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Criminal Justice Act 2003

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Criminal Justice Act 2003 2003 CHAPTER 44

An Act to make provision about criminal justice (including the powers and duties of the police) and about dealing with offenders; to amend the law relating to jury service; to amend Chapter 1 of Part 1 of the Crime and Disorder Act 1998 and Part 5 of the Police Act 1997; to make provision about civil proceedings brought by offenders; and for connected purposes. [20th November 2003]

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

PART 1

AMENDMENTS OF POLICE AND CRIMINAL EVIDENCE ACT 1984

1 Extension of powers to stop and search

(1) In this Part, “the 1984 Act” means the Police and Criminal Evidence Act 1984 (c. 60).

(2) In section 1(8) of the 1984 Act (offences for purpose of definition of prohibited article), at the end of paragraph (d) there is inserted “; and

(e) offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property).”

2 Warrants to enter and search

In section 16 of the 1984 Act (execution of warrants), after subsection (2) there is inserted—

“(2A) A person so authorised has the same powers as the constable whom he accompanies in respect of—

(a) the execution of the warrant, and

2 Criminal Justice Act 2003 (c. 44) Part 1 – Amendments of Police and Criminal Evidence Act 1984

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(b) the seizure of anything to which the warrant relates.

(2B) But he may exercise those powers only in the company, and under the supervision, of a constable.”

3 Arrestable offences F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual) F1 S. 3 repealed (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 174(2), 178, Sch.

17 Pt. 2; S.I. 2005/3495, art. 2(1)(t)(u)(lvii) (subject to art. 2(2))

4 Bail elsewhere than at police station

(1) Section 30 of the 1984 Act (arrest elsewhere than at police station) is amended as follows.

(2) For subsection (1) there is substituted—

“(1) Subsection (1A) applies where a person is, at any place other than a police station—

(a) arrested by a constable for an offence, or (b) taken into custody by a constable after being arrested for an offence

by a person other than a constable.

(1A) The person must be taken by a constable to a police station as soon as practicable after the arrest.

(1B) Subsection (1A) has effect subject to section 30A (release on bail) and subsection (7) (release without bail).”

(3) In subsection (2) for “subsection (1)” there is substituted “ subsection (1A) ”.

(4) For subsection (7) there is substituted—

“(7) A person arrested by a constable at any place other than a police station must be released without bail if the condition in subsection (7A) is satisfied.

(7A) The condition is that, at any time before the person arrested reaches a police station, a constable is satisfied that there are no grounds for keeping him under arrest or releasing him on bail under section 30A.”

(5) For subsections (10) and (11) there is substituted—

“(10) Nothing in subsection (1A) or in section 30A prevents a constable delaying taking a person to a police station or releasing him on bail if the condition in subsection (10A) is satisfied.

(10A) The condition is that the presence of the person at a place (other than a police station) is necessary in order to carry out such investigations as it is reasonable to carry out immediately.

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(11) Where there is any such delay the reasons for the delay must be recorded when the person first arrives at the police station or (as the case may be) is released on bail.”

(6) In subsection (12) for “subsection (1)” there is substituted “ subsection (1A) or section 30A ”.

(7) After section 30 there is inserted—

“30A Bail elsewhere than at police station

(1) A constable may release on bail a person who is arrested or taken into custody in the circumstances mentioned in section 30(1).

(2) A person may be released on bail under subsection (1) at any time before he arrives at a police station.

(3) A person released on bail under subsection (1) must be required to attend a police station.

(4) No other requirement may be imposed on the person as a condition of bail.

(5) The police station which the person is required to attend may be any police station.

30B Bail under section 30A: notices

(1) Where a constable grants bail to a person under section 30A, he must give that person a notice in writing before he is released.

(2) The notice must state— (a) the offence for which he was arrested, and (b) the ground on which he was arrested.

(3) The notice must inform him that he is required to attend a police station.

(4) It may also specify the police station which he is required to attend and the time when he is required to attend.

(5) If the notice does not include the information mentioned in subsection (4), the person must subsequently be given a further notice in writing which contains that information.

(6) The person may be required to attend a different police station from that specified in the notice under subsection (1) or (5) or to attend at a different time.

(7) He must be given notice in writing of any such change as is mentioned in subsection (6) but more than one such notice may be given to him.

30C Bail under section 30A: supplemental

(1) A person who has been required to attend a police station is not required to do so if he is given notice in writing that his attendance is no longer required.

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(2) If a person is required to attend a police station which is not a designated police station he must be—

(a) released, or (b) taken to a designated police station,

not more than six hours after his arrival.

(3) Nothing in the Bail Act 1976 applies in relation to bail under section 30A.

(4) Nothing in section 30A or 30B or in this section prevents the re-arrest without a warrant of a person released on bail under section 30A if new evidence justifying a further arrest has come to light since his release.

30D Failure to answer to bail under section 30A

(1) A constable may arrest without a warrant a person who— (a) has been released on bail under section 30A subject to a requirement

to attend a specified police station, but (b) fails to attend the police station at the specified time.

(2) A person arrested under subsection (1) must be taken to a police station (which may be the specified police station or any other police station) as soon as practicable after the arrest.

(3) In subsection (1), “specified” means specified in a notice under subsection (1) or (5) of section 30B or, if notice of change has been given under subsection (7) of that section, in that notice.

(4) For the purposes of— (a) section 30 (subject to the obligation in subsection (2)), and (b) section 31,

an arrest under this section is to be treated as an arrest for an offence.”

5 Drug testing for under-eighteens

(1) The 1984 Act is amended as follows.

(2) In section 38 (duties of custody officer after charge)— (a) in subsection (1)—

(i) for sub-paragraph (iiia) of paragraph (a) there is substituted— “(iiia) except in a case where (by virtue of

subsection (9) of section 63B below) that section does not apply, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable a sample to be taken from him under that section;”,

(ii) in sub-paragraph (i) of paragraph (b), after “satisfied” there is inserted “ (but, in the case of paragraph (a)(iiia) above, only if the arrested juvenile has attained the minimum age) ”,

(b) in subsection (6A), after the definition of “local authority accommodation” there is inserted—

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““minimum age” means the age specified in section 63B(3) below;”.

(3) In section 63B (testing for presence of Class A drugs)— (a) F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) after subsection (5) there is inserted—

“(5A) In the case of a person who has not attained the age of 17— (a) the making of the request under subsection (4) above; (b) the giving of the warning and (where applicable) the

information under subsection (5) above; and (c) the taking of the sample,

may not take place except in the presence of an appropriate adult.”, (c) after subsection (6) there is inserted—

“(6A) The Secretary of State may by order made by statutory instrument amend subsection (3) above by substituting for the age for the time being specified a different age specified in the order.

(6B) A statutory instrument containing an order under subsection (6A) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”,

(d) after subsection (8) there is inserted—

“(9) In relation to a person who has not attained the age of 18, this section applies only where—

(a) the relevant chief officer has been notified by the Secretary of State that arrangements for the taking of samples under this section from persons who have not attained the age of 18 have been made for the police area as a whole, or for the particular police station, in which the person is in police detention; and

(b) the notice has not been withdrawn.

(10) In this section—

“appropriate adult”, in relation to a person who has not attained the age of 17, means—

(a) his parent or guardian or, if he is in the care of a local authority or voluntary organisation, a person representing that authority or organisation; or

(b) a social worker of a local authority social services department; or

(c) if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police;

“relevant chief officer” means— (a) in relation to a police area, the chief officer of police of the

police force for that police area; or (b) in relation to a police station, the chief officer of police of the

police force for the police area in which the police station is situated.”

6 Criminal Justice Act 2003 (c. 44) Part 1 – Amendments of Police and Criminal Evidence Act 1984

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Annotations:

Amendments (Textual) F2 S. 5(3)(a) repealed (1.12.2005) by Drugs Act 2005 (c. 17), ss. 23, 24, Sch. 1 para. 8, Sch. 2; S.I.

2005/3053, art. 2(1)(f)

Commencement Information I1 S. 5 wholly in force at 1.12.2005; s. 5 not in force at Royal Assent, see s. 336(3); s. 5 in force for

certain purposes at 1.8.2004 by S.I. 2004/1867, art. 2; s. 5 in force in so far as not already in force at 1.12.2005 by S.I. 2005/3055, art. 2

6 Use of telephones for review of police detention

For section 40A(1) and (2) of the 1984 Act (use of telephone for review under s.40) there is substituted—

“(1) A review under section 40(1)(b) may be carried out by means of a discussion, conducted by telephone, with one or more persons at the police station where the arrested person is held.

(2) But subsection (1) does not apply if— (a) the review is of a kind authorised by regulations under section 45A to

be carried out using video-conferencing facilities; and (b) it is reasonably practicable to carry it out in accordance with those

regulations.”

7 Limits on period of detention without charge

In section 42(1) of the 1984 Act (conditions to be satisfied before detention without charge may be extended from 24 to 36 hours), for paragraph (b) there is substituted—

“(b) an offence for which he is under arrest is an arrestable offence; and”.

8 Property of detained persons

(1) In subsection (1) of section 54 of the 1984 Act (which requires the custody officer at a police station to ascertain and record everything which a detained person has with him), there is omitted “and record or cause to be recorded”.

(2) For subsection (2) of that section (record of arrested person to be made as part of custody record) there is substituted—

“(2) The custody officer may record or cause to be recorded all or any of the things which he ascertains under subsection (1).

(2A) In the case of an arrested person, any such record may be made as part of his custody record.”

9 Taking fingerprints without consent

(1) Section 61 of the 1984 Act (fingerprinting) is amended as follows.

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(2) For subsections (3) and (4) (taking of fingerprints without appropriate consent) there is substituted—

“(3) The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

(a) he is detained in consequence of his arrest for a recordable offence; and

(b) he has not had his fingerprints taken in the course of the investigation of the offence by the police.

(4) The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

(a) he has been charged with a recordable offence or informed that he will be reported for such an offence; and

(b) he has not had his fingerprints taken in the course of the investigation of the offence by the police.”

(3) In subsection (3A) (disregard of incomplete or unsatisfactory fingerprints) for the words from the beginning to “subsection (3) above” there is substituted “ Where a person mentioned in paragraph (a) of subsection (3) or (4) has already had his fingerprints taken in the course of the investigation of the offence by the police ”.

(4) In subsection (5) (authorisation to be given or confirmed in writing) for “subsection (3) (a) or (4A)” there is substituted “ subsection (4A) ”.

(5) In subsection (7) (reasons for taking of fingerprints without consent) for “subsection (3) or (6)” there is substituted “ subsection (3), (4) or (6) ”.

Annotations:

Commencement Information I2 S. 9 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

10 Taking non-intimate samples without consent

(1) Section 63 of the 1984 Act (other samples) is amended as follows.

(2) After subsection (2) (consent to be given in writing) there is inserted—

“(2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.

(2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence.

(2C) The second is that— (a) he has not had a non-intimate sample of the same type and from the

same part of the body taken in the course of the investigation of the offence by the police, or

(b) he has had such a sample taken but it proved insufficient.”

(3) In subsection (3)(a) (taking of samples without appropriate consent) the words “is in police detention or” are omitted.

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(4) In subsection (3A) (taking of samples without appropriate consent after charge) for “(whether or not he falls within subsection (3)(a) above)” there is substituted “ (whether or not he is in police detention or held in custody by the police on the authority of a court) ”.

(5) In subsection (8A) (reasons for taking of samples without consent) for “subsection (3A)” there is substituted “ subsection (2A), (3A) ”.

Annotations:

Commencement Information I3 S. 10 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

11 Codes of practice

(1) In section 67 of the 1984 Act (supplementary provisions about codes), for subsections (1) to (7C) there is substituted—

“(1) In this section, “code” means a code of practice under section 60, 60A or 66.

(2) The Secretary of State may at any time revise the whole or any part of a code.

(3) A code may be made, or revised, so as to— (a) apply only in relation to one or more specified areas, (b) have effect only for a specified period, (c) apply only in relation to specified offences or descriptions of offender.

(4) Before issuing a code, or any revision of a code, the Secretary of State must consult—

(a) persons whom he considers to represent the interests of police authorities,

(b) persons whom he considers to represent the interests of chief officers of police,

(c) the General Council of the Bar, (d) the Law Society of England and Wales, (e) the Institute of Legal Executives, and (f) such other persons as he thinks fit.

(5) A code, or a revision of a code, does not come into operation until the Secretary of State by order so provides.

(6) The power conferred by subsection (5) is exercisable by statutory instrument.

(7) An order bringing a code into operation may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(7A) An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.

(7B) When an order or draft of an order is laid, the code or revision of a code to which it relates must also be laid.

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(7C) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.

(7D) An order bringing a code, or a revision of a code, into operation may include transitional or saving provisions.”

(2) Section 113 of the 1984 Act (application of Act to armed forces) is amended as follows.

(3) After subsection (3) there is inserted—

“(3A) In subsections (4) to (10), “code” means a code of practice under subsection (3).”

(4) For subsections (5) to (7) there is substituted—

“(5) The Secretary of State may at any time revise the whole or any part of a code.

(6) A code may be made, or revised, so as to— (a) apply only in relation to one or more specified areas, (b) have effect only for a specified period, (c) apply only in relation to specified offences or descriptions of offender.

(7) The Secretary of State must lay a code, or any revision of a code, before Parliament.”

12 Amendments related to Part 1

Schedule 1 (which makes amendments related to the provisions of this Part) has effect.

PART 2

BAIL

13 Grant and conditions of bail

(1) In section 3(6) of the 1976 Act (which sets out cases where bail conditions may be imposed)—

(a) the words “to secure that” are omitted, (b) the words “to secure that” are inserted at the beginning of each of paragraphs

(a) to (e), (c) after paragraph (c) there is inserted—

“(ca) for his own protection or, if he is a child or young person, for his own welfare or in his own interests,”,

(d) for “or (c)” there is substituted “ , (c) or (ca) ”.

(2) In section 3A(5) of the 1976 Act (no conditions may be imposed under section 3(4), (5), (6) or (7) unless necessary for certain purposes)—

(a) the words “for the purpose of preventing that person from” are omitted, (b) the words “for the purpose of preventing that person from” are inserted at the

beginning of each of paragraphs (a) to (c), (c) after paragraph (c) there is inserted “or

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(d) for that person’s own protection or, if he is a child or young person, for his own welfare or in his own interests.”

