18.11 Application to vary or discharge a special measures direction
(1) A party who wants the court to vary or discharge a special measures direction must—
(a) apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and
(b) serve the application on—
(i) the court officer, and
(ii) each other party.
(2) The applicant must—
(a) explain what material circumstances have changed since the direction was given (or last varied, if applicable);
(b) explain why the direction should be varied or discharged; and
(c) ask for a hearing, if the applicant wants one, and explain why it is needed.
[Note. Under section 20 of the Youth Justice and Criminal Evidence Act 1999, the court can vary or discharge a special measures direction—
(a) on application, if there has been a material change of circumstances; or
(b) on the court’s own initiative.]
18.12 Application containing information withheld from another party
(1) This rule applies where—
(a) an applicant serves an application for a special measures direction, or for its variation or discharge; and
(b) the application includes information that the applicant thinks ought not be revealed to another party.
(2) The applicant must—
(a) omit that information from the part of the application that is served on that other party;
(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 why the applicant has withheld that information from that other party.
(3) Any hearing of an application to which this rule applies—
(a) must be in private, unless the court otherwise directs; and
(b) if the court so directs, may be, wholly or in part, in the absence of a party from whom information has been withheld.
(4) At any hearing of an application to which this rule applies—
(a) the general rule is that the court must consider, in the following sequence—
(i) representations first by the applicant and then by each other party, in all the parties’ presence, and then
(ii) further representations by the applicant, in the absence of a party from whom information has been withheld; but
(b) the court may direct other arrangements for the hearing.
[Note. See section 20 of the Youth Justice and Criminal Evidence Act 1999.]
(1) This rule applies where a party wants to make representations about—
(a) an application for a special measures direction;
(b) an application for the variation or discharge of such a direction; or
(c) a direction, variation or discharge that the court proposes on its own initiative.
(2) Such a party must—
(a) serve the representations on—
(i) the court officer, and
(ii) each other party;
(b) do so not more than 10 business days after, as applicable—
(i) service of the application, or
(ii) notice of the direction, variation or discharge that the court proposes; and
(c) ask for a hearing, if that party wants one, and explain why it is needed.
(3) Where representations include information that the person making them thinks ought not be revealed to another party, that person must—
(a) omit that information from the representations served on that other party;
(b) mark the information to show that, unless the court otherwise directs, it is only for the court; and
(c) with that information include an explanation of why it has been withheld from that other party.
(4) Representations against a special measures direction must explain, as appropriate—
(a) why the witness is not eligible for assistance;
(b) if the witness is eligible for assistance, why—
(i) no special measure would be likely to improve the quality of the witness’ evidence,
(ii) the proposed measure or measures would not be likely to maximise, so far as practicable, the quality of the witness’ evidence, or
(iii) the proposed measure or measures might tend to inhibit the effective testing of that evidence; and
(c) in a case in which the admission of video recorded evidence is proposed, why it would not be in the interests of justice for the recording, or part of it, to be admitted as evidence.
(5) Representations against the variation or discharge of a special measures direction must explain why it should not be varied or discharged.
[Note. Under sections 21 and 22 of the Youth Justice and Criminal Evidence Act 1999, where the witness is a child witness or a qualifying witness the special measures that the court usually must direct must be treated as likely to maximise, so far as practicable, the quality of the witness’ evidence, irrespective of representations to the contrary.]
(1) The court may decide whether to make, vary or discharge a witness anonymity order—
(a) at a hearing (which must be in private, unless the court otherwise directs), or without a hearing (unless any party asks for one); and
(b) in the absence of a defendant.
(2) The court must not exercise its power to make, vary or discharge a witness anonymity order, or to refuse to do so—
(a) before or during the trial, unless each party has had an opportunity to make representations;
(b) on an appeal by the defendant to which applies Part 34 (Appeal to the Crown Court) or Part 39 (Appeal to the Court of Appeal about conviction or sentence), unless in each party’s case—
(i) that party has had an opportunity to make representations, or
(ii) the appeal court is satisfied that it is not reasonably practicable to communicate with that party; or
(c) after the trial and any such appeal are over, unless in the case of each party and the witness—
(i) each has had an opportunity to make representations, or
(ii) the court is satisfied that it is not reasonably practicable to communicate with that party or witness.
18.15 Content and conduct of application for a witness anonymity order
(1) An applicant for a witness anonymity order must—
(a) include in the application nothing that might reveal the witness’ identity;
(b) describe the measures proposed by the applicant;
(c) explain how the proposed order meets the conditions prescribed by section 88 of the Coroners and Justice Act 2009;
(d) explain why no measures other than those proposed will suffice, such as—
(i) an admission of the facts that would be proved by the witness,
(ii) an order restricting public access to the trial,
(iii) reporting restrictions, in particular under sections 45, 45A or 46 of the Youth Justice and Criminal Evidence Act 1999,
(iv) a direction for a special measure under section 19 of the Youth Justice and Criminal Evidence Act 1999,
(v) introduction of the witness’ written statement as hearsay evidence, under section 116 of the Criminal Justice Act 2003, or
(vi) arrangements for the protection of the witness;
(e) attach to the application—
(i) a witness statement setting out the proposed evidence, edited in such a way as not to reveal the witness’ identity,
(ii) where the prosecutor is the applicant, any further prosecution evidence to be served, and any further prosecution material to be disclosed under the Criminal Procedure and Investigations Act 1996, similarly edited, and
(iii) any defence statement that has been served, or as much information as may be available to the applicant that gives particulars of the defence; and
(f) ask for a hearing, if the applicant wants one.
