatives before and after the hearing, using the live link or by telephone. Arrangements will be required to allow that to take place.

14. Court staff are reminded that a live link to a prison establishment is a means of communication with the defendant. It does not provide an alternative means of formal communication with that establishment and it may not be used in substitution for service on that establishment of those notices and orders required to be served by the Criminal Procedure Rules.

3P Commissioning medical reports

CPD I General matters 3P: COMMISSIONING MEDICAL REPORTS

General observations

directions for trial the court should include a timetable for the reception of that report and should give directions for progress to be reviewed at intervals, adopting the timetable set out in these directions with such adaptations as are needed.

Timetable for the commissioning, preparation and consideration of a report or reports

(a) the convening of a further pre-trial case management hearing to consider the report and its implications for the conduct of the proceedings no more than 6 – 8 weeks after the court makes its request in a magistrates’ court, and no more than 10 – 12 weeks after the request in the Crown Court (at the end of Stage 2 of the directions for pre-trial preparation in the Crown Court);

(b) the prompt identification of an appropriate medical practitioner or practitioners, if not already identified by the court, and the despatch of a commission or commissions accordingly, within 2 business days of the court’s decision to request a report;

(c) acknowledgement of a commission by its recipient, and acceptance or rejection of that commission, within 5 business days of its receipt;

(d) enquiries by court staff to confirm that the commission has been received, and to ascertain the action being taken in response, in the event that no acknowledgement is received within 10 business days of its despatch;

(e) delivery of the report within 5 weeks of the despatch of the commission;

(f) enquiries into progress by court staff in the event that no report is received within 5 weeks of the despatch of the commission.

(a) the further pre-trial case management hearing convened to consider the report rarely should be adjourned before it takes place: see paragraph 3O.13 above;

(b) directions should be given for court staff henceforth to make regular enquiries into progress, at prescribed intervals of not more than 2 weeks, and to report the outcome to an appropriate judicial authority who will decide what further directions, if any, to give.

3P.10 Any adjournment of a hearing convened to consider the report should be to a specific date: the hearing should not be adjourned generally, or to a date to be set in due course. The adjournment of such a hearing should not be for more than a further 6 – 8 weeks save in the most exceptional circumstances; and no more than one adjournment of the hearing should be allowed without obtaining written or oral representations from the commissioned medical practitioner explaining the reasons for the delay.

Commissioning a report

3P.11 Guidance entitled ‘Good practice guidance: commissioning, administering and producing psychiatric reports for sentencing’ prepared for and published by the Ministry of Justice and HM Courts and Tribunals Service in September 2010 contains material that will assist court staff and those who are asked to prepare such reports:

http://www.ohrn.nhs.uk/resource/policy/GoodPracticeGuidePsychReports.pdf

The guidance includes standard forms of letters of instruction and other documents.

3P.12 CrimPR 3.28 requires the commissioner of a report to explain why the court seeks the report and to include relevant information about the circumstances. The HMCTS Guidance contains forms for judicial use in the instruction of court staff, and guidance to court staff on the preparation of letters of instruction, where a report is required for sentencing purposes. Those forms and that guidance can be adapted for use where the court requires a report on the defendant’s fitness to particpate, in the Crown Court, or in a magistrates’ court requires a report for the purposes of section 37(3) of the Mental Health Act 1983.

3P.13 The commission should invite a practitioner who is unable to accept it promptly to nominate a suitably qualified substitute, if possible, and to transfer the commission to that person, reporting the transfer when acknowledging the court officer’s letter. It is entirely appropriate for the commission to draw the recipient’s attention to CrimPR 1.2 (the duty of the participants in a criminal case) and to CrimPR 19.2(1)(b) (the obligation of an expert witness to comply with directions made by a court and at once to inform the court of any significant failure, by the expert or another, to take any step required by such a direction).

3P.14 Where the relevant legislation requires a second psychiatric assessment by a second medical practitioner, and where no commission already has been addressed to a second such practitioner, the commission may invite the person to

whom it is addressed to nominate a suitably qualified second person and to pass a copy of the commission to that person forthwith.

Funding arrangements

3P.15 Where a medical report has been, or is to be, commissioned by a party then that party is responsible for arranging payment of the fees incurred, even though the report is intended for the court’s use. That must be made clear in that party’s commission.

3P.16 Where a medical report is requested by the court and commissioned by a party or by court staff at the court’s direction then the commission must include (i) confirmation that the fees will be paid by HMCTS, (ii) details of how, and to whom, to submit an invoice or claim for fees, and (iii) notice of the prescribed rates of fees and of any legislative or other criteria applicable to the calculation of the fees that may be paid.

Remand in custody

3P.17 Where the defendant who is to be examined will be remanded in custody then notice that directions have been given for a medical report or reports to be prepared must be included in the information given to the defendant’s custodian, to ensure that the preparation of the report or reports can be facilitated. This is especially important where bail is withheld on the ground that it would be otherwise impracticable to complete the required report, and in particular where that is the only ground for withholding bail.

3Q Failure to comply with requirement to give name, date of birth and nationality

CPD I General matters 3Q: FAILURE TO COMPLY WITH REQUIREMENT TO GIVE NAME,

DATE OF BIRTH AND NATIONALITY

3Q.1 Section 86A of the Courts Act 2003 requires a magistrates’ court and the Crown Court to require a defendant to provide his or her name, date of birth and nationality in the circumstances and at the times set out in CrimPR 3.13(5) and 3.27(5). Section 86A(3) of the Act makes it an offence for the defendant without reasonable excuse to fail to comply with such a requirement, whether by providing false or incomplete information or by providing no information. A person guilty of such an offence is liable on summary conviction to imprisonment for a term not exceeding 6 months, or to a fine, or both. It follows that a prosecution for failure to comply with a section 86A requirement may be brought by any of the procedures for which CrimPR Part 7 provides (Starting a prosecution in a magistrates’ court) in the same way as any other allegation of a summary offence.

which it was committed the seriousness of which can be reflected by an appropriate and, generally, separate penalty.

3Q.5 Whether an alleged contravention of a section 86A requirement is dealt with the same day or later, after investigation by the police, no member of the court before whom the alleged contravention occurs should participate in the proceedings as the complainant or as a witness. Nor will it be appropriate to invite the defendant’s representative, if any, to give evidence of what that representative may have witnessed in the court room. It is unexceptionable for court staff, including a legal adviser in a magistrates’ court, to be asked to give evidence of what has taken place.

3Q.6 The offence contrary to section 86A(3) of the 2003 Act is one to which the time limit imposed by section 127 of the Magistrates’ Courts Act 1980 applies, namely that a magistrates' court may not try an information unless that information was laid within 6 months from the time when the offence was committed. Where the court does not adopt the procedure described in paragraphs 3Q.2 and 3Q.3 above the alleged offence must be reported promptly to allow it to be investigated and, if appropriate, prosecuted in time.

3R Hearing to inform the court of sensitive material

CPD I General matters 3R: HEARING TO INFORM THE COURT OF SENSITIVE MATERIAL

3R.1 CrimPR 3.29 (Hearing to inform the court of sensitive material) governs the procedure that must be followed where a prosecutor has, or is aware of, sensitive material to which the prosecutor does not think the obligation to disclose applies but of the existence of which the prosecutor thinks it necessary to inform the court in order to mitigate the risks listed in that rule.

3R.2 Examples of such material were given by the Court of Appeal in R v Ali [2019] EWCA Crim 1527. Examples include information about the activities of a defendant or witness, or about a person to whom the evidence in the case refers, or information to the effect that the prosecution evidence omits matters irrelevant to the trial, derived from observations, for example, which is of sensitivity in some other respect. These are, however, only examples and other material may come within the scope of the rule.

3R.3 In the Crown Court a hearing to which rule 3.29 applies must be recorded: CrimPR 5.5 (Recording and transcription of proceedings in the Crown Court). It is very likely that the hearing will be conducted in private (see CrimPR 3.29(4))

and very likely that it will take place in a private room rather than in the courtroom. The recording therefore should be made using a suitable and suitably secure device, and it should be stored securely. In some circumstances that may require arrangements for the storage of the recording to be dealt with in accordance with CrimPR 3.29(4)(c)(ii) (storage by an appropriate person other than the court officer). Such storage arrangements are likely also to apply to any written material provided to the court under CrimPR 3.29(3)(c).

5A Forms

CrimPR Part 5 Forms and court records

CPD I General matters 5A: FORMS

CPD I General matters 5B: ACCESS TO INFORMATION HELD BY THE COURT

i. whether or not the request is for the purpose of contemporaneous reporting; a request after the conclusion of the proceedings will require careful scrutiny by the court;

ii. the nature of the information or documents being sought;

iii. the purpose for which they are required;

iv. the stage of the proceedings at the time when the application is made;

v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a ‘public watchdog’, by reporting the proceedings effectively;

vi. any risk of harm which access to them may cause to the legitimate interests of others; and

vii. any reasons given by the parties for refusing to provide the material requested and any other representations received from the parties. Further, all of the principles below are subject to any specific restrictions in the case. Courts should be aware that the risk of providing a document may reduce after a particular point in the proceedings, and when the material requested may be made available.

Documents read aloud in their entirety

5B.10 If a document has been read aloud to the court in its entirety, it should usually be provided on request, unless to do so would be disruptive to the court proceedings or place an undue burden on the court, the advocates or others. It may be appropriate and convenient for material to be provided electronically, if this can be done securely.

5B.11 Documents likely to fall into this category are:

i. Opening notes

ii. Statements agreed under section 9 of the Criminal Justice Act 1967, including experts’ reports, if read in their entirety iii. Admissions made under section 10 of the Criminal Justice Act 1967.

Documents treated as read aloud in their entirety

5B.12 A document treated by the court as if it had been read aloud in public, though in fact it has been neither read nor summarised aloud, should generally be made available on request. The burden on the court, the advocates or others in providing the material should be considered, but the presumption in favour of providing the material is greater when the material has only been treated as having been read aloud. Again, subject to security considerations, it may be convenient for the material to be provided electronically.

5B.13 Documents likely to fall into this category include:

i. Skeleton arguments

ii. Written submissions

iii. Written decisions by the court

Documents read aloud in part or summarised aloud

5B.14 Open justice requires only access to the part of the document that has been read aloud. If a member of the public requests a copy of such a document, the court should consider whether it is proportionate to order one of the parties to produce a suitably redacted version. If not, access to the document is unlikely to be granted; however open justice will generally have been satisfied by the document having been read out in court.

5B.15 If the request comes from an accredited member of the press (see Access by reporters below), there may be circumstances in which the court orders that a copy of the whole document be shown to the reporter, or provided, subject to the condition that those matters that had not been read out to the court may not be used or reported. A breach of such an order would be treated as a contempt of court.

5B.16 Documents in this category are likely to include:

i. Section 9 statements that are edited

Jury bundles and exhibits (including video footage shown to the jury)

5B.17 The court should consider:

i. whether access to the specific document is necessary to understand or effectively to report the case;

ii. the privacy of third parties, such as the victim (in some cases, the reporting restriction imposed by section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 will apply (indecent or medical matter));

iii. whether the reporting of anything in the document may be prejudicial to a fair trial in this or another case, in which case whether it may be necessary to make an order under section 4(2) of the Contempt of Court Act 1981.

