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660 provisions
14.15 Forfeiture of a recognizance given by a surety
(1) This rule applies where the court imposes as a condition of bail a requirement that a surety enter into a recognizance and, after the defendant is released on bail,—
(a) the defendant fails to surrender to custody as required, or
(b) it appears to the court that the surety has failed to comply with a condition or direction.
(2) The court officer must serve notice on—
(a) the surety; and
(b) each party to the decision to grant bail,
of the hearing at which the court will consider the forfeiture of the recognizance.
(3) The court must not forfeit the recognizance less than 5 business days after service of notice under paragraph (2).
[Note. If the purpose for which a recognizance is entered is not fulfilled, that recognizance may be forfeited by the court. If the court forfeits a surety’s recognizance, the sum promised by that person is then payable to the Crown. See also section 120 of the Magistrates’ Courts Act 1980.]
(1) This rule and rule 14.17 (Arrangements for court to receive defendant arrested for breach of bail) apply where—
(a) a defendant arrested for breach of bail must be brought before a court under section 7 of the Bail Act 1976 (Liability to arrest for absconding or breaking conditions of bail); and
(b) a police custody officer so notifies the court officer.
(2) The police custody officer must provide the court officer with—
(a) the defendant’s name and date of birth;
(b) details of—
(i) the warrant under which the defendant was arrested, or
(ii) the reasons for an arrest without a warrant;
(c) confirmation that the prosecutor has been notified;
(d) confirmation that the following have been notified and are available—
(i) any interpreter required,
(ii) the defendant’s legal representative, if any, and
(iii) any local or other authority, including any youth offending team, responsible for the defendant’s care or welfare;
(e) the police custody officer’s proposal for the means by which the defendant will be brought before the court, either by live link or in person, and—
(i) if the proposal is for the defendant to attend court by live link, details of any material circumstance listed in rule 3.35 (Live link direction: exercise of court’s powers), or
(ii) if the proposal is for the defendant to attend court in person, the identity of the authority responsible for transporting the defendant and the expected time of arrival; and
(f) details of any disability or other vulnerability of the defendant of which the police custody officer is aware and which is not apparent from other information supplied.
[Note. The court may issue a warrant for the defendant’s arrest—
(a) under section 7(1) of the Bail Act 1976 where the defendant was released on bail under a duty to surrender into the custody of the court and fails to do so when required; or
(b) under section 7(2) of the Act where the defendant was released on bail, surrenders into the custody of the court, and then leaves without the court’s permission before the hearing begins or resumes.
Under section 7(3) of the 1976 Act a defendant who has been released on bail and is under a duty to surrender into the custody of a court may be arrested and detained without a warrant by a constable—
(a) who has reasonable grounds for believing that the defendant is not likely to surrender to custody,
(b) who has reasonable grounds for believing that the defendant is likely to break any of the conditions of bail,
(c) who has reasonable grounds for suspecting that the defendant has broken any of those conditions, or
(d) where a surety for that bail notifies the constable in writing that the defendant is unlikely to surrender to custody and for that reason the surety wishes to be relieved of the obligations of a surety.
Under section 7(4) of the 1976 Act, subject to the exceptions to which rule 14.17(2) refers a defendant arrested under section 7(3) must be brought before a magistrates’ court as soon as practicable and in any event within 24 hours after the arrest, omitting any part of a day which is Christmas Day, Good Friday or a Sunday.
Under section 81(5) of the Senior Courts Act 1981 a defendant arrested under a warrant issued by the Crown Court must be brought forthwith before—
(a) the Crown Court if the defendant is charged with murder, or with murder and one or more other offences; or
(b) the Crown Court or a magistrates’ court in any other case.]
14.17 Arrangements for court to receive defendant arrested for breach of bail
(1) The court officer must arrange for a defendant of whose arrest the police custody officer gives notice under rule 14.16 (Notice of arrest for breach of bail)—
(a) if the arrest was under a Crown Court warrant, to be brought at once before—
(i) the Crown Court, if the defendant is charged with murder or with murder and one or more other offences, or
(ii) if the defendant is not so charged, the Crown Court as a general rule and otherwise a magistrates’ court;
(b) if the arrest was under a magistrates’ court warrant, to be brought as soon as practicable before a magistrates’ court; and
(c) if the arrest was without a warrant, subject to paragraph (2) to be brought as soon as practicable before a magistrates’ court—
(i) by 3.30pm that day if that day is a business day,
(ii) by 12.30pm that day if that day is a Saturday or a bank holiday,
(iii) in either case, later if, but only if, a disability or vulnerability of the defendant so requires, and in any event
(iv) within 24 hours after the arrest (but omitting from that period any part of a day which is Christmas Day, Good Friday or a Sunday).
(2) Where a defendant of whose arrest the police custody officer gives notice under rule 14.16 was arrested without a warrant—
(a) if the arrest was within 24 hours of the time at which that defendant was due to surrender into the custody of a court then the court officer must arrange for the defendant to be brought before that court; and
(b) if the defendant is charged with murder or with murder and one or more other offences then—
(i) the court officer must arrange for the defendant to be brought before the Crown Court as soon as practicable and in any event within 24 hours after the arrest (but omitting from that period any part of a day which is not a business day), and
(ii) in paragraph (3) the reference to justices’ legal advisers is omitted.
(3) In making the arrangements required by paragraph (1) the court officer must—
(a) consult with those affected including—
(i) the police custody officer,
(ii) court members,
(iii) justices’ legal advisers and other court officers, and
(iv) the prosecutor; and
(b) as far as is practicable rearrange court business to ensure that the time available will allow all cases heard that day to conclude by 4.30pm (or later if, but only if, a disability or vulnerability of the defendant the subject of this rule so requires).
(4) When arrangements for the defendant to be brought before a court have been made the court officer promptly must so inform—
(a) the police custody officer; and
(b) as applicable, others consulted under paragraph (3)(a).
(5) The court before which the defendant is brought under this rule must—
(a) deal there and then with the alleged breach of bail; and
(b) as far as is practicable take the next steps required in the defendant’s case in accordance with rule 3.8 (Case preparation and progression).
14.18 Exercise of court’s powers: extension of pre-charge bail
(1) The court must determine an application to which rule 14.19 (Application to authorise extension of pre-charge bail) applies—
(a) without a hearing, subject to paragraph (2); and
(b) as soon as practicable, but as a general rule no sooner than the fifth business day after the application was served.
(2) The court must determine an application at a hearing where—
(a) if the application succeeds, its effect will be to extend the period for which the defendant is on bail to 24 months or less from the day after the defendant’s arrest for the offence and the court considers that the interests of justice require a hearing;
(b) if the application succeeds, its effect will be to extend that period to more than 24 months from that day and the applicant or the defendant asks for a hearing; or
(c) it is an application to withhold information from the defendant and the court considers that the interests of justice require a hearing.
(3) Any hearing must be in private.
(4) Subject to rule 14.20 (Application to withhold information from the defendant), at a hearing the court may determine an application in the absence of—
(a) the applicant; and
(b) the defendant, if the defendant has had at least 5 business days in which to make representations.
(5) If the court so directs, a party to an application may attend a hearing by live link.
(6) The court must not authorise an extension of the period for which a defendant is on bail before being charged unless—
(a) the applicant states, in writing or orally, that to the best of the applicant’s knowledge and belief—
(i) the application discloses all the information that is material to what the court must decide, and
(ii) the content of the application is true; or
(b) the application includes a statement by an investigator of the suspected offence that to the best of that investigator’s knowledge and belief those requirements are met.
(7) Where the statement required by paragraph (6) is made orally—
(a) the statement must be on oath or affirmation, unless the court otherwise directs; and
(b) the court must arrange for a record of the making of the statement.
(8) The court may shorten or extend (even after it has expired) a time limit imposed by this rule or by rule 14.19 (Application to authorise extension of pre-charge bail).
[Note. For the definition of ‘defendant’ for the purposes of this rule and rules 14.19 and 14.20, see rule 14.1(3).
