45.8 Costs resulting from unnecessary or improper act, etc.
(1) This rule applies where the court can order a party to pay another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party.
(2) In this rule, costs include costs met by legal aid.
(3) The court may make an order—
(a) on application by the party who incurred such costs; or
(b) on its own initiative.
(4) A party who wants the court to make an order must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, and in any event no later than the end of the case;
(b) serve the application on—
(i) the court officer (or, in the Court of Appeal, the Registrar), and
(ii) each other party; and
(c) in that application specify—
(i) the party by whom costs should be paid,
(ii) the relevant act or omission,
(iii) the reasons why that act or omission meets the criteria for making an order,
(iv) the amount claimed, and
(v) those on whom the application has been served.
(5) Where the court considers making an order on its own initiative, it must—
(a) identify the party against whom it proposes making the order; and
(b) specify—
(i) the relevant act or omission,
(ii) the reasons why that act or omission meets the criteria for making an order, and
(iii) with the assistance of the party who incurred the costs, the amount involved.
(6) A party who wants to oppose an order must—
(a) make representations as soon as practicable; and
(b) in reply to an application, serve representations on the applicant and on the court officer (or Registrar) not more than 5 business days after it was served.
(7) If the court makes an order, it must assess the amount itself.
(8) To help assess the amount, the court may direct an enquiry by—
(a) the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or
(b) the Registrar, where the assessment is by the Court of Appeal.
(9) In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including—
(a) any agreement between the parties about the amount to be paid;
(b) the amount likely to be allowed;
(c) the delay and expense that may be incurred in the conduct of the enquiry; and
(d) the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment.
(10) If the court directs such an enquiry—
(a) paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply);
(b) the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and
(c) the court must then assess the amount to be paid.
[Note. See—
(a) rule 45.2;
(b) section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986; and
(c) article 16 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008.
Under section 19(1), (2) of the 1985 Act and regulation 3(1) of the 1986 Regulations, the court’s power to make a costs order to which this rule applies can only be exercised during the proceedings.
Under regulation 3(5) of the 1986 Regulations, if a magistrates’ court fines a defendant under 17, no costs order to which this rule applies may be for more than the fine.]
(1) This rule applies where—
(a) a party has incurred costs—
(i) as a result of an improper, unreasonable or negligent act or omission by a legal or other representative or representative’s employee, or
(ii) which it has become unreasonable for that party to have to pay because of such an act or omission occurring after those costs were incurred; and
(b) the court can—
(i) order the representative responsible to pay such costs, or
(ii) prohibit the payment of costs to that representative.
(2) In this rule, costs include costs met by legal aid.
(3) The court may make an order—
(a) on application by the party who incurred such costs; or
(b) on its own initiative.
(4) A party who wants the court to make an order must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, and in any event no later than the end of the case;
(b) serve the application on—
(i) the court officer (or, in the Court of Appeal, the Registrar),
(ii) the representative responsible,
(iii) each other party, and
(iv) any other person directly affected; and
(c) in that application specify—
(i) the representative responsible,
(ii) the relevant act or omission,
(iii) the reasons why that act or omission meets the criteria for making an order,
(iv) the amount claimed, and
(v) those on whom the application has been served.
(5) Where the court considers making an order on its own initiative, it must—
(a) identify the representative against whom it proposes making that order; and
(b) specify—
(i) the relevant act or omission,
(ii) the reasons why that act or omission meets the criteria for making an order, and
(iii) with the assistance of the party who incurred the costs, the amount involved.
(6) A representative who wants to oppose an order must—
(a) make representations as soon as practicable; and
(b) in reply to an application, serve representations on the applicant and on the court officer (or Registrar) not more than 5 business days after it was served.
(7) If the court makes an order—
(a) the general rule is that it must do so without waiting until the end of the case, but it may postpone making the order; and
(b) it must assess the amount itself.
(8) To help assess the amount, the court may direct an enquiry by—
(a) the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or
(b) the Registrar, where the assessment is by the Court of Appeal.
(9) In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including—
(a) any agreement between the parties about the amount to be paid;
(b) the amount likely to be allowed;
(c) the delay and expense that may be incurred in the conduct of the enquiry; and
(d) the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment.
(10) If the court directs such an enquiry—
(a) paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply);
(b) the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and
(c) the court must then assess the amount to be paid.
(11) Instead of making an order, the court may make adverse observations about the representative’s conduct for use in an assessment where—
(a) a party’s costs are—
(i) to be met by legal aid, or
(ii) to be paid out of central funds; or
(b) there is to be an assessment under rule 45.11.
[Note. See—
(a) rule 45.2;
(b) section 19A of the Prosecution of Offences Act 1985;
(c) article 17 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008.
Under section 19A(1) of the 1985 Act, the court’s power to make a costs order to which this rule applies can only be exercised during the proceedings.
Part 34 (Appeal to the Crown Court) and Part 39 (Appeal to the Court of Appeal about conviction or sentence) contain rules about appeals against a costs order to which this rule applies.]
(1) This rule applies where—
(a) there has been serious misconduct by a person who is not a party; and
(b) the court can order that person to pay a party’s costs.
(2) In this rule, costs include costs met by legal aid.
(3) The court may make an order—
(a) on application by the party who incurred the costs; or
(b) on its own initiative.
(4) A party who wants the court to make an order must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;
(b) serve the application on—
(i) the court officer (or, in the Court of Appeal, the Registrar),
(ii) the person responsible,
(iii) each other party, and
(iv) any other person directly affected; and
(c) in that application specify—
(i) the person responsible,
(ii) the relevant misconduct,
(iii) the reasons why the criteria for making an order are met,
(iv) the amount claimed, and
(v) those on whom the application has been served.
(5) Where the court considers making an order on its own initiative, it must—
(a) identify the person against whom it proposes making that order; and
(b) specify—
(i) the relevant misconduct,
(ii) the reasons why the criteria for making an order are met, and
(iii) with the assistance of the party who incurred the costs, the amount involved.
(6) A person who wants to oppose an order must—
(a) make representations as soon as practicable; and
(b) in reply to an application, serve representations on the applicant and on the court officer (or Registrar) not more than 5 business days after it was served.
(7) If the court makes an order—
(a) the general rule is that it must do so at the end of the case, but it may do so earlier; and
(b) it must assess the amount itself.
(8) To help assess the amount, the court may direct an enquiry by—
(a) the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or
(b) the Registrar, where the assessment is by the Court of Appeal.
(9) In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including—
(a) any agreement between the parties about the amount to be paid;
(b) the amount likely to be allowed;
(c) the delay and expense that may be incurred in the conduct of the enquiry; and
(d) the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment.
(10) If the court directs such an enquiry—
(a) paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply);
(b) the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and
(c) the court must then assess the amount to be paid.
[Note. See—
(a) rule 45.2;
(b) section 19B of the Prosecution of Offences Act 1985 and regulation 3F of the Costs in Criminal Cases (General) Regulations 1986; and
(c) article 18 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008.
Part 34 (Appeal to the Crown Court) and Part 39 (Appeal to the Court of Appeal about conviction or sentence) contain rules about appeals against a costs order to which this rule applies.]
(1) This rule applies where the court directs an assessment under—
(a) rule 45.6 (Costs on appeal); or
(b) rule 45.7 (Costs on an application).
(2) The assessment must be carried out by the relevant assessing authority, namely—
(a) the Lord Chancellor, where the direction was given by a magistrates’ court or by the Crown Court; or
(b) the Registrar, where the direction was given by the Court of Appeal.
(3) The party in whose favour the court made the costs order (‘the applicant’) must—
(a) apply for an assessment—
(i) in writing, in any form required by the assessing authority, and
(ii) not more than 3 months after the costs order; and
(b) serve the application on—
(i) the assessing authority, and
(ii) the party against whom the court made the costs order (‘the respondent’).
(4) The applicant must—
(a) summarise the work done;
(b) specify—
(i) each item of work done, giving the date, time taken and amount claimed,
(ii) any disbursements or expenses, including the fees of any advocate, and
(iii) any circumstances of which the applicant wants the assessing authority to take particular account; and
(c) supply—
(i) receipts or other evidence of the amount claimed, and
(ii) any other information or document for which the assessing authority asks, within such period as that authority may require.
(5) A respondent who wants to make representations about the amount claimed must—
(a) do so in writing; and
(b) serve the representations on the assessing authority, and on the applicant, not more than 15 business days after service of the application.
(6) The assessing authority must—
(a) if it seems likely to help with the assessment, obtain any other information or document;
(b) resolve in favour of the respondent any doubt about what should be allowed; and
(c) serve the assessment on the parties.
(7) Where either party wants the amount allowed to be re-assessed—
(a) that party must—
(i) apply to the assessing authority, in writing and in any form required by that authority,
(ii) serve the application on the assessing authority, and on the other party, not more than 15 business days after service of the assessment,
(iii) explain the objections to the assessment,
(iv) supply any additional supporting information or document, and
(v) ask for a hearing, if that party wants one;
(b) a party who wants to make representations about an application for re-assessment must—
(i) do so in writing,
(ii) serve the representations on the assessing authority, and on the other party, not more than 15 business days after service of the application, and
(iii) ask for a hearing, if that party wants one; and
(c) the assessing authority—
(i) must arrange a hearing, in public or in private, if either party asks for one,
(ii) subject to that, may re-assess the amount allowed with or without a hearing,
(iii) must re-assess the amount allowed on the initial assessment, taking into account the reasons for disagreement with that amount and any other representations,
(iv) may maintain, increase or decrease the amount allowed on the assessment,
(v) must serve the re-assessment on the parties, and
(vi) must serve reasons on the parties, if not more than 15 business days later either party asks for such reasons.
(8) A time limit under this rule may be extended even after it has expired—
(a) by the assessing authority, or
(b) by the Senior Costs Judge, if the assessing authority declines to do so.
(1) This rule applies where—
(a) the assessing authority has re-assessed the amount allowed under rule 45.11; and
(b) either party wants to appeal against that amount.
(2) That party must—
(a) serve an appeal notice on—
(i) the Senior Costs Judge,
(ii) the other party, and
(iii) the assessing authority
not more than 15 business days after service of the written reasons for the re-assessment;
(b) explain the objections to the re-assessment;
(c) serve on the Senior Costs Judge with the appeal notice—
(i) the applications for assessment and re-assessment,
(ii) any other information or document considered by the assessing authority,
(iii) the assessing authority’s written reasons for the re-assessment, and
(iv) any other information or document for which a costs judge asks, within such period as the judge may require; and
(d) ask for a hearing, if that party wants one.