(3) In paragraph 8(1) of Part 1 of Schedule 1 to the 1976 Act (no conditions may be imposed under section 3(4) to (7) unless necessary to do so for certain purposes) for the words from “that it is necessary to do so” onwards there is substituted “that it is necessary to do so—

(a) for the purpose of preventing the occurrence of any of the events mentioned in paragraph 2(1) of this Part of this Schedule, or

(b) for the defendant’s own protection or, if he is a child or young person, for his own welfare or in his own interests.”

(4) For paragraph 5 of Part 2 of that Schedule (defendant need not be granted bail if having been released on bail he has been arrested in pursuance of section 7) there is substituted —

“5 The defendant need not be granted bail if—

(a) having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act; and

(b) the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person).”

Annotations:

Commencement Information I4 S. 13 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

14 Offences committed on bail

(1) For paragraph 2A of Part 1 of Schedule 1 to the 1976 Act (defendant need not be granted bail where he was on bail on date of offence) there is substituted—

“2A (1) If the defendant falls within this paragraph he may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not).

(2) The defendant falls within this paragraph if— (a) he is aged 18 or over, and (b) it appears to the court that he was on bail in criminal proceedings

on the date of the offence.”

(2) After paragraph 9 of that Part there is inserted—

“9AA (1) This paragraph applies if—

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(a) the defendant is under the age of 18, and (b) it appears to the court that he was on bail in criminal proceedings on

the date of the offence.

(2) In deciding for the purposes of paragraph 2(1) of this Part of this Schedule whether it is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the court shall give particular weight to the fact that the defendant was on bail in criminal proceedings on the date of the offence.”

Annotations:

Commencement Information I5 S. 14 partly in force; s. 14 not in force at Royal Assent, see s. 336(3); s. 14 in force for certain

purposes at 1.1.2007 by S.I. 2006/3217, art. 2 (subject to art. 3)

15 Absconding by persons released on bail

(1) For paragraph 6 of Part 1 of Schedule 1 to the 1976 Act (defendant need not be granted bail if having been released on bail he has been arrested in pursuance of section 7) there is substituted—

“6 (1) If the defendant falls within this paragraph, he may not be granted bail unless

the court is satisfied that there is no significant risk that, if released on bail (whether subject to conditions or not), he would fail to surrender to custody.

(2) Subject to sub-paragraph (3) below, the defendant falls within this paragraph if—

(a) he is aged 18 or over, and (b) it appears to the court that, having been released on bail in or in

connection with the proceedings for the offence, he failed to surrender to custody.

(3) Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(4) For the purposes of sub-paragraph (3) above, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody.”

(2) After paragraph 9AA of that Part (inserted by section 14(2)) there is inserted—

“9AB (1) Subject to sub-paragraph (2) below, this paragraph applies if—

(a) the defendant is under the age of 18, and (b) it appears to the court that, having been released on bail in or in

connection with the proceedings for the offence, he failed to surrender to custody.

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(2) Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, this paragraph does not apply unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(3) In deciding for the purposes of paragraph 2(1) of this Part of this Schedule whether it is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would fail to surrender to custody, the court shall give particular weight to—

(a) where the defendant did not have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody, or

(b) where he did have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(4) For the purposes of this paragraph, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody.”

(3) In section 6 of the 1976 Act (offence of absconding by person released on bail) after subsection (9) there is inserted—

“(10) Section 127 of the Magistrates' Courts Act 1980 shall not apply in relation to an offence under subsection (1) or (2) above.

(11) Where a person has been released on bail in criminal proceedings and that bail was granted by a constable, a magistrates' court shall not try that person for an offence under subsection (1) or (2) above in relation to that bail (the “relevant offence”) unless either or both of subsections (12) and (13) below applies.

(12) This subsection applies if an information is laid for the relevant offence within 6 months from the time of the commission of the relevant offence.

(13) This subsection applies if an information is laid for the relevant offence no later than 3 months from the time of the occurrence of the first of the events mentioned in subsection (14) below to occur after the commission of the relevant offence.

(14) Those events are— (a) the person surrenders to custody at the appointed place; (b) the person is arrested, or attends at a police station, in connection with

the relevant offence or the offence for which he was granted bail; (c) the person appears or is brought before a court in connection with the

relevant offence or the offence for which he was granted bail.”

Annotations:

Commencement Information I6 S. 15 partly in force; s. 15 not in force at Royal Assent, see s. 336(3); s. 15(3) in force at 5.4.2004 by

S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6)); s. 15(1)(2) in force for certain purposes at 1.1.2007 by S.I. 2006/3217, art. 2 (subject to art. 3)

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16 Appeal to Crown Court

(1) This section applies where a magistrates' court grants bail to a person (“the person concerned”) on adjourning a case under—

(a) section 10 of the Magistrates' Courts Act 1980 (c. 43) (adjournment of trial), (b) section 17C of that Act (intention as to plea: adjournment), (c) section 18 of that Act (initial procedure on information against adult for

offence triable either way), (d) section 24C of that Act (intention as to plea by child or young person:

adjournment), (e) section 52(5) of the Crime and Disorder Act 1998 (c. 37) (adjournment of

proceedings under section 51 etc), or (f) section 11 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

(remand for medical examination).

(2) Subject to the following provisions of this section, the person concerned may appeal to the Crown Court against any condition of bail falling within subsection (3).

(3) A condition of bail falls within this subsection if it is a requirement— (a) that the person concerned resides away from a particular place or area, (b) that the person concerned resides at a particular place other than a bail hostel, (c) for the provision of a surety or sureties or the giving of a security, (d) that the person concerned remains indoors between certain hours, (e) imposed under section 3(6ZAA) of the 1976 Act (requirements with respect

to electronic monitoring), or (f) that the person concerned makes no contact with another person.

(4) An appeal under this section may not be brought unless subsection (5) or (6) applies.

(5) This subsection applies if an application to the magistrates' court under section 3(8) (a) of the 1976 Act (application by or on behalf of person granted bail) was made and determined before the appeal was brought.

(6) This subsection applies if an application to the magistrates' court— (a) under section 3(8)(b) of the 1976 Act (application by constable or prosecutor),

or (b) under section 5B(1) of that Act (application by prosecutor),

was made and determined before the appeal was brought.

(7) On an appeal under this section the Crown Court may vary the conditions of bail.

(8) Where the Crown Court determines an appeal under this section, the person concerned may not bring any further appeal under this section in respect of the conditions of bail unless an application or a further application to the magistrates' court under section 3(8)(a) of the 1976 Act is made and determined after the appeal.

Annotations:

Commencement Information I7 S. 16 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

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17 Appeals to High Court

(1) In section 22(1) of the Criminal Justice Act 1967 (c. 80) (extension of power of High Court to grant, or vary conditions of, bail)—

(a) after “Where” there is inserted “ (a) ”, and (b) after “proceedings,”, in the second place where it occurs, there is inserted “and

(b) it does so where an application to the court to state a case for the opinion of the High Court is made,”.

(2) The inherent power of the High Court to entertain an application in relation to bail where a magistrates' court—

(a) has granted or withheld bail, or (b) has varied the conditions of bail,

is abolished.

(3) The inherent power of the High Court to entertain an application in relation to bail where the Crown Court has determined—

(a) an application under section 3(8) of the 1976 Act, or (b) an application under section 81(1)(a), (b), (c) or (g) of the Supreme Court Act

1981 (c. 54), is abolished.

(4) The High Court is to have no power to entertain an application in relation to bail where the Crown Court has determined an appeal under section 16 of this Act.

(5) The High Court is to have no power to entertain an application in relation to bail where the Crown Court has granted or withheld bail under section 88 or 89 of this Act.

(6) Nothing in this section affects— (a) any other power of the High Court to grant or withhold bail or to vary the

conditions of bail, or (b) any right of a person to apply for a writ of habeas corpus or any other

prerogative remedy.

(7) Any reference in this section to an application in relation to bail is to be read as including—

(a) an application for bail to be granted, (b) an application for bail to be withheld, (c) an application for the conditions of bail to be varied.

(8) Any reference in this section to the withholding of bail is to be read as including a reference to the revocation of bail.

Annotations:

Commencement Information I8 S. 17 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

18 Appeal by prosecution

(1) Section 1 of the Bail (Amendment) Act 1993 (c. 26) (prosecution right of appeal) is amended as follows.

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(2) For subsection (1) (prosecution may appeal to Crown Court judge against bail in case of offence punishable by imprisonment for five years or more etc) there is substituted —

“(1) Where a magistrates' court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail.”

(3) In subsection (10)(a) for “punishable by a term of imprisonment” there is substituted “ punishable by imprisonment ”.

Annotations:

Commencement Information I9 S. 18 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 1 (subject to

art. 2(2), Sch. 2)

19 Drug users: restriction on bail

(1) The 1976 Act is amended as follows.

(2) In section 3 (general provisions), after subsection (6B) there is inserted—

“(6C) Subsection (6D) below applies where— (a) the court has been notified by the Secretary of State that arrangements

for conducting a relevant assessment or, as the case may be, providing relevant follow-up have been made for the petty sessions area in which it appears to the court that the person referred to in subsection (6D) would reside if granted bail; and

(b) the notice has not been withdrawn.

(6D) In the case of a person (“P”)— (a) in relation to whom paragraphs (a) to (c) of paragraph 6B(1) of Part

1 of Schedule 1 to this Act apply; (b) who, after analysis of the sample referred to in paragraph (b) of that

paragraph, has been offered a relevant assessment or, if a relevant assessment has been carried out, has had relevant follow-up proposed to him; and

the court, if it grants bail, shall impose as a condition of bail that P both undergo the relevant assessment and participate in any relevant follow-up proposed to him or, if a relevant assessment has been carried out, that P participate in the relevant follow-up.

(6E) In subsections (6C) and (6D) above— (a) “relevant assessment” means an assessment conducted by a suitably

qualified person of whether P is dependent upon or has a propensity to misuse any specified Class A drugs;

(b) “relevant follow-up” means, in a case where the person who conducted the relevant assessment believes P to have such a dependency or propensity, such further assessment, and such

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assistance or treatment (or both) in connection with the dependency or propensity, as the person who conducted the relevant assessment (or conducts any later assessment) considers to be appropriate in P’s case,

and in paragraph (a) above “Class A drug” and “misuse” have the same meaning as in the Misuse of Drugs Act 1971, and “specified” (in relation to a Class A drug) has the same meaning as in Part 3 of the Criminal Justice and Court Services Act 2000.

(6F) In subsection (6E)(a) above, “suitably qualified person” means a person who has such qualifications or experience as are from time to time specified by the Secretary of State for the purposes of this subsection.”

(3) In section 3A(3) (conditions of bail in case of police bail), for “, (6A) and (6B)” there is substituted “ and (6A) to (6F) ”.

(4) In Schedule 1 (which contains supplementary provisions about bail), in Part 1 (imprisonable offences)—

(a) after paragraph 6 there is inserted—

6A “Exception applicable to drug users in certain areas

Subject to paragraph 6C below, a defendant who falls within paragraph 6B below may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not).

6B Exception applicable to drug users in certain areas

(1) A defendant falls within this paragraph if— (a) he is aged 18 or over; (b) a sample taken—

(i) under section 63B of the Police and Criminal Evidence Act 1984 (testing for presence of Class A drugs) in connection with the offence; or

(ii) under section 161 of the Criminal Justice Act 2003 (drug testing after conviction of an offence but before sentence),

has revealed the presence in his body of a specified Class A drug;

(c) either the offence is one under section 5(2) or (3) of the Misuse of Drugs Act 1971 and relates to a specified Class A drug, or the court is satisfied that there are substantial grounds for believing—

(i) that misuse by him of any specified Class A drug caused or contributed to the offence; or

(ii) (even if it did not) that the offence was motivated wholly or partly by his intended misuse of such a drug; and

(d) the condition set out in sub-paragraph (2) below is satisfied or (if the court is considering on a second or subsequent

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occasion whether or not to grant bail) has been, and continues to be, satisfied.

(2) The condition referred to is that after the taking and analysis of the sample—

(a) a relevant assessment has been offered to the defendant but he does not agree to undergo it; or

(b) he has undergone a relevant assessment, and relevant follow- up has been proposed to him, but he does not agree to participate in it.

(3) In this paragraph and paragraph 6C below— (a) “Class A drug” and “misuse” have the same meaning as in

the Misuse of Drugs Act 1971; (b) “relevant assessment” and “relevant follow-up” have the

meaning given by section 3(6E) of this Act; (c) “specified” (in relation to a Class A drug) has the same

meaning as in Part 3 of the Criminal Justice and Court Services Act 2000.

6C Exception applicable to drug users in certain areas

Paragraph 6A above does not apply unless— (a) the court has been notified by the Secretary of State that

arrangements for conducting a relevant assessment or, as the case may be, providing relevant follow-up have been made for the petty sessions area in which it appears to the court that the defendant would reside if granted bail; and

(b) the notice has not been withdrawn.”, (b) in paragraph 8(1), for “(4) to (7)” there is substituted “ (4) to (6B) or (7) ”.

Annotations:

Commencement Information I10 S. 19 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

20 Supplementary amendments to the Bail Act 1976

(1) In Part 1 of Schedule 1 to the 1976 Act (supplementary provisions relating to bail of defendant accused or convicted of imprisonable offence) the existing text of paragraph 2 is to be sub-paragraph (1) of that paragraph, and after that sub-paragraph (as so re- numbered) there is inserted—

“(2) Where the defendant falls within one or more of paragraphs 2A, 6 and 6B of this Part of this Schedule, this paragraph shall not apply unless—

(a) where the defendant falls within paragraph 2A, the court is satisfied as mentioned in sub-paragraph (1) of that paragraph;

(b) where the defendant falls within paragraph 6, the court is satisfied as mentioned in sub-paragraph (1) of that paragraph;

(c) where the defendant falls within paragraph 6B, the court is satisfied as mentioned in paragraph 6A of this Part of this Schedule or

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paragraph 6A does not apply by virtue of paragraph 6C of this Part of this Schedule.”

(2) In paragraph 9 of that Part (matters to be taken into account in making decisions under paragraph 2 or 2A of that Part) for “2 or 2A” there is substituted “ 2(1), or in deciding whether it is satisfied as mentioned in paragraph 2A(1), 6(1) or 6A, ”.

Annotations:

Commencement Information I11 S. 20 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

21 Interpretation of Part 2

In this Part— “bail” means bail in criminal proceedings (within the meaning of the 1976

Act), “bail hostel” has the meaning given by section 2(2) of the 1976 Act, “the 1976 Act” means the Bail Act 1976 (c. 63), “vary” has the same meaning as in the 1976 Act.

