Changing rules

Additional amendments to the Criminal Procedure Rules 2005 took effect on 6 November 2006.


By far the most significant is in relation to part 33, which deals with expert evidence at all levels of the criminal courts. Under the transitional arrangements (defined in part 2), part 33 only takes effect in relation to charges made on or after 6 November. For the purposes of this rule, an expert includes not only an expert giving evidence in criminal proceedings but includes hearings in relation to fitness to plead or for sentencing.


A duty of the expert to the court is now expressly defined as an overriding objective to give objective unbiased opinion on matters within his expertise. This duty overrides any obligation to an individual from whom he receives instructions or by whom he is paid. There is an obligation to inform all parties should a change of opinion occur. Under rule 33(3), the exact content of an expert's report is defined.


Defence solicitors are now under an obligation to advise the expert whenever a report signed by them is served on another party or on the court. The court now has power to conduct pre-hearing discussions of expert evidence. It may direct experts to discuss the issues and prepare a statement for the court on matters on which they agree and disagree. The balance of any discussion may not be referred to without the court's authority. There is a restriction on introducing expert evidence without the court's permission if there has been any non-compliance with the directions on pre-trial discussions.


Where there is more than one defendant in a case, the court now has power to direct that a single expert be instructed. When this occurs, the rules prescribe the information that must be made available by one party to another and to the expert. The court may limit the amount paid for the expert's fees and expenses.


Other changes apply from 6 November in any case where the court so directs. Amendments have been made to part 36, which deals with evidence about a complainant's previous sexual history. The new rules discourage late applications, especially if made at trial. They require that every application, including a late application, be made in writing, explaining the reasons for making it and the legal grounds on which it is made. If an application succeeds, the court must give the prosecutor an adequate opportunity to consider what special measures may be needed to assist the witness.


Other changes to the rules foresee the introduction of a 'requisition' to replace the process of summoning and charging. Similarly, part 15 allows preparatory hearings to consider issues arising around the specimen charge procedure, which is to be introduced under section 17 of the Domestic Violence Crime and Victims Act 2004 for trials on indictment. This provision will eventually allow part of a trial to be heard by a judge alone in cases of multiple offending.


There are consequential amendments to part 24 and part 29, dealing with the disclosure of expert evidence and special measures directions. And part 68 is amended to allow for appeals to the Court of Appeal in relation to conviction, sentence or sentence review made under the Serious Organised Crime and Police Act 2005.


Meanwhile, the impact of the Criminal Procedure Rules on the adversarial system continues to be felt. The leading authority is now R v Ashton [2006] Crim LR 1004. This confirms that where there is a procedural failure, the court must ask itself if Parliament intended the underlying act to be invalid. This is unlikely to be the case and in that situation the only issue is whether there is a prejudice to the defence. If there is no such prejudice, the procedural failing must not be allowed to thwart the overriding objective of the rules to convict the guilty and acquit the innocent.


There now appears to be three distinct groups of procedural errors. R v Ashton identified that if the error goes to jurisdiction, then it cannot be put right; thus it was not possible to validate an allegation of a summary-only crime once six months had passed. Similarly, if proceedings were issued against the wrong company in a group, the error could not be corrected out of time (see R (Sainsbury Supermarkets Limited) v Plymouth Magistrates Court [2006] EWHC 1749 (Admin)).


At the other extreme are purely technical errors, such as occurred in R v Clarke [2006] Crim LR 1011, where there had been a failure to sign the indictment, or in Bentham v The Gov of HMP Wandsworth [2006] Crim LR 855, where an invalid notice of sending had been prepared under section 51(7) of the Crime & Disorder Act 1998.


However, technical failings clearly extend beyond such cases. In DPP v Stephens [2006] EWHC 1860 (Admin), the prosecution had failed to produce an analyst's certificate in relation to excess alcohol in an evidentially correct form, whether under section 16 of the Road Traffic Offenders Act 1988, or as a statement under section 9 of the Criminal Justice Act 1967, or as a business document under the hearsay rules, section 117 of the Criminal Justice Act 2003. But as the content was not in dispute, an adjournment should have been allowed to put the error right.


Similarly in R (DPP) v Chorley Justices [2006] EWHC 1795 (Admin), it was emphasised that no solicitor should expect that his client would be able to rely on a technical point or an ambush. If a solicitor is instructed late, then he should ensure that the issues are brought to the attention of the Crown and the court well in advance of trial, so that if necessary the proceedings could be adjourned to prevent the defendant seeking to take an ambush point.


This requires a complete change of approach by the defence, involving a much earlier disclosure of the defence position.


However, this is not a one-way process and in R (Cleary) v Highbury Corner Magistrates Court [2006] EWHC 1869 (Admin), the court identified that it had become axiomatic that a defendant's right to be heard carried with it the need to know the case that is to be made against that party with a reasonable opportunity to consider it. A magistrates' court will not usually secure the enjoyment of that right only by permitting short adjournments in the course of the hearing itself, where evidence is served at the last minute, or where evidence which may be significant or is probably relevant is unavailable.


The position of defence solicitors now requires not only that they are entirely familiar with the Criminal Procedure Rules but also with all relevant practice directions and protocols. All relevant documents can be found at www.dca.gov.uk/criminal/procrules_fin.


The consolidated criminal practice direction and the forms appended to it deal with all aspects of criminal law, and in R v K [2006] Crim LR 1012, the Court of Appeal approved the protocol on pre-trial disclosure for use in Crown Courts. This contains a clear requirement on solicitors in particular to comply with time-limits for the service of defence statements, or for them to obtain extensions of time.


By Anthony Edwards, TV Edwards, London