House of Commons - Explanatory Note
Criminal Justice Bill - continued          House of Commons

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Clause 26: Removal of requirement to substantiate information on oath

143.     Clause 26 abolishes the need for applications for warrants under section 1 of the Magistrates' Court Act 1980 to be substantiated on oath.

PART 5: DISCLOSURE

144.     This Part amends some of the provisions in the Criminal Procedure and Investigations Act 1996 (the 1996 Act) that govern the disclosure of unused prosecution material to the defence and the provision of a defence case statement.

     Clause 27: Initial duty of disclosure by the prosecutor

     145.     This clause amends section 3 of the 1996 Act and introduces a new objective single test for the disclosure of unused prosecution material to the defence. It replaces the current two tests that apply at the primary and secondary disclosure stages of the present scheme.

     146.     The new test will require the prosecutor to disclose to the accused:

         "..any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused."

     Clause 28: Defence disclosure

147.     This clause amends the defence disclosure requirements in section 5 of the 1996 Act.

148.     Subsection (1) amends section 5 of the 1996 Act to provide for the cross service of defence statements following an order of the court. The court may make such an order of its own motion or on the application of any party (new sub section 5(B)).

149.     Subsection (2) inserts a new section 6A in the 1996 Act. The new section prescribes the content of a defence statement. It replaces subsections (6) to (9) of section 5 of the 1996 Act (which are repealed).

150.     At present the accused is required to set out in general terms the nature of his defence. The effect of the new section is to require the accused to provide a more detailed defence statement. The present requirements contained in section 5(6) (b) and (c) of the 1996 Act are replicated in the new section 6A(1) (b) and (c) and the alibi notification provisions in section 5(7) and (8) are replicated in the new section 6A(2) and (3). The main changes are that the accused will, in the future, be required to set out the nature of his defence, including any particular defences on which he intends to rely, and indicate any points of law he wishes to take. Details of alibi witnesses must include the witness's date of birth.

     151.     Subsection (1) of the new section 6A defines a defence statement for the purposes of Part 1 of the 1996 Act. The accused will be required to provide a written statement setting out the nature of his defence, including any particular defences on which he intends to rely. The statement must also indicate any facts on which the accused takes issue with the prosecution, setting out in respect of which matter the reason why he takes issue with the prosecution and indicating any point of law he wishes to take, including the admissibility of evidence, and any authority on which he intends to rely for that purpose.

     152.     Subsection (2) of the new section 6A provides that if the statement discloses an alibi, the accused must include particulars of the alibi in the statement. These are to include the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, if the accused knows these details, when the defence statement is given. If the accused does not have this information, the particulars are to include any information in his possession that might assist in identifying or finding any such witness.

153.     Subsection (3) of the new section 6A defines evidence in support of an alibi for the purpose of section 6A as 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. This definition reproduces the definition of evidence in support of an alibi given in section 11(8) of the Criminal Justice Act 1967.

     154.     Subsection (4) of the new section 6A gives the Secretary of State power to prescribe in regulations further details that are to be contained in defence statements.

155.     Subsection (3) inserts a new Section 6B in to the 1996 Act which requires the accused to provide an updated defence statement within a period specified in regulations made under section 12 of the 1996 Act.

156.     Updated defence case statements must comply with the requirements applicable to defence statements.

157.     Subsections (4) and (5) of the new section 6B provide for the cross service of updated statements following an order of the court (made either of its own motion or on application by any party). This parallels new sub section (5B) of section 5 of the 1996 Act (inserted by Clause 16(1)) that provides for the cross service of the initial statement.

     Clause 29 : Notification of intention to call defence witness

158.     This clause inserts a new section 6C in the 1996 Act which imposes a new requirement on the accused to serve, before the trial, a notice giving details of any witnesses he intends to call to give evidence at his trial. Details of the witnesses' name, address and date of birth must be given to the court and the prosecutor within a time limit specified in regulations made under section 12 of the 1996 Act. If the address is not known, the accused must provide any information that might assist in identifying or finding the witness.

159.     Subsection (2) of the new section 6C provides that if details of any alibi witnesses have already been provided as part of the defence statement in accordance with new section 6A(2), further details do not have to given under this provision.