Sections 47ZA and 47ZB of the Police and Criminal Evidence Act 1984 limit the period during which a defendant who has been arrested for an offence may be on bail after being released without being charged. That period (‘the applicable bail period’) is—
(a) 6 months from the day after the day on which the defendant was arrested (the defendant’s ‘bail start date’) in an ‘FCA’, ‘HMRC’, ‘NCA’ or ‘SFO’ case (that is, a case, as defined by section 47ZB, being investigated by the Financial Conduct Authority, an officer of Revenue and Customs, the National Crime Agency or the Serious Fraud Office, as applicable); and
(b) 3 months from the defendant’s bail start date in any other case (‘a standard case’).
Under section 47ZDB of the 1984 Act, in an FCA, HMRC, NCA or SFO case the applicable bail period may be extended on the authority of the appropriate decision maker until the end of 12 months from the bail start date. ‘Appropriate decision maker’ is defined as, in summary, a senior officer of the relevant authority.
Under sections 47ZC and 47ZD of the 1984 Act, in a standard case the applicable bail period may be extended on the authority of a police officer of the rank of inspector or above until the end of 6 months from the bail start date. Under section 47ZDA the applicable bail period may be further extended on the authority of a police officer of the rank of superintendent or above until the end of 9 months from the bail start date.
Under sections 47ZC and 47ZE of the 1984 Act, if the case is designated by the Director of Public Prosecutions as exceptionally complex (a ‘designated case’) the applicable bail period may be further extended on the authority of one of the senior officers listed in section 47ZE until the end of 12 months from the bail start date.
Under section 47ZF of the 1984 Act, on an application made before the date on which the applicable bail period ends by a constable, a member of staff of the Financial Conduct Authority of the description designated by its Chief Executive, an officer of Revenue and Customs, a National Crime Agency officer, a member of the Serious Fraud Office or a Crown Prosecutor, a magistrates’ court may authorise an extension of that period—
(a) from a previous total of 9 months to a new total of 12 months or, if the investigation is unlikely to be completed or a police charging decision made within a lesser period, a new total of 18 months (following extension under section 47ZDA of the Act);
(b) from a previous total of 12 months to a new total of 18 months or, if the investigation is unlikely to be completed or a police charging decision made within a lesser period, a new total of 24 months (following extension under section 47ZDB or 47ZE of the Act),
where the conditions listed in that section are met.
Under section 47ZG of the Act, on a further such application (of which there may be more than one) a magistrates’ court may authorise a further extension of the applicable bail period, on each occasion by a further 3 months or, if the investigation is unlikely to be completed or a police charging decision made within a lesser period, a further 6 months, where the conditions listed in that section are met.
Under section 47ZL of the Act, the running of the applicable bail period does not begin (in the case of a first release on bail) or is suspended (in any other case) where—
(a) the defendant is released on bail to await a charging decision by the Director of Public Prosecutions under section 37B of the Act; or
(b) following arrest for breach of such bail the defendant is again released on bail.
The court’s authority therefore is not required for an extension of an applicable bail period the running of which is postponed or suspended pending a Director’s charging decision. However—
(a) time runs in any period during which information requested by the Director is being obtained; and
(b) if the Director requests information less than 7 days before the applicable bail period otherwise would end then the running of that period is further suspended until the end of 7 days beginning with the day on which the Director’s request is made.
See also section 47ZI of the Police and Criminal Evidence Act 1984 (Sections 47ZF to 47ZH: proceedings in magistrates’ courts). The requirement for the court except in specified circumstances to determine an application without a hearing is prescribed by that section. Under that section the court must comprise a single justice of the peace unless a hearing is convened, when it must comprise two or more justices.]
14.19 Application to authorise extension of pre-charge bail
(1) This rule applies where an applicant wants the court to authorise an extension of the period for which a defendant is released on bail before being charged with an offence.
(2) The applicant must—
(a) apply in writing before the date on which the defendant’s pre-charge bail is due to end;
(b) demonstrate that the applicant is entitled to apply as a constable, an officer of Revenue and Customs, a National Crime Agency officer, a member of staff of the Financial Conduct Authority, a member of the Serious Fraud Office or a Crown Prosecutor;
(c) serve the application on—
(i) the court officer, and
(ii) the defendant; and
(d) serve on the defendant, with the application, a form of response notice for the defendant’s use.
(3) The application must specify—
(a) the offence or offences for which the defendant was arrested;
(b) the date on which the defendant’s pre-charge bail began;
(c) the date and period of any previous extension of that bail;
(d) the date on which that bail is due to end;
(e) the conditions of that bail; and
(f) if different, the bail conditions which are to be imposed if the court authorises an extension, or further extension, of the period for which the defendant is released on pre-charge bail.
(4) The application must explain—
(a) the grounds for believing that, as applicable—
(i) further investigation is needed of any matter in connection with the offence or offences for which the defendant was released on bail, or
(ii) further time is needed for making a decision as to whether to charge the defendant with that offence or those offences;
(b) the grounds for believing that, as applicable—
(i) the investigation into the offence or offences for which the defendant was released on bail is being conducted diligently and expeditiously, or
(ii) the decision as to whether to charge the defendant with that offence or those offences is being made diligently and expeditiously; and
(c) the grounds for believing that the defendant’s further release on bail is necessary and proportionate in all the circumstances having regard, in particular, to any conditions of bail imposed.
(5) The application must—
(a) indicate whether the applicant wants the court to authorise an extension of the defendant’s bail for 3 months or for 6 months; and
(b) if for 6 months, explain why the investigation is unlikely to be completed or the charging decision made, as the case may be, within 3 months.
(6) The application must explain why it was not made earlier where—
(a) the application is made before the date on which the defendant’s bail is due to end; but
(b) it is not likely to be practicable for the court to determine the application before that date.
(7) A defendant who objects to the application must—
(a) serve notice on—
(i) the court officer, and
(ii) the applicant
not more than 5 business days after service of the application; and
(b) in the notice explain the grounds of the objection.
[Note. See sections 47ZF (Applicable bail period: first extension of limit by the court), 47ZG (Applicable bail period: subsequent extensions of limit by the court) and 47ZJ (Sections 47ZF and 47ZG: late applications to magistrates’ court) of the Police and Criminal Evidence Act 1984.
The time limit for making an application is prescribed by section 47ZF(2) and by section 47ZG(2) of the 1984 Act. It may be neither extended nor shortened. Under section 47ZJ(2) of the Act, if it is not practicable for the court to determine the application before the applicable bail period ends then the court must determine the application as soon as practicable. Under section 47ZJ(3), the applicable bail period is treated as extended until the application is determined. Under section 47ZJ(4), if it appears to the court that it would have been reasonable for the application to have been made in time for it to be determined by the court before the end of the applicable bail period then the court may refuse the application.]
14.20 Application to withhold information from the defendant
(1) This rule applies where an application to authorise an extension of pre-charge bail includes an application to withhold information from the defendant.
(2) The applicant must—
(a) omit that information from the part of the application that is served on the defendant;
(b) mark the other part to show that, unless the court otherwise directs, it is only for the court; and
(c) in that other part, explain the grounds for believing that the disclosure of that information would have one or more of the following results—
(i) evidence connected with an indictable offence would be interfered with or harmed,
(ii) a person would be interfered with or physically injured,
(iii) a person suspected of having committed an indictable offence but not yet arrested for the offence would be alerted, or
(iv) the recovery of property obtained as a result of an indictable offence would be hindered.
(3) At any hearing of an application to which this rule applies—
(a) the court must first determine the application to withhold information, in the defendant’s absence and that of any legal representative of the defendant; and
(b) if the court allows the application to withhold information, then in the following sequence—
(i) the court must consider representations first by the applicant and then by the defendant, in the presence of both, and
(ii) the court may consider further representations by the applicant in the defendant’s absence and that of any legal representative of the defendant, if satisfied that there are reasonable grounds for believing that information withheld from the defendant would be disclosed during those further representations.
(4) If the court refuses an application to withhold information from the defendant, the applicant may withdraw the application to authorise an extension of pre-charge bail.
[Note. See sections 47ZH and 47ZI(5), (6), (8) of the Police and Criminal Evidence Act 1984 (withholding sensitive information; proceedings in magistrates’ courts: determination of applications to withhold sensitive information).]
