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04 December 2020

Criminal Procedure Rules Amendments 2020

10 mins

The amended Criminal Procedure Rules (CrPR) came into force on 5 October 2020. Rather than carrying out more piecemeal revisions, as has occurred in the past, the CrPR Committee carried out a full and comprehensive review. 

The new rules can be found here, explanatory notes here and guide here.  

What are the key changes?

There are a number of amendments, which are of a more substantive nature as follows:

1. New Rule 3.9

A significant new development is the procedure for ‘Ground Rules’ hearings intended to facilitate the participation of witnesses or defendants with communication needs. The guide states that the new ground rules hearing will be ‘an important feature of pre-trial preparation in a significant number of cases’.

CrPR 3.9(6)&(7) 2015 (now CrPR3.8(6) & (7) already contained a requirement for the court to make directions to facilitate the participation of witnesses and defendants in criminal trials and the setting of ground rules for their questioning. However, it did not specify the detailed procedure for establishing these ground rules.

The new CrPR 3.9 specifies that where directions are made to facilitate the appropriate treatment and questioning of witnesses and defendants, a pre-trial hearing must be convened attended by all parties and any intermediary. At this hearing, there must be a discussion about proposed ground rules. Ground rules must be set at this hearing and the court may direct parties to serve a record of this on each other, the court and any intermediary. Directions may also be made concerning:

  • Rules of questioning;
  • Timetable for submission of proposed questions;
  • Timetable for trial including breaks;
  • Seating arrangements in the court room;
  • Explanation to be given to the jury.

2. Changes to Definitions of Electronic Service

Under the old rules (CrPR 4.6), a document could be served electronically ‘to the address to which the recipient has given’. The guide describes issues arising regarding service of electronic documents where changes to electronic addresses were overlooked by correspondents and disputes arose about what constituted the giving of an electronic address.

The new rule CrPR 2020 4.1 clarifies that the electronic address is the electronic address ‘advertised’ by the relevant court ‘at the date of service’. The guide indicates that addresses are published by HMCTS on the court tribunal finder website.

3. Service of application by the AG to refer an unduly lenient sentence

Since 2017, as per CrPR 4.11, electronic service is treated as taking place the same day provided it takes place no later than 2.30pm or, in the case of extradition appeals to the High Court, no later than 4.30pm.

According to the guide, the Attorney General’s office reported to the Committee that they frequently received information about unduly lenient sentences so late that an additional period of 2-3 hours could be critical for them complying with the 28 day time limit for appeals. Therefore the Committee agreed to extend the deadline for AG References on unduly lenient sentences to 5pm (see CrPR 4.11(d)).

This is an interesting concession but notably one which would be unlikely to be made to defence solicitors or defendants. Similar delays do arise in defendants’ appeals against conviction and sentence, through no fault of the defendant or their legal team, but from delays with correspondence being provided to inmates or in obtaining legal visits, particularly during the COVID-19 emergency.

4. Low-level Shoplifting

According to the guide, the position is that for summary only low-level shoplifting if sent to the Crown Court because either the Defendant elects or because the Magistrates’ court commits for sentence – the defendant can be tried on indictment and be sentenced in the Crown Court.  The same is not true for offences of low-level theft where the defendant does not elect Crown Court trial but the offence is sent to the Crown Court because it is related to another offence, which is sent to the Crown Court. In this case, the case remains triable only summarily and this limits the way in which the Crown Court may deal with the matter.

The Committee refer to a number cases heard by the Court of Appeal between 2017-2019, most recently R v Yeo [2019]  EWCA Crim 2460, in which unlawful convictions had been entered and sentences passed in the Crown Court for low level shoplifting, the rules are amended to:

  • Place greater obligation on prosecutors to make explicit in the charges the value of the theft (CrPR 7.3(1)(b)); 
  • Require a clear record to be sent by the Magistrates’ Court to the Crown Court of whether a defendant elected (CrPR 9.5(b)(ii)); and 
  • For the indictment rules provisions to refer to Section 40 Criminal Justice Act 1988, which lists the only summary offences that can be included on a Crown Court indictment (CrPR 10.2(4)(c)).

5. Clarification of Special Measures Directions

Part II, Chapter I of the Youth Justice & Criminal Evidence Act (YJCEA) permits a court to grant special measures for witnesses who are vulnerable due to age or a disability or where the quality of their evidence is likely to be diminished. These special measures permit witnesses, for example, to give evidence via video link or behind a screen. Under Section 19 (1)(a) a court may make such an order after a party makes an application or under Section 19(1)(b) on its own initiative, without an application.

In light of this, the Committee states that it is common practice for courts to invite parties to indicate whether a special measures direction is sought and then make directions as appropriate. However, the Committee also state that it has been reported that some courts understood the YJCEA to require that when a court made a direction of its own initiative, a formal application was still required under CrPR 18.10 (which sets out the content of a special measures direction). 

There is now a new CrPR 18.9, which states that where a party notifies the court that a witness is eligible for special measures at a preparation for trial hearing in the magistrates’ court or Crown Court and no other party opposes, the court may exercise its powers without requiring an application under CrPR18.10.

6. Time Limits in Business Days

Time limits created by the CrPR have all been amended so that they are expressed in business days, a total of 122 amendments have been made, listed here For example, a time limit of 14 days is now expressed as 10 business days. All CrPR time limits will be expressed as such in the future. The guide makes it clear though that ‘No time limit has been changed, only the way in which it is expressed’. 