(3) A party who wants to make representations about an appeal must—
(a) serve representations in writing on—
(i) the Senior Costs Judge, and
(ii) the applicant
not more than 15 business days after service of the appeal notice; and
(b) ask for a hearing, if that party wants one.
(4) Unless a costs judge otherwise directs, the parties may rely only on—
(a) the objections to the amount allowed on the initial assessment; and
(b) any other representations and material considered by the assessing authority.
(5) A costs judge—
(a) must arrange a hearing, in public or in private, if either party asks for one;
(b) subject to that, may determine an appeal with or without a hearing;
(c) may—
(i) consult the assessing authority,
(ii) consult the court which made the costs order, and
(iii) obtain any other information or document;
(d) must reconsider the amount allowed by the assessing authority, taking into account the objections to the re-assessment and any other representations;
(e) may maintain, increase or decrease the amount allowed on the re-assessment;
(f) may provide for the costs incurred by either party to the appeal; and
(g) must serve reasons for the decision on—
(i) the parties, and
(ii) the assessing authority.
(6) A costs judge may extend a time limit under this rule, even after it has expired.
(1) This rule applies where—
(a) a costs judge has determined an appeal under rule 45.12; and
(b) either party wants to appeal against the amount allowed.
(2) A party who wants to appeal—
(a) may do so only if a costs judge certifies that a point of principle of general importance was involved in the decision on the review; and
(b) must apply in writing for such a certificate and serve the application on—
(i) the costs judge, and
(ii) the other party
not more than 15 business days after service of the decision on the review.
(3) That party must—
(a) appeal to a judge of the High Court attached to the King’s Bench Division as if it were an appeal from the decision of a master under Part 52 of the Civil Procedure Rules 1998; and
(b) serve the appeal not more than 15 business days after service of the costs judge’s certificate under paragraph (2).
(4) A High Court judge—
(a) may extend a time limit under this rule even after it has expired;
(b) has the same powers and duties as a costs judge under rule 45.12; and
(c) may hear the appeal with one or more assessors.
[Note. See also section 70 of the Senior Courts Act 1981.]
A party who wants an extension of time under rule 45.11, 45.12 or 45.13 must—
(a) apply in writing;
(b) explain the delay; and
(c) attach the application, representations or appeal for which the extension of time is needed.
(1) Under these Rules, anything that a party may or must do may be done—
(a) by a legal representative on that party’s behalf;
(b) by a person with the corporation’s written authority, where that corporation is a defendant; or
(c) with the help of a parent, guardian or other suitable supporting adult where that party is a defendant—
(i) who is under 18, or
(ii) whose understanding of what the case involves is limited
unless other legislation (including a rule) otherwise requires.
(2) A member, officer or employee of a prosecutor may, on the prosecutor’s behalf—
(a) serve on the magistrates’ court officer, or present to a magistrates’ court, an application for a summons or warrant under section 1 of the Magistrates’ Courts Act 1980; or
(b) issue a written charge and requisition, or single justice procedure notice, under section 29 of the Criminal Justice Act 2003.
[Note. See also section 122 of the Magistrates’ Courts Act 1980. A party’s legal representative must be entitled to act as such under section 13 of the Legal Services Act 2007.
Section 33(6) of the Criminal Justice Act 1925, section 46 of the Magistrates’ Courts Act 1980 and Schedule 3 to that Act provide for the representation of a corporation.
Sections 3 and 6 of the Prosecution of Offences Act 1985 make provision about the institution of prosecutions.
Section 223 of the Local Government Act 1972 allows a member or officer of a local authority on that authority’s behalf to prosecute or defend a case before a magistrates’ court, and to appear in and to conduct any proceedings before a magistrates’ court.
Part 7 contains rules about starting a prosecution.]
46.2 Notice of appointment, etc. of legal representative: general rules
(1) This rule applies—
(a) in relation to—
(i) a party who does not have legal aid for the purposes of a case, and
(ii) a party to an extradition case in the High Court, whether that party has legal aid or not;
(b) where such a party—
(i) appoints a legal representative for the purposes of the case, or
(ii) dismisses such a representative, with or without appointing another; and
(c) where a legal representative for such a party withdraws from the case.
(2) Where paragraph (1)(b) applies, that party must give notice of the appointment or dismissal to—
(a) the court officer;
(b) each other party; and
(c) where applicable, the legal representative who has been dismissed,
as soon as practicable and in any event within 5 business days.
(3) Where paragraph (1)(c) applies, that legal representative must—
(a) as soon as practicable give notice to—
(i) the court officer,
(ii) the party whom he or she has represented, and
(iii) each other party; and
(b) where that legal representative has represented the defendant in an extradition case in the High Court, include with the notice—
(i) confirmation that the defendant has notice of when and where the appeal hearing will take place and of the need to attend, if the defendant is on bail,
(ii) details sufficient to locate the defendant, including details of the custodian and of the defendant’s date of birth and custody reference, if the defendant is in custody, and
(iii) details of any arrangements likely to be required by the defendant to facilitate his or her participation in consequence of the representative’s withdrawal, including arrangements for interpretation.
(4) Any such notice—
(a) may be given orally if—
(i) it is given at a hearing, and
(ii) it specifies no restriction under paragraph (5)(b) (restricted scope of appointment); but
(b) must be in writing in any other case.
(5) A notice of the appointment of a legal representative—
(a) must identify—
(i) the legal representative who has been appointed, with details of how to contact that representative, and
(ii) all those to whom the notice is given;
(b) may specify a restriction, or restrictions, on the purpose or duration of the appointment; and
(c) if it specifies any such restriction, may nonetheless provide that documents may continue to be served on the represented party at the representative’s address until—
(i) further notice is given under this rule, or
(ii) that party obtains legal aid for the purposes of the case.
(6) A legal representative who is dismissed by a party or who withdraws from representing a party must, as soon as practicable, make available to that party such documents in the representative’s possession as have been served on that party.
46.3 Application to change legal representative (legal aid): general rules
(1) This rule applies in a magistrates’ court, the Crown Court and the Court of Appeal—
(a) in relation to a defendant who has legal aid for the purposes of a case; and
(b) where either—
(i) that defendant wants to select a legal representative (the ‘proposed new representative’) in place of the representative named in the legal aid representation order (the ‘current representative’) (see also rule 46.4), or
(ii) the current representative considers there to be a duty to withdraw from the case or no longer is able to represent the defendant through circumstances outside the representative’s control (see also rule 46.5).
(2) The defendant or the current representative, as the case may be, must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;
(b) serve the application on—
(i) the court officer,
(ii) the current representative, if the application is made by the defendant, and
(iii) the defendant, if the application is made by the current representative; and
(c) ask for a hearing, if the applicant wants one, and explain why it is needed.
(3) The court may determine the application—
(a) without a hearing, as a general rule; or
(b) at a hearing, if that is needed to resolve—
(i) matters in dispute, or
(ii) other matters unclear to the court.
(4) Unless the court otherwise directs, any hearing must be in private and in the absence of—
(a) the prosecutor,
(b) any co-defendant, and
(c) any legal representative or advocate of the prosecutor or a co-defendant.
(5) If the court allows the application, as soon as practicable—
(a) the current representative must make available to any new representative such documents in the current representative’s possession as have been served on the defendant; and
(b) a new representative, if any, must serve notice of appointment on each other party.
(6) Paragraph (7) applies where—
(a) the court refuses an application under rule 46.4 and in response—
(i) the defendant declines further representation by the current representative or asks for legal aid to be withdrawn, or
(ii) the current representative declines further to represent the defendant; or
(b) the court allows an application under rule 46.5.
(7) If the court withdraws the defendant’s legal aid—
(a) the court may specify the date on which that withdrawal will take effect; and
(b) the court officer must serve notice of the withdrawal on—
(i) the defendant,
(ii) the current representative, and
(iii) the prosecutor.
[Note. Under sections 16 and 19 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Part 2 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, a court before which criminal proceedings take place may determine whether an individual qualifies for legal aid representation in accordance with the 2012 Act.
Under regulation 13 of the 2013 Regulations, in relation to any proceedings involving co-defendants a represented person must select a representative who is also instructed by a co-defendant unless there is, or there is likely to be, a conflict of interest between the two defendants.
Under regulation 14 of the 2013 Regulations, once a representative has been selected the person who is represented has no right to select another in the place of the first unless the court so decides, in the circumstances set out in the regulation.
Under regulation 9 of the 2013 Regulations, if a represented person declines to accept representation on the terms offered or requests that legal aid representation is withdrawn, or if the current representative declines to continue to represent that person, the court may withdraw legal aid.
See also regulation 11 of the 2013 Regulations, which requires that an application under regulation 14 (among others) must be made by the represented person, must be in writing and must specify the grounds.]
46.4 Application by defendant to change legal representative (legal aid)
(1) An application by a defendant with legal aid to select a new representative in place of the current representative must—
(a) explain what the case is about, including what offences are alleged, what stage it has reached and what is likely to be in issue at trial;
(b) explain how and why the defendant chose the current representative;
(c) if an advocate other than the current representative has been instructed for the defendant, explain whether the defendant wishes to replace that advocate;
(d) explain, giving relevant facts and dates—
(i) in what way, in the defendant’s opinion, there has been a breakdown in the relationship between the defendant and the current representative such that neither that representative nor any colleague of theirs any longer can provide effective representation, or
(ii) what other compelling reason, in the defendant’s opinion, means that neither the current representative nor any such colleague any longer can provide effective representation;
(e) give details of any previous application by the defendant to replace a legal representative named in the legal aid representation order;
(f) state whether the defendant—
(i) waives the legal professional privilege attaching to the defendant’s communications with the current representative, to the extent required to allow that representative to respond to the matters set out in the application, or
(ii) declines to waive that privilege and acknowledges that the court may draw such inferences as it thinks fit in consequence;
(g) explain how and why the defendant has chosen the proposed new representative;
(h) include or attach a statement by the proposed new representative which—
(i) confirms that the proposed new representative is eligible and willing to conduct the case for the defendant,
(ii) confirms that the proposed new representative can and will meet the current timetable for the case, including any hearing date or dates that have been set, if the application succeeds,
(iii) explains what, if any, dealings the proposed new representative has had with the defendant before the present case,
(iv) confirms that the proposed new representative has informed the current representative of the defendant’s wish to select a new representative,
(v) confirms that the proposed new representative has discussed the defendant’s grounds for the proposed application with the current representative, and
(vi) confirms that the proposed new representative has explained to the defendant what it means to waive the legal professional privilege attaching to the defendant’s communications with the current representative and the potential consequences of not doing so; and
(i) ask for a hearing, if the defendant wants one, and explain why it is needed.