(1) This rule applies where the prosecutor gives notice of application to extend a custody time limit.
(2) The court officer must arrange for the court to hear that application as soon as practicable after the expiry of—
(a) 5 days from the giving of notice, in the Crown Court; or
(b) 2 days from the giving of notice, in a magistrates’ court.
(3) The court may shorten a time limit under this rule.
[Note. See regulation 7 of the Prosecution of Offences (Custody Time Limits) Regulations 1987.
Under regulations 4 and 5 of the 1987 Regulations, unless the court extends the time limit the maximum period during which the defendant may be in pre-trial custody is—
(a) in a case which can be tried only in a magistrates’ court, 56 days pending the beginning of the trial;
(b) in a magistrates’ court, in a case which can be tried either in that court or in the Crown Court—
(i) 70 days, pending the beginning of a trial in the magistrates’ court, or
(ii) 56 days, pending the beginning of a trial in the magistrates’ court, if the court decides on such a trial during that period;
(c) in the Crown Court, pending the beginning of the trial, 182 days from the sending of the defendant for trial, less any period or periods during which the defendant was in custody in the magistrates’ court.
Under section 22(3) of the Prosecution of Offences Act 1985, the court cannot extend a custody time limit which has expired, and must not extend such a time limit unless satisfied—
(a) that the need for the extension is due to—
(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate,
(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more defendants or two or more offences, or
(iii) some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition.]
(1) This rule applies where—
(a) a defendant wants to appeal to the Crown Court against a decision by a magistrates’ court to extend a custody time limit; or
(b) a prosecutor wants to appeal to the Crown Court against a decision by a magistrates’ court to refuse to extend a custody time limit.
(2) The appellant must serve an appeal notice—
(a) on—
(i) the other party to the decision,
(ii) the Crown Court officer, and
(iii) the magistrates’ court officer;
(b) in a defendant’s appeal, as soon as practicable after the decision under appeal; and
(c) in a prosecutor’s appeal—
(i) as soon as practicable after the decision under appeal, and
(ii) before the relevant custody time limit expires.
(3) The appeal notice must specify—
(a) each offence with which the defendant is charged;
(b) the decision under appeal;
(c) the date on which the relevant custody time limit will expire;
(d) on a defendant’s appeal, the date on which the relevant custody time limit would have expired but for the decision under appeal; and
(e) the grounds of appeal.
(4) The Crown Court officer must arrange for the Crown Court to hear the appeal as soon as practicable and in any event no later than the second business day after the appeal notice was served.
(5) The appellant—
(a) may abandon an appeal without the Crown Court’s permission, by serving a notice of abandonment, signed by or on behalf of the appellant, on—
(i) the other party,
(ii) the Crown Court officer, and
(iii) the magistrates’ court officer
before the hearing of the appeal begins; but
(b) after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.
[Note. See section 22(7), (8), (9) of the Prosecution of Offences Act 1985.]
Summary of the general entitlement to bail and of the exceptions
The court must consider bail whenever it can order the defendant’s detention pending trial or sentencing, or in an extradition case, and whether an application is made or not. Under section 4 of the Bail Act 1976, the general rule, subject to exceptions, is that a defendant must be granted bail. Under Part IIA of Schedule 1 to the Act, if the court decides not to grant the defendant bail then at each subsequent hearing the court must consider whether to grant bail.
Section 3 of the Bail Act 1976allows the court, before granting bail, to require a surety or security to secure the defendant’s surrender to custody; and allows the court, on granting bail, to impose such requirements as appear to the court to be necessary—
(a) to secure that the defendant surrenders to custody;
(b) to secure that the defendant does not commit an offence while on bail;
(c) to secure that the defendant does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to the defendant or any other person;
(d) for the defendant’s own protection or, if a child or young person, for the defendant’s welfare or in the defendant’s own interests;
(e) to secure the defendant’s availability for the purpose of enabling enquiries or a report to be made to assist the court in dealing with the defendant for the offence;
(f) to secure that before the time appointed for surrender to custody the defendant attends an interview with a legal representative.
Under section 3 of the Bail Act 1976, a person granted bail in criminal proceedings is under a duty to surrender to custody as required by that bail. Under section 6 of the Act, such a person who fails without reasonable cause so to surrender commits an offence and, under section 7, may be arrested.
Exceptions to the general right to bail are listed in Schedule 1 to the Bail Act 1976. They differ according to the category of offence concerned. Under section 4(2B) of the 1976 Act, in an extradition case there is no general right to bail where the defendant is alleged to have been convicted in the territory requesting extradition.
Under Part I of Schedule 1 to the 1976 Act, where the offence is punishable with imprisonment, and is not one that can be tried only in a magistrates’ court, or in an extradition case—
(a) the defendant need not be granted bail if the court is satisfied that—
(i) there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice,
(ii) there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (within the meaning of section 33 of the Family Law Act 1996), or cause that person to fear injury,
(iii) the defendant should be kept in custody for his or her own protection or welfare, or
(iv) it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for the court to take the decisions required;
(b) the defendant need not be granted bail if it appears to the court that the defendant was on bail at the time of the offence (this exception does not apply in an extradition case);
(c) the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail;
(d) the defendant need not be granted bail if in custody pursuant to a sentence;
(e) the defendant need not be granted bail if it appears to the court that it would be impracticable to complete enquiries or a report for which the case is to be adjourned without keeping the defendant in custody;
(f) the defendant may not be granted bail if charged with murder, unless the court is of the opinion that there is no significant risk of the defendant committing an offence while on bail that would, or would be likely to, cause physical or mental injury to some other person;
(g) the defendant in an extradition case need not be granted bail if he or she was on bail on the date of the alleged offence and that offence is not one that could be tried only in a magistrates’ court if it were committed in England or Wales.
Exceptions (a)(i), (b) and (c) do not apply where—
(a) the defendant is 18 or over;
(b) the defendant has not been convicted of an offence in those proceedings; and
(c) it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in those proceedings.
In deciding whether an exception to the right to bail applies the court must have regard to any relevant consideration, including—
(a) the nature and seriousness of the offence, and the probable method of dealing with the defendant for it;
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant’s record of fulfilling obligations imposed under previous grants of bail; and
(d) except where the case is adjourned for enquires or a report, the strength of the evidence of the defendant having committed the offence.
Under Part IA of Schedule 1 to the 1976 Act, where the offence is punishable with imprisonment, and is one that can be tried only in a magistrates’ court—
(a) the defendant need not be granted bail if it appears to the court that—
(i) having previously been granted bail in criminal proceedings, the defendant has failed to surrender as required and, in view of that failure, the court believes that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, or
(ii) the defendant was on bail on the date of the offence and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail;
(b) the defendant need not be granted bail if the court is satisfied that—
(i) there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to some other person, or cause some other person to fear such injury,
(ii) the defendant should be kept in custody for his or her own protection or welfare, or
(iii) it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for the court to take the decisions required;
(c) the defendant need not be granted bail if in custody pursuant to a sentence;
(d) the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice.
Exceptions (a) and (d) do not apply where—
(a) the defendant is 18 or over;
(b) the defendant has not been convicted of an offence in those proceedings; and
(c) it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in those proceedings.
Under Part II of Schedule 1 to the 1976 Act, where the offence is not punishable with imprisonment—
(a) the defendant need not be granted bail if it appears to the court that having previously been granted bail in criminal proceedings, the defendant has failed to surrender as required and, in view of that failure, the court believes that, if released on bail (with or without conditions), the defendant would fail to surrender to custody;
(b) the defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his or her own protection or welfare;
(c) the defendant need not be granted bail if in custody pursuant to a sentence;
(d) the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would fail to surrender to custody, would commit an offence, or would interfere with witnesses or otherwise obstruct the course of justice;
(e) the defendant need not be granted bail if, having been released on bail in the case on a previous occasion, the defendant since has been arrested for breach of bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (within the meaning of section 33 of the Family Law Act 1996), or to cause that person to fear such injury.
Exceptions (a) and (d) apply only where—
(a) the defendant is under 18; and
(b) the defendant has been convicted in those proceedings.