(2) At any hearing of the application, the applicant must—
(a) identify the witness to the court, unless at the prosecutor’s request the court otherwise directs; and
(b) present to the court, unless it otherwise directs—
(i) the unedited witness statement from which the edited version has been prepared,
(ii) where the prosecutor is the applicant, the unedited version of any further prosecution evidence or material from which an edited version has been prepared, and
(iii) such further material as the applicant relies on to establish that the proposed order meets the conditions prescribed by section 88 of the 2009 Act.
(3) At any such hearing—
(a) the general rule is that the court must consider, in the following sequence—
(i) representations first by the applicant and then by each other party, in all the parties’ presence, and then
(ii) information withheld from a defendant, and further representations by the applicant, in the absence of any (or any other) defendant; but
(b) the court may direct other arrangements for the hearing.
(4) Before the witness gives evidence, the applicant must identify the witness to the court—
(a) if not already done;
(b) without revealing the witness’ identity to any other party or person; and
(c) unless at the prosecutor’s request the court otherwise directs.
18.16 Duty of court officer to notify the Director of Public Prosecutions
The court officer must notify the Director of Public Prosecutions of an application, unless the prosecutor is, or acts on behalf of, a public authority.
18.17 Application to vary or discharge a witness anonymity order
(1) A party who wants the court to vary or discharge a witness anonymity order, or a witness who wants the court to do so when the case is over, must—
(a) apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and
(b) serve the application on—
(i) the court officer, and
(ii) each other party.
(2) The applicant must—
(a) explain what material circumstances have changed since the order was made (or last varied, if applicable);
(b) explain why the order should be varied or discharged, taking account of the conditions for making an order; and
(c) ask for a hearing, if the applicant wants one.
(3) Where an application includes information that the applicant thinks might reveal the witness’ identity, the applicant must—
(a) omit that information from the application that is served on a defendant;
(b) mark the information to show that it is only for the court and the prosecutor (if the prosecutor is not the applicant); and
(c) with that information include an explanation of why it has been withheld.
(4) Where a party applies to vary or discharge a witness anonymity order after the trial and any appeal are over, the party who introduced the witness’ evidence must serve the application on the witness.
[Note. Under sections 91, 92 and 93 of the Coroners and Justice Act 2009, the court can vary or discharge a witness anonymity order—
(a) on an application, if there has been a material change of circumstances since it was made or previously varied; or
(b) on the court’s own initiative, unless the trial and any appeal are over.]
(1) This rule applies where a party or, where the case is over, a witness, wants to make representations about—
(a) an application for a witness anonymity order;
(b) an application for the variation or discharge of such an order; or
(c) a variation or discharge that the court proposes on its own initiative.
(2) Such a party or witness must—
(a) serve the representations on—
(i) the court officer, and
(ii) each other party;
(b) do so not more than 10 business days after, as applicable—
(i) service of the application, or
(ii) notice of the variation or discharge that the court proposes; and
(c) ask for a hearing, if that party or witness wants one.
(3) Where representations include information that the person making them thinks might reveal the witness’ identity, that person must—
(a) omit that information from the representations served on a defendant;
(b) mark the information to show that it is only for the court (and for the prosecutor, if relevant); and
(c) with that information include an explanation of why it has been withheld.
(4) Representations against a witness anonymity order must explain why the conditions for making the order are not met.
(5) Representations against the variation or discharge of such an order must explain why it would not be appropriate to vary or discharge it, taking account of the conditions for making an order.
(6) A prosecutor’s representations in response to an application by a defendant must include all information available to the prosecutor that is relevant to the conditions and considerations specified by sections 88 and 89 of the Coroners and Justice Act 2009.
18.19 Appointment of intermediary to facilitate a defendant’s participation
(1) The court must exercise its power to appoint an intermediary to facilitate a defendant’s effective participation in the trial where—
(a) the defendant’s ability to participate is likely to be diminished by reason of—
(i) age, if the defendant is under 18, or
(ii) mental disorder (as defined in section 1(2) of the Mental Health Act 1983), a significant impairment of intelligence and social functioning, or a physical disability or disorder; and
(b) the appointment is necessary for that purpose.
(2) In determining whether such an appointment is necessary, who to appoint and the duration or purpose of the appointment, the court must have regard to—
(a) the defendant’s communication needs as reported to the court;
(b) the recommendations in any intermediary’s report received by the court;
(c) any views that the defendant has expressed about—
(i) receiving the assistance of an intermediary, or
(ii) other measures or arrangements to facilitate the defendant’s effective participation in the trial;
(d) the likely impact of the defendant’s age, if under 18, level of intellectual ability or social functioning on the ability to—
(i) give evidence, and
(ii) understand what is said and done by the court and other participants;
(e) the likely impact on such participation and on such understanding of any mental disorder or other significant impairment of intelligence or social functioning;
(f) the adequacy of arrangements for questioning the defendant in the absence of an intermediary;
(g) any assistance that the defendant has received in the past—
(i) while giving evidence in legal proceedings,
(ii) while being questioned during the investigation of an alleged offence, or
(iii) as a defendant in a criminal case;
(h) any assessment of the defendant’s health by a mental health practitioner acting independently of the parties to assist the court;
(i) any expert medical opinion that the court may have received; and
(j) any other matter that the court thinks relevant.