The court may order one of the parties to provide a copy of certain pages (or parts of the footage), but these should not be provided electronically.

Statements of witnesses who give oral evidence

5B.18 A witness statement does not become evidence unless it is agreed under section 9 of the Criminal Justice Act 1967 and presented to the court. Therefore the statements of witnesses who give oral evidence, including ABE interview and transcripts and experts’ reports, should not usually be provided. Open justice is generally satisfied by public access to the court.

Confidential documents

5B.19 A document the content of which, though relied upon by the court, has not been communicated to the public or reporters, nor treated as if it had been, is likely to have been supplied in confidence and should be treated accordingly. This will apply even if the court has made reference to the document or quoted from the document. There is most unlikely to be a sufficient reason to displace the expectation of confidentiality ordinarily attaching to a document in this category, and it would be exceptional to permit the inspection or copying by a member of the public or of the media of such a document. The rights and legitimate interests

of others are likely to outweigh the interests of open justice with respect these documents.

5B.20 Documents in this category are likely to include:

i. Pre-sentence reports

ii. Medical reports

iii. Victim Personal Statements

iv. Reports and summaries for confiscation

Prohibitions against the provision of information

5B.21 Statutory provisions may impose specific prohibitions against the provision of information. Those most likely to be encountered are listed in the note to CrimPR 5.8 and include the Rehabilitation of Offenders Act 1974, section 18 of the Criminal Procedure and Investigations Act 1996 (“unused material” disclosed by the prosecution), sections 33, 34 and 35 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO Act 2012’) (privileged information furnished to the Legal Aid Agency) and reporting restrictions generally.

5B.22 Reports of allocation or sending proceedings are restricted by section 52A of the Crime and Disorder Act 1998, so that only limited information, as specified in the statute, may be reported, whether it is referred to in the courtroom or not. The magistrates’ court has power to order that the restriction shall not apply; if any defendant objects the court must apply the interests of justice test as specified in section 52A. The restriction ceases to apply either after all defendants indicate a plea of guilty, or after the conclusion of the trial of the last defendant to be tried. If the case does not result in a guilty plea, a finding of guilt or an acquittal, the restriction does not lift automatically and an application must be made to the court.

5B.23 Extradition proceedings have some features in common with committal proceedings, but no automatic reporting restrictions apply.

5B.24 Public Interest Immunity and the rights of a defendant, witnesses and victims under Article 6 and 8 of the European Convention on Human Rights may also restrict the power to release material to third parties.

Other documents

5B.25 The following table indicates the considerations likely to arise on an application to inspect or copy other documents.

be supplied under CrimPR 5.8(4)

Access by reporters

5B.26 Under CrimPR Part 5 , the same procedure applies to applications for access to information by reporters as to other members of the public. However, if the application is made by legal representatives instructed by the media, or by an accredited member of the media, who is able to produce in support of the application a valid Press Card (http://www.ukpresscardauthority.co.uk/) then there is a greater presumption in favour of providing the requested material, in recognition of the press’ role as ‘public watchdog’ in a democratic society (Observer and Guardian v United Kingdom (1992) 14 E.H.R.R. 153, Times November 27, 1991). The general principle in those circumstances is that the court should supply documents and information unless there is a good reason not to in order to protect the rights or legitimate interests of others and the request will not place an undue burden on the court (R(Guardian News and Media Ltd) at [87]). Subject to that, the paragraphs above relating to types of documents should be followed.

5B.27 Court staff should usually verify the authenticity of cards, checking the expiry date on the card and where necessary may consider telephoning the number on the reverse of the card to verify the card holder. Court staff may additionally request

sight of other identification if necessary to ensure that the card holder has been correctly identified. The supply of information under CrimPR 5.8(7) is at the discretion of the court, and court staff must ensure that they have received a clear direction from the court before providing any information or material under rule 5.8(7) to a member of the public, including to the accredited media or their legal representatives.

5B.28 Opening notes and skeleton arguments or written submissions, once they have been placed before the court, should usually be provided to the media. If there is no opening note, permission for the media to obtain a transcript of the prosecution opening should usually be given (see below). It may be convenient for copies to be provided electronically by counsel, provided that the documents are kept suitably secure. The media are expected to be aware of the limitations on the use to which such material can be put, for example that legal argument held in the absence of the jury must not be reported before the conclusion of the trial.

5B.29 The media should also be able to obtain transcripts of hearings held in open court directly from the transcription service provider, on payment of any required fee. The service providers commonly require the judge’s authorisation before they will provide a transcript, as an additional verification to ensure that the correct material is released and reporting restrictions are noted. However, responsibility for compliance with any restriction always rests with the person receiving the information or material: see CPD I General matters 6B, beneath.

5B.30 It is not for the judge to exercise an editorial judgment about ‘the adequacy of the material already available to the paper for its journalistic purpose’ (Guardian at 82) but the responsibility for complying with the Contempt of Court Act 1981 and any and all restrictions on the use of the material rests with the recipient.

Written decisions

5B.31 Where the Criminal Procedure Rules allow for a determination without a hearing there may be occasions on which it furthers the overriding objective to deliver the court’s decision to the parties in writing, without convening a public hearing at which that decision will be pronounced: on an application for costs made at the conclusion of a trial, for example. If the only reason for delivering a decision in that way is to promote efficiency and expedition and if no other consideration arises then usually a copy of the decision should be provided in response to any request once the decision is final. However, had the decision been announced in public then the criteria in CrimPR 5.8(4)(a) would have applied to the supply of information by the court officer; and ordinarily those same criteria should be applied by the court, therefore. Moreover, where considerations other than efficiency and expedition have influenced the court’s decision to reach a determination without convening a hearing then those same considerations may be inimical to the supply of the written decision to any applicant other than a party. Reporting restrictions may be relevant, for example; as may the considerations listed in paragraph 5B.9 above. In such a case the court should consider supplying a redacted version of the decision in response to a request by anyone who is not a party; or it may be appropriate to give the decision in terms that can be supplied to the public, supplemented by additional reasons provided only to the parties.

Transcript

5B.32 CrimPR 5.5 does not require an application to the court for transcript, nor does the rule anticipate recourse to the court for a judicial decision about the supply of transcript in any but unusual circumstances. Ordinarily it is the rule itself that determines the circumstances in which the transcriber of a recording may or may not supply transcript to an applicant.

5B.33 Where reporting restrictions apply to information contained in the recording from which the transcript is prepared then unless the court otherwise directs it is for the transcriber to redact that transcript where redaction is necessary to permit its supply to that applicant. Having regard to the terms of the statutes that impose reporting restrictions, however, it is unlikely that redaction will be required frequently. Statutory restrictions prohibit publication ‘to the public at large or any section of the public’, or some comparable formulation. They do not ordinarily prohibit a publication constituted only of the supply of transcript to an individual applicant. However, any reporting restrictions will continue to apply to a recipient of transcript, and where they apply the recipient must be alerted to them by the endorsement on the transcript of a suitable warning notice, to this or the like effect:

“WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.”

5B.34 Exceptionally, court staff may invite the court to direct that transcript must be redacted before it is supplied to an applicant, or that transcript must not be supplied to an applicant pending the supply of further information or assurances by that applicant, or at all, in exercise of the judicial discretion to which CrimPR 5.5(2) refers. Circumstances giving rise to concern may include, for example, the occurrence of events causing staff reasonably to suspect that an applicant intends or is likely to disregard a reporting restriction that applies, despite the warning notice endorsed on the transcript, or reasonably to suspect that an applicant has malicious intentions towards another person. Given that the proceedings will have taken place in public, despite any such suspicions cogent and compelling reasons will be required to deny a request for transcript of such proceedings and the onus rests always on the court to justify such a denial, not on the applicant to justify the request. Even where there are reasons to suspect a criminal intent, the appropriate course may be to direct that the police be informed of those reasons rather than to direct that the transcript be withheld. Nevertheless, it may be appropriate in such a case to direct that an application for the transcript should be made which complies with paragraph 5B.8 above (even though that paragraph does not apply); and then for the court to review that application with regard to

the considerations listed in paragraph 5B.9 above (but the usual burden of justifying a request under that paragraph does not apply).

CPD I General matters: 5C ISSUE OF MEDICAL CERTIFCATES

(a) Where the certificate indicates that the defendant is unfit to attend work (rather than to attend court);

(b) Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;

(c) Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.

CrimPR Part 6 Reporting, etc. restrictions

CPD I General matters 6A: UNOFFICIAL SOUND RECORDING OF PROCEEDINGS

(a) the existence of any reasonable need on the part of the applicant for leave, whether a litigant or a person connected with the press or broadcasting, for the recording to be made;

(b) the risk that the recording could be used for the purpose of briefing witnesses out of court;

(c) any possibility that the use of the recorder would disturb the proceedings or distract or worry any witnesses or other participants.

CPD I General matters 6B: RESTRICTIONS ON REPORTING PROCEEDINGS

breach of any order occurs and the onus rests on such person to make enquiry in case of doubt.

6C The use of live text-based forms of communication (including Twitter) from court for the purposes of fair and adequate reporting

CPD I General matters 6C: USE OF LIVE TEXT-BASED FORMS OF COMMUNICATION (INCLUDING TWITTER) FROM COURT FOR THE PURPOSES OF FAIR AND ACCURATE REPORTING

6C.1 This part clarifies the use which may be made of live text-based communications, such as mobile email, social media (including Twitter) and internet-enabled laptops in and from courts throughout England and Wales. For the purpose of this part these means of communication are referred to, compendiously, as ‘live textbased communications’. It is consistent with the legislative structure which:

(a) prohibits:

(i) the taking of photographs in court (section 41 of the Criminal Justice Act 1925);

(ii) the use of sound recording equipment in court unless the leave of the judge has first been obtained (section 9 of the Contempt of Court Act 1981); and

(b) requires compliance with the strict prohibition rules created by sections 1, 2 and 4 of the Contempt of Court Act 1981 in relation to the reporting of court proceedings.

General Principles

The same factors are likely to be relevant when consideration is being given to the exercise of this discretion in civil or family proceedings.

Use of Live Text-based Communications: General Considerations

equipment, or because the widespread use of such devices in court may cause a distraction in the proceedings.

CPD I General matters 6D: TAKING NOTES IN COURT

reporting restriction then that, too, would constitute grounds for prohibiting such note taking.

6E Access to courts

CPD I General matters 6E: ACCESS TO COURTS

6E.1 The right of the public to access court rooms to observe proceedings is a fundamental part of open justice, and good practice will ensure that the public are able to view proceedings quietly, and without causing interruption, as far as is possible.

6E.2 However, as observed in R (O’Connor) v Aldershot Magistrates’ Court [2017] 1 WLR 2833 “The right to attend a public court hearing and to enter the court building for that purpose is not unqualified.” The court has an inherent power to restrict public access to the courtroom where it is necessary to do so in the interests of justice, for example to prevent disorder.

