Criminal Law

Criminal Procedure Rules 2005

On 4 April 2005, the Criminal Procedure Rules 2005 were brought into effect (see: www.hmso.gov.uk/si/si2005/20050384.htm), and the Consolidated Criminal Practice Direction was substantially amended by amendment number 11 (see: www.dca.gov.uk/criminal/procrules_fin/index.htm).


The documents need to be read together. The rules form an extremely lengthy document, but for the first time consolidate all rules into a single set whether they apply to the magistrates' court, Crown Court, or Court of Appeal, criminal division. Currently, most of the rules follow their original form. Over the coming months they will be modernised, consolidated, and simplified.


However, the early rules are new and have significant implications for defence practice. An overriding objective is stated, which is to ensure that all cases are dealt with justly.


This involves acquitting the innocent and convicting the guilty. It emphasises the need to recognise the rights of a defendant as well as witnesses, victims and jurors. Each participant in a criminal case must at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these rules, any practice direction or direction of the court.


This means that it will no longer be possible for the defence to keep to itself until trial a procedural failing by the prosecution. At the beginning of each case, each party, unless the court otherwise directs, must nominate an individual responsible for progressing that case and tell other parties and the court who he is and how to contact him.


This is the case progression officer. Every law firm will need to consider how they intend to appoint their case progression officers, who will have personal responsibility for ensuring that directions and time-tables are observed both by the defence, and also by all other parties. Under the rules, the court may, for the purpose of giving directions, receive applications and representations by letter, by telephone and by any other means of electronic communication and conduct hearings by such means.


Therefore, law firms will need to ensure they check e-mails and voicemails on a regular basis so that directions are not missed. At every hearing, if a case cannot then be concluded, a court must give directions so that it can be concluded at the next hearing or as soon as possible. At every hearing the court must, where relevant '...take the defendant's plea unless already done and if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty'. This presents a substantial difficulty for the defence where no prosecution evidence has yet been served. It should be argued that it is not yet relevant to give such an indication in an adversarial system. However, defendants will need to be advised of the substantial benefits that may accrue in sentence if an early indication is given.


Each party must promptly inform the court and the other parties of anything that may affect the date or duration of the trial; thus if defendants are not giving instructions to their solicitors, this cannot be kept a secret - unless the case can be progressed without those instructions. In a helpful provision, the court must make available to the parties a record of directions given.


Amendment 11 to the practice direction introduces the concept of automatic directions and the plea and case management hearing. In every case, it will be important that the case progression officer notes which automatic directions apply and makes good diary entries to that effect. If any notification is sent to the prosecution, a copy should also be sent to the court.


In annex E to the direction, a new set of forms, which will become increasingly familiar to solicitors, is prescribed. Certain questions are identified as compulsory and these include questions raising issues of privilege. Thus each form asks whether the defendant has been advised about credit for pleading guilty and has been warned that if he is on bail, and fails to attend, the proceedings may continue in his absence. A solicitor requires the client's authority to provide that information. It will be foolish for clients to decline to do so as they would then be asked the questions direct in court.


In relation to not guilty pleas in the magistrates' court, an outline of the automatic directions is as follows: The Crown must serve its evidence, including any documentary exhibits, within 28 days and comply with its initial duty of disclosure. At the same time, it must serve notice of any intention to introduce a defendant's bad character or to introduce hearsay evidence.


The defence must serve a defence statement, if one is to be given, within 14 days and notify the Crown and the court that a witness is required to attend court to give live evidence within seven days. Similarly, within seven days the defence must indicate if the application to introduce a defendant's bad character is to be opposed.


Within 14 days the defence must give notice of any intention to introduce hearsay evidence, and of a wish to introduce the bad character of a prosecution witness, and serve any statements of its own where a witness is not to be called to give live evidence. The Crown then has 14 days in which to make any further disclosure.


Any point of law must be identified with skeleton arguments and authorities at least 21 days before trial and both third parties must serve a certificate of readiness seven days before trial.


