Senior Courts Of England And Wales Citation, commencement and interpretation 1 These Rules may be cited as the Criminal Procedure (Amendment No. 2) Rules 2016 and shall come into force on 3rd October 2016. 2 In these Rules, a reference to a Part or rule by number alone means the Part or rule so numbered in the Criminal Procedure Rules 2015 . Amendments to the Criminal Procedure Rules 2015 3 In Part 3 (Case management)— a in rule 3.2 (The duty of the court), after paragraph (3) insert— 4 Where appropriate live links are available, making use of technology for the purposes of this rule includes directing the use of such facilities, whether an application for such a direction is made or not― a for the conduct of a pre-trial hearing, including a pre-trial case management hearing; b for the defendant’s attendance at such a hearing― i where the defendant is in custody, or where the defendant is not in custody and wants to attend by live link, but ii only if the court is satisfied that the defendant can participate effectively by such means, having regard to all the circumstances including whether the defendant is represented or not; and c for receiving evidence under one of the powers to which the rules in Part 18 apply (Measures to assist a witness or defendant to give evidence). 5 Where appropriate telephone facilities are available, making use of technology for the purposes of this rule includes directing the use of such facilities, whether an application for such a direction is made or not, for the conduct of a pre-trial case management hearing― a if telephone facilities are more convenient for that purpose than live links; b unless at that hearing the court expects to take the defendant’s plea; and c only if― i the defendant is represented, or ii exceptionally, the court is satisfied that the defendant can participate effectively by such means without a representative. [Note. In relation to the defendant’s attendance by live link at a pre-trial hearing, see sections 46ZA and 47 of the Police and Criminal Evidence Act 1984 and sections 57A to 57D and 57F of the Crime and Disorder Act 1998 . In relation to the giving of evidence by a witness and the giving of evidence by the defendant, see section 32 of the Criminal Justice Act 1988 , sections 19, 24 and 33A of the Youth Justice and Criminal Evidence Act 1999 and section 51 of the Criminal Justice Act 2003 . Part 18 (Measures to assist a witness or defendant to give evidence) contains relevant rules.] ; b in rule 3.3 (The duty of the parties)— i at the end of paragraph (2)(c) omit ‘and’, ii at the end of paragraph (2)(d) insert ‘; and’, and iii after paragraph (2)(d) insert— e alerting the court to any reason why― i a direction should not be made in any of the circumstances listed in rule 3.2(4) or (5) (The duty of the court: use of live link or telephone facilities), or ii such a direction should be varied or revoked. ; c in rule 3.5 (The court’s case management powers), for paragraph (2)(d) substitute— d receive applications, notices, representations and information by letter, by telephone, by live link, by email or by any other means of electronic communication, and conduct a hearing by live link, telephone or other such electronic means; ; d in rule 3.21 (Application for joint or separate trials, etc. )— i after paragraph (3) insert— 4 Where the same indictment charges more than one offence, the court— a must exercise its power to order separate trials of those offences unless the offences to be tried together— i are founded on the same facts, or ii form or are part of a series of offences of the same or a similar character; b may exercise its power to order separate trials of those offences if of the opinion that— i the defendant otherwise may be prejudiced or embarrassed in his or her defence, or ii for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences. ; and ii in the note to the rule, after ‘Rule 10.2’ insert ‘(The indictment: general rules)’; e in rule 3.24 (Arraigning the defendant on the indictment)— i renumber paragraphs (1)(a) and (b) as (1)(b) and (c) respectively, ii before paragraph (1)(b), as so renumbered, insert— a obtain the prosecutor’s confirmation, in writing or orally— i that the indictment (or draft indictment, as the case may be) sets out a statement of each offence that the prosecutor wants the court to try and such particulars of the conduct constituting the commission of each such offence as the prosecutor relies upon to make clear what is alleged, and ii of the order in which the prosecutor wants the defendants’ names to be listed in the indictment, if the prosecutor proposes that more than one defendant should be tried at the same time; , iii in paragraph (1)(b), as so renumbered, after ‘indictment’ insert ‘or draft indictment’, iv in paragraph (1)(c), as so renumbered, for ‘in respect of each count in the indictment’ substitute ‘in respect of each count’, and v in the note to the rule, at the end of the first paragraph insert ‘: see in particular rule 10.2 (The indictment: general rules)’. 