(3) The court may exercise its power to appoint an intermediary—
(a) for the duration of every hearing that the defendant is due to attend;
(b) for the duration of any specified such hearing or hearings, or for the duration of a specified part of such a hearing; or
(c) for a specified purpose during a hearing.
(4) Unless the court otherwise directs, the appointment of an intermediary extends to facilitating the defendant’s communication with that defendant’s legal representatives for the duration and for the purpose of the appointment.
(5) The court may decide whether to appoint an intermediary to facilitate a defendant’s effective participation in the trial and whether to vary or discharge any such appointment—
(a) on application or on the court’s own initiative;
(b) at a hearing, in public or in private, or without a hearing; and
(c) in a party’s absence, if that party—
(i) applied for the appointment, variation or discharge, or
(ii) has had at least 10 business days in which to make representations.
(6) The court must not exercise its power to vary or discharge a direction for the appointment of an intermediary unless satisfied that—
(a) since the direction was made—
(i) the defendant’s communication needs have changed materially, or
(ii) any other material circumstance has changed materially; and
(b) the defendant will be able to participate effectively in the trial despite the variation or discharge of the direction.
18.20 Application to vary or discharge the appointment of an intermediary for a defendant
(1) A party who wants the court to vary or discharge the appointment of an intermediary to facilitate a defendant’s effective participation in the trial must—
(a) apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and
(b) serve the application on—
(i) the court officer, and
(ii) each other party.
(2) The applicant must—
(a) explain how the criteria listed in rule 18.19(6) are met (variation or discharge of appointment); and
(b) ask for a hearing, if the applicant wants one, and explain why it is needed.
18.21 Representations in response to application or proposal
(1) This rule applies where a party wants to make representations about—
(a) an application or proposal for the appointment of an intermediary to facilitate a defendant’s effective participation in the trial; or
(b) an application or proposal for the variation or discharge of such an appointment.
(2) Such a party must—
(a) serve the representations on—
(i) the court officer, and
(ii) each other party;
(b) do so not more than 10 business days after, as applicable—
(i) service of the application, or
(ii) notice of the appointment, variation or discharge that the court proposes; and
(c) ask for a hearing, if that party wants one, and explain why it is needed.
(3) Representations against such an appointment, variation or discharge must explain why the criteria that apply are not met.
(1) This rule applies to an intermediary who accepts—
(a) approval by the court for the purposes of section 29 of the Youth Justice and Criminal Evidence Act 1999 (Examination of witness through intermediary);
(b) approval by the court for the purposes of section 33BA of the 1999 Act (Examination of accused through intermediary); or
(c) appointment by the court to facilitate a defendant’s effective participation in the trial, when the defendant gives evidence or at any other time.
(2) The intermediary must help the court to achieve the overriding objective—
(a) to the best of the intermediary’s skill and understanding by—
(i) communicating to the witness or defendant (as the case may be) questions put to them,
(ii) communicating to the questioner and the court the replies, and
(iii) explaining such questions and answers so that they can be understood;
(b) by assessing continually the witness’ or the defendant’s (as the case may be) ability to participate effectively and intervening if necessary;
(c) where the intermediary is appointed to facilitate a defendant’s effective participation, by explaining to the defendant, in terms the defendant can understand, what is said and done by the court and other participants; and
(d) by actively assisting the court in fulfilling its duties under rule 3.2 (Case management; The duty of the court) and rule 3.9 (Case management; Ground rules hearing), in particular by—
(i) complying with directions made by the court, and
(ii) at once informing the court of any significant failure (by the intermediary or another) to take any step required by such a direction.
(3) This duty overrides any obligation to the witness or to the defendant (as the case may be), or to the person by whom the intermediary is paid.
(1) This rule applies where—
(a) a video recorded interview with a witness is conducted through an intermediary; or
(b) the court directs the examination of a witness or defendant through an intermediary.
(2) The intermediary must make a declaration—
(a) before such an interview begins; and
(b) before the examination begins (even if such an interview with the witness was conducted through the same intermediary).
(3) The declaration must be in these terms, or in any corresponding terms that the intermediary declares to be binding—
I swear by Almighty God [or I solemnly, sincerely and truly declare and affirm] that I shall faithfully communicate questions and answers and make true explanation of all matters and things required of me according to the best of my skill and understanding.
(1) An intermediary’s report must, in every case—
(a) give details of the intermediary’s qualifications, relevant experience and any accreditation;
(b) identify the commissioner of the report;
(c) identify those from whom the intermediary has obtained information material to the report;
(d) list the documents received or inspected by the intermediary which contained such information and give an indication of their content;
(e) give the date or dates on which the intermediary met the witness or defendant, as the case may be, for the purpose of preparing the report;
(f) describe the nature and duration of the intermediary’s assessment, or assessments, of the witness or defendant;
(g) by reference to examples drawn from the intermediary’s assessment of the witness or defendant explain why in this particular case intermediary assistance is necessary;
(h) include an evaluation of—
(i) the impact of any condition or conditions which, whether in isolation or together, may adversely affect the witness’ or the defendant’s ability to communicate, and
(ii) the extent, if any, to which that impact may be exacerbated by the trial;
(i) if the intermediary is not able to reach an evaluation without qualifying it, state the qualification;
(j) report the views of the witness or defendant, as the case may be, on receiving the assistance of an intermediary;
(k) include in a summary of the intermediary’s conclusions any recommendation, with reasons, for—
(i) the approval or appointment of an intermediary,
(ii) the manner and duration of any questioning of the witness or defendant, as the case may be, and
(iii) arrangements for the way in which the intermediary, if approved or appointed, should participate; and
(l) contain a statement that the intermediary—
(i) understands an intermediary’s duty to the court, and
(ii) will comply with that duty if approved or appointed.
