Prisons and Courts Bill (HC Bill 170)

(5) The Lord Chancellor must consult the Senior President of Tribunals before
making regulations under section 37, or regulations under subsection (2) of this
section, in relation to—

(a) proceedings in the First-tier Tribunal

(b) 5proceedings in the Upper Tribunal,

(c) the employment tribunals, or

(d) the Employment Appeal Tribunal.

(6) Regulations under subsection (2) are subject to affirmative resolution
procedure.

39 10The Online Procedure Rule Committee and its powers

(1) Online procedure rules are to be made by a committee known as the Online
Procedure Rule Committee.

(2) The Committee is to consist of—

(a) one person who is a judge of the Senior Courts of England and Wales,
15appointed to the Committee by the Lord Chief Justice;

(b) one person who is either—

(i) a judge of the Senior Courts of England and Wales, a Circuit
Judge or a district judge, or

(ii) a judge of the First-tier Tribunal, a judge of the Upper Tribunal,
20an Employment Judge or a judge of the Employment Appeal
Tribunal appointed by the Lord Chief Justice,

appointed to the Committee by the Lord Chief Justice;

(c) one person who is either a barrister in England and Wales, a solicitor of
the Senior Courts of England and Wales or a legal executive, appointed
25to the Committee by the Lord Chancellor; and

(d) two other persons appointed to the Committee by the Lord
Chancellor—

(i) one of whom must have experience in and knowledge of the lay
advice sector, and

(ii) 30one of whom must have IT experience and knowledge relating
to end-users’ experience of internet portals.

(3) Before appointing a person under subsection (2)(a) the Lord Chief Justice must
consult—

(a) the Lord Chancellor, and

(b) 35the Senior President of Tribunals.

(4) Before appointing a person under subsection (2)(b) the Lord Chief Justice
must—

(a) consult the Lord Chancellor, and

(b) obtain the agreement of the Senior President of Tribunals.

(5) 40Before appointing a person under subsection (2)(c) the Lord Chancellor must
consult—

(a) the Lord Chief Justice,

(b) the Senior President of Tribunals, and

(c) the relevant authorised body.

(6) 45Before appointing a person under subsection (2)(d) the Lord Chancellor must
consult—

(a) the Lord Chief Justice, and

(b) the Senior President of Tribunals.

(7) The Lord Chief Justice may nominate a judicial office holder (as defined in
section 109(4) of the Constitutional Reform Act 2005) to exercise any function
5of the Lord Chief Justice under this section.

(8) The Lord Chancellor may reimburse the members of the Online Procedure
Rule Committee their travelling and out-of-pocket expenses.

(9) For making online procedure rules for proceedings of a kind set out in an entry
in the first column of the following table, the Online Procedure Rule
10Committee has the powers set out in the corresponding entry in the second
column—

(10) 20Online procedure rules may apply any other procedural rules.

(11) The other procedural rules may be applied to proceedings of a particular kind
even if the rules would not normally be applicable to that kind of proceedings.

(12) The other procedural rules may be applied—

(a) to any extent;

(b) 25with or without modifications;

(c) as amended from time to time.

(13) In subsections (10) to (12) “procedural rules” means—

(a) Civil Procedure Rules,

(b) Family Procedure Rules,

(c) 30Tribunal Procedure Rules,

(d) Employment Tribunal Procedure Rules, and

(e) other rules of court (including any other provision governing the
practice and procedure of a court which is made by or under any
enactment).

(14) 35Online procedure rules may, instead of providing for any matter, refer to
provision made or to be made about that matter by directions under Schedule
8.

(15) In this section—

• “IT experience and knowledge” means experience in, and knowledge of,
  40information technology;

• “legal executive” means a person authorised by the Chartered Institute of
  Legal Executives to practise as a member of the profession of legal
  executives;

• “relevant authorised body”, in relation to an appointment under
  45subsection (2)(c), means—

  Prisons and Courts BillPage 43

  (a)

  the General Council of the Bar of England and Wales, if the
  appointment is of a barrister;

  (b)

  the Law Society of England and Wales, if the appointment is of
  a solicitor;

  (c)

  5the Chartered Institute of Legal Executives, if the appointment
  is of a legal executive.

40 Power to change certain requirements relating to the Committee

(1) The Lord Chancellor may by regulations—

(a) amend section 39(2) to (6), and

(b) 10make consequential amendments in any other provision of section 39
or in subsection (2) or (3) of this section.