Further exceptions to the general right to bail are set out in section 25 of the Criminal Justice and Public Order Act 1994, under which a defendant charged with murder, attempted murder, manslaughter, rape or another sexual offence specified in that section, and who has been previously convicted of such an offence, may be granted bail only if there are exceptional circumstances which justify it.
This Part applies in a magistrates’ court and in the Crown Court—
(a) where Parts I and II of the Criminal Procedure and Investigations Act 1996 apply; and
(b) where any comparable disclosure obligation applies otherwise than under the 1996 Act.
[Note. The Criminal Procedure and Investigations Act 1996 came into force on 1st April, 1997. It does not apply where the investigation began before that date. With effect from 4th April, 2005, the Criminal Justice Act 2003 made changes to the 1996 Act that do not apply to investigations begun earlier. In some circumstances, the prosecutor may be required to disclose material to which the 1996 Act does not apply: see sections 1 and 21.
Part I of the 1996 Act contains sections 1 to 21A. Part II, which contains sections 22 to 27, requires an investigator to record information relevant to an investigation that is obtained during its course. See also the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015 issued under sections 23 to 25 of the 1996 Act.]
15.2 Prosecution disclosure and disclosure management
(1) This rule applies where any of the following occurs—
(a) under section 3 of the Criminal Procedure and Investigations Act 1996 (Initial duty of prosecutor to disclose), or under any comparable obligation that applies where that section does not, the prosecutor—
(i) discloses to the defendant any prosecution material that might reasonably be considered capable of undermining the case for the prosecution against the defendant or of assisting the case for the defendant (in this rule, “gives initial disclosure”), or
(ii) gives the defendant a statement that there is no such material;
(b) under section 7A of the 1996 Act (Continuing duty of prosecutor to disclose), or under any comparable obligation that applies where that section does not, the prosecutor discloses any further such material; or
(c) the prosecutor serves a document (in this rule, a “disclosure management document”) prepared by the prosecutor that—
(i) describes the prosecutor’s approach to discharging the prosecution obligations to which this Part applies; and
(ii) gives the reasons for that approach.
(2) The prosecutor must discharge the prosecution obligations to which this Part applies as soon as is reasonably practicable.
(3) At the same time as the prosecutor discloses material to which this rule refers, or gives the defendant a statement that there is no, or no further, such material, the prosecutor must serve on the court officer notice to that effect.
(4) At the same time as the prosecutor serves on the defendant a disclosure management document, or revised such document, the prosecutor must serve that document on the court officer.
(5) As soon as is reasonably practicable after the prosecutor serves a disclosure management document, or revised such document, the defendant must—
(a) make such observations on the content of that document as the defendant wants the court to take into account when giving directions for the preparation of the case for trial; and
(b) serve any such observations on—
(i) the prosecutor, and
(ii) the court officer.
[Note. See—
(a) sections 2 and 3 of the Criminal Procedure and Investigations Act 1996, which define material and prescribe how and in what circumstances it must be disclosed; and
(b) sections 12 and 13 of the 1996 Act, and paragraph 10 of the Code of Practice accompanying the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015, which provide for the time limits for prosecution disclosure.
See also—
(a) rule 3.19 (preparation for trial in the Crown Court, service of prosecution evidence). Under regulation 2 of the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005 the time for service of the prosecution evidence in the Crown Court is—
(i) not more than 50 days after sending for trial, where the defendant is in custody, and
(ii) not more than 70 days after sending for trial, where the defendant is on bail.
(b) rule 15.4 (Defence disclosure).
In some circumstances, disclosure is prohibited by section 56 of the Investigatory Powers Act 2016.]
15.3 Prosecutor’s application for public interest ruling
(1) This rule applies where—
(a) without a court order, the prosecutor would have to disclose material; and
(b) the prosecutor wants the court to decide whether it would be in the public interest to disclose it.
(2) The prosecutor must—
(a) apply in writing for such a decision; and
(b) serve the application on—
(i) the court officer,
(ii) any person who the prosecutor thinks would be directly affected by disclosure of the material, and
(iii) the defendant, but only to the extent that serving it on the defendant would not disclose what the prosecutor thinks ought not be disclosed.
(3) The application must—
(a) describe the material, and explain why the prosecutor thinks that—
(i) it is material that the prosecutor would have to disclose,
(ii) it would not be in the public interest to disclose that material, and
(iii) no measure such as the prosecutor’s admission of any fact, or disclosure by summary, extract or edited copy, adequately would protect both the public interest and the defendant’s right to a fair trial;
(b) omit from any part of the application that is served on the defendant anything that would disclose what the prosecutor thinks ought not be disclosed (in which case, paragraph (4) of this rule applies); and
(c) explain why, if no part of the application is served on the defendant.
(4) Where the prosecutor serves only part of the application on the defendant, the prosecutor must—
(a) mark the other part, to show that it is only for the court; and
(b) in that other part, explain why the prosecutor has withheld it from the defendant.
(5) Unless already done, the court may direct the prosecutor to serve an application on—
(a) the defendant; and
(b) any other person who the court considers would be directly affected by the disclosure of the material.
(6) The court must determine the application at a hearing which—
(a) must be in private, unless the court otherwise directs; and
(b) if the court so directs, may take place, wholly or in part, in the defendant’s absence.
(7) At a hearing at which the defendant is present—
(a) the general rule is that the court must consider, in the following sequence—
(i) representations first by the prosecutor and any other person served with the application, and then by the defendant, in the presence of them all, and then
(ii) further representations by the prosecutor and any such other person in the defendant’s absence; but
(b) the court may direct other arrangements for the hearing.
(8) The court may only determine the application if satisfied that it has been able to take adequate account of—
(a) such rights of confidentiality as apply to the material; and
(b) the defendant’s right to a fair trial.
(9) Unless the court otherwise directs, the court officer—
(a) must not give notice to anyone other than the prosecutor—
(i) of the hearing of an application under this rule, unless the prosecutor served the application on that person, or
(ii) of the court’s decision on the application; and
(b) may—
(i) keep a written application or representations, or
(ii) arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose.
[Note. The prosecutor must not disclose material that the court orders it would not be in the public interest to disclose: see sections 3(6), 7(6) and 7A(8) of the Criminal Procedure and Investigations Act 1996.
See also sections 16 and 19 of the 1996 Act.]
(1) This rule applies where the defendant pleads not guilty and—
(a) may give a defence statement in a magistrates’ court under section 6 of the Criminal Procedure and Investigations Act 1996; or
(b) must give—
(i) a defence statement in the Crown Court under section 5 of the 1996 Act; or
(ii) a defence witness notice in either court under section 6C of the 1996 Act.
(2) In a magistrates’ court a defendant who wants to give a defence statement must do so not more than 14 days after the prosecutor gives initial disclosure under rule 15.2 (Prosecution disclosure and disclosure management) or gives the defendant a statement that there is no such material.
(3) In the Crown Court the defendant must give a defence statement—
(a) if the prosecutor has served on the defendant under rule 3.19 (Service of prosecution evidence) copies of the documents containing the evidence on which the prosecution case relies; and
(b) not more than 28 days after the prosecutor gives initial disclosure under rule 15.2 or gives the defendant a statement that there is no such material.
(4) In either court the defendant must give a defence witness notice—
(a) within the time for giving a defence statement in that court; and
(b) whether the defendant gives a defence statement or not.
(5) If the time for giving a defence statement expires on a day that is not a business day then the time expires on the next business day.
(6) A defendant gives a defence statement or defence witness notice by serving it on—
(a) the court officer; and
(b) the prosecutor.
[Note. Under section 6A of the Criminal Procedure and Investigations Act 1996 a defence statement must—
(a) set out the nature of the defence, including any particular defences on which the defendant intends to rely;
(b) indicate the matters of fact on which the defendant takes issue with the prosecutor, and, in respect of each, explain why;
(c) set out particulars of the matters of fact on which the defendant intends to rely for the purposes of the defence;
(d) indicate any point of law that the defendant wants to raise, including any point about the admissibility of evidence or about abuse of process, and any authority relied on; and
(e) if the defence statement discloses an alibi, give particulars, including—
(i) the name, address and date of birth of any witness whom the defendant believes can give evidence in support (that is, evidence that the defendant was in a place, at a time, inconsistent with having committed the offence),
(ii) where the defendant does not know any of those details, any information that might help identify or find that witness.