A business day is already defined at CrPR 2.2(1) as ‘any day except Saturday, Sunday, Christmas Day, Boxing Day, Good Friday, Easter Monday or a bank holiday’.

Time limits set by legislation, which the Committee has no power to amend, have not been converted to business days. For example, CrPR 39.2 still refers to a 28-day time limit, expressed in calendar days, to serve notice of appeal against a Crown Court conviction or sentence. Nor have those in CrPR Part 33, dealing with confiscation proceedings because ‘that part contains some definitions special to those rules’.

Less Significant Changes

A number of the amendments are of a more administrative nature, as follows:

1. Consolidation of Part 3

Previous revisions to the rules have led to certain rules appearing out of sequence. The rules in Part 3 have been re-arranged so that they read more logically and thematically. Rules moved into/or around in Part 3 relate to: general case management rules, preparation for magistrates’ court and Crown Court trials.

2. Re-location of Rules

Part 44 of the old rules contained soon to be redundant provisions regarding requests to the European Court of Justice for a preliminary ruling regarding the interpretation of EU treaties. In its place are provisions regarding re-opening of magistrates’ court proceedings where a defendant makes a statutory declaration that they were unaware of the proceedings until after the trial began (these were formerly CrPR 24.17 and 24.18).

3. Powers of Court Officers in Extradition Appeals to the High Court

CrPR 50.30 has been amended to remove reference to the powers of the High Court conferred on court officers (derived from Section 66 Senior Courts Act 1981) as this duplicates powers found in CrPR 2.6 (derived from Section 67B Courts Act 2003).

4. Connective Words (or, and, but)

The Committee found that the case of R v Cunningham, R v Di Stefano revealed a lack of clarity in the CrPR, where a lack of connective word was intended by the Committee to mean ‘or’. In that case, the lack of connective word was eventually correctly interpreted by the Court of Appeal in that case to mean ‘or’ but this case caused the Committee to review all rules where no connective word was used, adding an appropriate connective word in 378 places, listed in the explanatory notes here

5. Temporary Amendments arising from the Coronavirus Act 2020 

The new rules amend the requirement for the evidence of two medical practitioners before the imposition a detention and treatment order under the Mental Health Act 1983, to one practitioner, where it would otherwise be impractical or involve undesirable delay.

CrPR 2.14(4) specifies the rules temporarily amended, referring to the relevant modified procedural requirements, stating as follows. ‘The following rules temporarily have effect as described beneath, subject to paragraphs (5) and (6) of this rule― 

(a) in this Part, rules 2.2 (Definitions), 2.7 (Exercise of functions of the Crown Court) and 2.8 (Exercise of functions of a magistrates’ court) as if they were amended by rule 5 of the Criminal Procedure (Amendment No. 2) (Coronavirus) Rules 2020(2) (‘the Coronavirus Rules’);

(b) in Part 3 (Case management)―

  • rules 3.2 (The duty of the court), 3.3 (The duty of the parties) and 3.5 (The court’s case management powers) as if they were amended by rule 6(a), (b) and (c) respectively of the Coronavirus Rules,
  • rule 3.8 (Case preparation and progression) as if it were amended by rule 6(d) of the Coronavirus Rules (which amended rule 3.9 of the Criminal Procedure Rules 2015), and
  • rule 3.10 (Directions for commissioning medical reports, other than for sentencing purposes) as if it were amended by rule 6(e) of the Coronavirus Rules (which amended rule 3.28 of the Criminal Procedure Rules 2015);

(c) in Part 5 (Forms and court records), rule 5.4 (Duty to make records) as if it were amended by rule 7 of the Coronavirus Rules;

(d) in Part 14 (Bail and custody time limits), rule 14.20 (Exercise of court’s powers: extension of live link bail) as if it were amended by rule 8 of the Coronavirus Rules;

(e) in Part 18 (Measures to assist a witness or defendant to give evidence)—

  • the heading to the Part as if it were amended by rule 9(a) of the Coronavirus Rules,
  • rules 18.1 (When this Part applies), 18.2 (Meaning of ‘witness’), 18.4 (Decisions and reasons), 18.23 (Exercise of court’s powers), 18.24 (Content of application for a live link direction), 18.25 (Application to discharge a live link direction, etc.) and 18.26 (Representations in response) as if they were amended by rule 9(b) to (h) respectively of the Coronavirus Rules, and
  • the note at the end of the Part as if it were amended by rule 9(i) of the Coronavirus Rules;

(f) in Part 24 (Trial and sentence in a magistrates’ court), rule 24.11 (Procedure if the court convicts) as if it were amended by rule 10 of the Coronavirus Rules;

(g) in Part 25 (Trial and sentence in the Crown Court), rule 25.16 (Procedure if the court convicts) as if it were amended by rule 11 of the Coronavirus Rules;

(h) in Part 28 (Sentencing procedures in special cases), rule 28.8 (Directions for commissioning medical reports for sentencing purposes) as if it were amended by rule 12 of the Coronavirus Rules;

(i) in Part 47 (Investigation orders and warrants) the rules listed in rule 13 of the Coronavirus Rules as if they were amended by that rule; and

(j) in Part 50 (Extradition), rules 50.3 (Exercise of magistrates’ court’s powers) and 50.17 (Exercise of High Court’s powers) as if they were amended by rule 14 of the Coronavirus Rules.’

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