6E.3 During criminal proceedings in a Crown Court there are some specific parts of proceedings whereby it may be appropriate for a judge to restrict movement in the public gallery. As observed by Bean LJ in R (on the application of Ewing) v Isleworth Crown Court [2019] EWHC 288 9Admin) this is to ensure that during “these sensitive moments, generally of brief duration, it is necessary for the court to be still so that the process can take place without distraction and in a manner which preserves the dignity and solemnity of the proceedings”. It is expected that during the following parts of the proceedings, access may be restricted to prevent comings and goings in the public gallery:

I. Arraignment;

II. Empanelling and swearing in of the jury;

III. Oath taking or affirmation; IV. Return of verdict by a jury;

V. Passing of sentence by a Judge.

6E.4 In the Ewing judgment the Administrative Court made clear that it would be unlawful to issue a blanket policy that restricted access during other parts of proceedings. Unless the judge has specifically directed restrictions to access to the public gallery for good reason in a particular case, then at all other times, it is expected that the public can enter and leave the courtroom as they require, provided they do so quietly and without disrupting proceedings.

II Preliminary proceedings

CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION II

PRELIMINARY PROCEEDINGS

7A First court attendance after charge and detention

CPD II Preliminary proceedings 7A: FIRST COURT ATTENDANCE AFTER CHARGE AND DETENTION

7A.1 A defendant who has been kept in police detention after being charged with an offence must be brought before a magistrates’ court as soon as practicable and in any event no later than the first subsequent court sitting: section 46 of the Police and Criminal Evidence Act 1984. If no magistrates’ court is due to sit on the day on which the defendant is charged, or on the next day which is not a Sunday, Christmas Day or Good Friday, then the Act requires the police custody officer to inform the court’s designated officer of the defendant’s detention, and requires the designated officer to arrange for a magistrates’ court to sit.

7A.2 The 1984 Act thus imposes duties on the police and on HM Courts and Tribunals

Service. In R (on the application of H (A Child)) v Clerk to Teesside Justices [2000] 10 WLUK 532 the High Court observed, “it is incumbent on justices and their clerks, however busy their courts may be, to ensure that they are able to receive persons in custody up to the end of normal court hours, at least, in order to comply with section 46 …, unless some exceptional circumstance intervenes to make that impossible in any particular case”.

7A.3 To comply with those duties arrangements must be made to allow courts to receive such defendants during the course of a sitting day if the available time allows for the hearing of all cases to be concluded by 4.30pm, or later if, and only if, some disability or vulnerability of the defendant so requires. In practice, to allow sufficient time for consultation with a legal representative and for the subsequent hearing, the defendant must have been brought to the court building, or given access to a live link to the court, by no later than 3.30pm. To that end, Judicial Business Groups must ensure that effective practical arrangements have been made between police forces, HMCTS, the Crown Prosecution Service and prisoner escort contractors for the prompt transmission of information about defendants held for production before the court.

7A.4 On a Saturday or bank holiday normal court hours may differ from court to court based on likely caseload. Those hours must be determined by the HMCTS Head of Legal Operations in consultation with the judiciary and other agencies. In accordance with the court’s observations in the Teesside Justices’ Clerk case, all magistrates’ courts should sit until at least 11.30 a.m. to receive defendants to

whom these directions apply unless arrangements have been made for such defendants to be dealt with by another court, either by attendance in person or by live link.

defendant’s case within the period to which paragraph 7A.3 or 7A.4 refers, having regard to the availability and content of the information to which paragraph 7A.5 refers and to the considerations listed in paragraph 7A.6. The decision must be informed by the views of those court members and legal advisers who may be affected, as listing is a judicial responsibility and function. It may be necessary for the delegate to take such steps as arranging for the unexpected case to be heard by live link; reorganising courts sitting in the court building to which the defendant is due to be brought; adjourning other cases; calling upon additional resources; or making arrangements with the delegate at another court building for the unexpected case to be heard by a court sitting there, by live link if appropriate. It may be necessary for the court that hears the unexpected case to impose a timetable for representations or to restrict the decisions that will be taken immediately. If it will not be possible to hear within the period to which paragraph 7A.3 or 7A.4 refers every case due to be heard that day at the court building to which the defendant is to be brought then every effort must be made to ensure that the cases of all defendants in custody, whether in that court building or attending by live link, still can be heard within that period. The delegate for that building must ensure that the police, the staff responsible for the court’s own cells and the relevant prisoner escort contractor all are aware of the arrangements that have been made. If the prosecuting authority is not the CPS then that delegate must ensure that that other authority will arrange for a representative to attend, in person or by live link, to assist the court.

CrimPR Part 8 Initial details of the prosecution case

CPD II Preliminary proceedings 8A: DEFENDANT’S RECORD

Copies of record

Personal details and summary of convictions and cautions – Police

National Computer [“PNC”] Court / Defence / Probation Summary Sheet;

Previous convictions – PNC Court / Defence / Probation printout, supplemented by Form MG16 if the police force holds convictions not shown on PNC;

Recorded cautions – PNC Court / Defence / Probation printout, supplemented by Form MG17 if the police force holds cautions not shown on PNC.

Additional information

CrimPR Part 9 Allocation and sending for trial

CPD II Preliminary proceedings 9A: ALLOCATION (MODE OF TRIAL)

9A.1 Courts must follow the Sentencing Council's guideline on Allocation (mode of trial) when deciding whether or not to send defendants charged with "either way" offences for trial in the Crown Court under section 51(1) of the Crime and Disorder Act 1998.

10A Preparation and content of the Indictment

CrimPR Part 10 The indictment

CPD II Preliminary proceedings 10A: PREPARATION AND CONTENT OF THE INDICTMENT Preferring the indictment

10A.1 Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 allows Criminal Procedure Rules to “make provision … as to the manner in which and the time at which bills of indictment are to be preferred”. CrimPR 10.2(5) lists the events which constitute preferment for the purposes of that Act. Where a defendant is contemplating an application to the Crown Court to dismiss an offence sent for trial, under the provisions to which CrimPR 9.16 applies, or where the prosecutor is contemplating discontinuance, under the provisions to which CrimPR Part 12 applies, the parties and the court must be astute to the effect of the occurrence of those events: the right to apply for dismissal is lost if the defendant is arraigned, and the right to discontinue is lost if the indictment is preferred.

Printing and signature of indictment

10A.2 Neither Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 nor the Criminal Procedure Rules require an indictment to be printed or signed. Section 2(1) of the Act was amended by section 116 of the Coroners and Justice Act 2009 to remove the requirement for signature. For the potential benefit of the Criminal Appeal Office, CrimPR 10.2(7) requires only that any paper copy of the indictment which for any reason in fact is made for the court must be endorsed with a note to identify it as a copy of the indictment, and with the date on which the indictment came into being. For the same reason, CrimPR 3.22 requires only that any paper copy of an indictment which in fact has been made must be endorsed with a note of the order and of its date where the court makes an order for joint or separate trials affecting that indictment or makes an order for the amendment of that indictment in any respect.

Content of indictment; joint and separate trials

10A.3 The rule has been abolished which formerly required an indictment containing more than one count to include only offences founded on the same facts, or offences which constitute all or part of a series of the same or a similar character. However, if an indictment charges more than one offence, and if at least one of those offences does not meet those criteria, then CrimPR 3.21(4) cites that circumstance as an example of one in which the court may decide to exercise its power to order separate trials under section 5(3) of the Indictments Act 1915. It is for the court to decide which allegations, against whom, should be tried at the same time, having regard to the prosecutor’s proposals, the parties’ representations, the court’s powers under the 1915 Act (see also CrimPR 3.21(4)) and the overriding objective. Where necessary the court should be invited to exercise those powers. It is generally undesirable for a large number of counts to be tried at the same time and the prosecutor may be required to identify a selection of counts on which the trial should proceed, leaving a decision to be taken later whether to try any of the remainder.

10A.4 Where an indictment contains substantive counts and one or more related conspiracy counts, the court will expect the prosecutor to justify their joint trial.

Failing justification, the prosecutor should be required to choose whether to proceed on the substantive counts or on the conspiracy counts. In any event, if there is a conviction on any counts that are tried, then those that have not been proceeded with can remain on the file marked “not to be proceeded with without the leave of the court or the Court of Appeal”. In the event that a conviction is later quashed on appeal, the remaining counts can be tried.

10A.5 There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person and on the same facts. However, the court will not allow the prosecutor to proceed on both indictments. They cannot be tried together and the court will require the prosecutor to elect the one on which the trial will proceed. Where different defendants have been separately sent for trial for offences which properly may be tried together then it is permissible to join in one indictment counts based on the separate sendings for trial even if an indictment based on one of them already exists.

Draft indictment generated electronically on sending for trial

Draft indictment served by the prosecutor

case relies. The Crown Court may extend that time limit, under CrimPR 10.2(8). However, under paragraph CrimPD I 3A.16 of these Practice Directions the court will expect that in every case a draft indictment will be served at least 7 days before the plea and trial preparation hearing, whether the time prescribed by the rule will have expired or not.

Amending the content of the indictment

10A.10 Where the prosecutor wishes to substitute or add counts to a draft indictment, or to invite the court to allow an indictment to be amended, so that the draft indictment, or indictment, will charge offences which differ from those with which the defendant first was charged, the defendant should be given as much notice as possible of what is proposed. It is likely that the defendant will need time to consider his or her position and advance notice will help to avoid delaying the proceedings.

Multiple offending: count charging more than one incident

incidents” count in place of a larger number of counts, subject to the general principles set out at paragraph 10A.3.

Multiple offending: trial by jury and then by judge alone

earliest possible opportunity of what the prosecutor proposes and of the proposed association of counts in the indictment.

CPD II Preliminary proceedings 10B: VOLUNTARY BILLS OF INDICTMENT

10B.1 Section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 and paragraph 2(6) of Schedule 3 to the Crime and Disorder Act 1998 allow the preferment of a bill of indictment by the direction or with the consent of a judge of the High Court. Bills so preferred are known as ‘voluntary bills’.

10B.2 Applications for such consent must comply with CrimPR 10.3.

10B.3 Those requirements should be complied with in relation to each defendant named in the indictment for which consent is sought, whether or not it is proposed to prefer any new count against him or her.

10B.4 The preferment of a voluntary bill is an exceptional procedure. Consent should only be granted where good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it.

10B.5 Prosecutors must follow the procedures prescribed by the rule unless there are good reasons for not doing so, in which case prosecutors must inform the judge that the procedures have not been followed and seek leave to dispense with all or any of them. Judges should not give leave to dispense unless good reasons are shown.