(2) The current representative must—
(a) respond in writing no more than 5 business days after service of the application; and
(b) serve the response on—
(i) the court officer,
(ii) the defendant, and
(iii) the proposed new representative.
(3) The response must—
(a) if applicable, explain why the current representative—
(i) considers there to be a duty to withdraw from the case in accordance with professional rules of conduct, giving details of the nature of that duty, or
(ii) no longer is able to represent the defendant through circumstances outside the representative’s control, giving details of the particular circumstances that render the representative unable to do so; or
(b) otherwise—
(i) identify those matters, if any, set out in the application with which the current representative disagrees, and
(ii) include any comments that the current representative thinks may assist the court.
46.5 Application by legal representative to withdraw (legal aid)
An application by a current representative to withdraw from the case must—
(a) explain what the case is about, including what offences are alleged, what stage it has reached and what is likely to be in issue at trial; and
(b) explain why the current representative—
(i) considers there to be a duty to withdraw from the case in accordance with professional rules of conduct, giving details of the nature of that duty, or
(ii) no longer is able to represent the defendant through circumstances outside the representative’s control, giving details of the particular circumstances that render the representative unable to do so.
47.2 Meaning of ‘court’, ‘applicant’ and ‘respondent’
In this Part—
(a) a reference to the ‘court’ includes a reference to any justice of the peace or judge who can exercise a power to which this Part applies;
(b) ‘applicant’ means a person who, or an authority which, can apply for an order or warrant to which this Part applies; and
(c) ‘respondent’ means any person—
(i) against whom such an order is sought or made, or
(ii) on whom an application for such an order is served.
47.3 Documents and recordings held by the court officer
(1) Unless the court otherwise directs—
(a) the court officer—
(i) must either keep a written application, and a recording of any hearing of an application, or arrange for the whole or any part to be kept by some other appropriate person, including the applicant, subject to any conditions that the court may impose, and
(ii) must arrange for any separate document to which rule 47.26(4) refers (information that the applicant thinks should be kept confidential) to be retained by the applicant, subject to any such conditions; and
(b) a person who, under such arrangements, keeps an application or recording, or retains such a document, must return it to the court if and when the court officer so requires.
(2) Where the court makes an order when the court office is closed, the applicant must, not more than 72 hours later, serve on the court officer—
(a) a copy of the order; and
(b) any written material that was submitted to the court.
(3) Where the court issues a warrant—
(a) the applicant must return it to the court officer as soon as practicable after it has been executed, and in any event not more than 3 months after it was issued (unless other legislation otherwise provides); and
(b) the court officer must—
(i) keep the warrant for 12 months after its return, and
(ii) during that period, make it available for inspection by the occupier of the premises to which it relates, if that occupier asks to inspect it.
[Note. See section 16(10) of the Police and Criminal Evidence Act 1984.]
This Section applies where—
(a) a Circuit judge can make, vary or discharge an order for the production of, or for giving access to, material under paragraph 4 of Schedule 1 to the Police and Criminal Evidence Act 1984, other than material that consists of or includes journalistic material;
(b) for the purposes of a terrorist investigation, a Circuit judge can make, vary or discharge—
(i) an order for the production of, or for giving access to, material, or for a statement of its location, under paragraphs 5 and 10 of Schedule 5 to the Terrorism Act 2000,
(ii) an explanation order, under paragraphs 10 and 13 of Schedule 5 to the 2000 Act, or
(iii) a customer information order, under paragraphs 1 and 4 of Schedule 6 to the 2000 Act;
(c) for the purposes of—
(i) a terrorist investigation, a Circuit judge can make, and the Crown Court can vary or discharge, an account monitoring order, under paragraphs 2 and 4 of Schedule 6A to the 2000 Act, or
(ii) a terrorist financing investigation, a judge entitled to exercise the jurisdiction of the Crown Court can make, and the Crown Court can vary or discharge, a disclosure order, under paragraphs 9 and 14 of Schedule 5A to the 2000 Act;
(d) for the purposes of an investigation to which Part 8 of the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 2002 (External Investigations) Order 2014 applies, a Crown Court judge can make, and the Crown Court can vary or discharge—
(i) a production order, under sections 345 and 351 of the 2002 Act or under articles 6 and 12 of the 2014 Order,
(ii) an order to grant entry, under sections 347 and 351 of the 2002 Act or under articles 8 and 12 of the 2014 Order,
(iii) a disclosure order, under sections 357 and 362 of the 2002 Act or under articles 16 and 21 of the 2014 Order,
(iv) a customer information order, under sections 363 and 369 of the 2002 Act or under articles 22 and 28 of the 2014 Order, or
(v) an account monitoring order, under sections 370, 373 and 375 of the 2002 Act or under articles 29, 32 and 34 of the 2014 Order;
(e) in connection with an extradition request, a Circuit judge can make an order for the production of, or for giving access to, material under section 157 of the Extradition Act 2003;
(f) a magistrates’ court can make an information order under section 22B of the Terrorism Act 2000 in connection with—
(i) an investigation into whether a person is involved in the commission of an offence under any of sections 15 to 18 of the 2000 Act,
(ii) determining whether such an investigation should be started, or
(iii) identifying terrorist property or its movement or use;
(g) a magistrates’ court can make an information order under section 339ZH of the Proceeds of Crime Act 2002 in connection with—
(i) an investigation into whether a person is engaged in money laundering,
(ii) determining whether such an investigation should be started, or
(iii) an investigation into money laundering by an authority in a country outside the United Kingdom;
(h) for the purposes of an investigation to which Part 1 of the National Security Act 2023 applies, a Crown Court judge can make—
(i) an order for the production of, or for giving access to, material, or for a statement of its location, under paragraphs 3 and 4 of Schedule 2 to the 2023 Act, or
(ii) an explanation order, under paragraph 10 of that Schedule; and
(i) for the purposes of an investigation to which Part 1 of the National Security Act 2023 applies, a Crown Court judge can make, and the Crown Court can vary or discharge—
(i) a disclosure order, under paragraphs 2 and 5 of Schedule 3 to the 2023 Act,
(ii) a customer information order, under paragraphs 1 and 4 of Schedule 4 to that Act, or
(iii) an account monitoring order, under paragraphs 1 and 3 of Schedule 5 to that Act.
[Note. In outline, the orders to which these rules apply are—
(a) under the Police and Criminal Evidence Act 1984, a production order requiring a person to produce or give access to material, other than material that consists of or includes journalistic material;
(b) for the purposes of a terrorist investigation under the Terrorism Act 2000—
(i) an order requiring a person to produce, give access to, or state the location of material,
(ii) an explanation order, requiring a person to explain material obtained under a production, etc. order or seized under a warrant,
(iii) a customer information order, requiring a financial institution to provide information about an account holder,
(iv) an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution;
(c) for the purposes of a terrorist financing investigation under the Terrorism Act 2000, a disclosure order, requiring a person to provide information or documents, or to answer questions;
(d) for the purposes of an investigation to which Part 8 of the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 2002 (External Investigations) Order 2014 applies—
(i) a production order, requiring a person to produce or give access to material,
(ii) an order to grant entry, requiring a person to allow entry to premises so that a production order can be enforced,
(iii) a disclosure order, requiring a person to provide information or documents, or to answer questions,
(iv) a customer information order, requiring a financial institution to provide information about an account holder,
(v) an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution;
(e) in connection with extradition proceedings, a production order requiring a person to produce or give access to material;
(f) under the Terrorism Act 2000, an information order requiring a person to provide information (i) related to a matter arising from a disclosure under section 21A of that Act (Failure to disclose: regulated sector) or under the law of a country outside the United Kingdom which corresponds with Part III of that Act (Terrorist property), or (ii) to assist in analysis by the National Crime Agency or by a financial intelligence unit outside the UK;
(g) under the Proceeds of Crime Act 2002, an information order requiring a person to provide information (i) related to a matter arising from a disclosure under Part 7 of that Act (Money laundering) or under the law of a country outside the United Kingdom which corresponds with that Part of that Act, or (ii) to assist in analysis by the National Crime Agency or by a financial intelligence unit outside the UK;
(h) for the purposes of an investigation under the National Security Act 2023—
(i) an order requiring a person to produce, give access to, or state the location of confidential material within the meaning of that Act,
(ii) an explanation order, requiring a person to explain material obtained under a production, etc. order or seized under a warrant,
(iii) a disclosure order, requiring a person to provide information or documents, or to answer questions,
(iv) a customer information order, requiring a financial institution to provide information about an account holder,
(v) an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution.
These rules do not apply to an application for a production order under the Police and Criminal Evidence Act 1984 requiring a person to produce or give access to journalistic material: see paragraph 15A of Schedule 1 to the Act.
For all the relevant terms under which these orders can be made, see the provisions listed in rule 47.4.
Under section 8 of the Senior Courts Act 1981, a High Court judge, a Circuit judge, a Recorder, a qualifying judge advocate and a District Judge (Magistrates’ Courts) each may act as a Crown Court judge.
When the relevant provisions of the Courts Act 2003 come into force, a District Judge (Magistrates’ Courts) will have the same powers as a Circuit judge under the Police and Criminal Evidence Act 1984 and under the Terrorism Act 2000.
Under section 66 of the Courts Act 2003, in criminal cases a High Court judge, a Circuit judge, a Recorder and a qualifying judge advocate each has the powers of a justice of the peace who is a District Judge (Magistrates’ Courts).