(2) Where the intermediary is asked to evaluate a defendant’s communication needs the report must also—
(a) include an evaluation of the extent to which any measures or arrangements beside the appointment of an intermediary will facilitate the defendant’s effective participation in the trial; and
(b) in the summary of the intermediary’s conclusions include any recommendation, with reasons, for—
(i) the duration and purpose of any appointment of an intermediary, and
(ii) other measures or arrangements to help the defendant to participate effectively in the trial.
Summary of eligibility for measures to which this Part applies
Special measures direction
Under section 16 of the Youth Justice and Criminal Evidence Act 1999, a witness is eligible for the assistance of a special measures direction given under section 19 of that Act if—
(a) the witness is under 18; or
(b) the witness has—
(i) a mental disorder, or a significant impairment of intelligence and social functioning, or
(ii) a physical disability or disorder
and the court considers that the completeness, coherence and accuracy (the ‘quality’) of evidence given by the witness is likely to be diminished by reason of those circumstances.
Under section 17 of the 1999 Act, a witness is eligible for such assistance if—
(a) the court is satisfied that the quality of evidence given by the witness is likely to be diminished because of his or her fear or distress in connection with giving evidence, taking account particularly of—
(i) the circumstances of the offence,
(ii) the witness’ age, social and cultural background, ethnic origins, domestic and employment circumstances, religious beliefs or political opinions,
(iii) any behaviour towards the witness on the part of the defendant, the defendant’s family or associates, or any other potential defendant or witness, and
(iv) the witness’ own views;
(b) the witness is the complainant in respect of a sexual offence or other offence specified by the Act, and has not declined such assistance; or
(c) the offence is one of a list of offences involving weapons, and the witness has not declined such assistance.
Section 28 of the 1999 Act (video recorded cross-examination or re-examination) is not yet fully in force. With that exception, all the special measures listed in rule 18.1 potentially are available where the witness is eligible for assistance under section 16 of the Act. Those numbered (i) to (v) are available where the witness is eligible for assistance under section 17.
As a general rule, but with exceptions, the court must give a special measures direction—
(a) under section 21 or 22 of the 1999 Act, where the witness—
(i) is under 18, or
(ii) was under that age when interviewed
whether or not an application for a direction is made;
(b) under section 22A of the 1999 Act, where an application is made in the Crown Court for the evidence of a witness who is the complainant of a sexual offence to be admitted by means of a video recording of an interview with the witness in the place of examination-in-chief.
Witness anonymity order
Under section 86 of the Coroners and Justice Act 2009, a witness anonymity order is an order that specifies measures to be taken to ensure that the identity of a witness is not disclosed, such as withholding the witness’ name from materials disclosed to a party to the proceedings, the use of a pseudonym, the screening of the witness from view, the modulation of the witness’ voice, and the prohibition of questions that might reveal his or her identity. Before making such an order, the court must—
(a) be satisfied that three conditions prescribed by the Act are met (section 88 of the 2009 Act); and
(b) have regard to considerations specified by the Act (section 89 of the 2009 Act).
Intermediary for a defendant
In order to ensure the defendant’s effective participation in his or her trial the court has an inherent power to appoint an intermediary to facilitate that participation, including during the giving of evidence by the defendant.
(1) This Part applies where a party wants to introduce expert opinion evidence.
(2) A reference to an ‘expert’ in this Part is a reference to a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing.
(3) Where evidence that is introduced as evidence of fact within a witness’ direct knowledge includes expert opinion the court may direct that the requirements of rules 19.2 (Expert’s duty to the court) and 19.3 (Introduction of expert evidence) apply, to the extent and with such adaptations as the court directs.
[Note. Expert medical evidence may be required to determine fitness to plead under section 4 of the Criminal Procedure (Insanity) Act 1964. It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000, under Part III of the Mental Health Act 1983 or under Part 12 of the Criminal Justice Act 2003. Those Acts contain requirements about the qualification of medical experts.]
(1) An expert must help the court to achieve the overriding objective—
(a) by giving opinion which is—
(i) objective and unbiased, and
(ii) within the expert’s area or areas of expertise; and
(b) by actively assisting the court in fulfilling its duty of case management under rule 3.2, in particular by—
(i) complying with directions made by the court, and
(ii) at once informing the court of any significant failure (by the expert or another) to take any step required by such a direction.
(2) This duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.
(3) This duty includes obligations—
(a) to define the expert’s area or areas of expertise—
(i) in the expert’s report, and
(ii) when giving evidence in person;
(b) when giving evidence in person, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise;
(c) to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement; and
(d) to disclose to the party for whom the expert’s evidence is commissioned anything—
(i) of which the expert is aware, and
(ii) of which that party, if aware of it, would be required to give notice under rule 19.3(3)(c).
[Note. The Practice Direction lists examples of matters that should be disclosed under this rule and rule 19.3(3)(c).]