(2) The Lord Chancellor may make regulations under this section only with the
concurrence of—

(a) the Lord Chief Justice, and

(b) 15the Senior President of Tribunals.

(3) Before making regulations under this section the Lord Chancellor must consult
the following persons—

(a) the Head of Civil Justice;

(b) the Deputy Head of Civil Justice (if there is one);

(c) 20the President of the Family Division.

(4) The Lord Chief Justice may nominate a judicial office holder (as defined in
section 109(4) of the Constitutional Reform Act 2005) to exercise any function
of the Lord Chief Justice under this section.

(5) Regulations under this section are subject to negative resolution procedure.

41 25Making online procedure rules

(1) Before making or amending online procedure rules, the Online Procedure Rule
Committee must—

(a) consult such persons as they consider appropriate, and

(b) hold a meeting (unless it is inexpedient to do so).

(2) 30Rules made by the Online Procedure Rule Committee must be—

(a) signed by at least three members of the Committee, and

(b) submitted to the Lord Chancellor.

(3) The Lord Chancellor may allow or disallow online procedure rules made by
the Committee.

(4) 35If the Lord Chancellor disallows rules, he or she must give the Committee
written reasons for doing so.

(5) Rules made by the Committee and allowed by the Lord Chancellor—

(a) come into force on such day as the Lord Chancellor directs, and

(b) are to be contained in a statutory instrument to which the Statutory
40Instruments Act 1946 applies as if the instrument contained rules made
by a Minister of the Crown.

(6) A statutory instrument containing online procedure rules is subject to
annulment in pursuance of a resolution of either House of Parliament.

42 Power of Lord Chancellor to require rules to be made

(1) This section applies if the Lord Chancellor gives the Online Procedure Rules
5Committee written notice that he or she thinks it is expedient for online
procedure rules to include provision that would achieve a purpose specified in
the notice.

(2) The Committee must make such online procedure rules as it considers
necessary to achieve the specified purpose.

(3) 10Those rules must be—

(a) made within a reasonable period after the Lord Chancellor gives notice
to the Committee;

(b) made in accordance with section 41.

43 Power to make consequential amendments

(1) 15The Lord Chancellor may, by regulations, amend, repeal or revoke any Act, or
provision made under an Act, to the extent he or she considers necessary or
desirable in consequence of—

(a) section 37 or 39, or

(b) online procedure rules.

(2) 20The Lord Chancellor may by regulations amend, repeal or revoke any Act
passed, or provision under an Act made, before the coming into force of this
section to the extent he or she considers necessary or desirable in order to
facilitate the making of online procedure rules.

(3) The Lord Chancellor must consult the Lord Chief Justice and the Senior
25President of Tribunals before making regulations under this section.

(4) The Lord Chief Justice may nominate a judicial office holder (as defined in
section 109(4) of the Constitutional Reform Act 2005) to exercise the function
under subsection (3).

(5) Regulations under this section are subject to affirmative resolution procedure.

44 30Amendments of other legislation

Schedule 9 (the online procedure in courts and tribunals: amendments) has
effect.

45 Interpretation

In sections 37 to 43 (and this section) and Schedule 8—

• 35“applicable standard rules” means—

  (a)

  Civil Procedure Rules, in the case of civil proceedings;

  (b)

  Family Procedure Rules, in the case of family proceedings;

  (c)

  Tribunal Procedure Rules, in the case of proceedings in the
  First-tier Tribunal or the Upper Tribunal

  Prisons and Courts BillPage 45

  (d)

  Employment Tribunal Procedure Rules, in the case of
  proceedings in the employment tribunals or the Employment
  Appeal Tribunal;

• “civil proceedings” means proceedings about which Civil Procedure
  5Rules may be made under the Civil Procedure Act 1997;

• “family proceedings” has the meaning given in section 75 of the Courts
  Act 2003;

• “online procedure rules” has the meaning given in section 37(2);

• “specified kind” (in relation to proceedings) is to be read in accordance
  10with section 37(3).

Powers to remit proceedings to other courts

46 Powers to remit proceedings to another court

(1) After section 46 of the Senior Courts Act 1981 insert—

46ZA   Remitting proceedings to magistrates’ courts

(1) 15In a case where a person has been sent by a magistrates’ court to the
Crown Court for trial for an offence, the Crown Court may send the
person back to a magistrates’ court for trial.