Annotations:

Commencement Information I12 S. 21 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

PART 3

CONDITIONAL CAUTIONS

22 Conditional cautions

(1) An authorised person may give a conditional caution to a person aged 18 or over (“the offender”) if each of the five requirements in section 23 is satisfied.

(2) In this Part “conditional caution” means a caution which is given in respect of an offence committed by the offender and which has conditions attached to it with which the offender must comply.

[F3(3) The conditions which may be attached to such a caution are those which have one or more of the following objects—

(a) facilitating the rehabilitation of the offender; (b) ensuring that the offender makes reparation for the offence; (c) punishing the offender.]

[F4(3A) The conditions which may be attached to a conditional caution include— (a) (subject to section 23A) a condition that the offender pay a financial penalty; (b) a condition that the offender attend at a specified place at specified times.

“Specified” means specified by a relevant prosecutor.

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(3B) Conditions attached by virtue of subsection (3A)(b) may not require the offender to attend for more than 20 hours in total, not including any attendance required by conditions attached for the purpose of facilitating the offender's rehabilitation.

(3C) The Secretary of State may by order amend subsection (3B) by substituting a different figure.]

(4) In this Part “authorised person” means— (a) a constable, (b) an investigating officer, or (c) a person authorised by a relevant prosecutor for the purposes of this section.

Annotations:

Amendments (Textual) F3 S. 22(3) substituted (immediately before 8.7.2009 and on 16.11.2009 for certain purposes, otherwise

prosp.) by Police and Justice Act 2006 (c. 48), ss. 17(2), 53; S.I. 2009/1679, art. 2; S.I. 2009/2774, art. 2

F4 S. 22(3A)-(3C) inserted (immediately before 8.7.2009 and on 16.11.2009 for certain purposes, otherwise prosp.) by Police and Justice Act 2006 (c. 48), ss. 17(3), 53; S.I. 2009/1679, art. 2; S.I. 2009/2774, art. 2

23 The five requirements

(1) The first requirement is that the authorised person has evidence that the offender has committed an offence.

(2) The second requirement is that a relevant prosecutor decides— (a) that there is sufficient evidence to charge the offender with the offence, and (b) that a conditional caution should be given to the offender in respect of the

offence.

(3) The third requirement is that the offender admits to the authorised person that he committed the offence.

(4) The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.

(5) The fifth requirement is that the offender signs a document which contains— (a) details of the offence, (b) an admission by him that he committed the offence, (c) his consent to being given the conditional caution, and (d) the conditions attached to the caution.

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[F523A Financial penalties

Annotations:

Amendments (Textual) F5 S. 23A inserted (immediately before 8.7.2009 and on 16.11.2009 for certain purposes,

otherwise prosp.) by Police and Justice Act 2006 (c. 48), ss. 17(4), 53; S.I. 2009/1679, art. 2; S.I. 2009/2774, art. 2

(1) A condition that the offender pay a financial penalty (a “financial penalty condition”) may not be attached to a conditional caution given in respect of an offence unless the offence is one that is prescribed, or of a description prescribed, in an order made by the Secretary of State.

(2) An order under subsection (1) must prescribe, in respect of each offence or description of offence in the order, the maximum amount of the penalty that may be specified under subsection (5)(a).

(3) The amount that may be prescribed in respect of any offence must not exceed— (a) one quarter of the amount of the maximum fine for which a person is liable

on summary conviction of the offence, or (b) £250,

whichever is the lower.

(4) The Secretary of State may by order amend subsection (3) by— (a) substituting a different fraction in paragraph (a); (b) substituting a different figure in paragraph (b).

(5) Where a financial penalty condition is attached to a conditional caution, a relevant prosecutor must also specify—

(a) the amount of the penalty, [F6(b) the person to whom the financial penalty is to be paid and how it may be paid.]

(6) To comply with the condition, the offender must pay the penalty [F7in accordance with the provision specified under subsection (5)(b).] .

[F8(6A) Where a financial penalty is (in accordance with the provision specified under subsection (5)(b)) paid to a person other than a designated officer for a local justice area, the person to whom it is paid must give the payment to such an officer.]

(7) F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Annotations:

Amendments (Textual) F6 S. 23A(5)(b) substituted (8.7.2009 for certain purposes, otherwise prosp.) for s. 23A(5)(b)(c) by

Criminal Justice and Immigration Act 2008 (c. 4), ss. 148, 153, Sch. 26 para. 60(2); S.I. 2009/1678, art. 3(b)(ii)

F7 Words in s. 23A(6) substituted (8.7.2009 for certain purposes, otherwise prosp.) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 148, 153, Sch. 26 para. 60(3); S.I. 2009/1678, art. 3(b)(ii)

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F8 S. 23A(6A) inserted (8.7.2009 for certain purposes, otherwise prosp.) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 148, 153, Sch. 26 para. 60(4); S.I. 2009/1678, art. 3(b)(ii)

F9 S. 23A(7)-(9) repealed (8.7.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 148, 149, 153, Sch. 26 para. 60(5), Sch. 28 Pt. 4; S.I. 2009/1678, art. 3(c)

[F1023B Variation of conditions

Annotations:

Amendments (Textual) F10 S. 23B inserted (8.7.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 148,

153, Sch. 26 para. 61; S.I. 2009/1678, art. 2(b)(ii)

A relevant prosecutor may, with the consent of the offender, vary the conditions attached to a conditional caution by—

(a) modifying or omitting any of the conditions; (b) adding a condition.]

24 Failure to comply with conditions

(1) If the offender fails, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, criminal proceedings may be instituted against the person for the offence in question.

(2) The document mentioned in section 23(5) is to be admissible in such proceedings.

(3) Where such proceedings are instituted, the conditional caution is to cease to have effect.

[F1124A Arrest for failure to comply

Annotations:

Amendments (Textual) F11 Ss. 24A, 24B inserted (29.6.2007) by Police and Justice Act 2006 (c. 48), ss. 18(1), 53 (with

s. 18(2)); S.I. 2007/1614, art. 2(e)

(1) If a constable has reasonable grounds for believing that the offender has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, he may arrest him without warrant.

(2) A person arrested under this section must be— (a) charged with the offence in question, (b) released without charge and on bail to enable a decision to be made as to

whether he should be charged with the offence, or (c) released without charge and without bail (with or without any variation in the

conditions attached to the caution).

(3) Subsection (2) also applies in the case of—

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(a) a person who, having been released on bail under subsection (2)(b), returns to a police station to answer bail or is otherwise in police detention at a police station;

(b) a person who, having been released on bail under section 30A of the 1984 Act (bail elsewhere than at police station) as applied by section 24B below, attends at a police station to answer bail or is otherwise in police detention at a police station;

(c) a person who is arrested under section 30D or 46A of the 1984 Act (power of arrest for failure to answer to police bail) as applied by section 24B below.

(4) Where a person is released under subsection (2)(b), the custody officer must inform him that he is being released to enable a decision to be made as to whether he should be charged with the offence in question.

(5) A person arrested under this section, or any other person in whose case subsection (2) applies, may be kept in police detention—

(a) to enable him to be dealt with in accordance with that subsection, or (b) where applicable, to enable the power under section 37D(1) of the 1984

Act (power of custody officer to appoint a different or additional time for answering to police bail), as applied by section 24B below, to be exercised.

If the person is not in a fit state to enable him to be so dealt with, or to enable that power to be exercised, he may be kept in police detention until he is.

(6) The power under subsection (5)(a) includes power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether he has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution.

(7) Subsection (2) must be complied with as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest.

(8) Subsection (2) does not require a person who— (a) falls within subsection (3)(a) or (b), and (b) is in police detention in relation to a matter other than the conditional caution,

to be released if he is liable to be kept in detention in relation to that other matter.

(9) In this Part— “the 1984 Act” means the Police and Criminal Evidence Act 1984; “police detention” has the same meaning as in the 1984 Act (see

section 118(2) of that Act).

Annotations:

Modifications etc. (not altering text) C1 S. 24A(1) applied (16.11.2009) by Crime and Disorder Act 1998 (c. 37), s. 66E(4) (as inserted by

Criminal Justice and Immigration Act 2008 (c. 4), ss. 48, 153, Sch. 9 para. 3 (with Sch. 27 para. 18)); S.I. 2009/2780, art. 2(1)(c)

C2 S. 24A(2)-(9) applied (16.11.2009) by Crime and Disorder Act 1998 (c. 37), s. 66E(5) (as inserted by Criminal Justice and Immigration Act 2008 (c. 4), ss. 48, 153, Sch. 9 para. 3 (with Sch. 27 para. 18)); S.I. 2009/2780, art. 2(1)(c)

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24B Application of PACE provisions

(1) In the case of a person arrested under section 24A, the provisions of the 1984 Act specified in subsection (2) apply, with the modifications specified in subsection (3) and with such further modifications as are necessary, as they apply in the case of a person arrested for an offence.

(2) The provisions are— (a) section 30 (arrest elsewhere than at police station); (b) sections 30A to 30D (bail elsewhere than at police station); (c) section 31 (arrest for further offence); (d) section 34(1) to (5) (limitations on police detention); (e) section 36 (custody officers at police stations); (f) section 37(4) to (6) (record of grounds for detention); (g) section 38 (duties of custody officer after charge); (h) section 39 (responsibilities in relation to persons detained); (i) section 55A (x-rays and ultrasound scans).

(3) The modifications are— (a) in section 30CA(5)(a), for the reference to being involved in the investigation

of the offence mentioned in that provision substitute a reference to being involved—

(i) in the investigation of the offence in respect of which the person was given the conditional caution, or

(ii) in investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution;

(b) in section 36(5) and (7), for the references to being involved in the investigation of an offence for which the person is in police detention substitute references to being involved—

(i) in the investigation of the offence in respect of which the person was given the conditional caution, or

(ii) in investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution;

(c) in section 38(1)(a)(iii) and (iv), for “arrested for” substitute “charged with”; (d) in section 39(2) and (3), for the references to an offence substitute references

to a failure to comply with conditions attached to the conditional caution.

(4) Section 40 of the 1984 Act (review of police detention) applies to a person in police detention by virtue of section 24A above as it applies to a person in police detention in connection with the investigation of an offence, but with the following modifications —

(a) omit subsections (8) and (8A); (b) in subsection (9), for the reference to section 37(9) or 37D(5) substitute a

reference to the second sentence of section 24A(5) above.

(5) The following provisions of the 1984 Act apply to a person released on bail under section 24A(2)(b) above as they apply to a person released on bail under section 37 of that Act—

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(a) section 37D(1) to (3) (power of custody officer to appoint a different or additional time for answering to police bain( �

(b) section 46A (power of arrest for failure to answer to police bain( � (c) section 47 (bail after arrest).

(6) Section 54 of the 1984 Act (searches of detained persons) applies in the case of a person who falls within subsection (3) of section 24A above and is detained in a police station under that section as it applies in the case of a person who falls within section 34(7) of that Act and is detained at a police station under section 37.

(7) Section 54A of the 1984 Act (searches and examination to ascertain identity) applies with the following modifications in the case of a person who is detained in a police station under section 24A above—

(a) in subsections (1)(a) and (12), after “as a person involved in the commission of an offence” insert “or as having failed to comply with any of the conditions attached to his conditional caution”;

(b) in subsection (9)(a), after “the investigation of an offence” insert “, the investigation of whether the person in question has failed to comply with any of the conditions attached to his conditional caution”.]

Annotations:

Modifications etc. (not altering text) C3 S. 24B applied (16.11.2009) by Crime and Disorder Act 1998 (c. 37), s. 66E(5) (as inserted by

Criminal Justice and Immigration Act 2008 (c. 4), ss. 48, 153, Sch. 9 para. 3 (with Sch. 27 para. 18)); S.I. 2009/2780, art. 2(1)(c)

25 Code of practice

(1) The Secretary of State must prepare a code of practice in relation to conditional cautions.

(2) The code may, in particular, include provision as to— (a) the circumstances in which conditional cautions may be given, (b) the procedure to be followed in connection with the giving of such cautions, (c) the conditions which may be attached to such cautions and the time for which

they may have effect, (d) the category of constable or investigating officer by whom such cautions may

be given, (e) the persons who may be authorised by a relevant prosecutor for the purposes

of section 22, (f) the form which such cautions are to take and the manner in which they are

to be given and recorded, (g) the places where such cautions may be given, F12. . .

[F13(ga) the provision which may be made by a relevant prosecutor under section 23A(5)(b),]

(h) the monitoring of compliance with conditions attached to such cautions. [F14(i) the exercise of the power of arrest conferred by section 24A(1), and

(j) who is to decide how a person should be dealt with under section 24A(2).]

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(3) After preparing a draft of the code the Secretary of State— (a) must publish the draft, (b) must consider any representations made to him about the draft, and (c) may amend the draft accordingly,

but he may not publish or amend the draft without the consent of the Attorney General.

(4) After the Secretary of State has proceeded under subsection (3) he must lay the code before each House of Parliament.

(5) When he has done so he may bring the code into force by order.

(6) The Secretary of State may from time to time revise a code of practice brought into force under this section.

(7) Subsections (3) to (6) are to apply (with appropriate modifications) to a revised code as they apply to an original code.

Annotations:

Amendments (Textual) F12 Word in s. 25(2) repealed (1.4.2007 and expressed to be in force 29.6.2007) by Police and Justice Act

2006 (c. 48), ss. 52, 53, Sch. 15 Pt. 2; S.I. 2007/709, art. 3(o)(t)(iii); S.I. 2007/1614, art. 2(j) F13 S. 25(2)(ga) inserted (8.7.2009 for certain purposes, otherwise prosp.) by Criminal Justice and

Immigration Act 2008 (c. 4), ss. 148, 153, Sch. 26 para. 62; S.I. 2009/1678, art. 3(b)(ii) F14 S. 25(2)(i)(j) inserted (1.4.2007 and expressed to be in force 29.6.2007) by Police and Justice Act 2006

(c. 48), ss. 52, 53, Sch. 14 para. 58; S.I. 2007/709, art. 3(o)(p); S.I. 2007/1614, art. 2(i)

26 Assistance of National Probation Service

(1) Section 1 of the Criminal Justice and Court Services Act 2000 (c. 43) (purposes of Chapter 1) is amended as follows.

(2) After subsection (1) there is inserted—

“(1A) This Chapter also has effect for the purposes of providing for— (a) authorised persons to be given assistance in determining whether

conditional cautions should be given and which conditions to attach to conditional cautions, and

(b) the supervision and rehabilitation of persons to whom conditional cautions are given.”

(3) After subsection (3) there is inserted—

“(4) In this section “authorised person” and “conditional caution” have the same meaning as in Part 3 of the Criminal Justice Act 2003.”