Under section 6C of the 1996 Act a defence witness notice that identifies any proposed defence witness (other than the defendant) must—
(a) give the name, address and date of birth of each such witness, or as many of those details as are known to the defendant when the notice is given;
(b) provide any information in the defendant’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the defendant when the notice is given; and
(c) amend any earlier such notice, if the defendant—
(i) decides to call a person not included in an earlier notice as a proposed witness,
(ii) decides not to call a person so included, or
(iii) discovers any information which the defendant would have had to include in an earlier notice, if then aware of it.
The time for giving a defence statement and a defence witness notice to which this rule refers is prescribed by section 12 of the 1996 Actand by the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011.
Under section 11 of the 1996 Act, if a defendant—
(a) fails to disclose what the Act requires;
(b) fails to do so within the time prescribed;
(c) at trial, relies on a defence, or facts, not mentioned in the defence statement;
(d) at trial, introduces alibi evidence without having given in the defence statement—
(i) particulars of the alibi, or
(ii) the details of the alibi witness, or witnesses, required by the Act; or
(e) at trial, calls a witness not identified in a defence witness notice,
then the court or another party at trial may comment on that, and the court may draw such inferences as appear proper in deciding whether the defendant is guilty.
Under section 6E(2) of the 1996 Act, if before trial in the Crown Court it seems to the court that section 11 may apply then the court must warn the defendant.]
15.5 Defendant’s application for prosecution disclosure
(1) This rule applies where the defendant—
(a) has given a defence statement under rule 15.4 (Defence disclosure); and
(b) wants the court to require the prosecutor to disclose material.
(2) The defendant must serve an application on—
(a) the court officer; and
(b) the prosecutor.
(3) The application must—
(a) describe the material that the defendant wants the prosecutor to disclose;
(b) explain why the defendant thinks there is reasonable cause to believe that—
(i) the prosecutor has that material, and
(ii) it is material that the Criminal Procedure and Investigations Act 1996 requires the prosecutor to disclose; and
(c) ask for a hearing, if the defendant wants one, and explain why it is needed.
(4) The court may determine an application under this rule—
(a) at a hearing, in public or in private; or
(b) without a hearing.
(5) The court must not require the prosecutor to disclose material unless the prosecutor—
(a) is present; or
(b) has had at least 10 business days in which to make representations.
[Note. Under section 8 of the Criminal Procedure and Investigations Act 1996, a defendant may apply for prosecution disclosure only if the defendant has given a defence statement.]
(1) This rule applies where the court has ordered that it is not in the public interest to disclose material that the prosecutor otherwise would have to disclose, and—
(a) the defendant wants the court to review that decision; or
(b) the Crown Court reviews that decision on its own initiative.
(2) Where the defendant wants the court to review that decision, the defendant must—
(a) serve an application on—
(i) the court officer, and
(ii) the prosecutor; and
(b) in the application—
(i) describe the material that the defendant wants the prosecutor to disclose, and
(ii) explain why the defendant thinks it is no longer in the public interest for the prosecutor not to disclose it.
(3) The prosecutor must serve any such application on any person who the prosecutor thinks would be directly affected if that material were disclosed.
(4) The prosecutor, and any such person, must serve any representations on—
(a) the court officer; and
(b) the defendant, unless to do so would in effect reveal something that either thinks ought not be disclosed.
(5) The court may direct—
(a) the prosecutor to serve any such application on any person who the court considers would be directly affected if that material were disclosed; and
(b) the prosecutor and any such person to serve any representations on the defendant.
(6) The court must review a decision to which this rule applies at a hearing which—
(a) must be in private, unless the court otherwise directs; and
(b) if the court so directs, may take place, wholly or in part, in the defendant’s absence.
(7) At a hearing at which the defendant is present—
(a) the general rule is that the court must consider, in the following sequence—
(i) representations first by the defendant, and then by the prosecutor and any other person served with the application, in the presence of them all, and then
(ii) further representations by the prosecutor and any such other person in the defendant’s absence; but
(b) the court may direct other arrangements for the hearing.
(8) The court may only conclude a review if satisfied that it has been able to take adequate account of—
(a) such rights of confidentiality as apply to the material; and
(b) the defendant’s right to a fair trial.
[Note. The court’s power to review a public interest ruling is provided for by sections 14 and 15 of the Criminal Procedure and Investigations Act 1996. Under section 14 of the Act, a magistrates’ court may reconsider an order for non-disclosure only if a defendant applies. Under section 15, the Crown Court may do so on an application, or on its own initiative.
See also sections 16 and 19 of the 1996 Act.]
15.7 Defendant’s application to use disclosed material
(1) This rule applies where a defendant wants the court’s permission to use disclosed prosecution material—
(a) otherwise than in connection with the case in which it was disclosed; or
(b) beyond the extent to which it was displayed or communicated publicly at a hearing.
(2) The defendant must serve an application on—
(a) the court officer; and
(b) the prosecutor.
(3) The application must—
(a) specify what the defendant wants to use or disclose; and
(b) explain why.
(4) The court may determine an application under this rule—
(a) at a hearing, in public or in private; or
(b) without a hearing.
(5) The court must not permit the use of such material unless—
(a) the prosecutor has had at least 20 business days in which to make representations; and
(b) the court is satisfied that it has been able to take adequate account of any rights of confidentiality that may apply to the material.
[Note. The court’s power to allow a defendant to use disclosed material is provided for by section 17 of the Criminal Procedure and Investigations Act 1996.
See also section 19 of the 1996 Act.]
(1) This rule applies where a person is accused of using disclosed prosecution material in contravention of section 17 of the Criminal Procedure and Investigations Act 1996.
(2) A party who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court).
(3) The court must not exercise its power to forfeit material used in contempt of court unless—
(a) the prosecutor; and
(b) any other person directly affected by the disclosure of the material,
is present, or has had at least 10 business days in which to make representations.
[Note. Under section 17 of the Criminal Procedure and Investigations Act 1996, a defendant may use disclosed prosecution material—
(a) in connection with the case in which it was disclosed, including on an appeal;
(b) to the extent to which it was displayed or communicated publicly at a hearing in public; or
(c) with the court’s permission.
Under section 18 of the 1996 Act, the court can punish for contempt of court any other use of disclosed prosecution material. See also section 19 of the 1996 Act.]
15.9 Court’s power to vary requirements under this Part
The court may—
(a) shorten or extend (even after it has expired) a time limit set by this Part;
(b) extend (before it expires) a time limit to which rule 15.4 (Defence disclosure) refers, under regulation 3 of the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011;
(c) allow a defence statement, or a defence witness notice, to be in a different written form to one issued under the Practice Direction, as long as it contains what the Criminal Procedure and Investigations Act 1996 requires;
(d) allow an application under this Part to be in a different form to one issued under the Practice Direction, or to be presented orally; and
(e) specify the period within which—
(i) any application under this Part must be made, or
(ii) any material must be disclosed, on an application to which rule 15.5 applies (Defendant’s application for prosecution disclosure).
This Part applies where a party wants to introduce a written witness statement in evidence under section 9 of the Criminal Justice Act 1967.
[Note. Under section 9 of the Criminal Justice Act 1967, if the conditions specified in that section are met the written statement of a witness is admissible in evidence to the same extent as if that witness gave evidence in person.]
The statement must contain—
(a) at the beginning—
(i) the witness’ name, and
(ii) the witness’ age, if under 18;
(b) a declaration by the witness that—
(i) it is true to the best of the witness’ knowledge and belief, and
(ii) the witness knows that if it is introduced in evidence, then it would be an offence wilfully to have stated in it anything that the witness knew to be false or did not believe to be true;
(c) if the witness cannot read the statement, a signed declaration by someone else that that person read it to the witness; and
(d) the witness’ signature.
Where the statement refers to a document or object as an exhibit, it must identify that document or object clearly.
[Note. See section 9(7) of the Criminal Justice Act 1967.]