(1) A party who wants another party to admit as fact a summary of an expert’s conclusions must serve that summary—
(a) on the court officer and on each party from whom that admission is sought; and
(b) as soon as practicable after the defendant whom it affects pleads not guilty.
(2) A party on whom such a summary is served must—
(a) serve a response stating—
(i) which, if any, of the expert’s conclusions are admitted as fact, and
(ii) where a conclusion is not admitted, what are the disputed issues concerning that conclusion; and
(b) serve the response—
(i) on the court officer and on the party who served the summary, and
(ii) as soon as practicable, and in any event not more than 10 business days after service of the summary.
(3) A party who wants to introduce expert evidence otherwise than as admitted fact must—
(a) serve a report by the expert which complies with rule 19.4 (Content of expert’s report) on—
(i) the court officer, and
(ii) each other party;
(b) serve the report as soon as practicable, and in any event with any application in support of which that party relies on that evidence;
(c) serve with the report—
(i) notice of anything of which the party serving it is aware which might reasonably be thought capable of undermining the reliability of the expert’s opinion, or detracting from the credibility or impartiality of the expert, and
(ii) an explanation of how facts stated in the report are admissible as evidence if that is not explained by the report; and
(d) if another party so requires, give that party a copy of, or a reasonable opportunity to inspect—
(i) a record of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and
(ii) anything on which any such examination, measurement, test or experiment was carried out.
(4) Unless the parties otherwise agree or the court directs, a party may not—
(a) introduce expert evidence if that party has not complied with paragraph (3); or
(b) introduce in evidence an expert report if the expert does not give evidence in person.
[Note. A party who accepts another party’s expert’s conclusions may admit them as fact under section 10 of the Criminal Justice Act 1967.
Under section 81 of the Police and Criminal Evidence Act 1984, and under section 20(3) of the Criminal Procedure and Investigations Act 1996, Criminal Procedure Rules may require the disclosure of expert evidence before it is introduced as part of a party’s case and prohibit its introduction without the court’s permission, if it was not disclosed as required.
Under section 30 of the Criminal Justice Act 1988, an expert report is admissible in evidence whether or not the person who made it gives oral evidence, but if that person does not give oral evidence then the report is admissible only with the court’s permission.
Evidence of facts which are material to the opinions expressed in an expert report, or upon which those opinions are based, may be admissible if (i) they are within the expert witness’ own direct knowledge, or (ii) as hearsay evidence within the meaning of section 114 of the Criminal Justice Act 2003: see also rule 19.4(b), (c), (d) and (e). Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the 2003 Act. Part 20 contains rules about the introduction of hearsay evidence under other provisions of that Act.]
Where rule 19.3(3) applies, an expert’s report must—
(a) give details of the expert’s qualifications, relevant experience and accreditation;
(b) give details of any literature or other information which the expert has relied on in making the report;
(c) contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based;
(d) make clear which of the facts stated in the report are within the expert’s own knowledge;
(e) where the expert has based an opinion or inference on a representation of fact or opinion made by another person for the purposes of criminal proceedings (for example, as to the outcome of an examination, measurement, test or experiment)—
(i) identify the person who made that representation to the expert,
(ii) give the qualifications, relevant experience and any accreditation of that person, and
(iii) certify that that person had personal knowledge of the matters stated in that representation;
(f) where there is a range of opinion on the matters dealt with in the report—
(i) summarise the range of opinion, and
(ii) give reasons for the expert’s own opinion;
(g) if the expert is not able to give an opinion without qualification, state the qualification;
(h) include such information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be admissible as evidence;
(i) contain a summary of the conclusions reached;
(j) contain a statement that the expert understands an expert’s duty to the court, and has complied and will continue to comply with that duty; and
(k) contain the same declaration of truth as a witness statement.
[Note. Part 16 contains rules about written witness statements. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967.]
(1) This rule applies where more than one party wants to introduce expert evidence.
(2) The court may direct the experts to—
(a) discuss the expert issues in the proceedings; and
(b) prepare a statement for the court of the matters on which they agree and disagree, giving their reasons.
(3) Except for that statement, the content of that discussion must not be referred to without the court’s permission.
(4) A party may not introduce expert evidence without the court’s permission if the expert has not complied with a direction under this rule.
[Note. At a pre-trial hearing, a court may make binding rulings about the admissibility of evidence and about questions of law under section 9 of the Criminal Justice Act 1987; sections 31 and 40 of the Criminal Procedure and Investigations Act 1996; and section 8A of the Magistrates’ Courts Act 1980.]
19.7 Court’s power to direct that evidence is to be given by a single joint expert
(1) Where more than one defendant wants to introduce expert evidence on an issue at trial, the court may direct that the evidence on that issue is to be given by one expert only.
(2) Where the co-defendants cannot agree who should be the expert, the court may—
(a) select the expert from a list prepared or identified by them; or
(b) direct that the expert be selected in another way.
(1) Where the court gives a direction under rule 19.7 for a single joint expert to be used, each of the co-defendants may give instructions to the expert.
(2) A co-defendant who gives instructions to the expert must, at the same time, send a copy of the instructions to each other co-defendant.
(3) The court may give directions about—
(a) the payment of the expert’s fees and expenses; and
(b) any examination, measurement, test or experiment which the expert wishes to carry out.
(4) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert.
(5) Unless the court otherwise directs, the instructing co-defendants are jointly and severally liable for the payment of the expert’s fees and expenses.