27 Interpretation of Part 3

In this Part— “authorised person” has the meaning given by section 22(4), “conditional caution” has the meaning given by section 22(2),

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“investigating officer” means [F15an officer of Revenue and Customs, appointed in accordance with section 2(1) of the Commissioners for Revenue and Customs Act 2005, or] a person designated as an investigating officer under section 38 of the Police Reform Act 2002 (c. 30),

“the offender” has the meaning given by section 22(1), “relevant prosecutor” means—

(a) the Attorney General, (b) the Director of the Serious Fraud Office,

(ba) [F16the Director of Revenue and Customs Prosecutions,] (c) the Director of Public Prosecutions, (d) a Secretary of State, (e) F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (g) a person who is specified in an order made by the Secretary of State as

being a relevant prosecutor for the purposes of this Part.

Annotations:

Amendments (Textual) F15 In s. 27 in definition of "investigating officer" words inserted (18.4.2005) by Commissioners for

Revenue and Customs Act 2005 (c. 11), ss. 50(6), 53, Sch. 4 para. 129(a); S.I. 2005/1126, art. 2(2) F16 In s. 27 in definition of "relevant prosecutor" item (ba) inserted (18.4.2005) by Commissioners for

Revenue and Customs Act 2005 (c. 11), ss. 50(6), 53, Sch. 4 para. 129(b); S.I. 2005/1126, art. 2(2) F17 In s. 27 in definition of "relevant prosecutor" items (e)(f) repealed (18.4.2005) by Commissioners

for Revenue and Customs Act 2005 (c. 11), ss. 50(6), 52(2), 53, Sch. 4 para. 129(b), Sch. 5; S.I. 2005/1126, art. 2(2)

Commencement Information I13 S. 27 wholly in force; s. 27 not in force at Royal Assent, see s. 336(3); s. 27 in force for certain

purposes at 3.7.2004 by S.I. 2004/1629, art. 2; s. 27 wholly in force at 16.11.2009 by S.I. 2009/2775, art. 2

PART 4

CHARGING ETC

28 Charging or release of persons in police detention

Schedule 2 (which makes provision in relation to the charging or release of persons in police detention) shall have effect.

Annotations:

Commencement Information I14 S. 28 wholly in force at 1.10.2007; s. 28 not in force at Royal Assent, see s. 336(3); s. 28 in force for

certain purposes at 29.1.2004 by S.I. 2004/81, art. 4; s. 28 in force for certain purposes at 3.7.2004 by S.I. 2004/1629, art. 2 and s. 28 in force for certain further purposes at 1.10.2007 by S.I. 2007/2874, art. 2(1)(2)(a)

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29 New method of instituting proceedings

(1) A public prosecutor may institute criminal proceedings against a person by issuing a document (a “written charge”) which charges the person with an offence.

(2) Where a public prosecutor issues a written charge, it must at the same time issue a document (a “requisition”) which requires the person to appear before a magistrates' court to answer the written charge.

(3) The written charge and requisition must be served on the person concerned, and a copy of both must be served on the court named in the requisition.

(4) In consequence of subsections (1) to (3), a public prosecutor is not to have the power to lay an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates' Courts Act 1980 (c. 43).

(5) In this section “public prosecutor” means— (a) a police force or a person authorised by a police force to institute criminal

proceedings, (b) the Director of the Serious Fraud Office or a person authorised by him to

institute criminal proceedings, (c) the Director of Public Prosecutions or a person authorised by him to institute

criminal proceedings, [F18(ca) the Director of Revenue and Customs Prosecutions or a person authorised by

him to institute criminal proceedings,] [F19(cb) the Director General of the Serious Organised Crime Agency or a person

authorised by him to institute criminal proceedings;] (d) the Attorney General or a person authorised by him to institute criminal

proceedings, (e) a Secretary of State or a person authorised by a Secretary of State to institute

criminal proceedings, (f) the Commissioners of Inland Revenue or a person authorised by them to

institute criminal proceedings, (g) the Commissioners of Customs and Excise or a person authorised by them to

institute criminal proceedings, or (h) a person specified in an order made by the Secretary of State for the purposes

of this section or a person authorised by such a person to institute criminal proceedings.

(6) In subsection (5) “police force” has the meaning given by section 3(3) of the Prosecution of Offences Act 1985 (c. 23).

Annotations:

Amendments (Textual) F18 S. 29(5)(ca) inserted (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss.

50(6), 53, Sch. 4 para. 130; S.I. 2005/1126, art. 2(2) F19 S. 29(5)(cb) inserted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178,

Sch. 4 para. 196; S.I. 2006/378, art. 4(1), Sch. (subject to art. 4(2)-(7))

Commencement Information I15 S. 29 partly in force; s. 29 not in force at Royal Assent, see s. 336(3); s. 29(1)-(3)(5)(6) in force for

certain purposes at 25.7.2007 by S.I. 2007/1999, arts. 2, 3; s. 29(1) - (3)(5)(6) in force for certain

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purposes at 9.6.2008 by S.I. 2008/1424, arts. 2, 3; s. 29(1)-(3)(5)(6) in force for certain purposes at 1.11.2009 by S.I. 2009/2879, arts. 2, 3; s. 29(1)-(3)(5)(6) in force for certain purposes at 1.1.2011 by S.I. 2010/3005, art. 2

30 Further provision about new method

(1) [F20Criminal Procedure Rules] may make— (a) provision as to the form, content, recording, authentication and service of

written charges or requisitions, and (b) such other provision in relation to written charges or requisitions as appears

to the [F21Criminal Procedure Rule Committee] to be necessary or expedient.

(2) Without limiting subsection (1), the provision which may be made by virtue of that subsection includes provision—

(a) which applies (with or without modifications), or which disapplies, the provision of any enactment relating to the service of documents,

(b) for or in connection with the issue of further requisitions.

(3) F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Nothing in section 29 affects— (a) the power of a public prosecutor to lay an information for the purpose of

obtaining the issue of a warrant under section 1 of the Magistrates' Courts Act 1980 (c. 43),

(b) the power of a person who is not a public prosecutor to lay an information for the purpose of obtaining the issue of a summons or warrant under section 1 of that Act, or

(5) Except where the context otherwise requires, in any enactment contained in an Act passed before this Act—

(a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates' Courts Act 1980 (c. 43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge),

(b) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a requisition (or to a public prosecutor issuing a requisition).

(6) Subsection (5) does not apply to section 1 of the Magistrates' Courts Act 1980.

(7) The reference in subsection (5) to an enactment contained in an Act passed before this Act includes a reference to an enactment contained in that Act as a result of an amendment to that Act made by this Act or by any other Act passed in the same Session as this Act.

(8) In this section “public prosecutor”, “requisition” and “written charge” have the same meaning as in section 29.

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Annotations:

Amendments (Textual) F20 Words in s. 30(1) substituted (1.9.2004) by The Courts Act 2003 (Consequential Amendments) Order

2004 (S.I. 2004/2035), art. 3, Sch. para. 46(2)(a) (with art. 2(2)) F21 Words in s. 30(1)(b) substituted (1.9.2004) by The Courts Act 2003 (Consequential Amendments)

Order 2004 (S.I. 2004/2035), art. 3, Sch. para. 46(2)(b) (with art. 2(2)) F22 S. 30(3) omitted (1.9.2004) by virtue of The Courts Act 2003 (Consequential Amendments) Order

2004 (S.I. 2004/2035), art. 3, Sch. para. 46(3) (with art. 2(2))

Commencement Information I16 S. 30 partly in force; s. 30 not in force at Royal Assent, see s. 336(3); s. 30 in force for certain

purposes at 25.7.2007 by S.I. 2007/1999, arts. 2, 3; s. 30 in force for certain purposes at 9.6.2008 by S.I. 2008/1424, arts. 2, 3; s. 30 in force for certain purposes at 1.11.2009 by S.I. 2009/2879, art. 2, 3

31 Removal of requirement to substantiate information on oath

(1) In section 1(3) of the Magistrates' Courts Act 1980 (warrant may not be issued unless information substantiated on oath) the words “and substantiated on oath” are omitted.

(2) In section 13 of that Act (non-appearance of defendant: issue of warrant) in subsection (3)(a) the words “the information has been substantiated on oath and” are omitted.

(3) For subsection (3A)(a) of that section there is substituted— “(a) the offence to which the warrant relates is punishable, in the case of

a person who has attained the age of 18, with imprisonment, or”.

PART 5

DISCLOSURE

32 Initial duty of disclosure by prosecutor

In the Criminal Procedure and Investigations Act 1996 (c. 25) (in this Part referred to as “the 1996 Act”), in subsection (1)(a) of section 3 (primary disclosure by prosecutor) —

(a) for “in the prosecutor’s opinion might undermine” there is substituted “ might reasonably be considered capable of undermining ”;

(b) after “against the accused” there is inserted “ or of assisting the case for the accused ”.

Annotations:

Commencement Information I17 S. 32 wholly in force at 15.7.2005; s. 32 not in force at Royal Assent, see s. 336(3); s. 32 in force for

E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 32 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

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33 Defence disclosure

(1) In section 5 of the 1996 Act (compulsory disclosure by accused), after subsection (5) there is inserted—

“(5A) Where there are other accused in the proceedings and the court so orders, the accused must also give a defence statement to each other accused specified by the court.

(5B) The court may make an order under subsection (5A) either of its own motion or on the application of any party.

(5C) A defence statement that has to be given to the court and the prosecutor (under subsection (5)) must be given during the period which, by virtue of section 12, is the relevant period for this section.

(5D) A defence statement that has to be given to a co-accused (under subsection (5A)) must be given within such period as the court may specify.”

(2) After section 6 of that Act there is inserted—

“6A Contents of defence statement

(1) For the purposes of this Part a defence statement is a written statement— (a) setting out the nature of the accused’s defence, including any

particular defences on which he intends to rely, (b) indicating the matters of fact on which he takes issue with the

prosecution, (c) setting out, in the case of each such matter, why he takes issue with

the prosecution, and (d) indicating any point of law (including any point as to the admissibility

of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including—

(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;

(b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.

(3) For the purposes of this section evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

(4) The Secretary of State may by regulations make provision as to the details of the matters that, by virtue of subsection (1), are to be included in defence statements.”

(3) After section 6A of that Act (inserted by subsection (2) above) there is inserted—

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“6B Updated disclosure by accused

(1) Where the accused has, before the beginning of the relevant period for this section, given a defence statement under section 5 or 6, he must during that period give to the court and the prosecutor either—

(a) a defence statement under this section (an “updated defence statement”), or

(b) a statement of the kind mentioned in subsection (4).

(2) The relevant period for this section is determined under section 12.

(3) An updated defence statement must comply with the requirements imposed by or under section 6A by reference to the state of affairs at the time when the statement is given.

(4) Instead of an updated defence statement, the accused may give a written statement stating that he has no changes to make to the defence statement which was given under section 5 or 6.

(5) Where there are other accused in the proceedings and the court so orders, the accused must also give either an updated defence statement or a statement of the kind mentioned in subsection (4), within such period as may be specified by the court, to each other accused so specified.

(6) The court may make an order under subsection (5) either of its own motion or on the application of any party.”

Annotations:

Commencement Information I18 S. 33 partly in force; s. 33 not in force at Royal Assent, see s. 336(3); s. 33(2) in force for E.W. at

4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 33(2) in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3)); s. 33(1) in force for certain purposes at 24.7.2006 by S.I. 2006/1835, art. 2

34 Notification of intention to call defence witnesses

After section 6B of the 1996 Act (inserted by section 33 above) there is inserted—

“6C Notification of intention to call defence witnesses

(1) The accused must give to the court and the prosecutor a notice indicating whether he intends to call any persons (other than himself) as witnesses at his trial and, if so—

(a) giving the name, address and date of birth of each such proposed witness, or as many of those details as are known to the accused when the notice is given;

(b) providing any information in the accused’s possession which might be of material assistance in identifying or finding any such proposed witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the notice is given.

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(2) Details do not have to be given under this section to the extent that they have already been given under section 6A(2).

(3) The accused must give a notice under this section during the period which, by virtue of section 12, is the relevant period for this section.

(4) If, following the giving of a notice under this section, the accused— (a) decides to call a person (other than himself) who is not included in the

notice as a proposed witness, or decides not to call a person who is so included, or

(b) discovers any information which, under subsection (1), he would have had to include in the notice if he had been aware of it when giving the notice,

he must give an appropriately amended notice to the court and the prosecutor.”

Annotations:

Commencement Information I19 S. 34 partly in force; s. 34 not in force at Royal Assent see s. 336(3); s. 34 in force for E.W. at 1.5.2010

by S.I. 2010/1183, art. 3 (with art. 4)

PROSPECTIVE

35 Notification of names of experts instructed by defendant

After section 6C of the 1996 Act (inserted by section 34 above) there is inserted—

“6D Notification of names of experts instructed by accused

(1) If the accused instructs a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused, he must give to the court and the prosecutor a notice specifying the person’s name and address.

(2) A notice does not have to be given under this section specifying the name and address of a person whose name and address have already been given under section 6C.

(3) A notice under this section must be given during the period which, by virtue of section 12, is the relevant period for this section.”

36 Further provisions about defence disclosure

After section 6D of the 1996 Act (inserted by section 35 above) there is inserted—

“6E Disclosure by accused: further provisions

(1) Where an accused’s solicitor purports to give on behalf of the accused— (a) a defence statement under section 5, 6 or 6B, or (b) a statement of the kind mentioned in section 6B(4),

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the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.

(2) If it appears to the judge at a pre-trial hearing that an accused has failed to comply fully with section 5, 6B or 6C, so that there is a possibility of comment being made or inferences drawn under section 11(5), he shall warn the accused accordingly.

(3) In subsection (2) “pre-trial hearing” has the same meaning as in Part 4 (see section 39).

(4) The judge in a trial before a judge and jury— (a) may direct that the jury be given a copy of any defence statement, and (b) if he does so, may direct that it be edited so as not to include references

to matters evidence of which would be inadmissible.

(5) A direction under subsection (4)— (a) may be made either of the judge’s own motion or on the application

of any party; (b) may be made only if the judge is of the opinion that seeing a copy of

the defence statement would help the jury to understand the case or to resolve any issue in the case.

(6) The reference in subsection (4) to a defence statement is a reference— (a) where the accused has given only an initial defence statement (that is,

a defence statement given under section 5 or 6), to that statement; (b) where he has given both an initial defence statement and an updated

defence statement (that is, a defence statement given under section 6B), to the updated defence statement;

(c) where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(4), to the initial defence statement.”