By section 341 of the Proceeds of Crime Act 2002, an investigation under Part 8 of the Act may be—
(a) an investigation into (i) whether a person has benefited from criminal conduct, (ii) the extent or whereabouts of such benefit, (iii) the available amount in respect of that person, or (iv) the extent or whereabouts of realisable property available for satisfying a confiscation order made in respect of that person (‘a confiscation investigation’);
(b) an investigation into whether a person has committed a money laundering offence (‘a money laundering investigation’);
(c) an investigation into whether property is recoverable property or associated property (as defined by section 316 of the 2002 Act), or into who holds the property or its extent or whereabouts (‘a civil recovery investigation’);
(d) an investigation into the derivation of cash detained under the 2002 Act, or into whether such cash is intended to be used in unlawful conduct (‘a detained cash investigation’);
(e) an investigation into the derivation of property detained under the 2002 Act, or into whether such property is intended to be used in unlawful conduct (‘a detained property investigation’);
(f) an investigation into the derivation of money held in an account in relation to which an account freezing order made under the 2002 Act has effect, or into whether such money is intended to be used in unlawful conduct (‘a frozen funds investigation’);
(g) an investigation for the purposes of the civil recovery provisions of the 2002 Act into the derivation of cryptoassets, or into whether such assets are intended to be used in unlawful conduct (‘a cryptoasset investigation’);
(h) an investigation for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs, etc.) into whether a person is a qualifying offender or has obtained exploitation proceeds from a relevant offence, or into the value of any benefits derived by such a person from such an offence or the amount available (‘an exploitation proceeds investigation’).
Under section 343 of the Proceeds of Crime Act 2002—
(a) any Crown Court judge may make an order to which this Section applies for the purposes of a confiscation investigation, a money laundering investigation, a detained cash investigation, a detained property investigation or a frozen funds investigation;
(b) only a High Court judge may make such an order for the purposes of a civil recovery investigation, an exploitation proceeds investigation or a cryptoasset investigation (and these rules do not apply to an application to such a judge in such a case).
As well as governing procedure on an application to the Crown Court, under the following provisions rules may govern the procedure on an application to an individual judge—
(a) paragraph 15A of Schedule 1 to the Police and Criminal Evidence Act 1984;
(b) paragraph 10 of Schedule 5, paragraph 14 of Schedule 5A, paragraph 4 of Schedule 6 and paragraph 5 of Schedule 6A to the Terrorism Act 2000;
(c) sections 351, 362, 369, 375 and 446 of the Proceeds of Crime Act 2002; and
(d) paragraph 16 of Schedule 2, paragraph 6 of Schedule 3, paragraph 5 of Schedule 4 and paragraph 4 of Schedule 5 to the National Security Act 2023.]
(1) Subject to paragraphs (2), (3) and (4), the court may determine an application for an order, or to vary or discharge an order—
(a) at a hearing (which must be in private unless the court otherwise directs), or without a hearing; and
(b) in the absence of—
(i) the applicant,
(ii) any respondent,
(iii) any other person affected by the order.
(2) The court must not determine such an application in the applicant’s absence if—
(a) the applicant asks for a hearing; or
(b) it appears to the court that—
(i) the proposed order may infringe legal privilege, within the meaning of section 10 of the Police and Criminal Evidence Act 1984, section 348 or 361 of the Proceeds of Crime Act 2002 or article 9 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014, or paragraph 17(5) of Schedule 2 to the National Security Act 2023,
(ii) the proposed order may require the production of excluded material, within the meaning of section 11 of the 1984 Act, or
(iii) for any other reason the application is so complex or serious as to require the court to hear the applicant.
(3) The court must not determine such an application in the absence of any respondent or other person affected, unless—
(a) the absentee has had at least 2 business days in which to make representations; or
(b) the court is satisfied that—
(i) the applicant cannot identify or contact the absentee,
(ii) it would prejudice the investigation if the absentee were present,
(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the absentee to attend, or
(iv) the absentee has waived the opportunity to attend.
(4) The court must not determine such an application in the absence of any respondent who, if the order sought by the applicant were made, would be required to produce or give access to journalistic material, unless that respondent has waived the opportunity to attend.
(5) The court officer must arrange for the court to hear such an application no sooner than 2business days after it was served, unless—
(a) the court directs that no hearing need be arranged; or
(b) the court gives other directions for the hearing.
(6) The court must not determine an application unless satisfied that sufficient time has been allowed for it.
(7) If the court so directs, the parties to an application may attend a hearing by live link.
(8) The court must not make, vary or discharge an order unless the applicant states, in writing or orally, that to the best of the applicant’s knowledge and belief—
(a) the application discloses all the information that is material to what the court must decide; and
(b) the content of the application is true.
(9) Where the statement required by paragraph (8) 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.
(10) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Section;
(b) dispense with a requirement for service under this Section (even after service was required); and
(c) consider an application made orally instead of in writing.
(11) A person who wants an extension of time must—
(a) apply when serving the application for which it is needed; and
(b) explain the delay.
(1) This rule applies to each application for an order to which this Section applies.
(2) The applicant must—
(a) apply in writing and serve the application on the court officer;
(b) demonstrate that the applicant is entitled to apply, for example as a constable or under legislation that applies to other officers;
(c) give the court an estimate of how long the court should allow—
(i) to read the application and prepare for any hearing, and
(ii) for any hearing of the application;
(d) attach a draft order in the terms proposed by the applicant;
(e) serve notice of the application on the respondent, if any, unless the court otherwise directs; and
(f) serve the application on any respondent to such extent, if any, as the court directs.
(3) A notice served on a respondent must—
(a) specify the material or information in respect of which the application is made; and
(b) identify—
(i) the power that the applicant invites the court to exercise, and
(ii) the conditions for the exercise of that power which the applicant asks the court to find are met.
(4) The applicant must serve any order made on a respondent.
47.7 Application containing information withheld from a respondent or other person
(1) This rule applies where an application includes information that the applicant thinks ought to be revealed only to the court.
(2) The application must—
(a) identify that information; and
(b) explain why that information ought not to be served on a respondent or other person.
(3) At a 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 respondent, if any, and any other person, in the presence of them all, and then
(ii) further representations by the applicant, in the others’ absence; but
(b) the court may direct other arrangements for the hearing.
(1) This rule applies where one of the following wants the court to vary or discharge an order to which a rule in this Section refers—
(a) an applicant;
(b) a respondent; or
(c) a person affected by the order.
(2) That applicant, respondent or person affected must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;
(b) serve the application on—
(i) the court officer, and
(ii) the respondent, applicant, or any person known to be affected, as applicable;
(c) explain why it is appropriate for the order to be varied or discharged;
(d) propose the terms of any variation; and
(e) ask for a hearing, if one is wanted, and explain why it is needed.
(1) This rule applies where a person is accused of disobeying—
(a) a production order made under paragraph 4 of Schedule 1 to the Police and Criminal Evidence Act 1984;
(b) a production etc. order made under paragraph 5 of Schedule 5 to the Terrorism Act 2000;
(c) an explanation order made under paragraph 13 of that Schedule;
(d) an account monitoring order made under paragraph 2 of Schedule 6A to that Act;
(e) a production order made under section 345 of the Proceeds of Crime Act 2002 or article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014;
(f) an account monitoring order made under section 370 of the 2002 Act or article 29 of the 2014 Order;
(g) a production order made under section 157 of the Extradition Act 2003;
(h) a production order made under paragraph 3 or 4 of Schedule 2 to the National Security Act 2023; or
(i) an account monitoring order made under paragraph 1 of Schedule 5 to the National Security Act 2023.
(2) An applicant 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).
[Note. The Crown Court has power to punish for contempt of court a person who disobeys its order. See paragraphs 10(1) and 13(5) of Schedule 5, and paragraph 6(1) of Schedule 6A, to the Terrorism Act 2000; sections 351(7) and 375(6) of the Proceeds of Crime Act 2002 and articles 12(6) and 34(5) of the Proceeds of Crime Act 2002 (External Investigations) Order 2014; paragraph 8 of Schedule 2 and paragraph 5 of Schedule 5 to the National Security Act 2023; and section 45 of the Senior Courts Act 1981.
A Circuit judge has power to punish a person who disobeys a production order under the Police and Criminal Evidence Act 1984 as if that were a contempt of the Crown Court: see paragraph 15 of Schedule 1 to the Act.
Disobedience to an explanation order, to a disclosure order or to a customer information order under the Terrorism Act 2000 is an offence: see paragraph 14 of Schedule 5, paragraph 11 of Schedule 5A and paragraph 1(3) of Schedule 6, to the Act.
Disobedience to a disclosure order or to a customer information order under the Proceeds of Crime Act 2002 or under the Proceeds of Crime Act 2002 (External Investigations) Order 2014 is an offence: see sections 359 and 366 of the Act and articles 18 and 25 of the Order. Under section 342 of the Act and under article 5 of the Order, subject to the exceptions for which those provide it is an offence to make a disclosure likely to prejudice an investigation or to interfere with documents relevant to it.
If a person fails to comply with a further information order under the Terrorism Act 2000 or under the Proceeds of Crime Act 2002 the magistrates’ court may order that person to pay an amount not exceeding £5,000, which order may be enforced as if the sum due had been adjudged to be paid by a conviction: see section 22B(8), (9) of the Terrorism Act 2000 and section 339ZH((8), (9) of the Proceeds of Crime Act 2002.
Disobedience to an explanation order, to a disclosure order or to a customer information order under the National Security Act 2003 is an offence: see paragraph 11 of Schedule 2, paragraph 7 of Schedule 3 and paragraph 6 of Schedule 4 to the Act.]
47.10 Application for a production order under the Police and Criminal Evidence Act 1984
(1) This rule applies where an applicant wants the court to make an order to which rule 47.4(a) refers.
(2) As well as complying with rule 47.6 (Application for order: general rules), the application must, in every case—
(a) specify the offence under investigation (and see paragraph (3)(a));
(b) describe the material sought;
(c) identify the respondent;
(d) specify the premises on which the material is believed to be, or explain why it is not reasonably practicable to do so;
(e) explain the grounds for believing that the material is on the premises specified, or (if applicable) on unspecified premises of the respondent;
(f) specify the set of access conditions on which the applicant relies (and see paragraphs (3) and (4)); and
(g) propose—
(i) the terms of the order, and
(ii) the period within which it should take effect.
(3) Where the applicant relies on paragraph 2 of Schedule 1 to the Police and Criminal Evidence Act 1984 (‘the first set of access conditions’: general power to gain access to special procedure material), the application must—
(a) specify the indictable offence under investigation;
(b) explain the grounds for believing that the offence has been committed;
(c) explain the grounds for believing that the material sought—
(i) is likely to be of substantial value to the investigation (whether by itself, or together with other material),
(ii) is likely to be admissible evidence at trial for the offence under investigation, and
(iii) does not consist of or include items subject to legal privilege or excluded material;
(d) explain what other methods of obtaining the material—
(i) have been tried without success, or
(ii) have not been tried because they appeared bound to fail; and
(e) explain why it is in the public interest for the respondent to produce the material, having regard to—
(i) the benefit likely to accrue to the investigation if the material is obtained, and
(ii) the circumstances under which the respondent holds the material.