10B.6 A judge to whom application for consent to the preferment of a documents submitted by the prosecutor and any written submissions made by the prospective defendant, and may properly seek any necessary amplification. CrimPR 10.3(4)(b) allows the judge to set a timetable for representations. The judge may invite oral submissions from either party, or accede to a request for an opportunity to make oral submissions, if the judge considers it necessary or desirable to receive oral submissions in order to make a sound and fair decision on the application. Any such oral submissions should be made on notice to the other party and in open court unless the judge otherwise directs

III Custody and bail

CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION III

CUSTODY AND BAIL

CrimPR Part 14 Bail and custody time limits

14A Bail before sending for trial

CPD III Custody and bail 14A: BAIL BEFORE SENDING FOR TRIAL

14A.1 Before the Crown Court can deal with an application under CrimPR 14.8 by a defendant after a magistrates’ court has withheld bail, it must be satisfied that the magistrates’ court has issued a certificate, under section 5(6A) of the Bail Act 1976, that it heard full argument on the application for bail before it refused the application. The certificate of full argument is produced by the magistrates’ court’s computer system, Libra, as part of the GENORD (General Form of Order). Two hard copies are produced, one for the defence and one for the prosecution. (Some magistrates’ courts may also produce a manual certificate which will usually be available from the justices’ legal adviser at the conclusion of the hearing; the GENORD may not be produced until the following day.) Under CrimPR 14.4(4), the magistrates’ court officer will provide the defendant with a certificate that the court heard full argument. However, it is the responsibility of the defence, as the applicant in the Crown Court, to ensure that a copy of the certificate of full argument is provided to the Crown Court as part of the application (CrimPR 14.8(3)(e)). The applicant’s solicitors should attach a copy of the certificate to the bail application form. If the certificate is not enclosed with the application form, it will be difficult to avoid some delay in listing.

Venue

14A.2 Applications should be made to the court to which the defendant will be, or would have been, sent for trial. In the event of an application in a purely summary case, it should be made to the Crown Court centre which normally receives Class 3 work. The hearing will be listed as a chambers matter, unless a judge has directed otherwise.

14B Bail: Failure to surrender and trials in absence

CPD III Custody and bail 14B: BAIL: FAILURE TO SURRENDER AND TRIALS IN ABSENCE

14B.1 The failure of defendants to comply with the terms of their bail by not surrendering, or not doing so at the appointed time, undermines the administration of justice and disrupts proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant’s failure to surrender affects not only the case with which he or she is concerned, but also the court’s ability to administer justice more generally, by damaging the confidence of victims, witnesses and the public in the effectiveness of the court system and the judiciary. It is, therefore, most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action, if they fail to do so.

14B.2 A defendant who will be unable for medical reasons to attend court in accordance with his or her bail must obtain a certificate from his or her general practitioner or another appropriate medical practitioner such as the doctor with care of the defendant at a hospital. This should be obtained in advance of the hearing and conveyed to the court through the defendant’s legal representative. In order to minimise the disruption to the court and to others, particularly witnesses if the case is listed for trial, the defendant should notify the court through his legal representative as soon as his inability to attend court becomes known.

14B.3 Guidance has been produced by the British Medical Association and the Crown Prosecution Service on the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings: link. Judges and magistrates should seek to ensure that this guidance is followed. However, it is a matter for each individual court to decide whether, in any particular case, the issued certificate should be accepted. Without a medical certificate or if an unsatisfactory certificate is provided, the court is likely to consider that the defendant has failed to surrender to bail.

14B.4 If a defendant fails to surrender to his or her bail there are at least four courses of action for the courts to consider taking:-

(a) imposing penalties for the failure to surrender;

(b) revoking bail or imposing more stringent conditions; (c) conducting trials in the absence of the defendant;

and

(d) ordering that some or all of any sums of money lodged with the court as a security or pledged by a surety as a condition on the grant of bail be forfeit.

The relevant sentencing guideline is the Definitive Guideline Fail to Surrender to Bail. Under section 125(1) of the Coroners and Justice Act 2009, for offences committed on or after 6 April 2010, the court must follow the relevant guideline unless it would be contrary to the interests of justice to do so. The guideline can be obtained from the Sentencing Council’s website:

https://www.sentencingcouncil.org.uk/

14C failure to surrender to bail: consequences and penalties

CPD III Custody and bail 14C: FAILURE TO SURRENDER TO BAIL: CONSEQUENCES AND

PENALTIES

Initiating Proceedings – Bail granted by a police officer

14C.1 When a person has been granted bail by a police officer to attend court and subsequently fails to surrender to custody, the decision whether to initiate proceedings for a section 6(1) or section 6(2) offence will be for the police / prosecutor and proceedings are commenced in the usual way.

14C.2 The offence in this form is a summary offence although section 6(10) to (14) of the Bail Act 1976, inserted by section 15(3) of the Criminal Justice Act 2003, disapplies section 127 of the Magistrates’ Courts Act 1980 and provides for alternative time limits for the commencement of proceedings. The offence should be dealt with on the first appearance after arrest, unless an adjournment is necessary, as it will be relevant in considering whether to grant bail again.

Initiating Proceedings – Bail granted by a court

14C.3 Where a person has been granted bail by a court and subsequently fails to surrender to custody, on arrest that person should normally be brought as soon as appropriate before the court at which the proceedings in respect of which bail was granted are to be heard. (There is no requirement to lay an information within the time limit for a Bail Act offence where bail was granted by the court).

14C.4 Given that bail was granted by a court, it is more appropriate that the court itself should initiate the proceedings by its own motion although the prosecutor may invite the court to take proceedings, if the prosecutor considers proceedings are appropriate.

Timing of disposal

14C.5 Courts should not, without good reason, adjourn the disposal of a section 6(1) or section 6(2) Bail Act 1976 offence (failure to surrender) until the conclusion of the proceedings in respect of which bail was granted but should deal with defendants as soon as is practicable. In deciding what is practicable, the court must take into account when the proceedings in respect of which bail was granted are expected to conclude, the seriousness of the offence for which the defendant is already being prosecuted, the type of penalty that might be imposed for the Bail Act offence and the original offence, as well as any other relevant circumstances.

14C.6 If the Bail Act offence is adjourned alongside the substantive proceedings, then it is still necessary to consider imposing a separate penalty at the trial. In addition, bail should usually be revoked in the meantime. Trial in the absence of the defendant is not a penalty for the Bail Act offence and a separate penalty may be imposed for the Bail Act offence.

Conduct of Proceedings

14C.7 Proceedings under section 6 of the Bail Act 1976 may be conducted either as a summary offence or as a criminal contempt of court. Where proceedings are commenced by the police or prosecutor, the prosecutor will conduct the proceedings and, if the matter is contested, call the evidence. Where the court initiates proceedings, with or without an invitation from the prosecutor, the court may expect the assistance of the prosecutor, such as in cross-examining the defendant, if required.

14C.8 The burden of proof is on the defendant to prove that he had reasonable cause for his failure to surrender to custody (section 6(3) of the Bail Act 1976).

Sentencing for a Bail Act offence

14C.9 A defendant who commits an offence under section 6(1) or section 6(2) of the Bail Act 1976 commits an offence that stands apart from the proceedings in respect of which bail was granted. The seriousness of the offence can be reflected by an appropriate and generally separate penalty being imposed for the Bail Act offence.

14C.10 As noted above, there is a sentencing guideline on sentencing offenders for Bail Act offences and this must be followed unless it would be contrary to the interests of justice to do so. Where the appropriate penalty is a custodial sentence, consecutive sentences should be imposed unless there are circumstances that make this inappropriate.

Arrest for breach of bail

14C.11 A defendant who has been released on bail but subsequently arrested for breach of a bail condition, or for failure to surrender to the court, actual or anticipated, must be brought before a magistrates’ court (or a Crown Court judge, if the defendant is charged with murder) as soon as practicable and in any event within 24 hours of arrest. This does not apply to a defendant who is arrested within 24 hours of the next court hearing which that defendant is due to attend: such a defendant must be produced at that hearing instead. The period of 24 hours does not include Sunday, Christmas Day or Good Friday: see section 7 of the Bail Act 1976.

14C.12 Paragraphs II 7A.2 to 7A.8 of these Practice Directions apply to such a defendant as they do to one charged and brought before the court under section 46 of the Police and Criminal Evidence Act 1984, except for the requirements listed at paragraph II 7A.5(a)(i) and (ii) (requirements for confirmation of charge and preparation of case file), which must be read as if they required confirmation that (i) the allegation or allegations of breach of bail have been reduced to writing, and (ii) that allegation or those allegations, and any supporting documents, are complete and available. If the requirements of paragraph 7A.5, as thus read, are met, then the court before which the defendant is brought should take all the appropriate next steps in the case, including the taking of the defendant’s plea; allocation and sending for trial, if applicable; and, if possible, sentencing; and should do so even if the defendant had been released on bail by a different court.

Voluntary attendance at a court after failure to attend

14C.13 The court may consider taking any of the following courses of action where (i) a defendant has failed to attend a court at the appointed time, (ii) a warrant has been issued for the defendant’s arrest for that failure, and (iii) the defendant subsequently attends voluntarily at some other time, or indicates a wish to do so, for example by making telephone enquiries of court staff:

(a) if the defendant is present, the court may arrange for the execution there and then of the warrant;

(b) if the defendant is present, the court may deal there and then with the case as if consequent on the execution of the warrant;

(c) the court may arrange a resumed hearing in the defendant’s case at the next convenient opportunity, while warning the defendant that the warrant remains liable to be executed in the meantime; and

(d) the court may withdraw the warrant and arrange a resumed hearing in the defendant’s case at the next convenient opportunity. The court should not withdraw an outstanding warrant unless the defendant provides evidence of an established current residential address, a telephone number and, if available, an email or other established electronic address.

14C.14 If an outstanding warrant is executed there and then, or if the court decides to deal at once with the defendant as if consequent on arrest, then paragraphs 14C.11 and 14C.12 apply and, consequently, paragraphs II 7A.2 to 7A.8 of these Practice Directions. However, if the defendant has not been arrested then the designated officer’s delegate is under no such statutory duty as otherwise would apply to make efforts to accommodate the defendant’s case and no step should be taken that disadvantages other cases awaiting hearing that day. In particular, it is only in exceptional circumstances that efforts should be made to accommodate a defendant who attends voluntarily and unexpectedly at a court building on any day other than a weekday on which a court is sitting at that building, or later than 12 noon on any such day.

14C.15 If an outstanding warrant for the defendant’s arrest for failure to attend is either executed or withdrawn, court staff must ensure that this is recorded promptly in national police records.

14D Relationship between the Bail Act offence and further remands on bail or in custody

CPD III Custody and bail 14D: RELATIONSHIP BETWEEN THE BAIL ACT OFFENCE AND FURTHER REMANDS ON BAIL OR IN CUSTODY

14D.1 The court at which the defendant is produced should, where practicable and legally permissible, arrange to have all outstanding cases brought before it (including those from different courts) for the purpose of progressing matters and dealing with the question of bail. This is likely to be practicable in the magistrates' court where cases can easily be transferred from one magistrates' court to another. Practice is likely to vary in the Crown Court. If the defendant appears before a different court, for example because he is charged with offences committed in another area, and it is not practicable for all matters to be concluded by that court then the defendant may be remanded on bail or in custody, if appropriate, to appear before the first court for the outstanding offences to be dealt with.

CPD III Custody and bail 14E: TRIALS IN ABSENCE

14E.1 Paragraphs VI 24C and 25B of these Practice Directions (Trial adjournment in magistrates’ courts; Trial adjournment in the Crown Court) include guidance on the circumstances in which the court should proceed with or adjourn a trial from which the defendant absents himself or herself voluntarily.