Annotations:

Commencement Information I20 S. 36 wholly in force at 15.7.2005; s. 36 not in force at Royal Assent, see s. 336(3); s. 36 in force for

E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 36 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

37 Continuing duty of disclosure by prosecutor

Before section 8 of the 1996 Act there is inserted—

“7A Continuing duty of prosecutor to disclose

(1) This section applies at all times— (a) after the prosecutor has complied with section 3 or purported to comply

with it, and (b) before the accused is acquitted or convicted or the prosecutor decides

not to proceed with the case concerned.

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(2) The prosecutor must keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which—

(a) might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and

(b) has not been disclosed to the accused.

(3) If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable (or within the period mentioned in subsection (5)(a), where that applies).

(4) In applying subsection (2) by reference to any given time the state of affairs at that time (including the case for the prosecution as it stands at that time) must be taken into account.

(5) Where the accused gives a defence statement under section 5, 6 or 6B— (a) if as a result of that statement the prosecutor is required by this section

to make any disclosure, or further disclosure, he must do so during the period which, by virtue of section 12, is the relevant period for this section;

(b) if the prosecutor considers that he is not so required, he must during that period give to the accused a written statement to that effect.

(6) For the purposes of this section prosecution material is material— (a) which is in the prosecutor’s possession and came into his possession

in connection with the case for the prosecution against the accused, or (b) which, in pursuance of a code operative under Part 2, he has inspected

in connection with the case for the prosecution against the accused.

(7) Subsections (3) to (5) of section 3 (method by which prosecutor discloses) apply for the purposes of this section as they apply for the purposes of that.

(8) Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.

(9) Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000 (c. 23).”

Annotations:

Commencement Information I21 S. 37 wholly in force at 15.7.2005; s. 37 not in force at Royal Assent, see s. 336(3); s. 37 in force for

E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 37 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

38 Application by defence for disclosure

In section 8 of the 1996 Act (application by accused for disclosure), for subsections (1) and (2) there is substituted—

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“(1) This section applies where the accused has given a defence statement under section 5, 6 or 6B and the prosecutor has complied with section 7A(5) or has purported to comply with it or has failed to comply with it.

(2) If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.”

Annotations:

Commencement Information I22 S. 38 wholly in force at 15.7.2005; s. 38 not in force at Royal Assent, see s. 336(3); s. 38 in force for

E.W. at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 37 in force for N.I. at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3))

39 Faults in defence disclosure

For section 11 of the 1996 Act there is substituted—

“11 Faults in disclosure by accused

(1) This section applies in the three cases set out in subsections (2), (3) and (4).

(2) The first case is where section 5 applies and the accused— (a) fails to give an initial defence statement, (b) gives an initial defence statement but does so after the end of the period

which, by virtue of section 12, is the relevant period for section 5, (c) is required by section 6B to give either an updated defence statement

or a statement of the kind mentioned in subsection (4) of that section but fails to do so,

(d) gives an updated defence statement or a statement of the kind mentioned in section 6B(4) but does so after the end of the period which, by virtue of section 12, is the relevant period for section 6B,

(e) sets out inconsistent defences in his defence statement, or (f) at his trial—

(i) puts forward a defence which was not mentioned in his defence statement or is different from any defence set out in that statement,

(ii) relies on a matter which, in breach of the requirements imposed by or under section 6A, was not mentioned in his defence statement,

(iii) adduces evidence in support of an alibi without having given particulars of the alibi in his defence statement, or

(iv) calls a witness to give evidence in support of an alibi without having complied with section 6A(2)(a) or (b) as regards the witness in his defence statement.

(3) The second case is where section 6 applies, the accused gives an initial defence statement, and the accused—

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(a) gives the initial defence statement after the end of the period which, by virtue of section 12, is the relevant period for section 6, or

(b) does any of the things mentioned in paragraphs (c) to (f) of subsection (2).

(4) The third case is where the accused— (a) gives a witness notice but does so after the end of the period which, by

virtue of section 12, is the relevant period for section 6C, or (b) at his trial calls a witness (other than himself) not included, or not

adequately identified, in a witness notice.

(5) Where this section applies— (a) the court or any other party may make such comment as appears

appropriate; (b) the court or jury may draw such inferences as appear proper in deciding

whether the accused is guilty of the offence concerned.

(6) Where— (a) this section applies by virtue of subsection (2)(f)(ii) (including that

provision as it applies by virtue of subsection (3)(b)), and (b) the matter which was not mentioned is a point of law (including any

point as to the admissibility of evidence or an abuse of process) or an authority,

comment by another party under subsection (5)(a) may be made only with the leave of the court.

(7) Where this section applies by virtue of subsection (4), comment by another party under subsection (5)(a) may be made only with the leave of the court.

(8) Where the accused puts forward a defence which is different from any defence set out in his defence statement, in doing anything under subsection (5) or in deciding whether to do anything under it the court shall have regard—

(a) to the extent of the differences in the defences, and (b) to whether there is any justification for it.

(9) Where the accused calls a witness whom he has failed to include, or to identify adequately, in a witness notice, in doing anything under subsection (5) or in deciding whether to do anything under it the court shall have regard to whether there is any justification for the failure.

(10) A person shall not be convicted of an offence solely on an inference drawn under subsection (5).

(11) Where the accused has given a statement of the kind mentioned in section 6B(4), then, for the purposes of subsections (2)(f)(ii) and (iv), the question as to whether there has been a breach of the requirements imposed by or under section 6A or a failure to comply with section 6A(2)(a) or (b) shall be determined—

(a) by reference to the state of affairs at the time when that statement was given, and

(b) as if the defence statement was given at the same time as that statement.

(12) In this section—

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(a) “initial defence statement” means a defence statement given under section 5 or 6;

(b) “updated defence statement” means a defence statement given under section 6B;

(c) a reference simply to an accused’s “defence statement” is a reference— (i) where he has given only an initial defence statement, to that

statement; (ii) where he has given both an initial and an updated defence

statement, to the updated defence statement; (iii) where he has given both an initial defence statement and a

statement of the kind mentioned in section 6B(4), to the initial defence statement;

(d) a reference to evidence in support of an alibi shall be construed in accordance with section 6A(3);

(e) “witness notice” means a notice given under section 6C.”

Annotations:

Commencement Information I23 S. 39 partly in force; s. 39 not in force at Royal Assent, see s. 336(3); s. 39 in force for E.W. for certain

purposes at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (subject to art. 2(2), Sch. 2); s. 39 in force for N.I. for certain purposes at 15.7.2005 by S.I. 2005/1817, art. 2(1)(2) (subject to art. 2(3)); s. 39 in force for E.W. for certain purposes at 1.5.2010 by S.I. 2010/1183, art. 3 (with art. 4)

40 Code of practice for police interviews of witnesses notified by accused

In Part 1 of the 1996 Act after section 21 there is inserted—

“21A Code of practice for police interviews of witnesses notified by accused

(1) The Secretary of State shall prepare a code of practice which gives guidance to police officers, and other persons charged with the duty of investigating offences, in relation to the arranging and conducting of interviews of persons—

(a) particulars of whom are given in a defence statement in accordance with section 6A(2), or

(b) who are included as proposed witnesses in a notice given under section 6C.

(2) The code must include (in particular) guidance in relation to— (a) information that should be provided to the interviewee and the accused

in relation to such an interview; (b) the notification of the accused’s solicitor of such an interview; (c) the attendance of the interviewee’s solicitor at such an interview; (d) the attendance of the accused’s solicitor at such an interview; (e) the attendance of any other appropriate person at such an interview

taking into account the interviewee’s age or any disability of the interviewee.

38 Criminal Justice Act 2003 (c. 44) Part 5 – Disclosure

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(3) Any police officer or other person charged with the duty of investigating offences who arranges or conducts such an interview shall have regard to the code.

(4) In preparing the code, the Secretary of State shall consult— (a) to the extent the code applies to England and Wales—

(i) any person who he considers to represent the interests of chief officers of police;

(ii) the General Council of the Bar; (iii) the Law Society of England and Wales; (iv) the Institute of Legal Executives;

(b) to the extent the code applies to Northern Ireland— (i) the Chief Constable of the Police Service of Northern Ireland;

(ii) the General Council of the Bar of Northern Ireland; (iii) the Law Society of Northern Ireland;

(5) The code shall not come into operation until the Secretary of State by order so provides.

(6) The Secretary of State may from time to time revise the code and subsections (4) and (5) shall apply to a revised code as they apply to the code as first prepared.

(7) An order bringing the code into operation may not be made unless a draft of the order has been laid before each House of Parliament and approved by a resolution of each House.

(8) An order bringing a revised code into operation shall be laid before each House of Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.

(9) When an order or a draft of an order is laid in accordance with subsection (7) or (8), the code to which it relates shall also be laid.

(10) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.

(11) A failure by a person mentioned in subsection (3) to have regard to any provision of a code for the time being in operation by virtue of an order under this section shall not in itself render him liable to any criminal or civil proceedings.

(12) In all criminal and civil proceedings a code in operation at any time by virtue of an order under this section shall be admissible in evidence.

(13) If it appears to a court or tribunal conducting criminal or civil proceedings that —

(a) any provision of a code in operation at any time by virtue of an order under this section, or

(b) any failure mentioned in subsection (11), is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question.”

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Annotations:

Commencement Information I24 S. 40 wholly in force at 5.4.2004, see s. 336(3) and S.I. 2004/829, art. 2(1)(2) (subject to art. 2(3)-(6))

PART 6

ALLOCATION AND SENDING OF OFFENCES

41 Allocation of offences triable either way, and sending cases to Crown Court

Schedule 3 (which makes provision in relation to the allocation and other treatment of offences triable either way, and the sending of cases to the Crown Court) shall have effect.

Annotations:

Commencement Information I25 S. 41 partly in force; s. 41 not in force at Royal Assent, see s. 336(3); s. 41 in force for certain

purposes at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 3 (subject to art. 2(2), Sch. 2)

42 Mode of trial for certain firearms offences: transitory arrangements

(1) The Magistrates' Courts Act 1980 is amended as follows.

(2) In section 24 (summary trial of information against child or young person for indictable offence)—

(a) in subsection (1), for “homicide” there is substituted “ one falling within subsection (1B) below ”,

(b) in subsection (1A)(a), for “of homicide” there is substituted “ falling within subsection (1B) below ”,

“(1B) An offence falls within this subsection if— (a) it is an offence of homicide; or (b) each of the requirements of section 51A(1) of the Firearms

Act 1968 would be satisfied with respect to— (i) the offence; and

(ii) the person charged with it, if he were convicted of the offence.”

(3) In section 25 (power to change from summary trial to committal proceedings and vice versa), in subsection (5), for “homicide” there is substituted “ one falling within section 24(1B) above ”.

40 Criminal Justice Act 2003 (c. 44) Part 7 – Trials on indictment without a jury

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PART 7

TRIALS ON INDICTMENT WITHOUT A JURY

PROSPECTIVE

43 Applications by prosecution for certain fraud cases to be conducted without a jury

(1) This section applies where— (a) one or more defendants are to be tried on indictment for one or more offences,

and (b) notice has been given under section 51B of the Crime and Disorder Act 1998

(c. 37) (notices in serious or complex fraud cases) in respect of that offence or those offences.

(2) The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.

(3) If an application under subsection (2) is made and the judge is satisfied that the condition in subsection (5) is fulfilled, he may make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.

(4) The judge may not make such an order without the approval of the Lord Chief Justice or a judge nominated by him.

(5) The condition is that the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.

(6) In deciding whether or not he is satisfied that that condition is fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial.

(7) But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.

44 Application by prosecution for trial to be conducted without a jury where danger of jury tampering

(1) This section applies where one or more defendants are to be tried on indictment for one or more offences.

(2) The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.

(3) If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.

(4) The first condition is that there is evidence of a real and present danger that jury tampering would take place.

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(5) The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

(6) The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place—

(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,

(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,

(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial.

Annotations:

Commencement Information I26 S. 44 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)

45 Procedure for applications under sections 43 and 44

(1) This section applies— (a) to an application under section 43, and (b) to an application under section 44.

(2) An application to which this section applies must be determined at a preparatory hearing (within the meaning of the 1987 Act or Part 3 of the 1996 Act).

(3) The parties to a preparatory hearing at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.

(4) In section 7(1) of the 1987 Act (which sets out the purposes of preparatory hearings) for paragraphs (a) to (c) there is substituted—

“(a) identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial,

(b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them,

(5) In section 9(11) of that Act (appeal to Court of Appeal) after “above,” there is inserted “ from the refusal by a judge of an application to which section 45 of the Criminal Justice Act 2003 applies or from an order of a judge under section 43 or 44 of that Act which is made on the determination of such an application, ”.

(6) In section 29 of the 1996 Act (power to order preparatory hearing) after subsection (1) there is inserted—

“(1A) A judge of the Crown Court may also order that a preparatory hearing shall be held if an application to which section 45 of the Criminal Justice Act 2003 applies (application for trial without jury) is made.”

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(7) In subsection (2) of that section (which sets out the purposes of preparatory hearings) for paragraphs (a) to (c) there is substituted—

“(a) identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial,

(b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them,

(8) F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) In section 35(1) of that Act (appeal to Court of Appeal) after “31(3),” there is inserted “ from the refusal by a judge of an application to which section 45 of the Criminal Justice Act 2003 applies or from an order of a judge under section 43 or 44 of that Act which is made on the determination of such an application, ”.

(10) In this section— “the 1987 Act” means the Criminal Justice Act 1987 (c. 38), “the 1996 Act” means the Criminal Procedure and Investigations Act 1996

(c. 25).

Annotations:

Amendments (Textual) F23 S. 45(8) repealed (13.4.2006) by Terrorism Act 2006 (c. 11), ss. 37(5), 39, Sch. 3; S.I. 2006/1013, art.

Commencement Information I27 S. 45 partly in force; s. 45 not in force at Royal Assent, see s. 336(3); s. 45 in force for certain purpose

at 24.7.2006 by S.I. 2006/1835, art. 2 (subject to art. 3)

46 Discharge of jury because of jury tampering

(1) This section applies where— (a) a judge is minded during a trial on indictment to discharge the jury, and (b) he is so minded because jury tampering appears to have taken place.

(2) Before taking any steps to discharge the jury, the judge must— (a) inform the parties that he is minded to discharge the jury, (b) inform the parties of the grounds on which he is so minded, and (c) allow the parties an opportunity to make representations.