19.9 Application to withhold information from another party
(1) This rule applies where—
(a) a party introduces expert evidence under rule 19.3(3);
(b) the evidence omits information which it otherwise might include because the party introducing it thinks that that information ought not be revealed to another party; and
(c) the party introducing the evidence wants the court to decide whether it would be in the public interest to withhold that information.
(2) The party who wants to introduce the evidence must—
(a) apply for such a decision; and
(b) serve the application on—
(i) the court officer, and
(ii) the other party, but only to the extent that serving it would not reveal what the applicant thinks ought to be withheld.
(3) The application must—
(a) identify the information;
(b) explain why the applicant thinks that it would be in the public interest to withhold it; and
(c) omit from the part of the application that is served on the other party anything that would reveal what the applicant thinks ought to be withheld.
(4) Where the applicant serves only part of the application on the other party, the applicant must—
(a) mark the other part, to show that it is only for the court; and
(b) in that other part, explain why the applicant has withheld it from the other party.
(5) The court may—
(a) direct the applicant to serve on the other party any part of the application which has been withheld; and
(b) determine the application at a hearing or without a hearing.
(6) Any hearing of an application to which this rule applies—
(a) must be in private, unless the court otherwise directs; and
(b) if the court so directs, may be, wholly or in part, in the absence of the party from whom information has been withheld.
(7) At any hearing of an application to which this rule applies—
(a) the general rule is that the court must consider, in the following sequence—
(i) representations first by the applicant and then by the other party, in both parties’ presence, and then
(ii) further representations by the applicant, in the absence of the party from whom information has been withheld; but
(b) the court may direct other arrangements for the hearing.
19.10 Court’s power to vary requirements under this Part
(1) The court may extend (even after it has expired) a time limit under this Part.
(2) A party who wants an extension of time must—
(a) apply when serving the report, summary or notice for which it is required; and
(b) explain the delay.
This Part applies in a magistrates’ court and in the Crown Court where a party wants to introduce hearsay evidence within the meaning of section 114 of the Criminal Justice Act 2003.
[Note. Under section 114 of the Criminal Justice Act 2003, a statement not made in oral evidence is admissible as evidence of any matter stated if—
(a) a statutory provision makes it admissible;
(b) a rule of law preserved by section 118 makes it admissible;
(c) the parties agree to it being admissible; or
(d) it is in the interests of justice for it to be admissible.
Under section 115 of the Act—
(a) a “statement” means any representation of fact or opinion, by any means, and includes a representation in pictorial form; and
(b) a “matter stated” is something stated by someone with the apparent purpose of—
(i) causing another person to believe it, or
(ii) causing another person, or a machine, to act or operate on the basis that the matter is as stated.]
(1) This rule applies where a party wants to introduce hearsay evidence for admission under any of the following sections of the Criminal Justice Act 2003—
(a) section 114(1)(d) (evidence admissible in the interests of justice);
(b) section 116 (evidence where a witness is unavailable);
(c) section 117(1)(c) (a statement prepared for the purposes of criminal proceedings); or
(d) section 121 (multiple hearsay).
(2) That party must—
(a) serve notice on—
(i) the court officer, and
(ii) each other party;
(b) in the notice—
(i) identify the evidence that is hearsay,
(ii) set out any facts on which that party relies to make the evidence admissible,
(iii) explain how that party will prove those facts if another party disputes them, and
(iv) explain why the evidence is admissible; and
(c) attach to the notice any statement or other document containing the evidence that has not already been served.
(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—
(a) 20 business days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 10 business days after the defendant pleads not guilty, in the Crown Court.
(4) A defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable.
(5) A party entitled to receive a notice under this rule may waive that entitlement by so informing—
(a) the party who would have served it; and
(b) the court.
[Note. The sections of the Criminal Justice Act 2003 listed in this rule set out the conditions on which hearsay evidence may be admitted under them.
If notice is not given as this rule requires, then under section 132(5) of the 2003 Act—
(a) the evidence is not admissible without the court’s permission;
(b) if the court gives permission, it may draw such inferences as appear proper from the failure to give notice; and
(c) the court may take the failure into account in exercising its powers to order costs.
This rule does not require notice of hearsay evidence that is admissible under any of the following sections of the 2003 Act—
(a) section 117 (business and other documents), otherwise than as required by rule 20.2(1)(c);
(b) section 118 (preservation of certain common law categories of admissibility);
(c) section 119 (inconsistent statements);
(d) section 120 (other previous statements of witness); or
(e) section 127 (expert evidence: preparatory work): but see Part 19 for the procedure where a party wants to introduce such evidence.]
20.3 Opposing the introduction of hearsay evidence
(1) This rule applies where a party objects to the introduction of hearsay evidence.
(2) That party must—
(a) apply to the court to determine the objection;
(b) serve the application on—
(i) the court officer, and
(ii) each other party;
(c) serve the application as soon as reasonably practicable, and in any event not more than 10business days after—
(i) service of notice to introduce the evidence under rule 20.2,
(ii) service of the evidence to which that party objects, if no notice is required by that rule, or
(iii) the defendant pleads not guilty
whichever of those events happens last; and
(d) in the application, explain—
(i) which, if any, facts set out in a notice under rule 20.2 that party disputes,
(ii) why the evidence is not admissible, and
(iii) any other objection to the evidence.