(4) Where the applicant relies on paragraph 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 (‘the second set of access conditions’: use of search warrant power to gain access to excluded or special procedure material), the application must—
(a) state the legislation under which a search warrant could have been issued, had the material sought not been excluded or special procedure material (in this paragraph, described as ‘the main search power’);
(b) include or attach the terms of the main search power;
(c) explain how the circumstances would have satisfied any criteria prescribed by the main search power for the issue of a search warrant; and
(d) explain why the issue of such a search warrant would have been appropriate.
[Note. See paragraphs 1 to 4 of Schedule 1 to the Police and Criminal Evidence Act 1984. The applicant for an order must be a constable. Sections 10, 11 and 14 of the 1984 Act define ‘items subject to legal privilege’, ‘excluded material’ and ‘special procedure material’. The period within which an order takes effect must be specified in the order and, unless the court considers a longer period appropriate, must be 7 days from the date of the order.
See also the code of practice for searches of premises by police officers and the seizure of property found by police officers on persons or premises issued under section 66 of the Police and Criminal Evidence Act 1984.]
47.11 Application for an order under the Terrorism Act 2000 or the National Security Act 2023
(1) This rule applies where an applicant wants the court to make one of the orders to which rule 47.4(b), (c), (h) or (i) refers.
(2) As well as complying with rule 47.6 (Application for order: general rules)—
(a) an application for an order to which rule 47.4(b) or (c) refers must—
(i) specify the offence under investigation, and
(ii) explain how the investigation constitutes a terrorist investigation or terrorist financing investigation, as appropriate, within the meaning of the Terrorism Act 2000;
(b) an application for an order to which rule 47.4(h) or (i) refers must briefly describe the relevant act under investigation or the relevant investigation taking place; and
(c) the application must—
(i) identify any respondent, and
(ii) give the information required by whichever of rules 47.12 to 47.16 applies.
[Note. ‘Terrorist investigation’ is defined by section 32 of the Terrorism Act 2000, ‘terrorist financing investigation’ by paragraph 4 of Schedule 5A to the 2000 Act and ‘terrorist property’ by section 14 of the 2000 Act.
‘Relevant act’ is defined by paragraph 1(2) of Schedule 2 to the National Security Act 2023. In summary, such an act is (i) an offence of espionage, sabotage or foreign interference in elections, (ii) conduct preparatory to such an offence, and (iii) acts or threats involving serious violence, the endangering of life or the creation of a serious risk to public health or safety where those acts or threats are carried out for a foreign power, or at the instigation or with the assistance of such a power.
The other investigations to which this rule applies are described in paragraph 1 of each of Schedules 3, 4 and 5 of the National Security Act 2023. Each concerns ‘foreign power threat activity’ as defined in section 33 of the Act.]
47.12 Content of application for a production etc. order under the Terrorism Act 2000 or the National Security Act 2023
(1) As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an order under paragraph 5 of Schedule 5 to the Terrorism Act 2000 for the production of, or for giving access to, material, or for a statement of its location, must—
(a) identify the material sought;
(b) explain why the applicant thinks the material is—
(i) in the respondent’s possession, custody or power, or
(ii) expected to come into existence and then to be in the respondent’s possession, custody or power within 28 days of the order;
(c) explain—
(i) how the material consists of or includes excluded material or special procedure material (or, if not yet in existence, will do so), and
(ii) why the material is not expected to include items subject to legal privilege.
(2) An applicant who wants the court to make an order under paragraph 5(5) of Schedule 5 to the 2000 Act to grant entry in aid of a production order must—
(a) specify the premises to which entry is sought; and
(b) explain why the order is needed.
(3) As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an order under paragraph 3 or paragraph 4 of Schedule 2 to the National Security Act 2023 for the production of, or for giving access to, material, or for a statement of its location must—
(a) identify the material sought;
(b) explain the grounds for suspecting that the material is—
(i) in the respondent’s possession, custody or control, or
(ii) expected to come into existence and then to be in the respondent’s possession, custody or control within 28 days of the order;
(c) explain the grounds for suspecting that the material—
(i) consists of or includes confidential material (or, if not yet in existence, will do so), but
(ii) does not (or will not) include items subject to legal privilege;
(d) explain the grounds for suspecting that—
(i) if the material is in existence, it is likely to be evidence that a relevant act has been, or is about to be, committed, or
(ii) it will be such evidence if the material is likely to come into existence and then to be in the respondent’s possession, custody or power within 28 days of the order .
(4) In each case the application must explain the grounds for believing that—
(a) the material is likely to be of substantial value, whether by itself or with other material, to the investigation; and
(b) it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—
(i) the benefit likely to accrue to the investigation if it is obtained, and
(ii) the circumstances in which the respondent has the material, or is expected to have it.
(5) In each case the applicant must propose—
(a) the terms of the order sought, and
(b) the period within which it should take effect.
[Note. See paragraphs 5 to 9 of Schedule 5 to the Terrorism Act 2000 and paragraphs 3 to 7 of Schedule 2 to the National Security Act 2023.
The applicant for a production, etc. order under Schedule 5 to the 2000 Act must be an ‘appropriate officer’ as defined by paragraph 5(6) of that Schedule. Where the applicant is a counter-terrorism financial investigator the application must be for the purposes of an investigation relating to ‘terrorist property’ as defined by section 14 of the 2000 Act. Under paragraphs 5 and 7 of Schedule 5 to that Act a production order may require a specified person—
(a) to produce to an appropriate officer within a specified period for seizure and retention any material which that person has in his or her possession, custody or power and to which the application relates; to give an appropriate officer access to any such material within a specified period; and to state to the best of that person’s knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his or her possession, custody or power within the period specified; or
(b) where such material is expected to come into existence within the period of 28 days beginning with the date of the order, to notify a named appropriate officer as soon as is reasonably practicable after any material to which the application relates comes into that person’s possession, custody or power, and then to produce that material to an appropriate officer; to give an appropriate officer access to it; and to state to the best of that person’s knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his or her possession, custody or power within that period of 28 days.
Under paragraph 4 of Schedule 5 to the 2000 Act, ‘legal privilege’, ‘excluded material’ and ‘special procedure material’ mean the same as under sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984.
The applicant for a production, etc. order under Schedule 2 to the National Security Act 2023 must be a constable investigating the commission, or anticipated commission, of a relevant act. Under paragraphs 3 and 4 of Schedule 2 to the 2023 Act a production order may impose on a specified person a requirement to produce confidential material to a constable, or to identify the location of such material, or to notify a named constable of the receipt of such material, comparably with those of a requirement imposed under the 2000 Act, described above.
Under paragraph 17 of Schedule 2 to the 2023 Act, ‘confidential material’ means—
(a) material created or acquired for the purposes of journalism which is held in confidence or which the sender of that material to someone else intends the intended recipient to hold in confidence;
(b) items subject to legal privilege within the meaning of section 10 of the Police and Criminal Evidence Act 1984; and
(c) excluded material and special procedure material within the meaning of sections 11 and 14 of the Police and Criminal Evidence Act 1984, other than journalistic material.
The period within which an order takes effect must be specified in the order and, unless the court otherwise directs, must be—
(a) where the respondent already has the material, 7 days from the date of the order; or
(b) where the respondent is expected to have the material within 28 days, 7 days from the date the respondent gives notice of its receipt.]
47.13 Content of application for a disclosure order or information order under the Terrorism Act 2000 or the National Security Act 2023
(1) As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make a disclosure order must—
(a) explain, as applicable, the grounds for suspecting that—
(i) a person has committed an offence under any of sections 15 to 18 of the Terrorism Act 2000,
(ii) property specified in the application is terrorist property within the meaning of section 14 of the 2000 Act, or
(iii) money or other property specified in the application is relevant property within the meaning of paragraph 1 of Schedule 3 to the National Security Act 2023;
(b) describe in general terms the information that the applicant wants a person to provide;
(c) explain the grounds for believing that—
(i) information which may be provided is likely to be of substantial value, whether or not by itself, to the investigation, and
(ii) it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and
(d) propose the terms of the order.
(2) As well as complying with rule 47.6, an applicant who wants the court to make an information order must—
(a) identify the respondent from whom the information is sought and explain—
(i) whether the respondent is the person who made the disclosure to which the information relates or is otherwise carrying on a business in the regulated sector within the meaning of Part 1 of Schedule 3A to the 2000 Act, and
(ii) why the applicant thinks that the information is in the possession, or under the control, of the respondent;
(b) specify or describe the information that the applicant wants the respondent to provide;
(c) where the information sought relates to a disclosure of information by someone under section 21A of the 2000 Act (Failure to disclose: regulated sector), explain—
(i) how the information sought relates to a matter arising from that disclosure,
(ii) how the information would assist in investigating whether a person is involved in the commission of an offence under any of sections 15 to 18 of that Act, or in determining whether an investigation of that kind should be started, or in identifying terrorist property or its movement or use, and
(iii) why it is reasonable in all the circumstances for the information to be provided;
(d) where the information sought relates to a disclosure made under a requirement of the law of a country outside the United Kingdom which corresponds with Part III of the 2000 Act (Terrorist property), and an authority in that country which investigates offences corresponding with sections 15 to 18 of that Act has asked the National Crime Agency for information in connection with that disclosure, explain—
(i) how the information sought relates to a matter arising from that disclosure,
(ii) why the information is likely to be of substantial value to the authority that made the request in determining any matter in connection with the disclosure, and
(iii) why it is reasonable in all the circumstances for the information to be provided;
(e) where the information sought is to assist the National Crime Agency to conduct analysis for the purposes of the Agency’s criminal intelligence function so far as that relates to terrorist financing—
(i) explain how the information would assist the Agency to conduct that analysis,
(ii) demonstrate that the applicant has had regard to the code of practice under section 22F of the 2000 Act, and
(iii) explain why it is reasonable in all the circumstances for the information to be provided;
(f) where the information sought is to assist a financial intelligence unit in a country outside the United Kingdom to conduct analysis concerned with terrorist financing, following a request by that unit to the National Crime Agency—
(i) explain how the information is likely to be of substantial value to that financial intelligence unit in carrying out that analysis,
(ii) demonstrate that the applicant has had regard to the code of practice under section 22F of the 2000 Act, and
(iii) explain why it is reasonable in all the circumstances for the information to be provided; and
(g) propose the terms of the order, including—
(i) how the respondent must provide the information required, and
(ii) the date by which the information must be provided.