(3) Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied—

(a) that jury tampering has taken place, and (b) that to continue the trial without a jury would be fair to the defendant or

defendants; but this is subject to subsection (4).

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(4) If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial.

(5) Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled.

(6) Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial.

(7) Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.

Annotations:

Commencement Information I28 S. 46 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)

47 Appeals

(1) An appeal shall lie to the Court of Appeal from an order under section 46(3) or (5).

(2) Such an appeal may be brought only with the leave of the judge or the Court of Appeal.

(3) An order from which an appeal under this section lies is not to take effect— (a) before the expiration of the period for bringing an appeal under this section, or (b) if such an appeal is brought, before the appeal is finally disposed of or

abandoned.

(4) On the termination of the hearing of an appeal under this section, the Court of Appeal may confirm or revoke the order.

(5) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (power by rules to distribute business of Court of Appeal between its civil and criminal divisions)—

(a) the jurisdiction of the Court of Appeal under this section is to be exercised by the criminal division of that court, and

(b) references in this section to the Court of Appeal are to be construed as references to that division.

(6) In section 33(1) of the Criminal Appeal Act 1968 (c. 19) (right of appeal to House of Lords) after “1996” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.

(7) In section 36 of that Act (bail on appeal by defendant) after “hearings)” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.

(8) The Secretary of State may make an order containing provision, in relation to proceedings before the Court of Appeal under this section, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal Act 1968 (subject to any specified modifications).

44 Criminal Justice Act 2003 (c. 44) Part 7 – Trials on indictment without a jury

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Annotations:

Commencement Information I29 S. 47 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)

48 Further provision about trials without a jury

(1) The effect of an order under section 43, 44 or 46(5) is that the trial to which the order relates is to be conducted without a jury.

(2) The effect of an order under section 46(3) is that the trial to which the order relates is to be continued without a jury.

(3) Where a trial is conducted or continued without a jury, the court is to have all the powers, authorities and jurisdiction which the court would have had if the trial had been conducted or continued with a jury (including power to determine any question and to make any finding which would be required to be determined or made by a jury).

(4) Except where the context otherwise requires, any reference in an enactment to a jury, the verdict of a jury or the finding of a jury is to be read, in relation to a trial conducted or continued without a jury, as a reference to the court, the verdict of the court or the finding of the court.

(5) Where a trial is conducted or continued without a jury and the court convicts a defendant—

(a) the court must give a judgment which states the reasons for the conviction at, or as soon as reasonably practicable after, the time of the conviction, and

(b) the reference in section 18(2) of the Criminal Appeal Act 1968 (c. 19) (notice of appeal or of application for leave to appeal to be given within 28 days from date of conviction etc) to the date of the conviction is to be read as a reference to the date of the judgment mentioned in paragraph (a).

(6) Nothing in this Part affects[F24 the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 that any question, finding or verdict mentioned in that section be determined, made or returned by a jury].

Annotations:

Amendments (Textual) F24 S. 48(6): words substituted (31.3.2005) for s. 48(6)(a)(b) by Domestic Violence, Crime and Victims

Act 2004 (c. 28), ss. 58(1), 59, 60 {Sch. 10 para. 60} (with Sch. 12 para. 8); S.I. 2005/579, art. 3(f)(g)

Commencement Information I30 S. 48 partly in force; s. 48 not in force at Royal Assent, see s. 336(3); s. 48 in force for certain

purposes at 24.7.2006 by S.I. 2006/1835, art. 2 (subject to art. 3)

49 Rules of court

(1) Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.

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(2) Without limiting subsection (1), rules of court may in particular make provision for time limits within which applications under this Part must be made or within which other things in connection with this Part must be done.

(3) Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.

50 Application of Part 7 to Northern Ireland

(1) In its application to Northern Ireland this Part is to have effect— (a) subject to subsection (2), and (b) subject to the modifications in subsections (3) to (16).

(2) This Part does not apply in relation to a trial to which section 75 of the Terrorism Act 2000 (c. 11) (trial without jury for certain offences) applies.

(3) For section 45 substitute—

“45 Procedure for applications under sections 43 and 44

(1) This section applies— (a) to an application under section 43, and (b) to an application under section 44.

(2) An application to which this section applies must be determined— (a) at a preparatory hearing (within the meaning of the 1988 Order), or (b) at a hearing specified in, or for which provision is made by, Crown

Court rules.

(3) The parties to a hearing mentioned in subsection (2) at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.

(4) In Article 6(1) of the 1988 Order (which sets out the purposes of preparatory hearings) for sub-paragraphs (a) to (c) there is substituted—

“(a) identifying issues which are likely to be material to the determinations and findings which are likely to be required during the trial;

(b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them;

(5) In Article 8(11) of the 1988 Order (appeal to Court of Appeal) after “(3),” there is inserted “ from the refusal by a judge of an application to which section 45 of the Criminal Justice Act 2003 applies or from an order of a judge under section 43 or 44 of that Act which is made on the determination of such an application, ”.

(6) In this section “the 1988 Order” means the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.”

(4) For section 47(1) substitute—

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“(1) An appeal shall lie to the Court of Appeal— (a) from the refusal by a judge at a hearing mentioned in section 45(2)

(b) of an application to which section 45 applies or from an order of a judge at such a hearing under section 43 or 44 which is made on the determination of such an application,

(b) from an order under section 46(3) or (5).”

(5) In section 47(3) after “order” insert “ or a refusal of an application ”.

(6) In section 47(4) for “confirm or revoke the order” substitute— “(a) where the appeal is from an order, confirm or revoke the order, or (b) where the appeal is from a refusal of an application, confirm the

refusal or make the order which is the subject of the application”.

(7) Omit section 47(5).

(8) For section 47(6) substitute—

“(6) In section 31(1) of the Criminal Appeal (Northern Ireland) Act 1980 (right of appeal to [F25Supreme Court]) after “1988” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.”

(9) For section 47(7) substitute—

“(7) In section 35 of that Act (bail) after “hearings)” there is inserted “ or section 47 of the Criminal Justice Act 2003 ”.”

(10) In section 47(8) [F26(a) for “Secretary of State” substitute Department of Justice in Northern Ireland;

and (b)] for “Criminal Appeal Act 1968” substitute “ Criminal Appeal (Northern

Ireland) Act 1980 ”.

(11) In section 48(4) after “enactment” insert “ (including any provision of Northern Ireland legislation) ”.

(12) For section 48(5)(b) substitute— “(b) the reference in section 16(1) of the Criminal Appeal (Northern

Ireland) Act 1980 (c. 47) (notice of appeal or application for leave) to the date of the conviction is to be read as a reference to the date of the judgment mentioned in paragraph (a).”

(13) In section 48(6)— [F27(a) for “section 4A of the Criminal Procedure (Insanity) Act 1964” substitute

Article 49A of the Mental Health (Northern Ireland) Order 1986, and (b) for “that section” substitute that Article.]

(14) After section 48 insert—

“48A Reporting restrictions

(1) Sections 41 and 42of the Criminal Procedure and Investigations Act 1996 (c. 25) are to apply in relation to—

(a) a hearing of the kind mentioned in section 45(2)(b), and

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(b) any appeal or application for leave to appeal relating to such a hearing, as they apply in relation to a ruling under section 40 of that Act, but subject to the following modifications.

(2) Section 41(2) of that Act is to have effect as if for paragraphs (a) to (d) there were substituted—

“(a) a hearing of the kind mentioned in section 45(2)(b) of the Criminal Justice Act 2003;

(b) any appeal or application for leave to appeal relating to such a hearing.”

(3) Section 41(3) of that Act is to have effect as if— (a) for “(2)” there were substituted “ (2)(a) or an application to that judge

for leave to appeal to the Court of Appeal ”, and (b) after “matter” in the second place where it occurs there were inserted

“ or application ”.

(4) Section 41 of that Act is to have effect as if after subsection (3) there were inserted—

“(3A) The Court of Appeal may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to that Court, or (b) an application to that Court for leave to appeal.

(3B) The [F28Supreme Court] may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to [F29the Supreme Court] , or (b) an application to [F29the Supreme Court] for leave to appeal.”

(5) Section 41(4) of that Act is to have effect as if for “(3) the judge” there were substituted “ (3), (3A) or (3B), the judge, the Court of Appeal or the [F30Supreme Court] ”.

(6) Section 41(5) of that Act is to have effect as if for “(3) the judge” there were substituted “ (3), (3A) or (3B), the judge, the Court of Appeal or the [F30Supreme Court] ”.”

Annotations:

Amendments (Textual) F28 Words in s. 50(14) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4),

148, {Sch. 9 para. 82(2)(b)}; S.I. 2009/1604, art. 2(d) F29 Words in s. 50(14) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4),

148, {Sch. 9 para. 82(2)(b)}; S.I. 2009/1604, art. 2(d) F30 Words in s. 50(14) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4),

148, {Sch. 9 para. 82(2)(c)}; S.I. 2009/1604, art. 2(d)

(15) For section 49(2) substitute—

“(2) Without limiting subsection (1), rules of court may in particular make provision—

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(a) for time limits within which applications under this Part must be made or within which other things in connection with this Part must be done;

(b) in relation to hearings of the kind mentioned in section 45(2)(b) and appeals under section 47.”

(16) In section 49(3)— (a) after “section” insert “ or section 45(2)(b) ”, and (b) after “enactment” insert “ (including any provision of Northern Ireland

legislation) ”.

Annotations:

Amendments (Textual) F25 Words in s. 50(8) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4) ss. 40(4), 148,

{Sch. 9 para. 82(2)(a)}; S.I. 2009/1604, art. 2(d) F26 Words in s. 50(10) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and

Justice Functions) Order 2010 (S.I. 2010/976), arts. 1(2), 12, Sch. 14 para. 78(2) (with arts. 28-31); S.I. 2010/977, art. 1(2)

F27 S. 50(13)(a)(b) substituted (31.3.2005) for s. 50(13)(a)-(c) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 59, 60 {Sch. 10 para. 61} (with Sch. 12 para. 8); S.I. 2005/579, art. 3(e)

Commencement Information I31 S. 50 partly in force; s. 50 not in force at Royal Assent, see s. 336(3); s. 50 in force for certain

purposes at 8.1.2007 by S.I. 2006/3422, art. 2

PART 8

LIVE LINKS

51 Live links in criminal proceedings

(1) A witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings.

(2) They are— (a) a summary trial, (b) an appeal to the Crown Court arising out of such a trial, (c) a trial on indictment, (d) an appeal to the criminal division of the Court of Appeal, (e) the hearing of a reference under section 9 or 11 of the Criminal Appeal Act

1995 (c. 35), (f) a hearing before a magistrates' court or the Crown Court which is held after

the defendant has entered a plea of guilty, and (g) a hearing before the Court of Appeal under section 80 of this Act.

(3) A direction may be given under this section— (a) on an application by a party to the proceedings, or (b) of the court’s own motion.

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(4) But a direction may not be given under this section unless— (a) the court is satisfied that it is in the interests of the efficient or effective

administration of justice for the person concerned to give evidence in the proceedings through a live link,

(b) it has been notified by the Secretary of State that suitable facilities for receiving evidence through a live link are available in the area in which it appears to the court that the proceedings will take place, and

(5) The withdrawal of such a notification is not to affect a direction given under this section before that withdrawal.

(6) In deciding whether to give a direction under this section the court must consider all the circumstances of the case.

(7) Those circumstances include in particular— (a) the availability of the witness, (b) the need for the witness to attend in person, (c) the importance of the witness’s evidence to the proceedings, (d) the views of the witness, (e) the suitability of the facilities at the place where the witness would give

evidence through a live link, (f) whether a direction might tend to inhibit any party to the proceedings from

effectively testing the witness’s evidence.

(8) The court must state in open court its reasons for refusing an application for a direction under this section and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.

Annotations:

Commencement Information I32 S. 51 wholly in force at 26.4.2010; s. 51 not in force at Royal Assent, see s. 336(3); s. 51 in force for

certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 51 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(a) (with art. 4)

52 Effect of, and rescission of, direction

(1) Subsection (2) applies where the court gives a direction under section 51 for a person to give evidence through a live link in particular proceedings.

(2) The person concerned may not give evidence in those proceedings after the direction is given otherwise than through a live link (but this is subject to the following provisions of this section).

(3) The court may rescind a direction under section 51 if it appears to the court to be in the interests of justice to do so.

(4) Where it does so, the person concerned shall cease to be able to give evidence in the proceedings through a live link, but this does not prevent the court from giving a further direction under section 51 in relation to him.

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(5) A direction under section 51 may be rescinded under subsection (3)— (a) on an application by a party to the proceedings, or (b) of the court’s own motion.

(6) But an application may not be made under subsection (5)(a) unless there has been a material change of circumstances since the direction was given.

(7) The court must state in open court its reasons— (a) for rescinding a direction under section 51, or (b) for refusing an application to rescind such a direction,

and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.

Annotations:

Commencement Information I33 S. 52 wholly in force at 26.4.2010; s. 52 not in force at Royal Assent, see s. 336(3); s. 52 in force for

certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 52 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(b) (with art. 4)

53 Magistrates' courts permitted to sit at other locations

(1) This section applies where— (a) a magistrates' court is minded to give a direction under section 51 for evidence

to be given through a live link in proceedings before the court, and (b) suitable facilities for receiving such evidence are not available at any [F31place

at] which the court can (apart from subsection (2)) lawfully sit.

(2) The court may sit for the purposes of the whole or any part of the proceedings at any place at which such facilities are available and which has been [F32authorised by a direction under section 30 of the Courts Act 2003] .

[F33(3) If the place mentioned in subsection (2) is outside the local justice area in which the justices act it shall be deemed to be in that area for the purpose of the jurisdiction of the justices acting in that area.]

Annotations:

Amendments (Textual) F31 Words in s. 53(1)(b) substituted (1.4.2005) by The Courts Act 2003 (Consequential Provisions) Order

2005 (S.I. 2005/886), art. 2, Sch. para. 99(a) F32 Words in s. 53(2) substituted (1.4.2005) by The Courts Act 2003 (Consequential Provisions) Order

2005 (S.I. 2005/886), art. 2, Sch. para. 99(b) F33 S. 53(3) substituted (1.4.2005) by The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I.

2005/886), art. 2, Sch. para. 99(c)

54 Warning to jury

(1) This section applies where, as a result of a direction under section 51, evidence has been given through a live link in proceedings before the Crown Court.

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(2) The judge may give the jury (if there is one) such direction as he thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the proceedings are held.