14F Forfeiture of monies lodged as security or pledged by a surety/estreatment of recognizances

CPD III Custody and bail 14F: FORFEITURE OF MONIES LODGED AS SECURITY OR PLEDGED BY A SURETY/ESTREATMENT OF RECOGNIZANCES

14F.1 A surety undertakes to forfeit a sum of money if the defendant fails to surrender as required. Considerable care must be taken to explain that obligation and the consequences before a surety is taken. This system, in one form or another, has great antiquity. It is immensely valuable. A court concerned that a defendant will fail to surrender will not normally know that defendant personally, nor indeed much about him. When members of the community who do know the defendant say they trust him to surrender and are prepared to stake their own money on that trust, that can have a powerful influence on the decision of the court as to whether or not to grant bail. There are two important side-effects. The first is that the surety will keep an eye on the defendant, and report to the authorities if there is a concern that he will abscond. In those circumstances, the surety can withdraw. The second is that a defendant will be deterred from absconding by the knowledge that if he does so then his family or friends who provided the surety will lose their

money. In the experience of the courts, it is comparatively rare for a defendant to fail to surrender when meaningful sureties are in place.

CPD III Custody and bail 14G: BAIL DURING TRIAL

14G.1 The following should be read subject to the Bail Act 1976.

14G.2 Once a trial has begun the further grant of bail, whether during the short adjournment or overnight, is in the discretion of the trial judge or trial Bench. It may be a proper exercise of this discretion to refuse bail during the short adjournment if the accused cannot otherwise be segregated from witnesses and jurors.

14G.3 An accused who was on bail while on remand should not be refused bail during the trial unless, in the opinion of the court, there are positive reasons to justify this refusal. Such reasons might include:

(a) that a point has been reached where there is a real danger that the accused will abscond, either because the case is going badly for him, or for any other reason;

(b) that there is a real danger that he may interfere with witnesses, jurors or co-defendants.

14G.4 Once the jury has returned a guilty verdict or a finding of guilt has been made, a further renewal of bail should be decided in the light of the gravity of the offence, any friction between co-defendants and the likely sentence to be passed in all the circumstances of the case.

14H Crown Court judge’s certification of fitness to appeal and application to the Crown Court for bail pending appeal

CPD III Custody and bail 14H: CROWN COURT JUDGE’S CERTIFICATON OF FITNESS TO APPEAL AND APPLICATIONS TO THE CROWN COURT FOR BAIL PENDING APPEAL

14H.1 The trial or sentencing judge may grant a certificate of fitness for appeal (see, for example, sections 1(2)(b) and 11(1A) of the Criminal Appeal Act 1968); the judge in the Crown Court should only certify cases in exceptional circumstances. The Crown Court judge should use the Criminal Appeal Office Form C (Crown Court Judge’s Certificate of fitness for appeal) which is available to court staff on the HMCTS intranet.

14H.2 The judge may well think it right to encourage the defendant’s advocate to submit to the court, and serve on the prosecutor, before the hearing of the application, a draft of the grounds of appeal which he will ask the judge to certify on Form C.

14H.3 The first question for the judge is then whether there exists a particular and cogent ground of appeal. If there is no such ground, there can be no certificate; and if there is no certificate there can be no bail. A judge should not grant a certificate with regard to sentence merely in the light of mitigation to which he has, in his opinion, given due weight, nor in regard to conviction on a ground where he considers the chance of a successful appeal is not substantial. The judge should bear in mind that, where a certificate is refused, application may be made to the Court of Appeal for leave to appeal and for bail; it is expected that certificates will only be granted in exceptional circumstances.

14H.4 Defence advocates should note that the effect of a grant of a certificate is to remove the need for leave to appeal to be granted by the Court of Appeal. It does not in itself commence the appeal. The completed Form C will be sent by the Crown Court to the Criminal Appeal Office; it is not copied to the parties. The procedures in CrimPR Part 39 should be followed.

14H.5 Bail pending appeal to the Court of Appeal (Criminal Division) may be granted by the trial or sentencing judge if they have certified the case as fit for appeal (see sections 81(1)(f) and 81(1B) of the Senior Courts Act 1981). Bail can only be granted in the Crown Court within 28 days of the conviction or sentence which is to be the subject of the appeal and may not be granted if an application for bail has already been made to the Court of Appeal. The procedure for bail to be granted by a judge of the Crown Court pending an appeal is governed by CrimPR Part 14. The Crown Court judge should use the Criminal Appeal Office Form BC (Crown Court Judge’s Order granting bail) which is available to court staff on the HMCTS intranet.

14H.6 The length of the period which might elapse before the hearing of any appeal is not relevant to the grant of a certificate; but, if the judge does decide to grant a certificate, it may be one factor in the decision whether or not to grant bail. If bail is granted, the judge should consider imposing a condition of residence in line with the practice in the Court of Appeal (Criminal Division).

IV Disclosure

CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION IV

DISCLOSURE

CrimPR Part 15 Disclosure

15A Disclosure of unused material

CPD IV Disclosure 15A: DISCLOSURE OF UNUSED MATERIAL

15A.1 Disclosure is a vital part of the preparation for trial, both in the magistrates' courts and in the Crown Court. All parties must be familiar with their obligations, in particular under the Criminal Procedure and Investigations Act 1996 as amended and the Code issued under that Act, and must comply with the relevant judicial protocol and guidelines from the Attorney-General. These documents have recently been revised and the new guidance will be issued shortly as Judicial Protocol on the Disclosure of Unused Material in Criminal Cases and the AttorneyGeneral's Guidelines on Disclosure. The new documents should be read together as complementary, comprehensive guidance. They will be available electronically on the respective websites.

15A.2 In addition, certain procedures are prescribed under CrimPR Part 15 and these should be followed. The notes to Part 15 contain a useful summary of the requirements of the CPIA 1996 as amended.

V Evidence

CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION V

EVIDENCE

CrimPR Part 16 Witness statements

16A Evidence by written statement

CPD V Evidence 16A: EVIDENCE BY WRITTEN STATEMENT

16A.1 Where the prosecution proposes to tender written statements in evidence under section 9 of the Criminal Justice Act 1967, it will frequently be necessary for certain statements to be edited. This will occur either because a witness has made more than one statement whose contents should conveniently be reduced into a single, comprehensive statement, or where a statement contains inadmissible, prejudicial or irrelevant material. Editing of statements must be done by a Crown Prosecutor (or by a legal representative, if any, of the prosecutor if the case is not being conducted by the Crown Prosecution Service) and not by a police officer.

Composite statements

16A.2 A composite statement giving the combined effect of two or more earlier statements must be prepared in compliance with the requirements of section 9 of the 1967 Act; and must then be signed by the witness.

Editing single statements

16A.3 There are two acceptable methods of editing single statements. They are:-

(a) By marking copies of the statement in a way which indicates the passages on which the prosecution will not rely. This merely indicates that the prosecution will not seek to adduce the evidence so marked. The original signed statement to be tendered to the court is not marked in any way.

The marking on the copy statement is done by lightly striking out the passages to be edited, so that what appears beneath can still be read, or by bracketing, or by a combination of both. It is not permissible to produce a photocopy with the deleted material obliterated, since this would be contrary to the requirement that the defence and the court should be served with copies of the signed original statement.

Whenever the striking out / bracketing method is used, it will assist if the following words appear at the foot of the frontispiece or index to any bundle of copy statements to be tendered:

‘The prosecution does not propose to adduce evidence of those passages of the attached copy statements which have been struck out and / or bracketed (nor will it seek to do so at the trial unless a notice of further evidence is served)’.

(b) By obtaining a fresh statement, signed by the witness, which omits the offending material, applying the procedure for composite statements above.

16A.4 In most cases where a single statement is to be edited, the striking out/ bracketing method will be the more appropriate, but the taking of a fresh statement is preferable in the following circumstances:

(a) When a police (or other investigating) officer’s statement contains details of interviews with more suspects than are eventually charged, a fresh statement should be prepared and signed, omitting all details of interview with those not charged except, insofar as it is relevant, for the bald fact that a certain named person was interviewed at a particular time, date and place.

(b) When a suspect is interviewed about more offences than are eventually made the subject of charges, a fresh statement should be prepared and signed, omitting all questions and answers about the uncharged offences unless either they might appropriately be taken into consideration, or evidence about those offences is admissible on the charges preferred. It may, however, be desirable to replace the omitted questions and answers with a phrase such as: ‘After referring to some other matters, I then said, “… … …” ’, so as to make it clear that part of the interview has been omitted.

(c) A fresh statement should normally be prepared and signed if the only part of the original on which the prosecution is relying is only a small proportion of the whole, although it remains desirable to use the alternative method if there is reason to believe that the defence might itself wish to rely, in mitigation or for any other purpose, on at least some of those parts which the prosecution does not propose to adduce.

(d) When the passages contain material which the prosecution is entitled to withhold from disclosure to the defence.

16A.5 Prosecutors should also be aware that, where statements are to be tendered under section 9 of the 1967 Act in the course of summary proceedings, there will be a need to prepare fresh statements excluding inadmissible or prejudicial material, rather than using the striking out or bracketing method.

16A.6 Whenever a fresh statement is taken from a witness and served in evidence, the earlier, unedited statement(s) becomes unused material and should be scheduled and reviewed for disclosure to the defence in the usual way.

16B Video recorded evidence in chief

CPD V Evidence 16B: VIDEO RECORDED EVIDENCE IN CHIEF

CPD V Evidence 16C: EVIDENCE OF AUDIO AND VIDEO RECORDED INTERVIEWS

16C.1 The interrogation of suspects is primarily governed by Code C, one of the Codes of Practice under the Police and Criminal Evidence Act 1984 (‘PACE’). Under that Code, interviews must normally be contemporaneously recorded. Under PACE Code E, interviews conducted at a police station concerning an indictable offence must normally be audio-recorded. In practice, most interviews are audiorecorded under Code E, or video-recorded under Code F, and it is best practice to do so. The questioning of terrorism suspects is governed separately by Code H. The Codes are available electronically on the Home Office website.

16C.2 Where a record of the interview is to be prepared, this should be in accordance with the current national guidelines, as envisaged by Note 5A of Code E.

16C.3 If the prosecution wishes to rely on the defendant’s interview in evidence, the prosecution should seek to agree the record with the defence. Both parties should have received a copy of the audio or video recording, and can check the record against the recording. The record should be edited (see below) if inadmissible matters are included within it and, in particular if the interview is lengthy, the prosecution should seek to shorten it by editing or summary.

16C.4 If the record is agreed there is usually no need for the audio or video recording to be played in court. It is a matter for the discretion of the trial judge, but usual practice is for edited copies of the record to be provided to the court, and to the jury if there is one, and for the prosecution advocate to read the interview with the interviewing officer or the officer in the case, as part of the officer’s evidence in chief, the officer reading the interviewer and the advocate reading the defendant and defence representative. In the magistrates’ court, the Bench sometimes retire to read the interview themselves, and the document is treated as if it had been read aloud in court. This is permissible, but CrimPR 24.5 should be followed.