4 In Part 6 (Reporting, etc. restrictions), in rule 6.3(1)(d)(ii) (Court’s power to vary requirements under this Part), for ‘serve a written application’ substitute ‘serve an application’. 5 In Part 9 (Allocation and sending for trial)— a in rule 9.6 (Prosecutor’s notice requiring Crown Court trial), in paragraph (2) omit ‘written’; and b for the final paragraph of the note to rule 9.10 (Adult defendant: not guilty plea) substitute— The Sentencing Council may issue allocation guidelines under section 122 of the Coroners and Justice Act 2009 . The definitive allocation guideline which took effect on 1 st March, 2016 provides: 1 In general, either way offences should be tried summarily unless— a the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or b for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases. 2 In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers. 3 Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order. 4 All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer. Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence. . 6 For Part 10 (The indictment) substitute the Part set out in the Schedule to these Rules. 7 In Part 14 (Bail and custody time limits)— a for the first paragraph of the note to rule 14.7 (The duty of the court) substitute— Note. The Practice Direction sets out a form of application for use in connection with this rule, and forms of application, draft order and certificate for use where an applicant wants the court to exercise the powers to which rule 14.16 applies (Bail condition to be enforced in another European Union member State). ; b in rule 14.16 (Bail condition to be enforced in another European Union member State)— i at the end of paragraph (4)(b)(i) insert ‘, or’, ii after paragraph (4) insert— 5 A party who wants the court to exercise the power to which this rule applies must serve with an application under rule 14.7 (Notice of application to consider bail)— a a draft order; and b a draft certificate in the form required by EU Council Framework Decision 2009/829/JHA. , and iii for the first paragraph of the note to the rule substitute— Note. The Practice Direction sets out a form of application under rule 14.7 and forms of draft order and certificate for use in connection with this rule. See regulations 77 to 84 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 . . 8 In Part 16 (Written witness statements), for rule 16.3 (Reference to exhibit) substitute— 16.3 Where the statement refers to a document or object as an exhibit, it must identify that document or object clearly. [Note. See section 9(7) of the Criminal Justice Act 1967 .] . 9 In Part 18 (Measures to assist a witness or defendant to give evidence), in rule 18.4 (Decisions and reasons)— a renumber paragraph (2) as (3), b after paragraph (1) insert— 2 The court must— a promptly determine an application; and b allow a party sufficient time to comply with the requirements of— i paragraph (1), and ii the code of practice issued under section 32 of the Domestic Violence, Crime and Victims Act 2004 . ; and c in the note to the rule, after the first paragraph insert— Under section 32 of the Domestic Violence, Crime and Victims Act 2004, the Secretary of State for Justice must issue a code of practice as to the services to be provided by specified persons to a victim of criminal conduct. . 10 In Part 29 (Road traffic penalties), after the first paragraph of the note to rule 29.1 (Representations about obligatory disqualification or endorsement) insert— For the circumstances in whichthe period of a disqualification from driving must or may be extended where the court also imposes a custodial sentence, see sections 35A and 35B of the 1988 Act . . 