Update to the Criminal Practice Directions: 1 April 2019

The eighth amendment to the Criminal Practice Directions 2015 comes into force today, 1 April 2019.

Headlines

The updates fall into seven broad categories:

1. It is made clear that the Criminal Procedure Rules and the Criminal Practice Directions are law that must be followed.
2. Where “expert evidence” is adduced in a trial, there is an onus on the introducing party to disclose material that could undermine the reliability or credibility of that evidence.
3. In identifying the issues in the case, the prosecutor must also direct the judge to the relevant legislation and case law.
4. A new section has been added on adjournments of trials. The section provides comprehensive guidance on the principles to apply and factors to consider in applications to adjourn in both the Magistrates and Crown Courts.
5. In sentencing, impact statements for businesses have now been expanded to encompass public sector bodies.
6. The section dealing with investigation orders and warrants in the Crown Court has been updated to reinforce the duty of full and frank disclosure, and to provide direction on the location and hearing of such applications.
7. There has been an addition to the “listing” section to ensure that appropriately qualified tribunals preside over appeals from the Youth Court in “class 2B” sexual offences.

 More detail

1. Status of the Criminal Procedure Rules and Practice Directions

Criminal Practice Direction I (General Matters)

There is a new introductory paragraph that re-emphasises the status and importance of the Criminal Procedure Rules and Criminal Practice Directions. It is made clear that the Criminal Procedure Rules and the Criminal Practice Directions are law that must be followed.

2. Expert Evidence

Criminal Practice Direction V (Trial)

Three new paragraphs have been inserted into section 19 on “expert evidence”. There is a duty on the party introducing the expert evidence to ascertain and disclose information that potentially undermines the reliability or credibility of the expert evidence. Examples of the sort of information that should be disclosed include: the expert’s fee being dependent on the outcome of the case, any previous adverse judicial comment, any appeal that has been allowed based on the deficiency of the expert evidence, a lack of accreditation, or a history of poor performance / lax scientific methods / not adhering to professional standards.

Where an expert has been criticised but there has been no full investigation conducted, it is expected that any findings of an independent investigation and / or any steps taken to address the criticism will be presented.  

3. Identifying issues in the case

Criminal Practice Direction VI (Trial)

Section 24B.1, which relates to the duties of the prosecutor in identifying the issues to the court, has been replaced. Along with a summary of the facts, the relevant legislation and case law should also be outlined. 

4. Adjournment of trial

Criminal Practice Direction III (Custody and Bail)

The section dealing with “proceeding in absence” has been removed and instead defers to the new section inserted into Practice Direction VI, which deals with “adjournments” and provides comprehensive guidance on the issue.

Criminal Practice Direction VI (Trial)

 The section is split into Magistrates and Crown Courts.

For the Magistrates Courts there has been “authoritative” guidance set down, taken from established principles. The starting point is that trials will be expected to go ahead on the day that they are listed. In this regard there are duties on parties to identify issues and potential resolutions to the case early, and to communicate with each other to protect any trial date. In determining an application to adjourn the principles include: summary justice is speedy justice; the case must be dealt with justly; applications to adjourn will be rigorously scrutinised accounting for the history of the case; and the more serious the offence the stronger the public interest in the trial proceeding. The “fault” of the parties will be a key factor in the determination of any application.

Common grounds of applications to adjourn are covered, including non-service of evidence, lack of disclosure, and non-attendance of the defendant and of witnesses. Lack of court time is also covered, with the expectation that courts will do all they can to classify trials in terms of priority and to attempt to accommodate all trials listed on the day.

In the Crown Court, the update provides a “more accurate statement” of the position on adjournments. The initial position is that the defendant has a right to be present at their trial, but that the court has a discretion to proceed in their absence, and that in determining any application, the well-known factors in Jones must be applied. 

5. Impact statements for businesses

Criminal Practice Direction VII (Sentencing)

Public sector bodies are now able to make “impact statements for businesses” on the effect the criminal conduct has had on their business. They were precluded from doing so under the previous Practice Directions.   

6. Investigation orders and warrants

Criminal Practice Direction XI (Other Proceedings)

Amendments have been made to section 47A and a new section 47B has been added.

In 47A the duty of full and frank disclosure on the part of the party applying for an investigation order or warrant has been re-emphasised, with parties reminded to put on their “defence hat” as per dicta in Re Stanford International Ltd.

 In 47B there are new directions regarding the court centre where the application is made (it should be chosen based on the likely trial location or proximity to the respondent and not simply that most convenient to the applicant). It is expected that lengthy and complex applications or cases involving multiple applications will be made in the same court centre and if possible, before the same judge.

Regarding the determination of an application without a hearing, (aside from where there has been insufficient notice or the respondent has requested attendance) an application should not be decided on the papers where the material involves covert intelligence, sensitive material, is complex, or is likely to engage significant public intrigue. 

7. Youth Court appeals in the Crown Court in sexual offences

Criminal Practice Direction XIII

In listing such cases in the Crown Court, there is the added requirement that an appropriately trained tribunal (both the Presiding Judge and the justices) presides over the case.

Amendments have been made to sections C5, E11 (E12 also added) and G3.

• When an appeal is to be listed, it must immediately be referred to the Resident Judge with sufficient information to allow appropriate allocation. This may include the listing office obtaining a full prosecution summary of the case, where the appeal form is not available.
• A recorder cannot preside over such an appeal without the express permission of the Resident Judge.
• Ground rules / directions hearings in such cases are now included as “hearings other than trials” to be listed.

Sources

 The now “old” version of the Practice Directions can be found here: https://webarchive.nationalarchives.gov.uk/20180601152616/https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/criminal-procedure-rules-practice-directions-2015-April-2018.pdf

The list of changes can be found here: https://www.judiciary.uk/wp-content/uploads/2019/03/crim-pd-2019-no-8-oct-2019.pdf

The updated consolidated Practice Directions can be found here https://www.judiciary.uk/wp-content/uploads/2019/03/crim-pd-amendment-no-8-consolidated-mar2019.pdf