16C.5 Where the prosecution intends to adduce the interview in evidence, and agreement between the parties has not been reached about the record, sufficient notice must be given to allow consideration of any amendment to the record, or the preparation of any transcript of the interview, or any editing of a recording for the purpose of playing it in court. To that end, the following practice should be followed.

(a) Where the defence is unable to agree a record of interview or transcript (where one is already available) the prosecution should be notified at latest at the Plea and Case Management Hearing (‘PCMH’), with a view to securing agreement to amend. The notice should specify the part to which objection is taken, or the part omitted which the defence consider should be included. A copy of the notice should be supplied to the court within the period specified above. The PCMH form inquires about the admissibility of the defendant’s interview and shortening by editing or summarising for trial.

(b) If agreement is not reached and it is proposed that the audio or video recording or part of it be played in court, notice should be given to the prosecution by the defence as ordered at the PCMH, in order that the advocates for the parties may agree those parts of the audio or video recording that should not be adduced and that arrangements may be made, by editing or in some other way, to exclude that material. A copy of the notice should be supplied to the court.

(c) Notice of any agreement reached should be supplied to the court by the prosecution, as soon as is practicable.

16C.6 Alternatively, if, the prosecution advocate proposes to play the audio or video recording or part of it, the prosecution should at latest at the PCMH, notify the defence and the court. The defence should notify the prosecution and the court within 14 days of receiving the notice, if they object to the production of the audio or video recording on the basis that a part of it should be excluded. If the objections raised by the defence are accepted, the prosecution should prepare an edited recording, or make other arrangements to exclude the material part; and should notify the court of the arrangements made.

16C.7 If the defendant wishes to have the audio or video recording or any part of it played to the court, the defence should provide notice to the prosecution and the court at latest at the PCMH. The defence should also, at that time, notify the prosecution of any proposals to edit the recording and seek the prosecution’s agreement to those amendments.

16C.8 Whenever editing or amendment of a record of interview or of an audio or video recording or of a transcript takes place, the following general principles should be followed:

(i) Where a defendant has made a statement which includes an admission of one or more other offences, the portion relating to other offences should be omitted unless it is or becomes admissible in evidence;

(ii) Where the statement of one defendant contains a portion which exculpates him or her and partly implicates a co-defendant in the trial, the defendant making the statement has the right to insist that everything relevant which is exculpatory goes before the jury. In such a case the judge must be consulted about how best to protect the position of the co-defendant.

16C.9 If it becomes necessary for either party to access the master copy of the audio or video recording, they should give notice to the other party and follow the procedure in PACE Code E at section 6.

16C.10 If there is a challenge to the integrity of the master recording, notice and particulars should be given to the court and to the prosecution by the defence as soon as is practicable. The court may then, at its discretion, order a case management hearing or give such other directions as may be appropriate.

16C.11 If an audio or video recording is to be adduced during proceedings before the Crown Court, it should be produced and proved in a witness statement by the interviewing officer or any other officer who was present at the interview at which the recording was made. The prosecution should ensure that the witness is available to attend court if required by the defence in the usual way.

16C.12 It is the responsibility of the prosecution to ensure that there is a person available to operate any audio or video equipment needed during the course of the proceedings. Subject to their other responsibilities, the court staff may be able to assist.

16C.13 If either party wishes to present audio or video evidence, that party must ensure, in advance of the hearing, that the evidence is in a format that is compatible with the court’s equipment, and that the material to be used does in fact function properly in the relevant court room.

16C.14 In order to avoid the necessity for the court to listen to or watch lengthy or irrelevant material before the relevant part of a recording is reached, counsel shall indicate to the equipment operator those parts of a recording which it may be necessary to play. Such an indication should, so far as possible, be expressed in terms of the time track or other identifying process used by the interviewing police force and should be given in time for the operator to have located those parts by the appropriate point in the trial.

16C.15 Once a trial has begun, if, by reason of faulty preparation or for some other cause, the procedures above have not been properly complied with, and an application is made to amend the record of interview or transcript or to edit the recording, as the case may be, thereby making necessary an adjournment for the work to be carried out, the court may make at its discretion an appropriate award of costs.

16C.16 Where a case is listed for hearing on a date which falls within the time limits set out above, it is the responsibility of the parties to ensure that all the necessary steps are taken to comply with this Practice Direction within such shorter period as is available.

CrimPR Part 17 Witness summonses, warrants and orders

17A Wards of Court and children subject to current Family proceedings

CPD V Evidence 17A: WARDS OF COURT AND CHILDREN SUBJECT TO CURRENT FAMILY PROCEEDINGS

17A.1 Where police wish to interview a child who is subject to current family proceedings, leave of the Family Court is only required where such an interview may lead to a child disclosing information confidential to those proceedings and not otherwise available to the police under Working Together to Safeguard Children (March 2013), a guide to inter-agency working to safeguard and promote the welfare of children:

www.workingtogetheronline.co.uk/chapters/contents.html

17A.2 Where exceptionally the child to be interviewed or called as a witness in criminal proceedings is a Ward of Court then the leave of the court which made the wardship order will be required.

17A.3 Any application for leave in respect of any such child must be made to the court in which the relevant family proceedings are continuing and must be made on notice to the parents, any actual carer (e.g. relative or foster parent) and, in care proceedings, to the local authority and the guardian. In private proceedings the Family Court Reporter (if appointed) should be notified.

17A.4 If the police need to interview the child without the knowledge of another party (usually a parent or carer), they may make the application for leave without giving notice to that party.

17A.5 Where leave is given the order should ordinarily give leave for any number of interviews that may be required. However, anything beyond that actually authorised will require a further application.

17A.6 Exceptionally the police may have to deal with complaints by or allegations against such a child immediately without obtaining the leave of the court as, for example

(a) a serious offence against a child (like rape) where immediate medical examination and collection of evidence is required; or

(b) where the child is to be interviewed as a suspect.

When any such action is necessary, the police should, in respect of each and every interview, notify the parents and other carer (if any) and the Family Court Reporter (if appointed). In care proceedings the local authority and guardian should be notified. The police must comply with all relevant Codes of Practice when conducting any such interview.

17A.7 The Family Court should be appraised of the position at the earliest reasonable opportunity by one of the notified parties and should thereafter be kept informed of any criminal proceedings.

17A.8 No evidence or document in the family proceedings or information about the proceedings should be disclosed into criminal proceedings without the leave of the Family Court.

CrimPR Part 18 Measures to assist a witness or defendant to give evidence

18A Measures to assist a witness or defendant to give evidence

CPD V Evidence 18A: MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE

EVIDENCE

18A.1 For special measures applications, the procedures at CrimPR Part 18 should be followed. However, assisting a vulnerable witness to give evidence is not merely a matter of ordering the appropriate measure. Further directions about vulnerable people in the courts, ground rules hearings and intermediaries are given in paragraphs I 3D to 3G.

18A.2 Special measures need not be considered or ordered in isolation. The needs of the individual witness should be ascertained, and a combination of special measures may be appropriate. For example, if a witness who is to give evidence by live link wishes, screens can be used to shield the live link screen from the defendant and the public, as would occur if screens were being used for a witness giving evidence in the court room.

18B Witnesses giving evidence by live link

CPD V Evidence 18B: WITNESSES GIVING EVIDENCE BY LIVE LINK

18B.1 A special measures direction for the witness to give evidence by live link may also provide for a specified person to accompany the witness (CrimPR 18.10(f)). In determining who this should be, the court must have regard to the wishes of the witness. The presence of a supporter is designed to provide emotional support to the witness, helping reduce the witness’s anxiety and stress and contributing to the ability to give best evidence. It is preferable for the direction to be made well before the trial begins and to ensure that the designated person is available on the day of the witness’s testimony so as to provide certainty for the witness.

18B.2 An increased degree of flexibility is appropriate as to who can act as supporter. This can be anyone known to and trusted by the witness who is not a party to the proceedings and has no detailed knowledge of the evidence in the case. The supporter may be a member of the Witness Service but need not be an usher or court official. Someone else may be appropriate.

at a different time from the trial court

CPD V Evidence 18C: VISUALLY RECORDED INTERVIEWS: MEMORY REFRESHING AND

WATCHING AT A DIFFERENT TIME FROM THE TRIAL COURT

18C.1 Witnesses are entitled to refresh their memory from their statement or visually recorded interview. The court should enquire at the PTPH or other case management hearing about arrangements for memory refreshing. The witness’s first viewing of the visually recorded interview can be distressing or distracting. It should not be seen for the first time immediately before giving evidence. Depending upon the age and vulnerability of the witness several competing issues have to be considered and it may be that the assistance of the intermediary is needed to establish exactly how memory refreshing should be managed.

18C.2 If the interview is ruled inadmissible, the court must decide what constitutes an acceptable alternative method of memory refreshing.

18C.3 Decisions about how, when and where refreshing should take place should be court-led and made on a case-by-case basis in respect of each witness. General principles to be addressed include:

i. the venue for viewing. The delicate balance between combining the court familiarisation visit and watching the DVD, and having them on two separate occasions, needs to be considered in respect of each witness as combining the two may lead to ‘information overload’. Refreshing need not necessarily take place within the court building but may be done, for example, at the police ABE suite.

ii. requiring that any viewing is monitored by a person (usually the officer in the case) who will report to the court about anything said by the witness.

iii. whether it is necessary for the witness to see the DVD more than once for the purpose of refreshing. The court will need to ask the advice of the intermediary, if any, with respect to this.

iv. arrangements, if the witness will not watch the DVD at the same time as the trial bench or judge and jury, for the witness to watch it before attending to be cross examined, (depending upon their ability to retain information this may be the day before).

CPD V Evidence 18D: WITNESS ANONYMITY ORDERS

18D.1 This direction supplements CrimPR 18.18 to 18.22, which govern the procedure to be followed on an application for a witness anonymity order. The court’s power to make such an order is conferred by the Coroners and Justice Act 2009 (in this section, ‘the Act’); section 87 of the Act provides specific relevant powers and obligations.

18D.2 As the Court of Appeal stated in R v Mayers and Others [2008] EWCA Crim 2989, [2009] 1 W.L.R. 1915, [2009] 1 Cr. App. R. 30 and emphasised again in R v Donovan and Kafunda [2012] EWCA Crim 2749, unreported, ‘a witness anonymity order is to be regarded as a special measure of the last practicable resort’: Lord Chief Justice, Lord Judge. In making such an application, the prosecution’s obligations of disclosure ‘go much further than the ordinary duties of disclosure’ (R v Mayers); reference should be made to the Judicial Protocol on Disclosure, see paragraph IV 15A.1.

Case management

18D.3 Where such an application is proposed, with the parties’ active assistance the court should set a realistic timetable, in accordance with the duties imposed by CrimPR 3.2 and 3.3. Where possible, the trial judge should determine the application, and any hearing should be attended by the parties’ trial advocates.