     160.     Subsection (4) of the new section 6C requires the accused to give an amended notice if they subsequently decide to call a witness that is not in the notice, not to call someone who is on the list or discover any information on the whereabouts of the witness.

Clause 30 : Notification of names of experts instructed by defendant

161.     This clause inserts a new section 6D into the 1996 Act, which imposes a new requirement on the accused to serve, before the trial, a notice giving details of the name and address of any expert witness consulted. A notice will be required in respect of each expert consulted.

162.     Subsection (2) of the new section 6D provides that if details of the expert have already been provided under new section 6C (notification of intention to call defence witnesses), a notice is not required under this section.

Clause 31 : Further provisions about defence disclosure

163.     This clause inserts a new section 6E into the 1996 Act.

     164.     Subsection (1) of new section 6E provides that a defence statement served under sections 5,6 or 6B of the 1996 Act on behalf of an accused, by his solicitor, is deemed to have been given on the authority of the accused, unless the contrary is proved.

165.     Subsections (2) and (3) of the new section 6E provides that where it appears to the judge at a pretrial hearing (as defined in Part 4 of the 1996 Act) that the accused has not fully complied with the requirements set out in sections 5 (defence statement), 6B (updated defence statement) or 6C (witness list), the judge must warn him that there is the possibility of comment or inferences being drawn.

166.     Subsections (4), (5) and (6) of section 6E enable the judge, either of his own motion or on the application of any party, to give to the jury a copy of the defence statement and, if he does so, to direct that it be edited to exclude any inadmissible material. The defence statement that is given to the jury is the updated defence statement where this has been provided. Where no updated defence statement has been given it is the initial defence statement.

Clause 32 : Continuing duty of prosecutor to disclose

167.     This clause inserts a new section 7A in the 1996 Act. The new section 7A replaces the existing sections 7 and 9 of the 1996 Act (which are repealed). The new section 7A imposes a continuing duty on prosecutors to disclose unused material.

168.     Subsection (1) of the new section 7A provides that the section applies at all times after the prosecutor has provided initial prosecution disclosure under section 3, or has purported to do so. This duty continues until the accused is acquitted, convicted or the prosecutor decides not to continue with the case.

169.     Subsection (2) of the new section 7A requires the prosecutor to keep under review the question of whether there is any material that meets the new disclosure test in set out in section 3 (material that might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused and has not been disclosed to the accused).

170.     Subsection (3) of the new section 7A provides that if there is any such material the prosecutor must disclose it to the accused as soon as is reasonably practicable or within any time limit specified in regulations made under section 12 of the 1996 Act.

171.     Subsection (4) of the new section 7A provides that when complying with requirement to review the unused prosecution material the prosecutor must take account of the state of affairs as it stands at the time, including the prosecution case.

172.     Subsection (5) of the new section 7A provides that where the prosecutor receives a defence statement served under sections 5, 6 or 6B and as a result of that statement is required to make further disclosure in accordance with section 7A, he must do so within the relevant period specified in regulations made under section 12 of the 1996 Act or give a written notice that that no disclosure is required.

     173     Subsection (6) of the new section 7A defines prosecution material for the purposes of the section as material which is in the prosecutor's possession, or which he has been allowed to inspect in pursuance with a Code of Practice issued under Part 2 of the 1996 Act.

174.     Subsection (7) of the new section 7A provides that the prosecutor should disclose material under this section as he does so when carrying out initial prosecution disclosure in accordance with section 3 of the 1996 Act.

175.     Subsection (8) of the new section 7A need not be disclosed to the accused under this section if the court, on application by the prosecutor, believes that it is not in the public interest to disclose it, and has ordered accordingly.

     176.     Subsection (9) of the new section 7A provides that material need not be disclosed to the accused under this section if disclosure is prohibited under section 17 of the Regulation of Investigatory Powers Act 2000.

Clause 33 : Application by the defence for disclosure

177.     This clause replaces subsections (1) and (2) of section 8 the 1996 Act. Section 8 enables the accused to apply to the court for further disclosure of unused prosecution material if certain conditions are met.

178     New subsection (1) of section 8 provides that the section applies when the defence has given a defence statement under sections 5, 6 or 6 B and the prosecutor has complied with his continuing duty to disclose or purported to comply with it or has failed to comply with it.