Annotations:

Commencement Information I34 S. 54 wholly in force at 26.4.2010; s. 54 not in force at Royal Assent, see s. 336(3); s. 54 in force for

certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 54 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(c) (with art. 4)

55 Rules of court

(1) [F34Criminal Procedure Rules] may make such provision as appears to the [F35Criminal Procedure Rule Committee] to be necessary or expedient for the purposes of this Part.

(2) [F36Criminal Procedure Rules] may in particular make provision— (a) as to the procedure to be followed in connection with applications under

section 51 or 52, and (b) as to the arrangements or safeguards to be put in place in connection with the

operation of live links.

(3) The provision which may be made by virtue of subsection (2)(a) includes provision— (a) for uncontested applications to be determined by the court without a hearing, (b) for preventing the renewal of an unsuccessful application under section 51

unless there has been a material change of circumstances, (c) for the manner in which confidential or sensitive information is to be treated

in connection with an application under section 51 or 52 and in particular as to its being disclosed to, or withheld from, a party to the proceedings.

(4) Nothing in this section is to be taken as affecting the generality of any enactment conferring power to make [F37Criminal Procedure Rules] .

Annotations:

Amendments (Textual) F34 Words in s. 55(1) substituted (1.9.2004) by The Courts Act 2003 (Consequential Amendments) Order

2004 (S.I. 2004/2035), art. 3, Sch. para. 47(2)(a) (with art. 2(2)) F35 Words in s. 55(1) substituted (1.9.2004) by The Courts Act 2003 (Consequential Amendments) Order

2004 (S.I. 2004/2035), art. 3 {Sch. para. 47(2)(b)} (with art. 2(2)) F36 Words in s. 55(2) substituted (1.9.2004) by The Courts Act 2003 (Consequential Amendments) Order

2004 (S.I. 2004/2035), art. 3, Sch. para. 47(3) (with art. 2(2)) F37 Words in s. 55(4) substituted (1.9.2004) by The Courts Act 2003 (Consequential Amendments) Order

2004 (S.I. 2004/2035), art. 3, Sch. para. 47(4) (with art. 2(2))

56 Interpretation of Part 8

(1) In this Part— “legal representative” means [F38a person who, for the purposes of the Legal

Services Act 2007, is an authorised person in relation to an activity which

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constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act),]

F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F40 “local justice area” has the same meaning as in the Courts Act 2003

(c. 39)], F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“witness”, in relation to any criminal proceedings, means a person called, or proposed to be called, to give evidence in the proceedings.

(2) In this Part “live link” means a live television link or other arrangement by which a witness, while at a place in the United Kingdom which is outside the building where the proceedings are being held, is able to see and hear a person at the place where the proceedings are being held and to be seen and heard by the following persons.

(3) They are— (a) the defendant or defendants, (b) the judge or justices (or both) and the jury (if there is one), (c) legal representatives acting in the proceedings, and (d) any interpreter or other person appointed by the court to assist the witness.

(4) The extent (if any) to which a person is unable to see or hear by reason of any impairment of eyesight or hearing is to be disregarded for the purposes of subsection (2).

(5) Nothing in this Part is to be regarded as affecting any power of a court— (a) to make an order, give directions or give leave of any description in relation

to any witness (including the defendant or defendants), or (b) to exclude evidence at its discretion (whether by preventing questions being

put or otherwise).

Annotations:

Amendments (Textual) F38 S. 56(1): words in definition of "legal representative" substituted (1.1.2010) by Legal Services Act

2007 (c. 29), ss. 208, 211, Sch. 21 para. 146 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)

F39 In s. 56(1) definition of "petty-sessional court-house" omitted (1.4.2005) by virtue of The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886), art. 2, Sch. para. 100

F40 In s. 56(1) definition of "local justice area" substituted (1.4.2005) for definition of "petty sessions area" by The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886), art. 2, Sch. para. 100

F41 In s. 56(1) definition of "rules of court" omitted (1.9.2004) by virtue of The Courts Act 2003 (Consequential Amendments) Order 2004 (S.I. 2004/2035), art. 3, Sch. para. 48 (with art. 2(2))

Commencement Information I35 S. 56 wholly in force at 26.4.2010; s. 56 not in force at Royal Assent, see s. 336(3); s. 56 in force for

certain purposes at 7.12.2007 by S.I. 2007/3451, arts. 2, 3 (with art. 4); s. 56 in force in so far as not already in force at 26.4.2010 by S.I. 2010/1183, art. 2(d) (with art. 4)

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PART 9

PROSECUTION APPEALS

Introduction

57 Introduction

Annotations:

Commencement Information I36 S. 57 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4

(subject to art. 2(2), Sch. 2)

(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.

(2) But the prosecution is to have no right of appeal under this Part in respect of— (a) a ruling that a jury be discharged, or (b) a ruling from which an appeal lies to the Court of Appeal by virtue of any

other enactment.

(3) An appeal under this Part is to lie to the Court of Appeal.

(4) Such an appeal may be brought only with the leave of the judge or the Court of Appeal.

Annotations:

Commencement Information I36 S. 57 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

General right of appeal in respect of rulings

58 General right of appeal in respect of rulings

(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2) The prosecution may appeal in respect of the ruling in accordance with this section.

(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

(4) The prosecution may not appeal in respect of the ruling unless— (a) following the making of the ruling, it—

(i) informs the court that it intends to appeal, or (ii) requests an adjournment to consider whether to appeal, and

(b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

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(5) If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment.

(6) Where the ruling relates to two or more offences— (a) any one or more of those offences may be the subject of the appeal, and (b) if the prosecution informs the court in accordance with subsection (4) that it

intends to appeal, it must at the same time inform the court of the offence or offences which are the subject of the appeal.

(7) Where— (a) the ruling is a ruling that there is no case to answer, and (b) the prosecution, at the same time that it informs the court in accordance with

subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,

that other ruling, or those other rulings, are also to be treated as the subject of the appeal.

(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9) Those conditions are— (a) that leave to appeal to the Court of Appeal is not obtained, and (b) that the appeal is abandoned before it is determined by the Court of Appeal.

(10) If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

(11) If and to the extent that a ruling has no effect in accordance with this section— (a) any consequences of the ruling are also to have no effect, (b) the judge may not take any steps in consequence of the ruling, and (c) if he does so, any such steps are also to have no effect.

(12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

(13) In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the [F42time when the judge starts his] summing-up to the jury.

[F43(14) The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.]

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Annotations:

Amendments (Textual) F42 Words in s. 58(13) substituted (8.1.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28),

ss. 30(1), 60; S.I. 2006/3423, art. 2 (subject to art. 3) F43 S. 58(14) inserted (8.1.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 30(2), 60;

S.I. 2006/3423, art. 2 (subject to art. 3)

Commencement Information I37 S. 58 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

59 Expedited and non-expedited appeals

(1) Where the prosecution informs the court in accordance with section 58(4) that it intends to appeal, the judge must decide whether or not the appeal should be expedited.

(2) If the judge decides that the appeal should be expedited, he may order an adjournment.

(3) If the judge decides that the appeal should not be expedited, he may— (a) order an adjournment, or (b) discharge the jury (if one has been sworn).

(4) If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b).

Annotations:

Commencement Information I38 S. 59 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

60 Continuation of proceedings for offences not affected by ruling

(1) This section applies where the prosecution informs the court in accordance with section 58(4) that it intends to appeal.

(2) Proceedings may be continued in respect of any offence which is not the subject of the appeal.

Annotations:

Commencement Information I39 S. 60 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

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61 Determination of appeal by Court of Appeal

(1) On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

(2) Subsections (3) to (5) apply where the appeal relates to a single ruling.

(3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(4) Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a) order that proceedings for that offence may be resumed in the Crown Court, (b) order that a fresh trial may take place in the Crown Court for that offence, (c) order that the defendant in relation to that offence be acquitted of that offence.

[F44(5) But the Court of Appeal may not make an order under subsection (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under subsection (4)(a) or (b).]

(6) Subsections (7) and (8) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.

(7) Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(8) Where the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal, make any of the orders mentioned in subsection (4)(a) to (c) (but subject to subsection (5)).

Annotations:

Amendments (Textual) F44 S. 61(5) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 44, 153 (with

Sch. 27 para. 16); S.I. 2008/1586, art. 2(1), Sch. 1 para. 23

Commencement Information I40 S. 61 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

PROSPECTIVE

Right of appeal in respect of evidentiary rulings

62 Right of appeal in respect of evidentiary rulings

(1) The prosecution may, in accordance with this section and section 63, appeal in respect of—

(a) a single qualifying evidentiary ruling, or (b) two or more qualifying evidentiary rulings.

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(2) A “qualifying evidentiary ruling” is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.

(3) The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(4) The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(5) If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—

(a) of its intention to do so, and (b) of the ruling or rulings to which the appeal relates.

(6) In respect of the ruling, or each ruling, to which the appeal relates— (a) the qualifying offence, or at least one of the qualifying offences, to which the

ruling relates must be the subject of the appeal, and (b) any other offence to which the ruling relates may, but need not, be the subject

of the appeal.

(7) The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.

(8) For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—

(a) evidence begins to be adduced by or on behalf of a defendant, (b) it is indicated to the court that no evidence will be adduced by or on behalf

of a defendant, (c) a defendant’s case is opened, as permitted by section 2 of the Criminal

Procedure Act 1865 (c. 18).

(9) In this section— “evidentiary ruling” means a ruling which relates to the admissibility or

exclusion of any prosecution evidence, “qualifying offence” means an offence described in Part 1 of Schedule 4.

(10) The Secretary of State may by order amend that Part by doing any one or more of the following—

(a) adding a description of offence, (b) removing a description of offence for the time being included, (c) modifying a description of offence for the time being included.

(11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 58.

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63 Condition that evidentiary ruling significantly weakens prosecution case

(1) Leave to appeal may not be given in relation to an appeal under section 62 unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled.

(2) In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution’s case in relation to the offence or offences which are the subject of the appeal.

(3) In relation to an appeal in respect of two or more qualifying evidentiary rulings, the relevant condition is that the rulings taken together significantly weaken the prosecution’s case in relation to the offence or offences which are the subject of the appeal.

64 Expedited and non-expedited appeals

(1) Where the prosecution informs the court in accordance with section 62(5), the judge must decide whether or not the appeal should be expedited.

(2) If the judge decides that the appeal should be expedited, he may order an adjournment.

(3) If the judge decides that the appeal should not be expedited, he may— (a) order an adjournment, or (b) discharge the jury (if one has been sworn).

65 Continuation of proceedings for offences not affected by ruling

(1) This section applies where the prosecution informs the court in accordance with section 62(5).

(2) Proceedings may be continued in respect of any offence which is not the subject of the appeal.

66 Determination of appeal by Court of Appeal

(1) On an appeal under section 62, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

(2) In addition, the Court of Appeal must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a) order that proceedings for that offence be resumed in the Crown Court, (b) order that a fresh trial may take place in the Crown Court for that offence, (c) order that the defendant in relation to that offence be acquitted of that offence.

(3) But no order may be made under subsection (2)(c) in respect of an offence unless the prosecution has indicated that it does not intend to continue with the prosecution of that offence.

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Miscellaneous and supplemental

67 Reversal of rulings

The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—

(a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have

made.

Annotations:

Commencement Information I41 S. 67 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

68 Appeals to the House of Lords

(1) In section 33(1) of the 1968 Act (right of appeal to House of Lords) after “this Act” there is inserted “ or Part 9 of the Criminal Justice Act 2003 ”.

(2) In section 36 of the 1968 Act (bail on appeal by defendant) after “under” there is inserted “ Part 9 of the Criminal Justice Act 2003 or ”.

(3) In this Part “the 1968 Act” means the Criminal Appeal Act 1968 (c. 19).

Annotations:

Commencement Information I42 S. 68 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

69 Costs

(1) The Prosecution of Offences Act 1985 (c. 23) is amended as follows.

(2) In section 16(4A) (defence costs on an appeal under section 9(11) of Criminal Justice Act 1987 may be met out of central funds) after “hearings)” there is inserted “ or under Part 9 of the Criminal Justice Act 2003 ”.

(3) In section 18 (award of costs against accused) after subsection (2) there is inserted—

“(2A) Where the Court of Appeal reverses or varies a ruling on an appeal under Part 9 of the Criminal Justice Act 2003, it may make such order as to the costs to be paid by the accused, to such person as may be named in the order, as it considers just and reasonable.”

(4) In subsection (6) after “subsection (2)” there is inserted “ or (2A) ”.

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Annotations:

Commencement Information I43 S. 69 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

70 Effect on time limits in relation to preliminary stages

(1) Section 22 of the Prosecution of Offences Act 1985 (c. 23) (power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings) is amended as follows.

(2) After subsection (6A) there is inserted—

“(6B) Any period during which proceedings for an offence are adjourned pending the determination of an appeal under Part 9 of the Criminal Justice Act 2003 shall be disregarded, so far as the offence is concerned, for the purposes of the overall time limit and the custody time limit which applies to the stage which the proceedings have reached when they are adjourned.”

Annotations:

Commencement Information I44 S. 70 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

71 Restrictions on reporting

(1) Except as provided by this section no publication shall include a report of— (a) anything done under section 58, 59, 62, 63 or 64, (b) an appeal under this Part, (c) an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part,

or (d) an application for leave to appeal in relation to an appeal mentioned in

paragraph (b) or (c).

(2) The judge may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of—

(a) anything done under section 58, 59, 62, 63 or 64, or (b) an application to the judge for leave to appeal to the Court of Appeal under

this Part.

(3) The Court of Appeal may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of—

(a) an appeal to the Court of Appeal under this Part, (b) an application to that Court for leave to appeal to it under this Part, or (c) an application to that Court for leave to appeal to the [F45Supreme Court] under

Part 2 of the 1968 Act.

(4) The [F46Supreme Court] may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of—

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(a) an appeal to [F47the Supreme Court] under Part 2 of the 1968 Act, or (b) an application to [F47the Supreme Court] for leave to appeal to it under Part

2 of that Act.

(5) Where there is only one defendant and he objects to the making of an order under subsection (2), (3) or (4)—

(a) the judge, the Court of Appeal or the [F48Supreme Court is] to make the order if (and only if) satisfied, after hearing the representations of the defendant, that it is in the interests of justice to do so, and

(b) the order (if made) is not to apply to the extent that a report deals with any such objection or representations.

(6) Where there are two or more defendants and one or more of them object to the making of an order under subsection (2), (3) or (4)—

(a) the judge, the Court of Appeal or the [F48Supreme Court is] to make the order if (and only if) satisfied, after hearing the representations of each of the defendants, that it is in the interests of justice to do so, and

(b) the order (if made) is not to apply to the extent that a report deals with any such objection or representations.

