Corporate Crime analysis: Katie Wheatley, partner and joint head of the criminal law team at Bindmans LLP, outlines the upcoming changes to the Criminal Procedure (Amendment) Rules 2019 and highlights both the changes that are most significant from a corporate crime perspective, as well as areas that may be up for review in the future.

What are the key provisions of this SI? In what way do they change the CrimPR?

The Criminal Procedure Rules (CrimPR) are reviewed and revised periodically to take into account new developments in case law and legislation. The Criminal Procedure (Amendment) Rules 2019, SI 2019/143, which will come into force on 1 April 2019, contain amendments to the CrimPR. The revisions cover a variety of areas, including:

• rules about the service of documents on a Magistrates’ Court or Crown Court
• the manner in which courts provide and publish information about cases
• information that private prosecutors must provide to the court when applying for a summons
• disclosures that expert witnesses are required to make
• the procedure to be followed when an expert witness wishes to withhold information on public interest grounds
• a requirement in some extradition cases that an equivalent offence in England and Wales to that which
• is alleged to have occurred in the state requesting extradition is identified

Looking at these changes in more detail, the CrimPR, rules 4.3–4.4 have been amended to state that the court office at which a document must be served on a court officer for a Magistrates’ Court or the Crown Court should be the office advertised as the one that administers that court’s business. This may not necessarily be the same location as the courtrooms. This revision was prompted by changes in technology, as well as the consolidation of court administration, which has resulted in many court administration teams being located in a different place to the courtrooms. In Bedum v Luton Borough Council [2018] EWHC 1044 (Admin), [2018] All ER (D) 59 (May) for example, Luton Borough Council endeavoured to serve informations on the court on the last day of the available six month period provided by section 127(1) of the Magistrates Court Act 1980 (MCA 1980). The court counter at Luton Magistrates’ Court had been closed some months previously and the informations were left with a subcontracted court security guard—they did not reach the court administration office until after the expiry of the six month period. The] High Court later found that the informations had been laid out of time as a court security guard did not have implied authority to accept service of the informations.

The CrimPR, 5.8 has been amended to require courts to provide members of the public (including journalists) with specified information about criminal cases from court records in writing (not only by word of mouth) in response to a written request. The written response can take the form of a written certificate or extract. The CrimPR, 5.8 has also been amended to require that courts publish information about cases, including the identity of the defendant and prosecutor, the offence(s) alleged, and whether any reporting restrictions apply in relation to cases dealt with in the defendant’s absence without a court hearing under the single justice procedure under MCA 1980, ss 16A–16D and the CrimPR, 24.9. Previously, there was only a requirement to publish that information in relation to cases due to be heard in public. The timeframe in which the information must be published has also been extended from two to five business days.

Furthermore, the note and heading to the CrimPR, 5.9 have both been amended to emphasise that the CrimPR, 5.9 only applies to the supply of information from court records that is needed for use in evidence or for some other purpose specified in legislation.

The CrimPR, 7.2(5) has been amended to require that all private prosecutors (not just those who are unrepresented) who are making applications for a summons or warrant to provide information as described in the CrimPR, 7.2(6). This amendment was made following the decision of the High Court in R (Kay) and Another v Leeds Magistrates Court [2018] EWHC 1233 (Admin), [2018] All ER (D) 128 (May) in which it was found that a legally represented private prosecutor had failed to provide relevant information in an ex parte application for a summons and in so doing had breached the duty of candour to which both the private prosecutor and their lawyers were subject.

Candour was also behind the amendments to the CrimPR, 19.2–19.3. These were amended to clarify existing requirements for candour by expert witnesses and those who introduce expert evidence by including that they must disclose anything that might be capable of undermining the reliability of the expert’s opinion or detracting from the expert’s credibility or impartiality. The amendment was made in response to a concern raised by the Forensic Science Regulator about occasions on which some expert witnesses failed to provide a fair and accurate account of their qualifications and experience.

There is also a new CrimPR, 19.9, which establishes a procedure for when permission is sought for an expert witness to withhold information on public interest grounds. In R v Kelly [2018] EWCA CRIM 1893, the Court of Appeal held that courts have the power to allow a prosecutor to withhold some information on public interest grounds, provided that it is not unfair to the defendant. The CrimPR, 19.9 now supplies the procedure that needs to be adopted when a prosecutor wishes to make such an application.