(3) Rule 47.8 (Application to vary or discharge an order) does not apply to an information order.
(4) Paragraph (5) applies where a party to an application for an information order wants to appeal to the Crown Court from the decision of the magistrates’ court.
(5) The appellant must—
(a) serve an appeal notice—
(i) on the Crown Court officer and on the other party,
(ii) not more than 15 business days after the magistrates’ court’s decision; and
(b) in the appeal notice, explain, as appropriate, why the Crown Court should (as the case may be) make, discharge or vary an information order.
(6) Rule 34.11 (Constitution of the Crown Court) applies on such an appeal.
[Note. See sections 22B, 22D, 22E and 22F of, and Schedule 5A to, the Terrorism Act 2000and Schedule 3 to the National Security Act 2023.
The applicant for a disclosure order must be—
(a) under the 2000 Act, a constable or a counter-terrorism financial investigator who is, or who is authorised to apply by, a police officer of at least the rank of superintendent;
(b) under the 2023 Act, a police officer of at least the rank of superintendent, a constable authorised by an officer of at least the rank of superintendent, the Director General of the National Crime Agency, or an officer of that Agency authorised by or on behalf of the Director General.
Under section 22B(12) of the 2000 Act—
(a) the applicant for an information order to which paragraph (2)(c) or (d) refers must be ‘a law enforcement officer’, as defined by section 22B(14), who is, or who is authorised to apply by, a ‘senior law enforcement officer’, defined by section 22B(14) as a police officer of at least the rank of superintendent, the Director General of the National Crime Agency or an officer of that Agency authorised by the Director General for that purpose; and
(b) the applicant for an information order to which paragraph (2)(e) or (f) refers must be the Director General of the National Crime Agency or an officer of that Agency authorised by the Director General for that purpose.
Section 14 of the 2000 Act defines terrorist property as money or other property which is likely to be used for the purposes of terrorism; proceeds of the commission of terrorism; and proceeds of acts carried out for the purposes of terrorism. Sections 15 to 18 of the Act create offences of fund raising for the purposes of terrorism; use or possession of property for the purposes of terrorism; funding terrorism; making an insurance payment in response to a terrorist demand; and facilitating the retention or control of terrorist property.
Paragraph 1 of Schedule 3 to the 2023 Act defines ‘relevant property’ as money or other property which is likely to be used for the purposes of foreign power threat activity (as defined by section 33 of the Act) or proceeds of involvement in such activity.
A disclosure order—
(a) cannot require a person to—
(i) answer any question, provide any information or produce any document or other material which the person would be entitled to refuse to answer, provide or produce on grounds of legal professional privilege in the High Court, or
(ii) produce excluded material; but
(b) can require a lawyer to provide a client’s name and address.
Under section 21A of the 2000 Act a person engaged in a business in the regulated sector commits an offence where the conditions listed in that section are met and that person does not disclose, in the manner required by that section, knowledge or a suspicion that another person has committed or attempted to commit an offence under any of sections 15 to 18 in Part III of the Act. Part III of the Act also contains other disclosure provisions.
Under section 22B(6A) and (6B) of the 2000 Act the analysis to assist in which information may be sought may be (i) operational analysis of information that is relevant to a terrorist financing or suspected terrorist financing (defined by section 22B(14) as an act which constitutes an offence under any of sections 15 to 18 of the Act, or under a provision corresponding with an offence under any of those sections), or (ii) strategic analysis identifying trends or patterns in the conduct of terrorist financing, or systemic deficiencies or vulnerabilities which have been, are being or are likely to be, exploited for the purposes of terrorist financing. Section 1 of the Crime and Courts Act 2013 confers functions on the National Crime Agency, including the ‘criminal intelligence function’ defined by section 1(5) of that Act.
Under section 22E of the 2000 Act an information order does not confer the right to require information which a person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.]
47.14 Content of application for an explanation order under the Terrorism Act 2000 or the National Security Act 2023
As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an explanation order must—
(a) identify the material that the applicant wants the respondent to explain; and
(b) propose the terms of the order.
[Note. See paragraph 13 of Schedule 5 to the Terrorism Act 2000 and paragraph 10 of Schedule 2 to the National Security Act 2023. The applicant for an explanation order may be a constable or, where the application concerns material produced to a counter-terrorism financial investigator, such an investigator.
An explanation order—
(a) cannot require a person to disclose any information which the person would be entitled to refuse to disclose on grounds of legal professional privilege in the High Court; but
(b) can require a lawyer to provide a client’s name and address.]
47.15 Content of application for a customer information order under the Terrorism Act 2000 or the National Security Act 2023
As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make a customer information order must—
(a) specify the person in respect of whom customer information is sought;
(b) explain, as applicable—
(i) why the order is desirable for the purposes of a terrorist investigation to trace terrorist property within the meaning of the Terrorism Act 2000, or
(ii) why the order is sought for the purposes of an investigation into foreign power threat activity within the meaning of the National Security Act 2023;
(c) explain how the order will enhance the effectiveness of the investigation; and
(d) propose the terms of the order.
[Note. See Schedule 6 to the Terrorism Act 2000 and Schedule 4 to the National Security Act 2023. The applicant for a customer information order must be—
(a) under the 2000 Act, a police officer of at least the rank of superintendent;
(b) under the 2023 Act, a police officer of at least the rank of superintendent, a constable authorised by an officer of at least the rank of superintendent, the Director General of the National Crime Agency, or an officer of that Agency authorised by or on behalf of the Director General.
‘Customer information’ is defined by paragraph 7 of Schedule 6 to the 2000 Act and paragraph 8 of Schedule 4 to the 2023 Act, each incorporating section 364 of the Proceeds of Crime Act 2002. In summary, such information is whether the individual or corporation named in the order holds or has held an account at the respondent financial institution and, if so, the details listed in section 364 of the 2002 Act.
‘Terrorist property’ is defined by section 14 of the 2000 Act.]
47.16 Content of application for an account monitoring order under the Terrorism Act 2000 or the National Security Act 2023
As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an account monitoring order must—
(a) specify—
(i) the person in respect of whose account or accounts information is sought,
(ii) the information sought,
(iii) the period during which the applicant wants the respondent to provide that information (to a maximum of 90 days), and
(iv) where, when and in what manner the applicant wants the respondent to provide that information;
(b) explain, as applicable—
(i) why the order is desirable for the purposes of a terrorist investigation to trace terrorist property within the meaning of the Terrorism Act 2000, or
(ii) why the order is sought for the purposes of an investigation into foreign power threat activity within the meaning of the National Security Act 2023;
(c) explain how the order will enhance the effectiveness of the investigation; and
(d) propose the terms of the order.
[Note. See Schedule 6A to the Terrorism Act 2000and Schedule 5 to the National Security Act 2023. The applicant for an account monitoring order must be—
(a) under the 2000 Act, a police officer or a counter-terrorism financial investigator;
(b) under the 2023 Act, a constable or an officer of the National Crime Agency.
‘Terrorist property’ is defined by section 14 of the 2000 Act.]
47.17 Application for an order under the Proceeds of Crime Act 2002
(1) This rule applies where an applicant wants the court to make one of the orders to which rule 47.4(d) refers.
(2) As well as complying with rule 47.6 (Application for order: general rules), the application must—
(a) identify—
(i) any respondent, and
(ii) the person or property the subject of the investigation;
(b) in the case of an investigation in the United Kingdom, explain why the applicant thinks that—
(i) the person under investigation has benefited from criminal conduct, in the case of a confiscation investigation, or committed a money laundering offence, in the case of a money laundering investigation, or
(ii) in the case of a detained cash investigation, a detained property investigation or a frozen funds investigation, the cash or property involved, or the money held in the frozen account, was obtained through unlawful conduct or is intended to be used in unlawful conduct;
(c) in the case of an investigation outside the United Kingdom, explain why the applicant thinks that—
(i) there is an investigation by an overseas authority which relates to a criminal investigation or to criminal proceedings (including proceedings to remove the benefit of a person’s criminal conduct following that person’s conviction), and
(ii) the investigation is into whether property has been obtained as a result of or in connection with criminal conduct, or into the extent or whereabouts of such property; and
(d) give the additional information required by whichever of rules 47.18 to 47.22 applies.
[Note. See also the code of practice for those exercising functions as officers and investigators issued under section 377 of the 2002 Act, and the code of practice for prosecutors and others issued under section 377A of that Act.]
47.18 Content of application for a production order under the Proceeds of Crime Act 2002
As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make an order for the production of, or for giving access to, material, must—
(a) describe that material;
(b) explain why the applicant thinks the material is in the respondent’s possession or control;
(c) confirm that none of the material is—
(i) expected to be subject to legal privilege, or
(ii) excluded material;
(d) explain why the material is likely to be of substantial value to the investigation;
(e) explain why it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—
(i) the benefit likely to accrue to the investigation if it is obtained, and
(ii) the circumstances in which the respondent has the material; and
(f) propose—
(i) the terms of the order, and
(ii) the period within which it should take effect, if 7 days from the date of the order would not be appropriate.
[Note. See sections 345 to 350 of the Proceeds of Crime Act 2002and articles 6 to 11 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014. Under those provisions—
(a) ‘excluded material’ means the same as under section 11 of the Police and Criminal Evidence Act 1984; and
(b) ‘legal privilege’ is defined by section 348 of the 2002 Act.
A Crown Court judge may make a production order for the purposes of a confiscation investigation, a money laundering investigation, a detained cash investigation, a detained property investigation or a frozen funds investigation.
The applicant for a production order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the 2002 Act and article 2(1) of the 2014 Order.]
47.19 Content of application for an order to grant entry under the Proceeds of Crime Act 2002
An applicant who wants the court to make an order to grant entry in aid of a production order must—
(a) specify the premises to which entry is sought;
(b) explain why the order is needed; and
(c) propose the terms of the order.
[Note. See section 347 of the Proceeds of Crime Act 2002 and article 8 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014. The applicant for an order to grant entry must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act and article 2(1) of the 2014 Order.]
