The Criminal Procedure (Amendment No.2) Rules 2018 – What’s Changing?

On 16th July 2018 the Criminal Procedure (Amendment No.2) Rules 2018 were laid before Parliament, and they will be coming into force in England and Wales on 1st October 2018. They bring with them a range of amendments and additions to the Criminal Procedure Rules (‘CrimPR’) which will affect the preparation and management of certain types of case from that point onward. In this article, Tony Williams provides a whistle-stop tour of those changes.

What are those changes in criminal procedure? The major points are as follows:

  • CrimPR 3.28: Directions for commissioning medical reports, other than for sentencing purposes

This is a new addition to the CrimPR which sets out strict requirements in ongoing cases where a Magistrates’ or Crown Court require expert medical opinion about a Defendant’s mental health (such as those where a Hospital Order is being considered to dispose of the case, or where the Defendant’s fitness to plead is in issue). This includes requiring the Court to make an order to:

 

  • identify each issue in respect of which the court requires an expert opinion;
  • specify the nature of the expertise likely to be required;
  • identify the party responsible for commissioning the report;
  • give directions as to the information to be provided to the expert(s) in commissioning their reports (such as the Defendant’s medical records or details of the allegations);
  • set a timetable for commissioning reports, reporting to the court any refusal of a commission, the dates for progress to be reviewed by the court officer, and the date by which each final report is to be received by the Court.

 

CrimPR 3.28 also sets out the matters which must be contained in a commission to an expert, which includes providing experts with the details of the issues identified by the court, the information regarding the Defendant which the court has directed to be provided, details of the court’s timetable, and seeking express confirmation that they accept the commission and will adhere to the court’s timetable.

 

  • CrimPR 28.8: Directions for commissioning medical reports for sentencing purposes

This replaces the previous CrimPR 28.8 (Requests for medical reports, etc), and applies where the court requires expert medical opinion about the Defendant for sentencing purposes only (including where the court is considering a hospital order or a guardianship order). This now largely mirrors the provisions of CrimPR 3.28 (discussed above) and is therefore stricter in its requirements than the current version of CrimPR 28.8.

 

  • CrimPR Part 34: Appeal to the Crown Court

Under CrimPR 34.2(5), unless a respondent agrees that the appeal should be allowed, they will be required to serve a respondent’s notice on the Crown Court officer and the appellant not more than 21 days after service of the appeal notice.

In addition, CrimPR 34.3 will be amended to require the parties to include much more information than is currently required regarding both the trial in the lower court and anticipated issues at the appeal hearing, in order to assist the Crown Court to manage the case.

In addition, CrimPR 34.3(3) and (4) will provide that where in the Magistrates’ Court certain evidence was introduced (including expert evidence, hearsay evidence, or bad character), or certain applications were made relating to witnesses (including special measures), notice will need to be given if that evidence is to be reintroduced or those applications are to be renewed at the appeal hearing. Further additions to CrimPR 34 impose additional duties on Magistrates’ Court and Crown Court officers with a view to ensuring prompt and effective management of appeals.

Perhaps most significantly, CrimPR 34.7 will be substituted for provisions to enable the Crown Court to conduct a “Preparation for appeal hearing” to give directions and set ground rules in advance of the substantive appeal hearing. Rule 34.11 (Constitution of the Crown Court) now clarifies that the Crown Court may be constituted of a single Judge of the High Court, a Circuit Judge, a Recorder or a qualifying judge advocate both before and after the hearing of the appeal, and that single Judge may deal with general applications as well as applications to state a case under Rule 35.2.

Crown Court

  • CrimPR 36: Appeal to the Court of Appeal: general rules and Crim PR 39.2: Service of appeal notice

CrimPR 36.8 and CrimPR 39.2 are both amended so that any notice of appeal to the Court of Appeal against conviction or sentence should now be served on the Registrar of Criminal Appeals as opposed to the Crown Court officer.  Provisions have also been added to Part 36.14 to enable an appellant who wants to rely on any grounds not identified by their appeal notice to apply in writing for permission to do so, with an explanation as to why it was excluded from the appeal notice.

Other minor notable changes brought about by this Amendment include:

  • Changing references to an “information” in the Magistrates’ Court to refer to an “application for a summons” throughout the CrimPR;
  • Changing references to a “request” for a medical report to a “commission” for a medial report (in accordance with the additions of CrimPR 3.28 and 28.8);
  • Amending the notes in Part 5 (Forms and court records);
  • Amending the notes to Part 5 (Forms and court records) to include reference to the Data Protection Act 2018 in relation to supplying information to the public about cases (CrimPR 5.8), and to include reference to certificates available under s.92 of the Sexual Offences Act 2003 (which specify when notification requirements apply to a conviction) where a certificate or conviction or acquittal are sought (CrimPR 5.9);
  • Removing a duplicated paragraph from CrimPR 39.3(i);
  • Additions to CrimPR 47.32 (Application for warrant under section 352 of the Proceeds of Crime Act 2002) which expand the applicability of these rules beyond detained cash investigations to include detained property investigations and frozen funds investigations.

Law Books

Conclusions

As far as CrimPR 3.28 and 28.8 are concerned, the aim is clearly to increase the availability and quality of such reports going forward, but in reality the new rules merely codify what experienced practitioners will consider to have been good practice when instructing experts.

The additional case management rules in Part 34 will almost certainly be welcomed by practitioners and will hopefully be successful in reducing time spent on resolving issues on the morning of appeal hearings, although it remains to be seen how these new rules (and in particular the availability of preparation for appeal hearings) will be utilised in practice.

It appears that, aside from some changes in terminology, the main focus of these amendments generally is to encourage better case management by setting out more onerous requirements with which all parties(including Court Officers) must comply. Given the state of the criminal justice system today and the current level of compliance with existing rules, it remains to be seen whether these additional rules will be effective in achieving that aim.

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