The CrimPR, 34.7, meanwhile, which relates to appeals to the Crown Court, has been amended to align the time limits under that rule with the time limits for the service of a respondent’s notice under the CrimPR, 34.2 by extending the time limit from 14 to 21 days. Under the CrimPR, 34.2, following service of a notice of appeal, a respondent has 21 days to serve a respondent’s notice to the court and the appellant. Under the CrimPR, 34.7, where a party has given notice of intention to reintroduce material or renew an application that was introduced or made in the Magistrates’ Court under the CrimPR, 34.3, any objection served by the other party in the Magistrates’ Court is treated as renewed unless, within 21 days, that party serves notice withdrawing it. Also, under the CrimPR, 34.7, where a party wishing to introduce material or make an application, but has not given notice of reintroduction or renewal under the CrimPR, 34.3, whether because the conditions for giving such notice are not met or for any other reason, the party must serve the material notice or application not more than 21 days after the service of the appeal notice.

Finally, the CrimPR, 50.4, which relates to case management in extradition cases, has been amended to require that the requesting state’s representative takes reasonable steps to ensure that the defendant understands what is alleged and, in particular, to identify the equivalent domestic offence in circumstances where the requirement of dual criminality must be satisfied. This revision was made in response to the judgement of the High Court in the case of Biri v High Court in Miskolc, Hungary [2018] EWHC 50 (Admin), [2018] All ER (D) 89 (Jan) in order to avoid confusion in cases where the alleged conduct does not constitute an extradition offence under the Extradition Act 2003 and, in relation to which, the requesting state must therefore identify an equivalent offence under English and Welsh Law.

When will the changes come into force?

The changes will come into force on 1 April 2019.

What is the biggest amendment from a corporate crime perspective?

• The most significant amendment, from a corporate crime perspective, is the revision to the CrimPR, 7.2(5), which requires that all private prosecutors (both legally represented and unrepresented) provide information as specified in the CrimPR, 7.2(6), in addition to the information that all prosecutors, state or private, must provide under the CrimPR, 7.2(3)–7.2(4). The CrimPR, 7.2(6) sets out the additional requirements.
• The private prosecutor must do the following: concisely outline the grounds for asserting that the defendant has committed the alleged offence or offences
• disclose details of any previous such applications by the same applicant in respect of any allegations now made and details of any current or previous proceedings brought by another prosecutor in respect of any allegation now made
• include a statement that to the best of the applicant’s knowledge, information, and belief:
• the allegations contained in the application are substantially true
• the evidence on which the applicant relies will be available at the trial
• the details given by the applicant under paragraph 6(b) are true
• the application discloses all the information that is material to what the court must decide

Private prosecutions based on allegations of fraud in the context of complex commercial disputes that might previously have been dealt with in civil proceedings are becoming more prevalent. The High Court’s ruling in Kay and the subsequent revision of the rules serve to underline the need for prosecutors to act as ministers of justice and to comply with a duty of candour. Such duties require them to supply information to the court in an ex parte application that may affect a court’s decision, including allowing the court to consider whether the application is vexatious or an abuse of process, or to consider making more focussed inquiries, or to notify and hear the person for whom the summons has been requested. The explanatory memorandum to SI 2019/143 states that the Rule Committee made the current rules, which came into force in 2018, to codify requirements previously set out in case law. The exemption for legally represented private prosecutors was included despite the fact that some Rule Committee members disagreed, thinking that there should be no such exemption. Shortly after the new rule came into force, the High Court provided a judgment in the case of Kay. After consultation with the Law Society’s Criminal Law Committee and the recently formed Private Prosecutors’ Association, the Rule Committee decided that it would impose no significant burden on private prosecutors, and would help enforce the duty of candour, which the High Court had held to apply, to remove the exemption in the rule.

How does all this fit in with other developments in this area of the law? Do you have any predictions for future developments?

These revisions are part of a process of continual review. The Rule Committee aims to review and make appropriate revisions twice a year, with changes coming into force in April and October. Looking ahead, it’s likely that the Rule Committee will be keeping a sharp eye on any revisions that may be necessitated by new developments. For example, the implementation of recommendations in the Attorney General’s review of the efficiency and effectiveness of disclosure in the criminal justice system or new legislation coming into force, such as the Crime Overseas Production Orders Act 2019, which provides police and prosecutors the power to obtain faster access to electronic data held overseas.

Kate Wheatley was interviewed by Giverny Tattersfield.

This article was first published by LexisNexis.