11 In Part 31 (Behaviour orders)— a in the first paragraph of the note to rule 31.1 (When this Part applies), after sub-paragraph (a)(viii) insert— ix section 19 of the Psychoactive Substances Act 2016 (prohibition orders); ; b in rule 31.3 (Application for behaviour order and notice of terms of proposed order: special rules)— i at the end of paragraph (1)(a)(ii) omit ‘or’, ii after paragraph (1)(a)(iii) insert— iv a prohibition order; or , iii in paragraph (4)(a) omit ‘written’, iv in paragraph (6), for ‘or a criminal behaviour order’ substitute ‘, a criminal behaviour order or a prohibition order’, and v in the note to the rule, at the end of the fourth paragraph insert ‘, and under section 33 of the Psychoactive Substances Act 2016 the court may do so in proceedings for a prohibition order’; c in rule 31.4 (Evidence to assist the court: special rules), in paragraph (2)(a) omit ‘in writing’; d in rule 31.5 (Application to vary or revoke behaviour order), in paragraph (3)(a) omit ‘in writing’; e in rule 31.6 (Notice of hearsay evidence), in paragraph (1)(a), for ‘serve a notice in writing’ substitute ‘serve notice’; and f in rule 31.8 (Credibility and consistency of maker of hearsay statement)— i in paragraph (2)(a), for ‘serve a written notice’ substitute ‘serve notice’, and ii in paragraph (3)(b), for ‘serve a notice’ substitute ‘serve notice’. 12 In Part 34 (Appeal to the Crown Court), in rule 34.2 (Service of appeal notice)— a for paragraph (4) substitute— 4 Where both the magistrates’ court and the Crown Court can grant bail or suspend a disqualification pending appeal, an application must indicate by which court the appellant wants the application determined. ; and b in the note to the rule, after the first paragraph insert— Under section 113 of the Magistrates’ Courts Act 1980 , the magistrates’ court may grant an appellant bail pending appeal. Under section 81(1)(b) of the Senior Courts Act 1981 , the Crown Court also may do so. See also rule 14.7. . 13 In Part 35 (Appeal to the High Court by case stated), after the first paragraph of the note to rule 35.2 (Application to state a case) insert— Under section 113 of the Magistrates’ Courts Act 1980, the magistrates’ court may grant an appellant bail pending appeal. Under section 81(1)(d) of the Senior Courts Act 1981 , the Crown Court may do so. See also rule 14.7. . 14 In Part 45 (Costs)— a in rule 45.6 (Costs on appeal), in paragraph (5)(b) omit ‘written’; b in rule 45.8 (Costs resulting from unnecessary or improper act), in paragraph (6)(b) omit ‘written’; c in rule 45.9 (Costs against a legal representative), in paragraph (6)(b) omit ‘written’; d in rule 45.10 (Costs against a third party), in paragraph (6)(b) omit ‘written’; and e in rule 45.11 (Assessment and re-assessment), in paragraph (7)(c)(vi) omit ‘written’. 15 In Part 47 (Investigation orders and warrants)— a in rule 47.1 (When this Part applies), for ‘and 47.50’ substitute ‘, 47.50 and 47.53’; b after rule 47.52 (Application for approval for authorisation or notice), insert— SECTION 8: ORDERS FOR ACCESS TO DOCUMENTS, ETC. UNDER THE CRIMINAL APPEAL ACT 1995 When this Section applies 47.53 This Section applies where the Crown Court can order a person to give the Criminal Cases Review Commission access to a document or other material under section 18A of the Criminal Appeal Act 1995 . [Note. Under section 18A of the Criminal Appeal Act 1995, on an application by the Criminal Cases Review Commission the court may order that the Commission be given access to a document or material in a person’s possession or control if the court thinks that that document or material may assist the Commission in the exercise of any of their functions.] Exercise of court’s powers 47.54 1 Subject to paragraphs (2), (3) and (4), the court may determine an application by the Criminal Cases Review Commission for an order— a at a hearing (which must be in private unless the court otherwise directs), or without a hearing; and b in the absence of— i the Commission, ii the respondent, iii any other person affected by the order. 2 The court must not determine such an application in the Commission’s absence if— a the Commission asks for a hearing; or b it appears to the court that the application is so complex or serious as to require the court to hear the Commission. 3 The court must not determine such an application in the absence of any respondent or other person affected, unless— a the absentee has had at least 2 business days in which to make representations; or b the court is satisfied that— i the Commission cannot identify or contact the absentee, ii it would prejudice the exercise of the Commission’s functions to adjourn or postpone the application so as to allow the absentee to attend, or iii the absentee has waived the opportunity to attend. 4 The court must not determine such an application in the absence of any respondent who, if the order sought by the Commission were made, would be required to produce or give access to journalistic material, unless that respondent has waived the opportunity to attend. 5 The court officer must arrange for the court to hear such an application no sooner than 2 business days after it was served, unless— a the court directs that no hearing need be arranged; or b the court gives other directions for the hearing. 