(2) In a case where a person—

(a) has been convicted of an offence by a magistrates’ court,

(b) 20has been committed to the Crown Court for sentencing, and

(c) has not been sentenced,

the Crown Court may send the person back to a magistrates’ court for
sentencing.

(3) In a case where a person—

(a) 25has been sent by a magistrates’ court to the Crown Court for
trial for an offence,

(b) has pleaded guilty to the offence in the Crown Court and been
convicted, and

(c) has not been sentenced,

30the Crown Court may send the person back to a magistrates’ court for
sentencing.

(4) The Crown Court may not exercise the power under subsection (1), (2)
or (3) unless the Crown Court is satisfied that the sentence which a
magistrates’ court would have power to impose for the offence would
35be adequate.

(5) Additionally, in the case of an either way offence the Crown Court may
not exercise the power under subsection (1)—

(a) unless the person is present in court or consents to the power
being exercised in his or her absence; and

(b) 40if the person—

(i) has attained the age of 18 years at the time of the exercise
of the power, or

(ii) is a body corporate,

unless the person consents to the power being exercised.

(6) In deciding whether to exercise any power under this section to send a
person accused or convicted of an offence back to a magistrates’ court,
the Crown Court must take into account any other offence before the
Crown Court that is related to that offence (whether the same, or a
5different, person is accused or has been convicted of the other offence).

(7) If the Crown Court—

(a) has power under this section to send a person who has not
attained the age of 18 years back to a magistrates’ court, and

(b) decides not to send the person back,

10the Crown Court must give reasons for not doing so.

(8) This section does not limit any other powers which the Crown Court
has to send a person to a magistrates’ court for any purpose.”

(2) In section 47 of the Crime and Disorder Act 1998 (powers of youth courts etc)—

(a) before subsection (1) insert—

“(A1) 15This section applies where a person who appears or is brought
before a youth court charged with an offence subsequently
attains the age of 18.”;

(b) for subsection (1) substitute—

“(1) In the case of a summary offence or an offence triable either
20way, the youth court may, at any time before the start of the
trial, remit the person for trial to a magistrates’ court (other than
a youth court).

(1A) In the case of an indictable offence, the youth court may, at any
time before the start of the trial, remit the person for trial to the
25Crown Court.

(1B) If the youth court is proposing to exercise the power under
subsection (1) to remit a person to a magistrates’ court for trial
for an offence triable either way, the youth court—

(a) must give the person the opportunity of electing to be
30tried by the Crown Court for the offence, and

(b) if the person elects to be so tried, must exercise the
power under subsection (1A) to remit the person for trial
to the Crown Court.

(1C) In subsections (1) and (1A) “the start of the trial” shall be
35construed in accordance with section 22(11B) of the 1985 Act.”;

(c) in subsection (2), after “subsection (1)” insert “or (1A)”.

(3) In Schedule 3 to the Crime and Disorder Act 1998 (procedure where persons
are sent to the Crown Court for trial under section 51 of that Act), omit
paragraphs 7 to 13.

Prohibition of cross-examination in family proceedings

47 Prohibition of cross-examination in person in family proceedings

In the Matrimonial and Family Proceedings Act 1984, after Part 4A insert—

““Part 4B

Family proceedings: prohibition of cross-examination in person

31Q Prohibition of cross-examination in person: introductory

5In this Part—

• “the court” means the family court or the High Court;

• “family proceedings” means—

  (a)

  proceedings in the family court, and

  (b)

  proceedings in the Family Division of the High Court
  10which are business assigned, by or under section 61 of
  (and Schedule 1 to) the Senior Courts Act 1981, to that
  Division of the High Court and no other;

• “witness”, in relation to any proceedings, includes a party to the
  proceedings.

31R 15Prohibition of cross-examination in person: victims of offences

(1) In family proceedings, no party to the proceedings who has been
convicted of, or is charged with, a specified offence may cross-examine
in person a witness who is the victim, or alleged victim, of that offence.

(2) In family proceedings, no party to the proceedings who is the victim, or
20alleged victim, of a specified offence may cross-examine in person a
witness who has been convicted of, or is charged with, that offence.

(3) Subsections (1) and (2) do not apply to a conviction that is spent for the
purposes of the Rehabilitation of Offenders Act 1974.

(4) Cross-examination in breach of subsection (1) or (2) does not affect the
25validity of a decision of the court in the proceedings, if the court was
not aware of the conviction or charge when the cross-examination took
place.

(5) In this section “specified offence” means an offence which is specified,
or of a description specified, in regulations made by the Lord
30Chancellor.