47.20 Content of application for a disclosure order or information order under the Proceeds of Crime Act 2002
(1) As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make a disclosure order must—
(a) describe in general terms the information that the applicant wants a person to provide;
(b) confirm that none of the information is—
(i) expected to be subject to legal privilege, or
(ii) excluded material;
(c) explain why the information is likely to be of substantial value to the investigation;
(d) explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and
(e) propose the terms of the order.
(2) As well as complying with rule 47.6, an applicant who wants the court to make an information order must—
(a) identify the respondent from whom the information is sought and explain—
(i) whether the respondent is the person who made the disclosure to which the information relates or is otherwise carrying on a business in the regulated sector within the meaning of Part 1 of Schedule 9 to the Proceeds of Crime Act 2002, and
(ii) why the applicant thinks that the information is in the possession, or under the control, of the respondent;
(b) specify or describe the information that the applicant wants the respondent to provide;
(c) where the information sought relates to a disclosure of information under Part 7 of the Proceeds of Crime Act 2002 (Money laundering), explain—
(i) how the information sought relates to a matter arising from that disclosure,
(ii) how the information would assist in investigating whether a person is engaged in money laundering or in determining whether an investigation of that kind should be started, and
(iii) why it is reasonable in all the circumstances for the information to be provided;
(d) where the information sought relates to a disclosure made under a requirement of the law of a country outside the United Kingdom which corresponds with Part 7 of the 2002 Act, and an authority in that country which investigates money laundering has asked the National Crime Agency for information in connection with that disclosure, explain—
(i) how the information sought relates to a matter arising from that disclosure,
(ii) why the information is likely to be of substantial value to the authority that made the request in determining any matter in connection with the disclosure, and
(iii) why it is reasonable in all the circumstances for the information to be provided;
(e) where the information sought is to assist the National Crime Agency to conduct analysis for the purposes of the Agency’s criminal intelligence function so far as that relates to money laundering—
(i) explain how the information would assist the Agency to conduct that analysis,
(ii) demonstrate that the applicant has had regard to the code of practice under section 339ZL of the 2002 Act, and
(iii) explain why it is reasonable in all the circumstances for the information to be provided;
(f) where the information sought is to assist a financial intelligence unit in a country outside the United Kingdom to conduct analysis concerned with money laundering, following a request by that unit to the National Crime Agency—
(i) explain how the information is likely to be of substantial value to that financial intelligence unit in carrying out that analysis,
(ii) demonstrate that the applicant has had regard to the code of practice under section 339ZL of the 2002 Act, and
(iii) explain why it is reasonable in all the circumstances for the information to be provided; and
(g) propose the terms of the order, including—
(i) how the respondent must provide the information required, and
(ii) the date by which the information must be provided.
(3) Rule 47.8 (Application to vary or discharge an order) does not apply to an information order.
(4) Paragraph (5) applies where a party to an application for an information order wants to appeal to the Crown Court from the decision of the magistrates’ court.
(5) The appellant must—
(a) serve an appeal notice on the Crown Court officer and on the other party not more than 15business days after the magistrates’ court’s decision; and
(b) in the appeal notice, explain, as appropriate, why the Crown Court should (as the case may be) make, discharge or vary an information order.
(6) Rule 34.11 (Constitution of the Crown Court) applies on such an appeal.
[Note. See sections 339ZH, 339ZJ, 339ZK, 339ZL, 357, 358 and 361 of the Proceeds of Crime Act 2002and articles 16, 17 and 20 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.
Where the 2002 Act applies, a Crown Court judge may make a disclosure order for the purposes of a confiscation investigation or a money laundering investigation.
The applicant for a disclosure order must be a ‘relevant authority’ as defined by section 357(7) of the 2002 Act, or an ‘appropriate officer’ as defined by article 2(1) of the 2014 Order where the Order applies. Under section 362(6) of the Act, a relevant authority who under section 357(7) is an ‘appropriate officer’ (as defined by section 378(1), (4) and (5)) may apply only if that person is, or is authorised to do so by, a ‘senior appropriate officer’ (as defined by section 378(2)).
Under section 339ZH(1), (12) of the 2002 Act the applicant for an information order must be the Director General of the National Crime Agency or an officer of that Agency authorised by the Director General for that purpose.
A disclosure order can require a lawyer to provide a client’s name and address.
Under sections 330, 331 and 332 in Part 7 of the 2002 Act a person engaged in a business in the regulated sector commits an offence where the conditions listed in any of those sections are met and that person does not disclose, in the manner required by the relevant section, knowledge or a suspicion that another person is engaged in money laundering.
Under section 339ZH(6A) and (6B) of the 2002 Act the analysis to assist in which information may be sought may be (i) operational analysis of information that is relevant to money laundering or suspected money laundering, or (ii) strategic analysis identifying trends or patterns in the conduct of money laundering, or systemic deficiencies or vulnerabilities which have been, are being or are likely to be, exploited for the purposes of money laundering. Section 1 of the Crime and Courts Act 2013 confers functions on the National Crime Agency, including the ‘criminal intelligence function’ defined by section 1(5) of that Act.
Under section 339ZK of the 2002 Act an information order does not confer the right to require information which a person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.]
47.21 Content of application for a customer information order under the Proceeds of Crime Act 2002
As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make a customer information order must—
(a) explain why customer information about the person under investigation is likely to be of substantial value to that investigation;
(b) explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and
(c) propose the terms of the order.
[Note. See sections 363, 364, 365 and 368 of the Proceeds of Crime Act 2002and articles 22, 23, 24 and 27 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.
A Crown Court judge may make a customer information order for the purposes of a confiscation investigation or a money laundering investigation.
The applicant for a customer information order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the 2002 Act and article 2(1) of the 2014 Order.
‘Customer information’ is defined by section 364 of the 2002 Act and article 2(1) of the 2014 Order.]
47.22 Content of application for an account monitoring order under the Proceeds of Crime Act 2002
As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make an account monitoring order for the provision of account information must—
(a) specify—
(i) the information sought,
(ii) the period during which the applicant wants the respondent to provide that information (to a maximum of 90 days), and
(iii) when and in what manner the applicant wants the respondent to provide that information;
(b) explain why the information is likely to be of substantial value to the investigation;
(c) explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and
(d) propose the terms of the order.
[Note. See sections 370, 371 and 374 of the Proceeds of Crime Act 2002and articles 29, 30 and 33 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.
Where the 2002 Act applies, a Crown Court judge may make an account monitoring order for the purposes of a confiscation investigation, a money laundering investigation, a detained cash investigation, a detained property investigation or a frozen funds investigation.
The applicant for an account monitoring order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the 2002 Act and article 2(1) of the 2014 Order.
‘Account information’ is defined by section 370 of the 2002 Act and article 29(3) of the 2014 Order.]
47.23 Application for a production order under the Extradition Act 2003
(1) This rule applies where an applicant wants the court to make an order to which rule 47.4(e) refers.
(2) As well as complying with rule 47.6 (Application for order: general rules), the application must—
(a) identify the person whose extradition is sought;
(b) specify the extradition offence of which that person is accused;
(c) identify the respondent; and
(d) describe the special procedure or excluded material sought.
(3) In relation to the person whose extradition is sought, the application must explain the grounds for believing that—
(a) that person has committed the offence for which extradition is sought;
(b) that offence is an extradition offence; and
(c) that person is in the United Kingdom or is on the way to the United Kingdom.
(4) In relation to the material sought, the application must—
(a) specify the premises on which the material is believed to be;
(b) explain the grounds for believing that—
(i) the material is on those premises,
(ii) the material consists of or includes special procedure or excluded material, and
(iii) the material would be likely to be admissible evidence at a trial in England and Wales for the offence for which extradition is sought;
(c) explain what other methods of obtaining the material—
(i) have been tried without success, or
(ii) have not been tried because they appeared bound to fail; and
(d) explain why it is in the public interest for the respondent to produce or give access to the material.
(5) The application must propose—
(a) the terms of the order, and
(b) the period within which it should take effect.
[Note. See sections 157 and 158 of the Extradition Act 2003. Under those provisions—
(a) ‘special procedure material’ means the same as under section 14 of the Police and Criminal Evidence Act 1984; and
(b) ‘excluded material’ means the same as under section 11 of the 1984 Act.
The applicant for a production order must be a constable.
The period within which an order takes effect must be specified in the order and, unless the court considers a longer period appropriate, must be 7 days from the date of the order.]
This Section applies where—
(a) a justice of the peace can issue a warrant under—
(i) section 8 of the Police and Criminal Evidence Act 1984,
(ii) section 2 of the Criminal Justice Act 1987,
(iii) paragraph 1 of Schedule 5 to the Terrorism Act 2000, or
(iv) paragraph 2 of Schedule 2 to the National Security Act 2023;
(b) a Circuit judge can issue a warrant under—
(i) paragraph 12 of Schedule 1 to the Police and Criminal Evidence Act 1984,
(ii) paragraph 11 of Schedule 5 to the Terrorism Act 2000, or
(iii) section 160 of the Extradition Act 2003;
(c) a Crown Court judge can issue a warrant under—
(i) section 352 of the Proceeds of Crime Act 2002, or
(ii) article 13 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014;
(d) a Crown Court judge can issue a warrant under—
(i) paragraph 9 of Schedule 2 to the National Security Act 2023, or
(ii) paragraph 13 of that Schedule; and
(e) a court to which these Rules apply can issue a warrant to search for and seize articles or persons under a power not listed in paragraphs (a) to (d).
[Note. In outline, the warrants to which these rules apply are—
(a) under the Police and Criminal Evidence Act 1984, a warrant authorising entry to, and the search of, premises for material, articles or persons;
(b) under the Criminal Justice Act 1987, a warrant authorising entry to, and the search of, premises for documents sought by the Director of the Serious Fraud Office;
(c) under the Terrorism Act 2000, a warrant authorising entry to, and the search of, premises for material sought for the purposes of a terrorist investigation;
(d) under the Proceeds of Crime Act 2002 or under the Proceeds of Crime Act 2002 (External Investigations) Order 2014, a warrant authorising entry to, and the search of, premises for material sought for the purposes of a confiscation investigation, a money laundering investigation, a detained cash investigation or an external investigation;
(e) under the Extradition Act 2003, a warrant authorising entry to, and the search of, premises for material sought in connection with the prosecution of a person whose extradition has been requested;
(f) under the National Security Act 2023—
(i) a warrant authorising entry to, and the search of, premises for material sought for the purposes of an investigation to which Schedule 2 to that Act applies,
(ii) a warrant authorising the retention of confidential journalistic material seized under the authority of a senior police officer;
(g) under these and other Acts, comparable warrants.