(3) The court—
(a) may determine an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless the party who served the notice—
(i) is present, or
(ii) has had a reasonable opportunity to respond;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996 (ruling at preparatory or other pre-trial hearing in the Crown Court).
(1) This rule applies where—
(a) a party has served notice to introduce hearsay evidence under rule 20.2; and
(b) no other party has applied to the court to determine an objection to the introduction of the evidence.
(2) The court must treat the evidence as if it were admissible by agreement.
[Note. Under section 132(4) of the Criminal Justice Act 2003, rules may provide that evidence is to be treated as admissible by agreement of the parties if notice to introduce that evidence has not been opposed.]
20.5 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;
(b) allow an application or notice to be in a different form to one issued under the Practice Direction, or to be made or given orally; and
(c) dispense with the requirement for notice to introduce hearsay evidence.
(2) A party who wants an extension of time must—
(a) apply when serving the application or notice for which it is needed; and
(b) explain the delay.
This Part applies in a magistrates’ court and in the Crown Court where a party wants to introduce evidence of bad character within the meaning of section 98 of the Criminal Justice Act 2003.
[Note. Under section 98 of the Criminal Justice Act 2003, evidence of a person’s bad character means evidence of, or of a disposition towards, misconduct on that person’s part, other than evidence that—
(a) has to do with the alleged facts of the offence; or
(b) is evidence of misconduct in connection with the investigation or prosecution.
Under section 100(1) of the Criminal Justice Act 2003, evidence of a non-defendant’s bad character is admissible if—
(a) it is important explanatory evidence;
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole; or
(c) all parties to the proceedings agree to the evidence being admissible.
The section explains requirements (a) and (b). Unless the parties agree to the evidence being admissible, it may not be introduced without the court’s permission.
Under section 101(1) of the Criminal Justice Act 2003, evidence of a defendant’s bad character is admissible if—
(a) all parties to the proceedings agree to the evidence being admissible;
(b) the evidence is introduced by the defendant, or is given in answer to a question asked by the defendant in cross-examination which was intended to elicit that evidence;
(c) it is important explanatory evidence;
(d) it is relevant to an important matter in issue between the defendant and the prosecution;
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant;
(f) it is evidence to correct a false impression given by the defendant; or
(g) the defendant has made an attack on another person’s character.
Sections 102 to 106 of the Act supplement those requirements. The court must not admit evidence under (d) or (g) if, on an application by the defendant, the court concludes that to do so would be unfair.]
(1) A party who wants to introduce evidence of bad character must—
(a) make an application under rule 21.3, where it is evidence of a non-defendant’s bad character; or
(b) give notice under rule 21.4, where it is evidence of a defendant’s bad character.
(2) An application or notice must—
(a) set out the facts of the misconduct on which that party relies,
(b) explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them, and
(c) explain why the evidence is admissible.
[Note. The fact that a person was convicted of an offence may be proved under—
(a) section 73 of the Police and Criminal Evidence Act 1984 (conviction in the United Kingdom); or
(b) section 7 of the Evidence Act 1851 (conviction outside the United Kingdom).
See also sections 117 and 118 of the Criminal Justice Act 2003 (admissibility of evidence contained in business and other documents).
Under section 10 of the Criminal Justice Act 1967, a party may admit a matter of fact.]
21.3 Application to introduce evidence of a non-defendant’s bad character
(1) This rule applies where a party wants to introduce evidence of the bad character of a person other than the defendant.
(2) That party must serve an application to do so on—
(a) the court officer; and
(b) each other party.
(3) The applicant must serve the application—
(a) as soon as reasonably practicable; and in any event
(b) not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).
(4) A party who objects to the introduction of the evidence must—
(a) serve notice on—
(i) the court officer, and
(ii) each other party
not more than 10 business days after service of the application; and
(b) in the notice explain, as applicable—
(i) which, if any, facts of the misconduct set out in the application that party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible, and
(iv) any other objection to the application.
(5) The court—
(a) may determine an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless each party other than the applicant—
(i) is present, or
(ii) has had at least 10 business days in which to serve a notice of objection;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996 (ruling at preparatory or other pre-trial hearing in the Crown Court).
[Note. See also rule 21.5 (reasons for decisions must be given in public).]
21.4 Notice to introduce evidence of a defendant’s bad character
(1) This rule applies where a party wants to introduce evidence of a defendant’s bad character.
(2) A prosecutor or co-defendant who wants to introduce such evidence must serve notice on—
(a) the court officer; and
(b) each other party.
(3) A prosecutor must serve any such notice not more than—
(a) 20 business days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 10 business days after the defendant pleads not guilty, in the Crown Court.
(4) A co-defendant who wants to introduce such evidence must serve the notice—
(a) as soon as reasonably practicable; and in any event
(b) not more than 10 business days after the prosecutor discloses material on which the notice is based.
(5) A party who objects to the introduction of the evidence identified by such a notice must—
(a) apply to the court to determine the objection;
(b) serve the application on—
(i) the court officer, and
(ii) each other party
not more than 10 business days after service of the notice; and
(c) in the application explain, as applicable—
(i) which, if any, facts of the misconduct set out in the notice that party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible,
(iv) why it would be unfair to admit the evidence, and
(v) any other objection to the notice.
(6) The court—
(a) may determine such an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless the party who served the notice—
(i) is present, or
(ii) has had a reasonable opportunity to respond;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996 (ruling at preparatory or other pre-trial hearing in the Crown Court).