(6) For the purposes of this section “offence” includes an offence under a
law that is no longer in force.

31S Prohibition of cross-examination in person: persons protected by
injunctions etc

(1) 35In family proceedings, no party to the proceedings against whom an
on-notice protective injunction is in force may cross-examine in person
a witness who is protected by the injunction.

(2) In family proceedings, no party to the proceedings who is protected by
an on-notice protective injunction may cross-examine in person a
40witness against whom the injunction is in force.

(3) Cross-examination in breach of subsection (1) or (2) does not affect the
validity of a decision of the court in the proceedings, if the court was
not aware of the protective injunction when the cross-examination took
place.

(4) 5In this section “protective injunction” means an order, injunction or
interdict specified, or of a description specified, in regulations made by
the Lord Chancellor.

(5) For the purposes of this section, a protective injunction is an “on-notice”
protective injunction if—

(a) 10the court is satisfied that there has been a hearing at which the
person against whom the protective injunction is in force asked
(or could have asked) for the injunction to be set aside or varied,
or

(b) the protective injunction was made at a hearing of which the
15court is satisfied that both the person who applied for it and the
person against whom it is in force had notice.

31T Direction for prohibition of cross-examination in person: other cases

(1) This section applies in family proceedings where neither of sections
31R and 31S operates to prevent a party to the proceedings from cross-
20examining a witness in person, and either—

(a) a party to the proceedings applies to the court for a direction
under this section to be given in relation to the witness, or

(b) the court of its own motion raises the issue of whether a
direction under this section should be given in relation to the
25witness.

(2) The court may give a direction prohibiting a party to the proceedings
from cross-examining (or continuing to cross-examine) the witness in
person, if it appears to the court that—

(a) the quality condition or the significant distress condition is met,
30and

(b) it would not be contrary to the interests of justice to give the
direction.

(3) The “quality condition” is met if the quality of evidence given by the
witness on cross-examination—

(a) 35is likely to be diminished if the cross-examination (or continued
cross-examination) is conducted by the party in person, and

(b) would be likely to be improved if a direction were given under
this section.

(4) The “significant distress condition” is met if—

(a) 40the cross-examination (or continued cross-examination) of the
witness by the party in person would be likely to cause
significant distress to the witness, and

(b) that distress is likely to be more significant than would be the
case if the witness were cross-examined other than by the party
45in person.

(5) In determining whether the quality condition or the significant distress
condition is met in the case of a witness, the court must have regard, in
particular, to—

(a) any views expressed by the witness as to whether or not the
witness is content to be cross-examined by the party in person;

(b) the nature of the questions likely to be asked, having regard to
the issues in the proceedings;

(c) 5any behaviour by the party in relation to the witness, in respect
of which the court is aware that a finding of fact has been made
in the proceedings or any other family proceedings;

(d) any behaviour by the party at any stage of the proceedings, both
generally and in relation to the witness;

(e) 10any relationship (of whatever nature) between the witness and
the party.

(6) References in this section to the quality of a witness’s evidence are to its
quality in terms of completeness, coherence and accuracy.

(7) For this purpose “coherence” refers to a witness’s ability in giving
15evidence to give answers which—

(a) address the questions put to the witness, and

(b) can be understood, both individually and collectively.

31U Directions under section 31T: supplementary

(1) A direction under section 31T has binding effect from the time it is
20made until the witness in relation to whom it applies is discharged.

(2) But the court may revoke a direction under section 31T before the
witness is discharged, if it appears to the court to be in the interests of
justice to do so, either—

(a) on an application made by a party to the proceedings, or

(b) 25of its own motion.

(3) The court may revoke a direction under section 31T on an application
made by a party to the proceedings only if there has been a material
change of circumstances since—

(a) the direction was given, or

(b) 30if a previous application has been made by a party to the
proceedings, the application (or the last application) was
determined.

(4) The court must state its reasons for—

(a) giving a direction under section 31T;

(b) 35refusing an application for a direction under section 31T;

(c) revoking a direction under section 31T;

(d) refusing an application for the revocation of a direction under
section 31T.

31V Alternatives to cross-examination in person

(1) 40This section applies where a party to family proceedings is prevented
from cross-examining a witness in person by virtue of section 31R, 31S
or 31T.

(2) The court must consider whether (ignoring this section) there is a
satisfactory alternative means—

(a) 45for the witness to be cross-examined in the proceedings, or