Service of evidence and disclosure of prosecution material pending an application

18D.4 Where the prosecutor proposes an application for a witness anonymity order, it is not necessary for that application to have been determined before the proposed evidence is served. In most cases, an early indication of what that evidence will be if an order is made will be consistent with a party’s duties under CrimPR 1.2 and 3.3. The prosecutor should serve with the other prosecution evidence a witness statement setting out the proposed evidence, redacted in such a way as to prevent disclosure of the witness’ identity, as permitted by section 87(4) of the Act. Likewise the prosecutor should serve with other prosecution material disclosed under the Criminal Procedure and Investigations Act 1996 any such material appertaining to the witness, similarly redacted.

The application

18D.5 An application for a witness anonymity order should be made as early as possible and within the period for which CrimPR 18.3 provides. The application, and any hearing of it, must comply with the requirements of that rule and with those of rule 18.19. In accordance with CrimPR 1.2 and 3.3, the applicant must provide the court with all available information relevant to the considerations to which the Act requires a court to have regard.

Response to the application

18D.6 A party upon whom an application for a witness anonymity order is served must serve a response in accordance with CrimPR 18.22. That period may be extended or shortened in the court’s discretion: CrimPR 18.5.

18D.7 To avoid the risk of injustice, a respondent, whether the Prosecution or a defendant, must actively assist the court. If not already done, a respondent defendant should serve a defence statement under section 5 or 6 of the Criminal Procedure and Investigations Act 1996, so that the court is fully informed of what is in issue. When a defendant makes an application for a witness anonymity order the prosecutor should consider the continuing duty to disclose material under section 7A of the Criminal Procedure and Investigations Act 1996; therefore a prosecutor’s response should include confirmation that that duty has been considered. Great care should be taken to ensure that nothing disclosed contains anything that might reveal the witness’ identity. A respondent prosecutor should provide the court with all available information relevant to the considerations to which the Act requires a court to have regard, whether or not that information falls to be disclosed under the 1996 Act.

Determination of the application

18D.8 All parties must have an opportunity to make oral representations to the court on an application for a witness anonymity order: section 87(6) of the Act. However, a hearing may not be needed if none is sought: CrimPR 18.18(1)(a). Where, for example, the witness is an investigator who is recognisable by the defendant but known only by an assumed name, and there is no likelihood that the witness’ credibility will be in issue, then the court may indicate a provisional decision and invite representations within a defined period, usually 14 days, including representations about whether there should be a hearing. In such a case, where the parties do not object the court may make an order without a hearing. Or where the court provisionally considers an application to be misconceived, an applicant may choose to withdraw it without requiring a hearing. Where the court directs a hearing of the application then it should allow adequate time for service of the representations in response.

18D.9 The hearing of an application for a witness anonymity order usually should be in private: CrimPR 18.18(1)(a) and before the trial judge wherever possible. The court has power to hear a party in the absence of a defendant and that defendant’s representatives: section 87(7) of the Act and rule 18.18(1)(b). In the Crown Court, a recording of the proceedings will be made, in accordance with CrimPR 5.5. The Crown Court officer must treat such a recording in the same way as the recording of an application for a public interest ruling. It must be kept in secure conditions, and the arrangements made by the Crown Court officer for any transcription must impose restrictions that correspond with those under CrimPR 5.5(2).

18D.10 Where confidential supporting information is presented to the court before the last stage of the hearing, the court may prefer not to read that information until that last stage.

18D.11 The court may adjourn the hearing at any stage, and should do so if its duty under CrimPR 3.2 so requires.

18D.12 On a prosecutor’s application, the court is likely to be assisted by the attendance of a senior investigator or other person of comparable authority who is familiar with the case.

18D.13 During the last stage of the hearing it is essential that the court test thoroughly the information supplied in confidence in order to satisfy itself that the conditions prescribed by the Act are met. At that stage, if the court concludes that this is the only way in which it can satisfy itself as to a relevant condition or consideration, exceptionally it may invite the applicant to present the proposed witness to be questioned by the court. Any such questioning should be carried out at such a time, and the witness brought to the court in such a way, as to prevent disclosure of his or her identity.

18D.14 The court may ask the Attorney General to appoint special counsel to assist. However, it must be kept in mind that, ‘Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant’: R v H [2004] UKHL 3, [2004] 2 A.C. 134 (at paragraph 22), [2004] 2 Cr. App. R. 10. Whether to accede to such a request is a matter for the Attorney General, and adequate time should be allowed for the consideration of such a request.

18D.15 The Court of Appeal in R v Mayers ‘emphasise[d] that all three conditions, A, B and C, must be met before the jurisdiction to make a witness anonymity order arises. Each is mandatory. Each is distinct.’ The Court also noted that if there is more than one anonymous witness in a case any link, and the nature of any link, between the witnesses should be investigated: ‘questions of possible improper collusion between them, or cross-contamination of one another, should be addressed.’

18D.16 Following a hearing the court should announce its decision on an application for a witness anonymity order in the parties’ presence and in public: CrimPR 18.4(2). The court should give such reasons as it is possible to give without revealing the witness’ identity. In the Crown Court, the court will be conscious that reasons given in public may be reported and reach the jury. Consequently, the court should ensure that nothing in its decision or its reasons could undermine any warning it may give jurors under section 90(2) of the Act. A record of the reasons must be kept. In the Crown Court, the announcement of those reasons will be recorded.

Order

18D.17 Where the court makes a witness anonymity order, it is essential that the measures to be taken are clearly specified in a written record of that order approved by the court and issued on its behalf, see also paragraph 18D.26 beneath. An order made in a magistrates’ court must be recorded in the court register, in accordance with CrimPR 5.4.

18D.18 Should the judge grant the anonymity then the following should be considered by the judge with the assistance of the court staff, so that the practical arrangements (confidentially recorded) are in place to ensure that the witness’s anonymity is not compromised:

I. Any pre-trial visit by the anonymous witness;

II. How the witness will enter and leave the court building;

III. Where the witness will wait until they give evidence;

IV. Provision for prosecution counsel to speak to the anonymous witness at court before they give evidence;

V. Provision for the anonymous witness to see their statement or view their ABEs;

VI. How the witness will enter and leave the court room;

VII. Provisions to disguise the identity of the anonymous witness whilst they give evidence (voice modulation and screens);

VIII. Provisions for the anonymous witness to have any breaks required;

IX. Provisions to protect the anonymity of the witness in the event of an emergency such as a security alert.

18D.19 Self-evidently, the written record of the order must not disclose the identity of the witness to whom it applies. However, it is essential that there be maintained some means of establishing a clear correlation between witness and order, and especially where in the same proceedings witness anonymity orders are made in respect of more than one witness, specifying different measures in respect of each.

Careful preservation of the application for the order, including the confidential part, ordinarily will suffice for this purpose.

18D.20 Should the application for anonymity be refused, consideration will be given as to whether the witness to whom the application related can be compelled to give evidence despite any risk to their safely and what special measures could support them to give their evidence.

Discharge or variation of the order

18D.21 Section 91 of the Act allows the court to discharge or vary a witness anonymity order: on application, if there has been a material change of circumstances since the order was made or since any previous variation of it; or on its own initiative. CrimPR 18.21 allows the parties to apply for the variation of a pre-trial direction where circumstances have changed.

18D.22 The court should keep under review the question of whether the conditions for making an order are met. In addition, consistently with the parties’ duties under CrimPR 1.2 and 3.3, it is incumbent on each, and in particular on the applicant for the order, to keep the need for it under review.

18D.23 Where the court considers the discharge or variation of an order, the procedure that it adopts should be appropriate to the circumstances. As a general rule, that procedure should approximate to the procedure for determining an application for an order. The court may need to hear further representations by the applicant for the order in the absence of a respondent defendant and that defendant’s representatives.

Retention of confidential material

18D.24 If retained by the court, confidential material must be stored in secure conditions by the court officer. Alternatively, subject to such directions as the court may give, such material may be committed to the safe keeping of the applicant or any other appropriate person in exercise of the powers conferred by CrimPR 18.6. If the material is released to any such person, the court should ensure that it will be available to the court at trial.

Arrangements at trial

18D.25 At trial the greatest possible care must be taken to ensure that nothing will compromise the witness’ anonymity. Detailed arrangements may have been proposed by the applicant under CrimPR 18.19(1)(b) and directed by the court on determining the application for the order. Such arrangements must take account of the layout of the courtroom and of the means of access for the witness, for the defendant or defendants, and for members of the public. The risk of a chance encounter between the witness and someone who may recognise him or her, either then or subsequently, must be rigorously excluded. Subject to contrary direction by the trial judge, the court staff and those accompanying the witness must adopt necessary measures to ensure that the witness is neither seen nor

heard by anyone whose observation would, or might, render nugatory the court’s order. Further HMCTS guidance for court staff can be found in Guidance for Criminal Courts for England and Wales for Anonymous/Protected Witnesses.

18E Use of s.28 Youth Justice and Criminal Evidence Act 1999

CPD V Evidence 18E: USE OF S. 28 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999; PRE-RECORDING OF CROSS-EXAMINATION AND RE-EXAMINATION FOR WITNESSES CAPTURED BY S.16 YJCEA 1999.

Protocol on Disclosure of Unused Material in Criminal Proceedings (November

2013) must be followed, and if applicable, the 2013 Protocol and Good Practice

Model on Disclosure of information in cases of alleged child abuse and linked criminal and care directions. Local Implementation Teams (LITs) should encourage all appropriate agencies to endorse and follow both the Protocol and the Good Practice Model. LITs should monitor compliance and issues should initially be raised at the LITs.

The first hearing in the magistrates’ court

timescales provided by section 8.6 of A protocol between the Association of Chief Police Officers, the Crown Prosecution Service and Her Majesty’s Courts and Tribunals Service to expedite cases involving witnesses under 10 years will cease to apply and the case should be managed in accordance with the timescales established in this practice direction.

Before the PTPH hearing in the Crown Court

18E.14 On being notified of the sending of the case by the magistrates’ court, the case should be flagged as a s.28 case and referred to the Resident Judge or the judicial lead at that Crown Court, according to instructions issued by the Resident Judge.

18E.15 A transcript of the ABE interview and the application for special measures, including under s.28 YJCEA 1999, must be served on the Court and defence at least

7 days prior to the PTPH. The report of any Registered Intermediary must be served with the application for special measures.

18E.16 Any defence representations about the application for special measures must be served before the PTPH, within 28 days from the first hearing at the magistrates’ court, when notice was first given of the application.

Plea and Trial Preparation Hearing

The application

18E.19 The judge may hear submissions from the advocates and will rule on the application. If it is refused (see the assumptions to be applied by the courts in s.21 and s.22 of the YJCEA 1999), this practice direction ceases to apply.

18E.20 If the application is granted, the judge should make orders and give directions for preparation for the recorded cross-examination and re-examination hearing and advance preparation for the trial, including for disclosure of unused material. The correct and timely application of the Criminal Procedure and Investigations Act 1996 (‘CPIA 1996’) will be vital and close attention should be paid to the 2013 Protocol and Good Practice Model on Disclosure (November 2013), above.