(1) A party who wants to introduce in evidence a written witness statement must—
(a) before the hearing at which that party wants to introduce it, serve a copy of the statement on—
(i) the court officer, and
(ii) each other party; and
(b) at or before that hearing, serve on the court officer the statement or an authenticated copy.
(2) If that party relies on only part of the statement, that party must mark the copy in such a way as to make that clear.
(3) A prosecutor must serve on a defendant, with the copy of the statement, a notice—
(a) of the right to object to the introduction of the statement in evidence instead of the witness giving evidence in person;
(b) of the time limit for objecting under this rule; and
(c) that if the defendant does not object in time, the court—
(i) can nonetheless require the witness to give evidence in person, but
(ii) may decide not to do so.
(4) A party served with a written witness statement who objects to its introduction in evidence must—
(a) serve notice of the objection on—
(i) the party who served it, and
(ii) the court officer; and
(b) serve the notice of objection not more than 7 business days after after service of the statement unless—
(i) the court extends that time limit, before or after the statement was served,
(ii) rule 24.8 (Written guilty plea: special rules) applies, in which case the time limit is the later of 7 business days after service of the statement or 5 business days before the hearing date, or
(iii) rule 24.9 (Single justice procedure: special rules) applies, in which case the time limit is 15 business days after service of the statement.
(5) The court may exercise its power to require the witness to give evidence in person—
(a) on application by any party; or
(b) on its own initiative.
(6) A party entitled to receive a copy of a statement may waive that entitlement by so informing—
(a) the party who would have served it; and
(b) the court.
[Note. Under section 9(2A) of the Criminal Justice Act 1967, Criminal Procedure Rules may prescribe the period within which a party served with a written witness statement must object to its introduction in evidence, subject to a minimum period of 7 days from its service.
Under section 133 of the Criminal Justice Act 2003, where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either (a) the document, or (b) (whether or not the document exists) a copy of the document or of the material part of it, authenticated in whatever way the court may approve. By section 134 of the 2003 Act, ‘document’ means anything in which information of any description is recorded.]
This Part applies in magistrates’ courts and in the Crown Court where—
(a) a party wants the court to issue a witness summons, warrant or order under—
(i) section 97 of the Magistrates’ Courts Act 1980,
(ii) paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998,
(iii) section 2 or section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965, or
(iv) section 7 of the Bankers’ Books Evidence Act 1879;
(b) the court considers the issue of such a summons, warrant or order on its own initiative as if a party had applied; or
(c) one of those listed in rule 17.7 wants the court to withdraw such a summons, warrant or order.
[Note. A magistrates’ court may require the attendance of a witness to give evidence or to produce in evidence a document or thing by a summons, or in some circumstances a warrant for the witness’ arrest, under section 97 of the Magistrates’ Courts Act 1980 or under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998. The Crown Court may do so under section 2, 2D or 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965.
Under section 97(4) of the 1980 Act, if any person attending or brought before a magistrates’ court refuses without just excuse to be sworn or give evidence, or to produce any document or thing required, the court may (i) commit that person to custody for a maximum of one month, or until that person gives evidence or produces the document or thing, if earlier, or (ii) impose a fine not exceeding £2,500, or (iii) both.
Under section 3 of the 1965 Act, any person who without just excuse disobeys a witness summons requiring that person to attend before any court, or disobeys a requirement made by any court under section 2A of that Act (power to require advance production of document or thing), shall be guilty of contempt of that court and may be punished summarily as if that contempt had been committed in the face of the court. No person shall be liable to committal to custody for a period exceeding three months for such disobedience.
Under paragraph 4(7) of Schedule 3 to the 1998 Act, if any person attending or brought before a magistrates’ court refuses without just excuse to have evidence taken as a deposition, or to produce a document or other exhibit required, the potential penalties are the same as under section 97(4) of the 1980 Act.
Under section 227(2) of the Sentencing Act 2020, the committal to custody of a person aged under 21 is generally prohibited but section 108 of the Powers of Criminal Courts (Sentencing) Act 2000 allows the court to commit to detention a person aged at least 18 but under 21 if it is of the opinion that no other method of dealing with that person is appropriate.
A magistrates’ court or the Crown Court may order the production in evidence of a copy of an entry in a banker’s book without the attendance of an officer of the bank, under sections 6 and 7 of the Bankers’ Books Evidence Act 1879. Under section 9(2) of the 1879 Act, expressions in the Act relating to “bankers’ books” include ledgers, day books, cash books, account books and other records used in the ordinary business of the bank, whether those records are in written form or are kept on microfilm, magnetic tape or any other form of mechanical or electronic data retrieval mechanism.
See Part 3 for the court’s general powers to consider an application and to give directions.]
(1) The court may issue or withdraw a witness summons, warrant or order—
(a) at a hearing, which must be in private unless the court otherwise directs; or
(b) without a hearing.
(2) A summons or warrant issued under section 97 of the Magistrates’ Courts Act 1980 or under section 2 or 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965 must specify—
(a) the time and place at which the witness must attend the court to give evidence; and
(b) any document or thing that the witness then must produce.
(3) A warrant issued under section 97 of the 1980 Act may specify a period, not exceeding one month, for which the witness may be committed to custody for refusal without just excuse—
(a) to give evidence; or
(b) to produce any document or thing required.
(4) A summons or warrant issued under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998—
(a) must specify—
(i) the time and place at which the witness must attend the court to have evidence taken as a deposition, and
(ii) any document or other exhibit that the witness then must produce; and
(b) may specify a period, not exceeding one month, for which the witness may be committed to custody for refusal without just excuse—
(i) to have evidence taken as a deposition, or
(ii) to produce any such document or other exhibit.
[Note. If rule 17.5 applies, a person served with an application for a witness summons will have an opportunity to make representations about whether there should be a hearing of that application before the witness summons is issued.
Under section 97(4) of the Magistrates’ Courts Act 1980, a warrant issued under section 97(2) or (3) may specify a maximum period of potential committal to custody, up to one month, for refusal without just excuse to be sworn or give evidence, or to produce any document or thing required.
Under paragraph 4(6) of Schedule 3 to the Crime and Disorder Act 1998, the time specified for attendance in a summons or warrant issued under that paragraph must be such as to allow a deposition to be taken before time expires for the service of prosecution evidence in the Crown Court. Under paragraph 4(7), the summons or warrant may specify a maximum period of potential committal to custody, up to one month, for refusal without just excuse to have evidence taken as a deposition, or to produce a document or other exhibit required.]
17.3 Application for summons, warrant or order: general rules
(1) A party who wants the court to issue a witness summons, warrant or order must apply as soon as practicable after becoming aware of the grounds for doing so.
(2) A party applying for a witness summons or warrant must—
(a) identify the proposed witness;
(b) explain—
(i) what evidence the proposed witness can give or produce,
(ii) why it is likely to be material evidence, and
(iii) why it would be in the interests of justice to issue a summons or warrant, as appropriate; and
(c) in an application by the prosecutor for a summons or warrant to be issued under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998—
(i) specify the date by which the prosecutor must serve the prosecution evidence in the Crown Court, and
(ii) if applicable, describe such steps as have been taken to apply for an extension or further extension of that period.
(3) A party applying for an order to be allowed to inspect and copy an entry in bank records must—
(a) identify the entry;
(b) explain the purpose for which the entry is required; and
(c) propose—
(i) the terms of the order, and
(ii) the period within which the order should take effect, if 3 days from the date of service of the order would not be appropriate.
(4) The application may be made orally unless—
(a) paragraph (3) of this rule applies (bank records);
(b) rule 17.5 applies (Application for summons to produce a document, etc.: special rules); or
(c) the court otherwise directs.
(5) The applicant must—
(a) serve any order made on the witness to whom, or the bank to which, it is directed; and
(b) notify the witness of the right to take legal advice.
[Note. The court may issue a warrant for a witness’ arrest if that witness fails to obey a witness summons: see section 97(3) of the Magistrates’ Courts Act 1980, paragraph 4(5) of Schedule 3 to the Crime and Disorder Act 1998 and section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Before a magistrates’ court may issue a warrant under section 97(3) of the 1980 Act, the witness must first be paid or offered a reasonable amount for costs and expenses.]