For all the relevant terms under which such warrants can be issued, see the provisions listed in this rule.
Under section 8 of the Senior Courts Act 1981, a High Court judge, a Circuit judge, a Recorder, a qualifying judge advocate and a District Judge (Magistrates’ Courts) each may act as a Crown Court judge.
When the relevant provisions of the Courts Act 2003 come into force, a District Judge (Magistrates’ Courts) will have the same powers as a Circuit judge under the Police and Criminal Evidence Act 1984 and under the Terrorism Act 2000.
Under section 66 of the Courts Act 2003, in criminal cases a High Court judge, a Circuit judge, a Recorder and a qualifying judge advocate each has the powers of a justice of the peace who is a District Judge (Magistrates’ Courts).
As well as governing procedure on an application to a magistrates’ court or the Crown Court, under the following provisions rules may govern the procedure on an application to an individual judge—
(a) paragraph 15A of Schedule 1 to the Police and Criminal Evidence Act 1984;
(b) paragraph 11 of Schedule 5 to the Terrorism Act 2000;
(c) section 352 of the Proceeds of Crime Act 2002;
(d) section 160 of the Extradition Act 2003; and
(e) paragraph 16 of Schedule 2 to the National Security Act 2023.
For a list of the types of investigation under Part 8 of the Proceeds of Crime Act 2002 and a list of the powers of judges in respect of each type, see the note to rule 47.4 (Section 2: Investigation orders; When this Section applies).]
(1) The court must determine an application for a warrant—
(a) at a hearing, which must be in private unless the court otherwise directs;
(b) in the presence of the applicant; and
(c) in the absence of any person affected by the warrant, including any person in occupation or control of premises which the applicant wants to search.
(2) If the court so directs, the applicant may attend the hearing by live link.
(3) The court must not determine an application unless satisfied that sufficient time has been allowed for it.
(4) The court must not determine an application unless the applicant confirms, on oath or affirmation, that to the best of the applicant’s knowledge and belief—
(a) the application discloses all the information that is material to what the court must decide, including any circumstances that might reasonably be considered capable of undermining any of the grounds of the application; and
(b) the content of the application is true.
(5) If the court requires the applicant to answer a question about an application—
(a) the applicant’s answer must be on oath or affirmation;
(b) the court must arrange for a record of the gist of the question and reply; and
(c) if the applicant cannot answer to the court’s satisfaction, the court may—
(i) specify the information the court requires, and
(ii) give directions for the presentation of any renewed application.
(6) If the court considers information to which rule 47.26(4) refers (information that the applicant thinks should be kept confidential), the court must so record.
(7) Unless to do so would be inconsistent with other legislation, on an application the court may issue—
(a) a warrant in respect of specified premises;
(b) a warrant in respect of all premises occupied or controlled by a specified person;
(c) a warrant in respect of all premises occupied or controlled by a specified person which specifies some of those premises; or
(d) more than one warrant—
(i) each one in respect of premises specified in the warrant,
(ii) each one in respect of all premises occupied or controlled by a person specified in the warrant (whether or not such a warrant also specifies any of those premises), or
(iii) at least one in respect of specified premises and at least one in respect of all premises occupied or controlled by a specified person (whether or not such a warrant also specifies any of those premises).
(8) Paragraph (9) applies—
(a) only in a magistrates’ court; and
(b) unless the court—
(i) includes a District Judge (Magistrates’ Courts), and
(ii) otherwise directs.
(9) A justices’ legal adviser must assist the court by completing the preparation of any warrant to be issued.
[Note. See section 15 of the Police and Criminal Evidence Act 1984 and section 2(4) of the Criminal Justice Act 1987. Not all the powers to which the rules in this Section apply permit the issue of a warrant in respect of all premises occupied or controlled by a specified person: see, for example, rule 47.32 (Application for warrant under section 352 of the Proceeds of Crime Act 2002).
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).]
(1) This rule applies to each application to which this Section applies.
(2) The applicant must—
(a) apply in writing;
(b) serve the application on—
(i) the court officer, or
(ii) if the court office is closed, the court;
(c) demonstrate that the applicant is entitled to apply, for example as a constable or under legislation that applies to other officers;
(d) give the court an estimate of how long the court should allow—
(i) to read and prepare for the application, and
(ii) for the hearing of the application; and
(e) tell the court when the applicant expects any warrant issued to be executed.
(3) The application must disclose anything known or reported to the applicant that might reasonably be considered capable of undermining any of the grounds of the application.
(4) Where the application includes information that the applicant thinks should be kept confidential, the applicant may—
(a) set out that information in a separate document, marked accordingly; and
(b) in that document, explain why the applicant thinks that that information ought not to be supplied to anyone other than the court.
(5) The application must include—
(a) a declaration by the applicant 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, including anything that might reasonably be considered capable of undermining any of the grounds of the application, and
(ii) the content of the application is true; and
(b) a declaration by an officer senior to the applicant that the senior officer has reviewed and authorised the application.
(6) The application must attach a draft warrant or warrants in the terms proposed by the applicant.
(1) A warrant must identify—
(a) the person or description of persons by whom it may be executed;
(b) any person who may accompany a person executing the warrant;
(c) so far as practicable—
(i) the documents, electronic devices, or kinds of devices, or other material, or persons to be sought, and
(ii) any information to be sought which may be stored electronically;
(d) the legislation under which it was issued;
(e) the name of the applicant;
(f) the court that issued it, unless that is otherwise recorded by the court officer;
(g) the court office for the court that issued it; and
(h) the date on which it was issued.
(2) A warrant must specify—
(a) either—
(i) the premises to be searched, where the application was for authority to search specified premises, or
(ii) the person in occupation or control of premises to be searched, where the application was for authority to search any premises occupied or controlled by that person; and
(b) the number of occasions on which specified premises may be searched, if more than one.
(3) A warrant must include an indication that it has been approved by the court that issued it.
(4) Where a warrant comprises more than a single page, each page must include such an indication.
(5) A copy of a warrant must include a prominent certificate that it is such a copy.
[Note. See sections 15 and 16 of the Police and Criminal Evidence Act 1984. Not all the powers to which the rules in this Section apply permit the issue of a warrant in respect of all premises occupied or controlled by a specified person: see, for example, rule 47.32 (Application for warrant under section 352 of the Proceeds of Crime Act 2002).]
47.28 Application for warrant under section 8 of the Police and Criminal Evidence Act 1984
(1) This rule applies where an applicant wants a magistrates’ court to issue a warrant or warrants under section 8 of the Police and Criminal Evidence Act 1984.
(2) As well as complying with rule 47.26, the application must—
(a) specify the offence under investigation (and see paragraph (3));
(b) so far as practicable, identify the material sought (and see paragraph (4));
(c) specify the premises to be searched (and see paragraphs (5) and (6));
(d) state whether the applicant wants the premises to be searched on more than one occasion (and see paragraph (7)); and
(e) state whether the applicant wants other persons to accompany the officers executing the warrant or warrants (and see paragraph (8)).
(3) In relation to the offence under investigation, the application must—
(a) state whether that offence is—
(i) an indictable offence, or
(ii) a relevant offence as defined in section 28D of the Immigration Act 1971; and
(b) explain the grounds for believing that the offence has been committed.
(4) In relation to the material sought, the application must—
(a) explain the grounds for believing that that material—
(i) is likely to be of substantial value to the investigation (whether by itself, or together with other material),
(ii) is likely to be admissible evidence at trial for the offence under investigation, and
(iii) does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(b) if that material may be stored in an electronic device or devices—
(i) so far as practicable, describe each device or kind of device sought, and
(ii) explain the grounds for believing that the material may be stored there.
(5) In relation to premises which the applicant wants to be searched and can specify, the application must—
(a) specify each set of premises;
(b) in respect of each set of premises, explain the grounds for believing that material sought is on those premises; and
(c) in respect of each set of premises, explain the grounds for believing that—
(i) it is not practicable to communicate with any person entitled to grant entry to the premises,
(ii) it is practicable to communicate with such a person but it is not practicable to communicate with any person entitled to grant access to the material sought,
(iii) entry to the premises will not be granted unless a warrant is produced, or
(iv) the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(6) In relation to premises which the applicant wants to be searched but at least some of which the applicant cannot specify, the application must—
(a) explain the grounds for believing that—
(i) because of the particulars of the offence under investigation it is necessary to search any premises occupied or controlled by a specified person, and
(ii) it is not reasonably practicable to specify all the premises which that person occupies or controls which might need to be searched;
(b) specify as many sets of premises as is reasonably practicable;
(c) in respect of each set of premises, whether specified or not, explain the grounds for believing that material sought is on those premises; and
(d) in respect of each specified set of premises, explain the grounds for believing that—
(i) it is not practicable to communicate with any person entitled to grant entry to the premises,
(ii) it is practicable to communicate with such a person but it is not practicable to communicate with any person entitled to grant access to the material sought,
(iii) entry to the premises will not be granted unless a warrant is produced, or
(iv) the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(7) In relation to any set of premises which the applicant wants to be searched on more than one occasion, the application must—
(a) explain why it is necessary to search on more than one occasion in order to achieve the purpose for which the applicant wants the court to issue the warrant; and
(b) specify any proposed maximum number of occasions.
(8) In relation to any set of premises which the applicant wants to be searched by the officers executing the warrant with other persons authorised by the court, the application must—
(a) identify those other persons, by function or description; and
(b) explain why those persons are required.
[Note. Under section 8 of the Police and Criminal Evidence Act 1984, where there are reasonable grounds for believing that an indictable offence has been committed a constable may apply to a justice of the peace for a warrant authorising a search for evidence on specified premises, or on the premises of a specified person. Under section 8(6) of the 1984 Act, section 8 applies also in relation to relevant offences as defined in section 28D(4) of the Immigration Act 1971 (some of which are not indictable offences).
Under section 23 of the 1984 Act, ‘premises’ includes any place, and in particular any vehicle, vessel, aircraft or hovercraft, any offshore installation, any renewable energy installation and any tent or moveable structure.
Under section 16(3) of the 1984 Act, entry and search under a warrant must be within 3 months from the date of its issue.
See also the code of practice for the search of premises issued under section 66 of the 1984 Act.]