(7) Subsection (1) does not apply to the inclusion in a publication of a report of— (a) anything done under section 58, 59, 62, 63 or 64, (b) an appeal under this Part, (c) an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part,

or (d) an application for leave to appeal in relation to an appeal mentioned in

paragraph (b) or (c), at the conclusion of the trial of the defendant or the last of the defendants to be tried.

(8) Subsection (1) does not apply to a report which contains only one or more of the following matters—

(a) the identity of the court and the name of the judge, (b) the names, ages, home addresses and occupations of the defendant or

defendants and witnesses, (c) the offence or offences, or a summary of them, with which the defendant or

defendants are charged, (d) the names of counsel and solicitors in the proceedings, (e) where the proceedings are adjourned, the date and place to which they are

adjourned, (f) any arrangements as to bail, (g) whether a right to representation funded by the Legal Services Commission

as part of the Criminal Defence Service was granted to the defendant or any of the defendants.

(9) The addresses that may be included in a report by virtue of subsection (8) are addresses —

(a) at any relevant time, and (b) at the time of their inclusion in the publication.

(10) Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of any matter in a publication.

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(11) In this section— “programme service” has the same meaning as in the Broadcasting Act

1990 (c. 42), “publication” includes any speech, writing, relevant programme or other

communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme is to be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings,

“relevant time” means a time when events giving rise to the charges to which the proceedings relate are alleged to have occurred,

“relevant programme” means a programme included in a programme service.

Annotations:

Amendments (Textual) F45 Words in s. 71(3) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148,

Sch. 9 para. 82(3)(a); S.I. 2009/1604, art. 2(d) F46 Words in s. 71(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148,

Sch. 9 para. 82(3)(b); S.I. 2009/1604, art. 2(d) F47 Words in s. 71(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148,

Sch. 9 para. 82(3)(b); S.I. 2009/1604, art. 2(d) F48 Words in s. 71(5)(6) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148,

Sch. 9 para. 82(3)(c); S.I. 2009/1604, art. 2(d)

Commencement Information I45 S. 71 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

72 Offences in connection with reporting

(1) This section applies if a publication includes a report in contravention of section 71.

(2) Where the publication is a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical is guilty of an offence.

(3) Where the publication is a relevant programme— (a) any body corporate or Scottish partnership engaged in providing the

programme service in which the programme is included, and (b) any person having functions in relation to the programme corresponding to

those of an editor of a newspaper, is guilty of an offence.

(4) In the case of any other publication, any person publishing it is guilty of an offence.

(5) If an offence under this section committed by a body corporate is proved— (a) to have been committed with the consent or connivance of, or (b) to be attributable to any neglect on the part of,

an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

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(6) In subsection (5), “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(7) If the affairs of a body corporate are managed by its members, “director” in subsection (6) means a member of that body.

(8) Where an offence under this section is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(9) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(10) Proceedings for an offence under this section may not be instituted— (a) in England and Wales otherwise than by or with the consent of the Attorney

General, or (b) in Northern Ireland otherwise than by or with the consent of—

(i) before the relevant date, the Attorney General for Northern Ireland, or (ii) on or after the relevant date, the Director of Public Prosecutions for

Northern Ireland.

(11) In subsection (10) “the relevant date” means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 (c. 26) comes into force.

Annotations:

Commencement Information I46 S. 72 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

73 Rules of court

(1) Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.

(2) Without limiting subsection (1), rules of court may in particular make provision— (a) for time limits which are to apply in connection with any provisions of this

Part, (b) as to procedures to be applied in connection with this Part, (c) enabling a single judge of the Court of Appeal to give leave to appeal under

this Part or to exercise the power of the Court of Appeal under section 58(12).

(3) Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.

74 Interpretation of Part 9

(1) In this Part— “programme service” has the meaning given by section 71(11), “publication” has the meaning given by section 71(11),

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“qualifying evidentiary ruling” is to be construed in accordance with section 62(2),

“the relevant condition” is to be construed in accordance with section 63(2) and (3),

“relevant programme” has the meaning given by section 71(11), “ruling” includes a decision, determination, direction, finding, notice,

order, refusal, rejection or requirement, “the 1968 Act” means the Criminal Appeal Act 1968 (c. 19).

(2) Any reference in this Part (other than section 73(2)(c)) to a judge is a reference to a judge of the Crown Court.

(3) There is to be no right of appeal under this Part in respect of a ruling in relation to which the prosecution has previously informed the court of its intention to appeal under either section 58(4) or 62(5).

(4) Where a ruling relates to two or more offences but not all of those offences are the subject of an appeal under this Part, nothing in this Part is to be regarded as affecting the ruling so far as it relates to any offence which is not the subject of the appeal.

(5) Where two or more defendants are charged jointly with the same offence, the provisions of this Part are to apply as if the offence, so far as relating to each defendant, were a separate offence (so that, for example, any reference in this Part to a ruling which relates to one or more offences includes a ruling which relates to one or more of those separate offences).

(6) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (power by rules to distribute business of Court of Appeal between its civil and criminal divisions)—

(a) the jurisdiction of the Court of Appeal under this Part is to be exercised by the criminal division of that court, and

(b) references in this Part to the Court of Appeal are to be construed as references to that division.

[F49(7) In its application to a trial on indictment in respect of which an order under section 17(2) of the Domestic Violence, Crime and Victims Act 2004 has been made, this Part is to have effect with such modifications as the Secretary of State may by order specify.]

Annotations:

Amendments (Textual) F49 S. 74(7) inserted (8.1.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60,

Sch. 10 para. 62; S.I. 2006/3423, art. 2 (subject to art. 3)

Commencement Information I47 S. 74 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 4 (subject to

art. 2(2), Sch. 2)

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PART 10

RETRIAL FOR SERIOUS OFFENCES

Cases that may be retried

75 Cases that may be retried

(1) This Part applies where a person has been acquitted of a qualifying offence in proceedings—

(a) on indictment in England and Wales, (b) on appeal against a conviction, verdict or finding in proceedings on indictment

in England and Wales, or (c) on appeal from a decision on such an appeal.

(2) A person acquitted of an offence in proceedings mentioned in subsection (1) is treated for the purposes of that subsection as also acquitted of any qualifying offence of which he could have been convicted in the proceedings because of the first-mentioned offence being charged in the indictment, except an offence—

(a) of which he has been convicted, (b) of which he has been found not guilty by reason of insanity, or (c) in respect of which, in proceedings where he has been found to be under a

disability (as defined by section 4 of the Criminal Procedure (Insanity) Act 1964 (c. 84)), a finding has been made that he did the act or made the omission charged against him.

(3) References in subsections (1) and (2) to a qualifying offence do not include references to an offence which, at the time of the acquittal, was the subject of an order under section 77(1) or (3).

(4) This Part also applies where a person has been acquitted, in proceedings elsewhere than in the United Kingdom, of an offence under the law of the place where the proceedings were held, if the commission of the offence as alleged would have amounted to or included the commission (in the United Kingdom or elsewhere) of a qualifying offence.

(5) Conduct punishable under the law in force elsewhere than in the United Kingdom is an offence under that law for the purposes of subsection (4), however it is described in that law.

(6) This Part applies whether the acquittal was before or after the passing of this Act.

(7) References in this Part to acquittal are to acquittal in circumstances within subsection (1) or (4).

(8) In this Part “qualifying offence” means an offence listed in Part 1 of Schedule 5.

Annotations:

Commencement Information I48 S. 75 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

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Application for retrial

76 Application to Court of Appeal

(1) A prosecutor may apply to the Court of Appeal for an order— (a) quashing a person’s acquittal in proceedings within section 75(1), and (b) ordering him to be retried for the qualifying offence.

(2) A prosecutor may apply to the Court of Appeal, in the case of a person acquitted elsewhere than in the United Kingdom, for—

(a) a determination whether the acquittal is a bar to the person being tried in England and Wales for the qualifying offence, and

(b) if it is, an order that the acquittal is not to be a bar.

(3) A prosecutor may make an application under subsection (1) or (2) only with the written consent of the Director of Public Prosecutions.

(4) The Director of Public Prosecutions may give his consent only if satisfied that— (a) there is evidence as respects which the requirements of section 78 appear to

be met, (b) it is in the public interest for the application to proceed, and (c) any trial pursuant to an order on the application would not be inconsistent with

obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem.

(5) Not more than one application may be made under subsection (1) or (2) in relation to an acquittal.

Annotations:

Commencement Information I49 S. 76 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

77 Determination by Court of Appeal

(1) On an application under section 76(1), the Court of Appeal— (a) if satisfied that the requirements of sections 78 and 79 are met, must make

the order applied for; (b) otherwise, must dismiss the application.

(2) Subsections (3) and (4) apply to an application under section 76(2).

(3) Where the Court of Appeal determines that the acquittal is a bar to the person being tried for the qualifying offence, the court—

(a) if satisfied that the requirements of sections 78 and 79 are met, must make the order applied for;

(b) otherwise, must make a declaration to the effect that the acquittal is a bar to the person being tried for the offence.

(4) Where the Court of Appeal determines that the acquittal is not a bar to the person being tried for the qualifying offence, it must make a declaration to that effect.

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Annotations:

Commencement Information I50 S. 77 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

78 New and compelling evidence

(1) The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3) Evidence is compelling if— (a) it is reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case

against the acquitted person.

(4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

(5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

Annotations:

Commencement Information I51 S. 78 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

79 Interests of justice

(1) The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77.

(2) That question is to be determined having regard in particular to— (a) whether existing circumstances make a fair trial unlikely; (b) for the purposes of that question and otherwise, the length of time since the

qualifying offence was allegedly committed; (c) whether it is likely that the new evidence would have been adduced in the

earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition;

(d) whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.

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(3) In subsection (2) references to an officer or prosecutor include references to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.

(4) Where the earlier prosecution was conducted by a person other than a prosecutor, subsection (2)(c) applies in relation to that person as well as in relation to a prosecutor.

Annotations:

Commencement Information I52 S. 79 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

80 Procedure and evidence

(1) A prosecutor who wishes to make an application under section 76(1) or (2) must give notice of the application to the Court of Appeal.

(2) Within two days beginning with the day on which any such notice is given, notice of the application must be served by the prosecutor on the person to whom the application relates, charging him with the offence to which it relates or, if he has been charged with it in accordance with section 87(4), stating that he has been so charged.

(3) Subsection (2) applies whether the person to whom the application relates is in the United Kingdom or elsewhere, but the Court of Appeal may, on application by the prosecutor, extend the time for service under that subsection if it considers it necessary to do so because of that person’s absence from the United Kingdom.

(4) The Court of Appeal must consider the application at a hearing.

(5) The person to whom the application relates— (a) is entitled to be present at the hearing, although he may be in custody, unless

he is in custody elsewhere than in England and Wales or Northern Ireland, and (b) is entitled to be represented at the hearing, whether he is present or not.

(6) For the purposes of the application, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing, the production of which appears to the court to be necessary for the determination of the application, and

(b) order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the court.

(7) The Court of Appeal may at one hearing consider more than one application (whether or not relating to the same person), but only if the offences concerned could be tried on the same indictment.

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Annotations:

Commencement Information I53 S. 80 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

81 Appeals

(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.

(2) In section 33 (right of appeal to [F50Supreme Court]), after subsection (1A) there is inserted—

“(1B) An appeal lies to the [F50Supreme Court] , at the instance of the acquitted person or the prosecutor, from any decision of the Court of Appeal on an application under section 76(1) or (2) of the Criminal Justice Act 2003 (retrial for serious offences).”

(3) At the end of that section there is inserted—

“(4) In relation to an appeal under subsection (1B), references in this Part to a defendant are references to the acquitted person.”

(4) In section 34(2) (extension of time for leave to appeal), after “defendant” there is inserted “ or, in the case of an appeal under section 33(1B), by the prosecutor ”.

(5) In section 38 (presence of defendant at hearing), for “has been convicted of an offence and” substitute “ has been convicted of an offence, or in whose case an order under section 77 of the Criminal Justice Act 2003 or a declaration under section 77(4) of that Act has been made, and who ”.

Annotations:

Amendments (Textual) F50 Words in s. 81(2) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148,

Sch. 9 para. 82(4); S.I. 2009/1604, art. 2(d)

Commencement Information I54 S. 81 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

82 Restrictions on publication in the interests of justice

(1) Where it appears to the Court of Appeal that the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial, the court may order that the matter is not to be included in any publication while the order has effect.

(2) In subsection (1) “retrial” means the trial of an acquitted person for a qualifying offence pursuant to any order made or that may be made under section 77.

(3) The court may make an order under this section only if it appears to it necessary in the interests of justice to do so.

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(4) An order under this section may apply to a matter which has been included in a publication published before the order takes effect, but such an order—

(a) applies only to the later inclusion of the matter in a publication (whether directly or by inclusion of the earlier publication), and

(b) does not otherwise affect the earlier publication.

(5) After notice of an application has been given under section 80(1) relating to the acquitted person and the qualifying offence, the court may make an order under this section only—

(a) of its own motion, or (b) on the application of the Director of Public Prosecutions.

(6) Before such notice has been given, an order under this section— (a) may be made only on the application of the Director of Public Prosecutions,

and (b) may not be made unless, since the acquittal concerned, an investigation of

the commission by the acquitted person of the qualifying offence has been commenced by officers.

(7) The court may at any time, of its own motion or on an application made by the Director of Public Prosecutions or the acquitted person, vary or revoke an order under this section.

(8) Any order made under this section before notice of an application has been given under section 80(1) relating to the acquitted person and the qualifying offence must specify the time when it ceases to have effect.

(9) An order under this section which is made or has effect after such notice has been given ceases to have effect, unless it specifies an earlier time—

(a) when there is no longer any step that could be taken which would lead to the acquitted person being tried pursuant to an order made on the application, or

(b) if he is tried pursuant to such an order, at the conclusion of the trial.

(10) Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of any matter in a publication or any power, under an enactment or otherwise, to impose such a prohibition or restriction.

(11) In this section— “programme service” has the same meaning as in the Broadcasting Act

1990 (c. 42), “publication” includes any speech, writing, relevant programme or other

“relevant programme” means a programme included in a programme service.

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Annotations:

Commencement Information I55 S. 82 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 5 (subject to

art. 2(2), Sch. 2)

83 Offences in connection with publication restrictions

(1) This section applies if— (a) an order under section 82 is made, whether in England and Wales or Northern

Ireland, and (b) while the order has effect, any matter is included in a publication, in any part

of the United Kingdom, in contravention of the order.