Changes to the Criminal Procedure Rules
On Monday 4th April 2016 the Criminal Procedure Rules 2015 will be amended by the Criminal Procedure (Amendment) Rules 2016 (S.I. 2016/120).
The major changes are as follows:
A defendant’s own bad character
Rule 8 of the Amendment Rules makes changes to rule 21.4 of the Crim PR 2015 – the rule that concerns applications to adduce bad character. Rule 8 will mean that if the defendant wishes to adduce his own bad character he can no longer simply give evidence about it from the witness box without notice.
The new rules require the defendant not only (i) to give notice about his or her intention to introduce evidence of his or her own bad character but also (ii) require (in the Crown Court) that notice is given as to any requested direction to the jury about the effect or significance of that evidence.
The reason for this change arises from the difficulties encountered by the Court of Appeal in the case of Hunter and Others  EWCA Crim 631. That case was one where the defendant had not simply adduced evidence of his own bad character (in order to demonstrate that he had always pleaded guilty in the past, or to demonstrate that his convictions were wholly dissimilar to the allegation being considered by the jury) but had also asked that he be treated as of good character.
It has always been open to defence counsel to raise the issue with the judge in the absence of the jury, in fact it is the safest course where a direction as to character is going to be sought thereafter. Not canvassing the issue leads to uncertainty and if only the briefest of discussions is held with the trial judge this may lead to misunderstandings between the advocate and the judge as to the extent and detail of the direction to the jury.
Defence Opening Speeches
In his “Review of Efficiency in Criminal Proceedings” Sir Brian Leveson (President of the Queen’s Bench Division of the High Court) observed that he had long been surprised the lack of any formal provision for a short opening defence speech, one which takes place immediately after the prosecution opening, rather than at the commencement of the defence case. His suggestion was not that the defence opening speech responded to the prosecution opening – or engaged in criticism of the prosecution case but instead its purpose would be to provide the jury with focus as to the issues they are likely to be called on to decide.
He was not the first to call for a defence opening speech. In 2001 Lord Justice Auld noted in his Review of the Criminal Courts of England and Wales “I have always been puzzled at the lack of any formal provision for a short opening defence speech at the beginning of a criminal trial and at the general reluctance of defence advocates to make one, even when the judge informally invites them to do so. No doubt there are tactical reasons for the latter where the defence is weak or uncertain or dependent on the appearance or performance of critical prosecution witnesses. But in many cases it would be of strategic advantage to the defendant as well as of assistance to the jury for his advocate to balance the prosecution’s opening by underlining the nature of his defence at that stage.”
From 4 April 2016 Rule 24.3 of the Criminal Procedure Rules, (trial in magistrates’ courts) and rule 25.9, (trial in the Crown Court), are amended by rules 9 and 10(a) of the Amendment Rules to provide for the identification of issues by the defence at the beginning of the trial.
The Rule in the Crown Court provides:
where there is a jury, to help the jurors to understand the case and resolve any issue in it the court may—
(i) invite the defendant concisely to identify what is in issue, if necessary in terms approved by the court,
(ii) if the defendant declines to do so, direct that the jurors be given a copy of any defence statement served under rule 15.4 (Defence disclosure), edited if necessary to exclude any reference to inappropriate matters or to matters evidence of which would not be admissible
The Rules appear to suggest that the content of the defence opening speech might need to be approved by the Court, which would be a departure from current practice as regards defence opening speeches. What is not envisaged is a speech in the traditional manner – as both the Auld and Leveson Reviews said in terms, but a short address to the jury to help them to focus on what the issues are in the case. A failure to engage with the requirement in the rules to identify what is in issue could now mean that the jury are permitted to see the relevant parts of the defence statement; another good reason to ensure that the greatest of care is taken when drafting that document, not only that it accurately reflects the defence case at trial but that it does not seek simply to put everything in issue without focus on the issues that really matter in the case.
Rule 4 of the Amendment Rules prescribes that the minimum amount of time that may elapse between a defendant being sent to the Crown Court and appearing in the Crown Court is two weeks. The maximum time prescribed will be 16 weeks. The new minimum time is intended to allow time for the parties to engage with each other to prepare as fully as possible for the Plea and Trial Preparation Hearing (PTPH), and for better case management generally.
Investigation and Extradition
The Schedule to the Amendment Rules is entitled ‘Investigation Orders and Warrants’ and set out new rules about production orders, search warrants and applications for the return of seized property – together with a comprehensive series of rules about Disclosure Orders (for confiscation proceedings only, the civil investigation regime sees application to the High Court under the Practice Direction Civil Recovery Proceedings), account monitoring orders and other investigation orders under both the Terrorism Act 2000 and the Proceeds of Crime Act 2002. Rule 7 clarifies the position under applications for an order under s7 Bankers Books Evidence Act. A party wanting to inspect and copy an entry in bank records must now identify the entry and explain the purpose for which it is required, as well as proposing the terms of the order – which will mean that a draft order will be required for the Court. Rule 16 changes the time limits for the Respondent’s response to extradition appeals, setting the time at 10 days from when the appellant serves an amended appeal notice.