18E.21 The orders made are likely to include:

i. Service of the prosecution evidence within 50 days of sending ;

ii. Directions for service of defence witness requirements;

iii. Service of initial disclosure; under the CPIA 1996, as soon as reasonably practical; in this context, this should be interpreted as being simultaneous with the service of the prosecution evidence, i.e. within 50 days of sending for both bail and custody cases. This will be within 3 weeks of the PTPH;

iv. Orders on disclosure material held by a third party;

v. Service of the defence statement; under the CPIA 1996, this must be served within 28 days of the prosecutor serving or purporting to serve initial disclosure;

vi. Any editing of the ABE interview;

vii. Fixing a date for a ground rules hearing, about one week prior to the recorded cross-examination and re-examination hearing, see CPD General matters 3E: Ground rules hearings to plan questioning of a vulnerable witness or defendant;

viii. Service of the Ground Rules Hearing Form by the defence advocate;

ix. Making arrangements for the witness to refresh his or her memory by viewing the recorded examination-in-chief (‘ABE interview’), see CPD Evidence 18C: Visually recorded interviews: memory refreshing and watching at a different time from the jury;

x. Making arrangements for the recorded cross-examination and re-

examination hearing under s.28, including fixing a date, time and location;

xi. Other special measures;

xii. Directions for any further directions hearing whether at the conclusion of the recorded cross-examination and re-examination hearing or subsequently; xiii. Fixing a date for trial.

18E.22 The timetable should ensure the prosecution evidence and initial disclosure are served swiftly. The ground rules hearing will usually be soon after the deadline for service of the defence statement, the recorded cross-examination and reexamination hearing about one week later. However, there must be time afforded for any further disclosure of unused material following service of the defence statement and for determination of any application under s.8 of the CPIA 1996. Subject to judicial discretion applications for extensions of time for service of disclosure by either party should generally be refused.

18E.23 Where the defendant may be unfit to plead, a timetable for s.28 should usually still be set, taking into account extra time needed for the obtaining of medical reports, save in cases where it is indicated that it is unlikely that there would be a trial if the defendant is found fit.

18E.24 As far as possible, without diminishing the defendant’s right to a fair trial, the timing and duration of the recorded cross-examination should take into account the needs of the witness. For a young child, the hearing should usually be in the morning and conclude before lunch time.

18E.25 An application for a witness summons to obtain material held by a third party, should be served in advance of the PTPH and determined at that hearing, or as soon as reasonably practicable thereafter. The timetable should accommodate any consequent hearings or applications, but it is imperative parties are prompt to obtain third party disclosure material. The prosecution must make the court and the defence aware of any difficulty as soon as it arises. As noted above, the 2013 Protocol and Good Practice Model on Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings should be followed, if applicable. Engagement with the Protocol is to be overseen by LITs. A single point of contact in each relevant agency can facilitate speedy disclosure.

18E.26 The needs of other witnesses should not be neglected. Witness and intermediary availability dates should be available for the PTPH.

Prior to ground rules hearing and hearing under section 28

18E.27 It is imperative parties abide by orders made at the PTPH, including the completion and service of the Ground Rules Hearing Form by the defence advocate. Delays or failures must be reported to the judge as soon as they arise; this is the responsibility of each legal representative. If ordered, the lead lawyer for the prosecution and defence must provide a weekly update to the court Case Progression Officer, copied to the judge and parties, detailing the progress and

any difficulties or delays in complying with orders. The court may order a further case management hearing if necessary.

18E.28 Any applications under s.100 of the Criminal Justice Act 2003 (‘CJA 2003’) (nondefendant’s bad character) or under s.41 of the YJCEA 1999 (evidence or crossexamination about complainants sexual behaviour) or any other application which may affect the cross-examination must be made promptly, and responses submitted in time for the judge to rule on the application at the ground rules hearing. Parts 21 and 22 of the Rules apply to applications under s.100 and s.41 respectively.

18E.29 The witness’ court familiarisation visit must take place, including an opportunity to practice on the live link/recording facilities, see the Code of Practice for Victims of Crime, October 2013, Chapter 3, paragraph 1.22. The witness must have the opportunity to view his or her ABE interview to refresh his or her memory. It may or may not be appropriate for this to take place on the day of the court visit: CPD Evidence 18C must be followed.

Ground rules hearing

18E.32 Advocates should master the toolkits available through The Advocate’s Gateway. These provide guidance on questioning a vulnerable witness, see CPD General matters 3D and the annex to this practice direction.

18E.33 Any appointed Registered Intermediary must attend the ground rules hearing, see CPD General matters 3E.2.

18E.34 The defence advocate at the ground rules hearing must be she or he who will conduct the recorded cross-examination. See listing and allocation below on continuity of counsel and release from other cases.

18E.35 Topics for discussion and agreement at the ground rules hearing will depend on the individual needs of the witness, and an intermediary may provide advance indications. CPD General matters 3E must be followed. Topics that will need discussion in every case will include:

i. the overall length of cross-examination;

ii. cross-examination by a single advocate in a multi-handed case;

iii. any restrictions on the advocate’s usual duty to ‘put the defence case’.

18E.36 It may be helpful to discuss at this stage how any limitations on questioning will be explained to the jury.

18E.37 At the ground rules hearing, the judge should:

i. rule on any application under s.100 of the CJA 2003 or s.41 of the YJCEA 1999, or other applications that may affect the crossexamination;

ii. decide how the witness may view exhibits or documents;

iii. review progress in complying with orders made at the preliminary hearing and make any necessary orders.

Recording of cross-examination and re-examination: hearing under s.28

18E.38 At the hearing, the witness will be cross-examined and re-examined, if required, via the live link from the court room to the witness suite (unless provision has been made for the use of a remote link) and the examination will be recorded. It is the responsibility of the designated court clerk to ensure in advance that all of the equipment is working and to contact the provider’s Service Desk if support is required. Any other special measures must be in place and any intermediary or supporter should sit in the live link room with the witness. The intermediary’s role is transparent and therefore must be visible and audible to the judge and advocates at the cross-examination and in the subsequent replaying.

18E.39 The judge, advocates and parties, including the defendant will usually assemble in the court room for the hearing. In some cases the judge and advocates may be in the witness suite with the witness, for example when questioning a very young child or where the witness has a particular communication need. The court will decide this on a case-by-case basis. The defendant should be able to communicate with his or her representatives and should be able to hear the witness via the live link and see the proceedings: s.28 (2). Whether the witness is screened or not will depend on the other special measures ordered, for example screens may have been ordered under s.23 YJCEA 1999.

18E.40 On the admission of the public or media to the hearing, please see below.

18E.41 At the conclusion of the hearing, the judge will issue further orders, such as for the editing of the recorded cross-examination and may set a timetable for progress.

18E.42 Under s.28(4) YJCEA 1999, the judge, on application of any parties or on the court’s own motion may direct that the recorded examination is not admitted into evidence, despite any previous direction. Such direction must be given promptly, preferably immediately after the conclusion of the examination.

18E.43 Without exception, editing of the ABE interview/examination-in-chief or recorded cross-examination is precluded without an order of the court.

18E.44 The ability to record simultaneously from a court and a witness room and to play back the recording at trial will be provided in all Crown Courts as an additional facility within the existing Justice Video Service (JVS). Courts will book recording slots with the Service Desk who will launch the recording at the scheduled time when the court is ready. Recordings will be stored in a secure data centre with backup and resiliency, for authorised access.

After the recording

Preparation for trial

18E.47 Parties must notify the court promptly if any difficulties arise or any orders are not complied with. The court may order a further case management hearing (FCMH).

18E.48 In accordance with orders, either after recorded cross-examination or at the FCMH, necessary editing of the ABE interview/examination-in-chief and/or the recorded cross-examination must be done only on the order of the court. Any editing must be done promptly.

18E.49 Recorded cross-examinations and re-examinations will be stored securely by the service provider so as to be accessible to the advocates and the court. It will not usually be necessary to obtain a transcript of the recorded cross-examination, but if it is difficult to comprehend, a transcript should be obtained and served. The ground rules hearing form outlines questions to the witness that might be completed electronically by the judge during cross-examination forming a contemporaneous note of the hearing, served on the parties as an agreed record.

18E.50 Editing, authorised by the judge, is to be submitted by the court to the Service Desk, who produce an edited copy. The master and all edited copy versions are retained in the secure data centre from where they can be accessed. Courts book playback timeslots with the Service Desk for the trial date. The court may authorise parties to view playback at JVS endpoints, by submitting a request form to the Service Desk. Access for those so authorised is via the Quickcode (recording ID) and a security PIN (password) on the courtroom touch panel or remote control.

18E.51 No further cross-examination or re-examination of the witness may take place unless the criteria in section 28(6) are satisfied and the judge makes a further special measures direction under section 28(5). Any such further examination must be recorded via live link as described above.

18E.52 Section 28(6) of the YJCEA 1999 provides as follows:

(6) The court may only give such a further direction if it appears to the court—

(a) that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of subsection (1), of a matter which that party could not with reasonable diligence have ascertained by then, or

(b) that for any other reason it is in the interests of justice to give the further direction.

18E.53 Any application under section 28(5) must be in writing and be served on the court and the prosecution at least 28 days before the date of trial. The application must specify:

i. the topics on which further cross-examination is sought;

ii. the material or matter of which the defence has become aware since the original recording;

iii. why it was not possible for the defence to have obtained the material or ascertained the matter earlier; and iv. the expected impact on the issues before the court at trial.

18E.54 The prosecution should respond in writing within 7 days of the application. The judge may determine the application on the papers or order a hearing. Any further cross-examination ordered must be recorded via live link in advance of the trial and served on the court and the parties.

After conclusion of trial

18E.58 Immediately after the trial, the ABE interview/examination-in-chief and the recorded cross-examination and re-examination should be stored securely on the cloud.

Listing and allocation

18E.59 Advocates: It is the responsibility of the defence advocate, on accepting the brief, to ensure that he or she is available for both the ground rules hearing and the hearing under section 28; continuity at trial is obligatory except in exceptional circumstances. The judge and list office will make whatever reasonable arrangements are possible to achieve this, assisted by the Resident Judge where necessary.

Public, including media access, and reporting restrictions

a) Provisions to exclude the public from hearings:

i. Section 37 of the Children and Young Persons Act 1933, applicable to witnesses under 18;

ii. Section 25 of the YJCEA 1999, applicable to the evidence of a child or vulnerable adult in sexual offences cases.

b) Automatic reporting restrictions:

i. Section 1 of the Sexual Offences (Amendment) Act 1992, applicable to the complainant in any sex offence case.

c) Discretionary reporting restrictions:

i. Section 45 of the YJCEA 1999, applicable to under 18s concerned in criminal proceedings;

ii. Section 46 of the YJCEA 1999, applicable to an adult witness whose evidence would be diminished by fear or distress.

d) Postponement of fair and accurate reports under section 4(2) of the Contempt of Court Act 1981.

18E.67 Note that public access to information held by the court is now the subject of Rule

5.8 and CPD General matters 5B that must be followed.

Annex for section 28 ground rules hearings at the Crown Court when dealing with witnesses under s.16 YJCEA 1999