In relation to committals for trial, an outline of the automatic directions include:

The Crown must serve the draft indictment forthwith and must comply with the initial duty of disclosure within 14 days;

The defence must identify those prosecution witnesses who are to be called to give live evidence within 14 days, and serve the defence statement including alibi details within 14 days of initial disclosure.

Similar provisions apply in relation to the transfer of cases.


The greatest changes are made in relation to cases sent to the Crown Court (and this will become the majority of cases with the abolition of committal proceedings around the end of 2005). A preliminary hearing will now be a rare event. Such a hearing should only be listed if:

There are case management issues;

The case is likely to last for more than four weeks;

It will be desirable to set an early trial date;

The defendant is a child or young person;

There is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing.

In cases where there is no preliminary hearing, the plea and case management hearing will take place within 14 weeks in custody cases and 17 weeks in bail cases.


The Crown will be required to serve its evidence initial disclosure within 50 days in custody cases and 70 days in bail cases. An application to dismiss must then be made within 14 days. For the defence to require a prosecution witness to give evidence in person, notice must be given within seven days. A defence statement must be served within 14 days, as must an application to introduce the bad character of prosecution witnesses. The Crown must serve notice of an intention to introduce the defendant's bad character or hearsay within 14 days of service of the case papers and initial disclosure.





Disclosure


For offences where the investigation began on, or after, 4 April 2005, a new disclosure regime has come into effect.


Part 5 of the Criminal Justice Act 2003 removes the concepts of primary and secondary disclosure. The Crown must now disclose all material that might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused. This effectively enacts the earlier version of the Attorney-General's guidelines. The need for secondary disclosure is replaced by a duty on the prosecutor to keep under review the question of whether disclosure, under the new test, is required at any time.


However, changes are also made in relation to defence obligations. A defence statement should contain the following details - it is a written statement:

Setting out the nature of the defence, including any particular defences on which the defendant intends to rely;

Indicating matters of fact on which he takes issue;

Setting out in the case of each such matter why he takes issue;

Indicating any point of law (including any point as to the admissibility of evidence or as to abuse of process) that he wishes to take and any authority on which he intends to rely;

That continues to provide alibi details.

The obligations in the first point are now more specific than under the original requirements and the provisions of the fourth point are new.


Perhaps most significantly, all defence statements are deemed to be given with the authority of the defendant unless the contrary is proved. This will enable the Crown, in appropriate cases, to use the defence statement as part of the prosecution case. Among other considerations, it will be important not to make unnecessary imputations against prosecution witnesses lest a defendant's character be placed in evidence also.


A judge may make a copy of the defence statement available to the jury members to assist them in understanding the issues. It should be noted that the law is unchanged as to when a defence statement is required. No comment may be made in the magistrates' court about the lack of a statement. In the Crown Court there is no obligation to file a statement but inferences may be drawn.


However, to obtain further prosecution material, the defence will have to serve a defence statement both in the magistrates' court and in the Crown Court, as the ability to apply for further disclosure is dependent on it.


Provisions in the Act for the disclosure of the names, addresses and dates of birth of defence witnesses and for the identification of experts consulted by the defence have not yet been brought into effect. Nor have provisions requiring a defence statement to be updated as a case develops, nor those clearly enabling the court to order the disclosure of a defence statement to co-defendants.


For investigations beginning on, or after, 4 April, there is a new code of practice in relation to disclosure that modernises, but substantially leaves alone, the original code. Material continues to be relevant to an investigation if it appears that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.


An individual must not be appointed as disclosure officer when it is likely to result in a conflict of interest, such as when the officer is a victim. There is also a new set of Attorney-General's guidelines (see: www.Islo.gov.uk), containing strong advice on the issue of relevance but making clear that a defence statement may be put to a defendant as a prior inconsistent statement.





Sentencing guidelines


A new compendium of guideline cases dealing with general issues of principle and different offences is now available at:


www.sentencing-guidelines.gov.uk.


In due course, these will be replaced by formal guidelines, but in the meantime this is an excellent reference point when identifying aggravating and mitigating factors and appropriate sentencing levels.


A guideline is no more than that - the actual sentence involves the exercise of judgement to deal with the particular facts and individual defendant.


By Anthony Edwards, TV Edwards, London