(1) An application in writing under rule 17.3 must be in the form issued under the Practice Direction, containing the same declaration of truth as a witness statement.
(2) The party applying must serve the application—
(a) in every case, on the court officer and as directed by the court; and
(b) as required by rule 17.5, if that rule applies.
[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967. Section 89 of the 1967 Act makes it an offence to make a written statement under section 9 of that Act which the person making it knows to be false or does not believe to be true.]
17.5 Application for summons to produce a document, etc.: special rules
(1) This rule applies to an application under rule 17.3 for a witness summons requiring the proposed witness—
(a) to produce in evidence a document or thing; or
(b) to give evidence about information apparently held in confidence,
that relates to another person.
(2) The application must be in writing in the form required by rule 17.4.
(3) The party applying must serve the application—
(a) on the proposed witness, unless the court otherwise directs; and
(b) on one or more of the following, if the court so directs—
(i) a person to whom the proposed evidence relates, and
(ii) another party.
(4) The court must not issue a witness summons where this rule applies unless—
(a) everyone served with the application has had at least 10 business days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and
(b) the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.
[Note. Under section 2A of the Criminal Procedure (Attendance of Witnesses) Act 1965, a witness summons to produce a document or thing issued by the Crown Court may require the witness to produce it for inspection by the applicant before producing it in evidence.]
17.6 Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality
(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that—
(a) it is not likely to be material evidence; or
(b) even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates, outweigh the reasons for issuing a summons.
(2) The court may require the proposed witness to make the document or thing available for the objection to be assessed.
(3) The court may invite—
(a) the proposed witness or any representative of the proposed witness; or
(b) a person to whom the document or thing relates or any representative of such a person,
to help the court assess the objection.
17.7 Application to withdraw a summons, warrant or order
(1) The court may withdraw a witness summons, warrant or order if one of the following applies for it to be withdrawn—
(a) the party who applied for it, on the ground that it no longer is needed;
(b) the witness, on the grounds that the court received no representations by the witness before the summons, warrant or order was issued and, in the Crown Court, the witness had had no notice of any application for a summons, and—
(i) the witness cannot give or produce evidence likely to be material evidence, or
(ii) even if the witness could do so, the witness’ duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates, outweigh the reasons for the issue of the summons, warrant or order;
(c) any person to whom the proposed evidence relates, on the grounds that the court received no representations by that person before the summons, warrant or order was issued and—
(i) that evidence is not likely to be material evidence, or
(ii) even if it is, that person’s duties or rights, including rights of confidentiality, or those of the witness, outweigh the reasons for the issue of the summons, warrant or order; or
(d) the bank to which the order is directed, on the ground that a requirement of the Bankers’ Books Evidence Act 1879 is not met.
(2) A person applying under this rule must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why the court should withdraw the summons, warrant or order; and
(b) serve the application on the court officer and as appropriate on—
(i) the witness or bank,
(ii) the party (if any) who applied for the summons, warrant or order, and
(iii) any other person who was served with the application (if any) for the summons, warrant or order.
(3) Rule 17.6 applies to an application under this rule that concerns a document or thing to be produced by a witness in evidence.
[Note. See sections 2B, 2C and 2E of the Criminal Procedure (Attendance of Witnesses) Act 1965 for the Crown Court’s powers to withdraw a witness summons, including the power to order costs.]
(1) This rule applies where a witness attends or is brought before a magistrates’ court on a summons or warrant issued under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998—
(a) to have evidence taken as a deposition; or
(b) to produce a document or other exhibit.
(2) The general rule is that the hearing must be in public but the court may exercise any power it has to—
(a) impose a restriction on reporting what takes place, or public access;
(b) withhold information from the public during the hearing; or
(c) order a hearing in private.
(3) The court must, in this sequence—
(a) explain, in terms the witness can understand (with help, if necessary), that—
(i) the court is required by law to take evidence for use by the prosecutor in the Crown Court,
(ii) any document or other exhibit that the witness was required to produce by the summons or warrant to attend must be produced to the court unless there is a just excuse for not doing so,
(iii) the prosecutor will ask questions that the witness must answer unless there is a just excuse for not doing so,
(iv) the witness’ evidence will be recorded in writing in a document called a ‘deposition’ which will be read to the witness and which the witness will be asked to sign, and
(v) if the witness refuses to produce a required document or other exhibit, or refuses to answer a question, without just excuse, then the court may commit the witness to custody and may impose a fine;
(b) take possession of any document or other exhibit that the witness was required to produce by the summons or warrant to attend;
(c) require the prosecutor to question the witness;
(d) allow any legal representative of the witness who is present to question the witness;
(e) as a general rule, allow a legal representative of the defendant, if present, to question the witness but only to the extent reasonably required to clarify the witness’ answer to a question asked by the prosecutor;
(f) cause the witness’ evidence to be recorded in writing in a deposition;
(g) in the event of refusal by the witness to produce a required document or other exhibit, or to answer a question—
(i) ask the witness to explain why,
(ii) consider the explanation,
(iii) if satisfied that there is a just excuse for refusal, cause a record of that conclusion to be included in the deposition,
(iv) if not so satisfied and the refusal is maintained, deal with the refusal at the end of the hearing; and
(h) certify the accuracy of the deposition by—
(i) inviting the witness to authenticate it, by any written or electronic means, and
(ii) whether the witness agrees to do so or not, authenticating the deposition by any such means itself.
(4) A justices’ legal adviser must assist the court by preparing the deposition, unless the court—
(a) includes a District Judge (Magistrates’ Courts); and
(b) otherwise directs.
(5) The magistrates’ court officer must, as soon as practicable, make available to the Crown Court and serve on the prosecutor—
(a) a copy of the deposition;
(b) a copy of any document produced by the witness; and
(c) a description of any object produced by the witness.
[Note. For the functions of a justices’ legal adviser, see sections 28 and 29 of the Courts Act 2003. See also rule 2.12 (Duties of justices’ legal adviser).]
17.9 Court’s power to vary requirements under this Part
(1) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part; and
(b) where a rule or direction requires an application under this Part to be in writing, allow that application to be made orally instead.
(2) Someone who wants the court to allow an application to be made orally under paragraph (1)(b) of this rule must—
(a) give as much notice as the urgency of the application permits to those on whom the application otherwise should be served; and
(b) in doing so explain the reasons for the application and for wanting the court to consider it orally.
This Part applies—
(a) where the court can give a direction (a ‘special measures direction’), under section 19 of the Youth Justice and Criminal Evidence Act 1999, on an application or on its own initiative, for any of the following measures—
(i) preventing a witness from seeing the defendant (section 23 of the 1999 Act),
(ii) allowing a witness to give evidence by live link (section 24 of the 1999 Act),
(iii) hearing a witness’ evidence in private (section 25 of the 1999 Act),
(iv) dispensing with the wearing of wigs and gowns (section 26 of the 1999 Act),
(v) admitting video recorded evidence (sections 27 and 28 of the 1999 Act),
(vi) questioning a witness through an intermediary (section 29 of the 1999 Act),
(vii) using a device to help a witness communicate (section 30 of the 1999 Act);
(b) where the court can vary or discharge such a direction, under section 20 of the 1999 Act;
(c) where the court can—
(i) make a witness anonymity order, under section 86 of the Coroners and Justice Act 2009, or
(ii) vary or discharge such an order, under section 91, 92 or 93 of the 2009 Act;
(d) where the court can—
(i) appoint an intermediary to facilitate a defendant’s effective participation in that defendant’s trial, when the defendant gives evidence or at any other time, or
(ii) vary or discharge such an appointment; and
(e) where the court can exercise any other power it has to give, make, vary, rescind, discharge or revoke a direction for a measure to help a witness to give evidence or to help a defendant to participate in that defendant’s trial.
[Note. At the end of this Part is a summary of the circumstances in which a witness or defendant may be eligible for the assistance of one of the measures to which this Part applies.]
