On 5 April 2010, the Criminal Procedure Rules were consolidated into a new edition, but the opportunity was also taken to make a series of amendments. Part 29 now provides for special measures to assist defendants in relation to witness anonymity orders.

Significant change has been made to the hearsay provisions in part 34 of the rules. A formal notice is now only required, from either party, if they intend to introduce hearsay under the provisions of section 114(1)(d) (in the interests of justice), section 116 (unavailable witnesses) or section 121 (multiple hearsay) of the Criminal Justice Act 2003. However, a notice of opposition to hearsay is required in all cases whether the Crown gives such a notice or not. This will be particularly significant in relation to business documents for which no formal notice is now required.

When considering statements served upon them, it will be critical that defence solicitors seek to identify possible hearsay evidence and, if they have any doubt about its admissibility, should immediately serve notice under the rules. A holding letter might properly be sent objecting to the admissibility of hearsay evidence while the matter is considered in detail.

Although no amendment is made to the law of bad character under part 35 of the rules, significantly greater detail is now required by the forms prescribed for use under that rule.

A small but significant amendment is made in the conduct of summary trials. For the first time the prosecution may now, at the end of a trial, reply on fact as well as to law. This option exists wherever the defendant is represented or where an unrepresented defendant relies on evidence other than their own. The Crown must make any closing submissions prior to those of the defence.

The courts continue to make clear that it is not acceptable for defence lawyers to base submissions on the absence of prosecution evidence if prior notice of that omission has not been given to the Crown (R v Penner [2010] EWCA Crim 1155). In Cox v DPP [2009] EWHC 3595 (Admin), the defence took without notice a point under section 7(7) of the Road Traffic Act 1988, namely the absence of a warning that there would be a prosecution if the defendant did not comply with the police requests. The Crown’s appeal only failed because the Crown had not applied at trial to recall the officer to deal with the point raised.

It is the practice of many defence lawyers to notify the Crown in writing of technical defects in the prosecution’s case and the courts are increasingly unwilling to grant adjournments for the Crown to put matters right if they have not already done so by the time the trial is listed. The principles on which applications for adjournment should be considered were set out in CPS v Picton [2006] EWHC 1108 (Admin) identifying the relevant features as: (a) the need for expedition in criminal trials; (b) a need for balance between defendants and the public interest, depending on the seriousness of the charge; (c) the likely consequences of an adjournment, particularly its length; (d) issues of who was at fault; and (e) the history of the case generally. The first of these is given particular emphasis in current practice.

In Visvaratnam v Brent Magistrates’ Court [2009] EWHC 3017 (Admin), there were no prosecution witnesses present on the day of trial. Key witnesses had not been warned and other witnesses had already told the Crown they were not available. The court emphasised the very high public interest which is now put on trials taking place on a fixed date, not least so as not to delay other cases. Adjournments can only be granted for good and compelling reasons (R (Walden) v Highbury Corner MC [2003] EWHC 708 (Admin)).

All grounds for the application to adjourn a trial in the absence of a prosecution witness must be subjected to scrutiny against the need to ensure the expeditious hearing of casework (Balogun v DPP [2010] EWHC 799 (Admin), which contains a further review of the casework).

However, while the efficacy of justice dictated that pre-trial rulings should not routinely be revisited, it was otherwise if there was a change of circumstances – here fuller understanding of why the Crown’s forensic evidence was not ready (R (Jones) v SE Surrey Local Justice Area [2010] EWHC 916 (Admin)).

Where the defence fails to notify that they intend or may intend to call an expert witness, but rather delay for tactical advantage until the end of the prosecution case, the court applying Civil Procedure Rules 1.2 (overriding objective) and 3.3 (duty to assist in active case management) may refuse to admit the relevant evidence (R v Ensor [2009] EWCA Crim 2519).

Section 66 of the Courts Act 2003 has done much to enable courts to avoid unnecessary procedural delay by allowing a judge of one jurisdiction to sit as a judge of another. In particular, this has removed the need for unnecessary transfer between different levels of courts. However, in R v Dodson [2009] EWCA Crim 1830, it was emphasised that a Crown court judge cannot exercise powers which the district judge would not at that time have had. Thus the judge could not commit for trial a summary-only matter which at that point was no longer related to any either-way offence (section 41 of the Criminal Justice Act 1988).

Professional ConductIn CPS v R (L) [2010] EWCA Crim 924, a prosecution for possession of indecent child photographs was stayed for abuse when the Crown refused to comply with a carefully considered order of the court enabling the defence to view the photographs and to take the defendant’s instructions in suitably privileged circumstances. In a strong judgment, the court confirmed: ‘The principle that the defendant is entitled to private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS, is too elementary to require citation of authority. In the context of the issue which arises in this case, at such a conference the defendant and his lawyers need access to the material relied on by the Crown. Without such access, first, the defendant’s lawyers cannot give him and he cannot receive clear and unequivocal advice about his position, and second, proper preparations for the forthcoming trial in which the very material in question provides the entire basis for the prosecution case cannot be made.

‘Arrangements to provide defence lawyers with the relevant material for the sole purpose of discharging their professional responsibilities to their client, and the acceptance by them of access to such material for this purpose, cannot, in any circumstances, be regarded as criminal. This elementary principle is acknowledged within the relevant legislation. Both the Protection of Children Act 1978 and the Criminal Justice Act 1988 provide defences for solicitors and counsel who for these purposes are in possession of what would otherwise be prohibited material.’

Anthony Edwards, TV Edwards