6 The court must not determine an application unless satisfied that sufficient time has been allowed for it. 7 If the court so directs, the parties to an application may attend a hearing by live link or telephone. 8 The court must not make an order unless an officer of the Commission states, in writing or orally, that to the best of that officer’s knowledge and belief— a the application discloses all the information that is material to what the court must decide; and b the content of the application is true. 9 Where the statement required by paragraph (8) is made orally— a the statement must be on oath or affirmation, unless the court otherwise directs; and b the court must arrange for a record of the making of the statement. 10 The court may shorten or extend (even after it has expired) a time limit under this Section. Application for an order for access 47.55 1 Where the Criminal Cases Review Commission wants the court to make an order for access to a document or other material, the Commission must— a apply in writing and serve the application on the court officer; b give the court an estimate of how long the court should allow— i to read the application and prepare for any hearing, and ii for any hearing of the application; c attach a draft order in the terms proposed by the Commission; and d serve the application and draft order on the respondent. 2 The application must— a identify the respondent; b describe the document, or documents, or other material sought; c explain the reasons for thinking that— i what is sought is in the respondent’s possession or control, and ii access to what is sought may assist the Commission in the exercise of any of its functions; and d explain the Commission’s proposals for— i the manner in which the respondent should give access, and ii the period within which the order should take effect. 3 The Commission must serve any order made on the respondent. [Note. Under section 18A(3) of the Criminal Appeal Act 1995, the court may give directions for the manner in which access to a document or other material must be given, and may direct that the Commission must be allowed to take away such a document or material, or to make copies. Under section 18A(4) of the Act, the court may direct that the respondent must not destroy, damage or alter a document or other material before the direction is withdrawn by the court.] Application containing information withheld from a respondent or other person 47.56 1 This rule applies where— a the Criminal Cases Review Commission serves an application under rule 47.55 (Application for an order for access); and b the application includes information that the Commission thinks ought not be revealed to a recipient. 2 The Commission must— a omit that information from the part of the application that is served on that recipient; b mark the other part, to show that it is only for the court; and c in that other part, explain why the Commission has withheld it from that recipient. 3 A hearing of an application to which this rule applies may take place, wholly or in part, in the absence of that recipient and any other person. 4 At a hearing of an application to which this rule applies— a the general rule is that the court must consider, in the following sequence— i representations first by the Commission and then by the other parties, in the presence of them all, and then ii further representations by the Commission, in the others’ absence; but b the court may direct other arrangements for the hearing. Application to punish for contempt of court 47.57 1 This rule applies where a person is accused of disobeying an order for access made under section 18A of the Criminal Appeal Act 1995. 2 An applicant who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court). [Note. The Crown Court has power to punish for contempt of court a person who disobeys its order. See section 45 of the Senior Courts Act 1981 .] ; and c amend the table of contents correspondingly. 16 In rule 48.15 (Contempt of court: Credibility and consistency of maker of written witness statement or other hearsay)— a in paragraph (2)(a), for ‘serve a written notice’ substitute ‘serve notice’; and b in paragraph (5)(b), for ‘serve a notice’ substitute ‘serve notice’. Thomas of Cwmgiedd, C.J. Rafferty, L.J. Leveson, P. Openshaw, J. Martin Picton Martin Edmunds Stephen Earl Louise Bryant Melissa Case Siân Jones Alison Saunders Patrick Gibbs Nathaniel Rudolf Michael Caplan Paul Harris Simon Byrne David Kenyon Matthew Evans I allow these Rules, which shall come into force on 3rd October 2016. Michael Gove Lord Chancellor 27th June 2016