In this Part—
(a) ‘witness’ means anyone (other than a defendant) for whose benefit an application, direction or order is made; and
(b) ‘live link’, in relation to a witness, means a live television link or other arrangement by which a witness who is absent from the courtroom or other place where the proceedings are being held is able to see and hear a person there and to be seen and heard by—
(i) the judge or justices (or both) and the jury (if there is one),
(ii) legal representatives acting in the proceedings, and
(iii) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
[Note. See section 24(8) of the Youth Justice and Criminal Evidence Act 1999.]
18.3 Meaning of ‘intermediary’ and ‘intermediary’s report’
In this Part—
(a) ‘intermediary’ means a person who is—
(i) approved by the court for the purposes of section 29 of the Youth Justice and Criminal Evidence Act 1999 (Examination of witness through intermediary),
(ii) asked to assess a defendant’s communication needs, or
(iii) appointed by the court to facilitate a defendant’s effective participation in the trial, when the defendant gives evidence or at any other time, where otherwise that defendant’s communication needs would impede such participation; and
(b) a reference to ‘an intermediary’s report’ means a report by such a person which complies with rule 18.24.
18.4 Making an application for a direction or order
A party who wants the court to exercise its power to give or make a direction or order must—
(a) apply in writing as soon as reasonably practicable, and in any event not more than—
(i) 20 business days after the defendant pleads not guilty, in a magistrates’ court, or
(ii) 10 business days after the defendant pleads not guilty, in the Crown Court; and
(b) serve the application on—
(i) the court officer, and
(ii) each other party.
[Note. See also rule 18.10 (Content of application for a special measures direction), rule 18.15 (Content and conduct of application for a witness anonymity order) and rule 18.19 (Appointment of intermediary to facilitate a defendant’s participation).]
(1) A party who wants to introduce the evidence of a witness who is the subject of an application, direction or order must—
(a) inform the witness of the court’s decision as soon as reasonably practicable; and
(b) explain to the witness the arrangements that as a result will be made for him or her to give evidence.
(2) The court must—
(a) promptly determine an application; and
(b) allow a party sufficient time to comply with the requirements of—
(i) paragraph (1), and
(ii) the code of practice issued under section 32 of the Domestic Violence, Crime and Victims Act 2004 or under section 2 of the Victims and Prisoners Act 2024.
(3) The court must announce, at a hearing in public before the witness gives evidence or the defendant’s trial begins (as the case may be), the reasons for a decision—
(a) to give, make, vary or discharge a direction or order; or
(b) to refuse to do so.
[Note. See section 20(5) of the Youth Justice and Criminal Evidence Act 1999 and sections 51(8) and 52(7) of the Criminal Justice Act 2003.
Under section 32 of the Domestic Violence, Crime and Victims Act 2004, the Secretary of State for Justice must issue a code of practice as to the services to be provided by specified persons to a victim of criminal conduct. Section 2 of the Victims and Prisoners Act 2024 imposes a corresponding obligation. Under section 2(13) of the 2024 Act, until the first code of practice issued under section 2 is in operation, references in sections 5 to 12 and 32 of that Act to the “victims’ code” are references to the code of practice issued under section 32 of the 2004 Act for the time being in operation.]
18.6 Court’s power to vary requirements under this Part
(1) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part; and
(b) allow an application or representations to be made in a different form to one issued under the Practice Direction, or to be made orally.
(2) A person who wants an extension of time must—
(a) apply when serving the application or representations for which it is needed; and
(b) explain the delay.
Unless the court otherwise directs, the court officer may—
(a) keep a written application or representations; or
(b) arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose.
(1) The court may decide whether to give, vary or discharge a special measures direction—
(a) at a hearing, in public or in private, or without a hearing; and
(b) in a party’s absence, if that party—
(i) applied for the direction, variation or discharge, or
(ii) has had at least 10 business days in which to make representations.
(2) Where a direction provides for evidence to be admitted under section 28 of the Youth Justice and Criminal Evidence Act 1999 (Video recorded cross-examination or re-examination)—
(a) the court must consider giving a direction for any one or more of the following, whether an application for such a direction is made or not—
(i) exclusion from the court during the cross-examination and any re-examination of persons of any description specified in the direction, under section 25 of the 1999 Act (Evidence given in private),
(ii) identification by the court officer of any person attending the cross-examination and any re-examination who could be excluded by a direction under section 25 of that Act but who is not so excluded, and the recording of any such person’s identity, and
(iii) a reporting restriction under section 4(2) of the Contempt of Court Act 1981 (Contemporary reports of proceedings; order to postpone reporting of proceedings); and
(b) the court must set a timetable that provides for—
(i) the date of any ground rules hearing under rule 3.9,
(ii) the date on which the cross-examination and any re-examination will be recorded,
(iii) the date by which any application under section 28(5) of the 1999 Act must be made for a direction for further cross-examination or re-examination,
(iv) the date by which any application must be made to exclude as evidence any part of the recording, and
(v) the date by which any editing of the recording must be completed.
[Note. See also—
(a) rules 24.4(2) and 25.11(2) (Evidence of a witness in person), which usually require the exclusion from the courtroom of a prospective witness before that person gives evidence, unless that person is a party or an expert witness; and
(b) Part 6 (Reporting, etc. restrictions).]
18.9 Special measures direction without application
(1) This rule applies where—
(a) a party notifies the court that a witness is eligible for assistance under section 16 or section 17 of the Youth Justice and Criminal Evidence Act 1999;
(b) the notice is given at—
(i) a preparation for trial hearing in a magistrates’ court, or
(ii) a plea and trial preparation hearing in the Crown Court; and
(c) no other party opposes the giving of a special measures direction for the benefit of that witness.
(2) The court may exercise its power to give a special measures direction without requiring an application under rule 18.10.
(3) The party who gives the notice must—
(a) provide any information that the court may need to assess—
(i) the measure or measures likely to maximise so far as practicable the quality of the witness’ evidence, and
(ii) the witness’ own views; and
(b) where a direction provides for video recorded evidence to be admitted under section 27 of the Youth Justice and Criminal Evidence Act 1999, as soon as reasonably practicable serve such evidence on—
(i) the court officer, and
(ii) each other party.
[Note. Under sections 21 and 22 of the Youth Justice and Criminal Evidence Act 1999, a ‘child witness’ is one who is under 18, and a ‘qualifying witness’ is one who was a child witness when interviewed.
Under those sections, the ‘primary rule’ requires the court to give a direction—
(a) for the evidence of a child witness or of a qualifying witness to be admitted—
(i) by means of a video recording of an interview with the witness, in the place of examination-in-chief, and
(ii) after that, by live link; or
(b) if one or both of those measures is not taken, for the witness while giving evidence to be screened from seeing the defendant.
The primary rule always applies unless—
(a) the witness does not want it to apply, and the court is satisfied that to omit a measure usually required by that rule would not diminish the quality of the witness’ evidence; or
(b) the court is satisfied that to direct one of the measures usually required by that rule would not be likely to maximise, so far as practicable, the quality of the witness’ evidence.]
18.10 Content of application for a special measures direction
An applicant for a special measures direction must—
(a) explain how the witness is eligible for assistance;
(b) explain why special measures would be likely to improve the quality of the witness’ evidence;
(c) propose the measure or measures that in the applicant’s opinion would be likely to maximise, so far as practicable, the quality of that evidence;
(d) report any views that the witness has expressed about—
(i) his or her eligibility for assistance,
(ii) the likelihood that special measures would improve the quality of his or her evidence, and
(iii) the measure or measures proposed by the applicant;
(e) in a case in which a child witness or a qualifying witness does not want the primary rule to apply, provide any information that the court may need to assess the witness’ views;
(f) in a case in which the applicant proposes that the witness should give evidence by live link—
(i) identify someone to accompany the witness while the witness gives evidence,
(ii) name that person, if possible, and
(iii) explain why that person would be an appropriate companion for the witness, including the witness’ own views;
(g) in a case in which the applicant proposes the admission of video recorded evidence, identify—
(i) the date and duration of the recording, and
(ii) which part the applicant wants the court to admit as evidence, if the applicant does not want the court to admit all of it;
(h) attach any other material on which the applicant relies; and
(i) if the applicant wants a hearing, ask for one, and explain why it is needed.