(7) A party entitled to receive such a notice may waive that entitlement by so informing—
(a) the party who would have served it; and
(b) the court.
(8) A defendant who wants to introduce evidence of his or her own bad character must—
(a) give notice, in writing or orally—
(i) as soon as reasonably practicable, and in any event
(ii) before the evidence is introduced, either by the defendant or in reply to a question asked by the defendant of another party’s witness in order to obtain that evidence; and
(b) in the Crown Court, at the same time give notice (in writing, or orally) of any direction about the defendant’s character that the defendant wants the court to give the jury under rule 25.14 (Directions to the jury and taking the verdict).
[Note. See also rule 21.5 (reasons for decisions must be given in public).
If notice is not given as this rule requires, then under section 111(4) of the Criminal Justice Act 2003 the court may take the failure into account in exercising its powers to order costs.]
The court must announce at a hearing in public (but in the absence of the jury, if there is one) the reasons for a decision—
(a) to admit evidence as evidence of bad character, or to refuse to do so; or
(b) to direct an acquittal or a retrial under section 107 of the Criminal Justice Act 2003.
[Note. See section 110 of the Criminal Justice Act 2003.]
21.6 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;
(b) allow an application or notice to be in a different form to one issued under the Practice Direction, or to be made or given orally; and
(c) dispense with a requirement for notice to introduce evidence of a defendant’s bad character.
(2) A party who wants an extension of time must—
(a) apply when serving the application or notice for which it is needed; and
(b) explain the delay.
This Part applies in a magistrates’ court and in the Crown Court where—
(a) section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the introduction of evidence or cross-examination about any sexual behaviour of the complainant of a sexual offence; and
(b) despite that prohibition, a defendant wants to introduce such evidence or to cross-examine a witness about such behaviour.
[Note. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits evidence or cross-examination about the sexual behaviour of a complainant of a sexual offence, subject to exceptions.
See also—
(a) section 42 of the 1999 Act, which among other things defines ‘sexual behaviour’ and ‘sexual offence’;
(b) section 34, which prohibits cross-examination by a defendant in person of the complainant of a sexual offence (Part 23 contains relevant rules).]
The court—
(a) must determine an application under rule 22.4 (Application for permission to introduce evidence or cross-examine)—
(i) at a hearing in private, and
(ii) in the absence of the complainant;
(b) must not determine the application unless—
(i) each party other than the applicant is present, or has had at least 10 business days in which to make representations, and
(ii) the court is satisfied that it has been able to take adequate account of the complainant’s rights;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996 (ruling at preparatory or other pre-trial hearing in the Crown Court).
[Note. See alsosection 43 of the Youth Justice and Criminal Evidence Act 1999, which among other things requires an application under section 41 of the Act to be heard in private and in the absence of the complainant.
At a pre-trial hearing a court may make binding rulings about the admissibility of evidence and about questions of law under sections 31 and 40 of the Criminal Procedure and Investigations Act 1996 and section 8A of the Magistrates’ Courts Act 1980.]
(1) A prosecutor who wants to introduce the evidence of a complainant in respect of whom the court allows the introduction of evidence or cross-examination about any sexual behaviour must—
(a) inform the complainant of the court’s decision as soon as reasonably practicable; and
(b) explain to the complainant any 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 the prosecutor 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—
(a) the reasons for a decision to allow or refuse an application under rule 22.4; and
(b) if it allows such an application, the extent to which evidence may be introduced or questions asked.
[Note. Under section 43 of the Youth Justice and Criminal Evidence Act 1999—
(a) the reasons for the court’s decision on an application must be given in open court; and
(b) the court must state in open court the extent to which evidence may be introduced or questions asked.
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.]
22.4 Application for permission to introduce evidence or cross-examine
(1) A defendant who wants to introduce evidence or cross-examine a witness about any sexual behaviour of the complainant must—
(a) serve an application for permission to do so on—
(i) the court officer, and
(ii) each other party; and
(b) serve the application—
(i) as soon as reasonably practicable after becoming aware of the grounds for doing so, and in any event
(ii) not more than 10 business days after the prosecutor discloses material on which the application is based.
(2) The application must—
(a) identify the issue to which the defendant says the complainant’s sexual behaviour is relevant;
(b) give particulars of—
(i) any evidence that the defendant wants to introduce, and
(ii) any questions that the defendant wants to ask;
(c) identify the exception to the prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999 on which the defendant relies; and
(d) give the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce.
22.5 Application containing information withheld from another party
(1) This rule applies where—
(a) an applicant serves an application under rule 22.4 (Application for permission to introduce evidence or cross-examine); and
(b) the application includes information that the applicant thinks ought not be revealed to another party.
(2) The applicant must—
(a) omit that information from the part of the application that is served on that other party;
(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 why the applicant has withheld that information from that other party.
(3) If the court so directs, the hearing of an application to which this rule applies may be, wholly or in part, in the absence of a party from whom information has been withheld.
(4) At the hearing of an application to which this rule applies—
(a) the general rule is that the court must consider, in the following sequence—
(i) representations first by the applicant and then by each other party, in all the parties’ presence, and then
(ii) further representations by the applicant, in the absence of a party from whom information has been withheld; but
(b) the court may direct other arrangements for the hearing.
[Note. See section 43(3)(c) of the Youth Justice and Criminal Evidence Act 1999.]