179.     New subsection (2) of section 8 enables the accused to apply to the court for an order requiring the prosecutor to disclose material, to the accused, if the accused has reasonable cause to believe that there is prosecution material that should have been, but has not been, disclosed to the accused pursuant to the prosecutor's continuing duty to disclose.

Clause 34 : Faults in defence disclosure

180.     This clause substitutes a new section 11 in to the 1996 Act. The new section 11 extends the existing list of defence disclosure failures and removes the leave requirement for making comment in respect of some of these.

     181.     Section 11 provides that a court or jury may draw inferences from certain faults in relation to disclosure by the accused in deciding whether he is guilty.

182.     Subsection (1) of section 11 provides that this section applies in three sets of circumstances, as set out in subsections (2), (3) and (4).

     183.     Subsection (6) provides that in the case of failures in relation to witness lists, comment by another party may only be made with the leave of the court.

184.     Subsection (9) provides that a person cannot be convicted solely on an inference under this section.

PART 6 : ALLOCATION AND TRANSFER OF OFFENCES

Clause 35 Allocation of offences triable either way and transfer of cases to the Crown Court

185.     Clause 35 introduces Schedule 3, which sets out how it is to be decided whether cases triable either way should be tried summarily or on indictment, and provides for the sending to the Crown Court of those cases which need to go there.

Amendments to the Magistrates' Courts Act 1980.

186.     Paragraphs 3 and 4 clarify that the preliminary stages of an either-way case, including the plea before venue and allocation procedures, may take place at a hearing before a single justice. But a single justice may not conduct a contested trial, nor - whilst he may take a guilty plea - may he impose a sentence on the offender.

187.     Paragraph 5 substitutes section 19 of the Magistrates' Courts Act 1980, which makes provision for the procedure to be followed by a magistrates' court in deciding whether a case involving an offence triable either way to which the defendant has not indicated a guilty plea should be tried summarily or on indictment. The new procedure ('allocation') differs from the present one in that the court is to be informed about, and take account of, any previous convictions of the defendant in assessing whether the sentencing powers available to it are adequate. The court is to have regard, not only (as now) to any representations made by the prosecution or defence, but also to allocation guidelines which may be issued by the Sentencing Guidelines Council under clause 153.

188.     Paragraph 6 substitutes section 20 of the Magistrates' Courts Act 1980 which sets out the procedure to be followed by the magistrates' court where it decides that a case is suitable for summary trial. As now, defendants will be told that they can either consent to be tried summarily or, if they wish, be tried on indictment. In making that decision they may be influenced by the knowledge that, since it will no longer be possible to be committed for sentence to the Crown Court once the magistrates have accepted jurisdiction, they cannot receive a sentence beyond the magistrates' powers. But defendants are moreover to have the opportunity of requesting an indication from the magistrates whether, if they pleaded guilty at that point, the sentence would be custodial or not.

189.     The magistrates' court will have a discretion whether or not to give an indication to a defendant who has sought one. Where an indication is given, defendants will be given the opportunity to reconsider their original indication as to plea. Where a defendant then decides to plead guilty, the magistrates' court will proceed to sentence. A custodial sentence will be available only if such a sentence was indicated, and if so - unlike after a guilty plea indication under s17A or 17B - the option of committal to the Crown Court for sentence under s3 of the Powers of Criminal Courts (Sentencing) Act 2000 will not be available.

190.     Otherwise (i.e. where the defendant declines to reconsider his plea indication, or where no sentence indication is given) the defendant will be given the choice between accepting summary trial or electing trial on indictment, as at present. Where an indication of sentence is given and the defendant does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the defendant elects trial on indictment.

191.     Paragraph 7 amends section 21 of the Magistrates' Courts Act 1980 so that, where the court decides that trial on indictment appears more suitable, it will proceed to send the case to the Crown Court in accordance with section 51(1) of the Crime and Disorder Act 1998. Paragraph 10 adds four new sections (24A-24D) to the Magistrates' Courts Act 1980 which apply a procedure akin to that in sections 17A-17C ('plea before venue') to cases involving defendants who are under 18. It would apply wherever it falls to the court to decide whether the defendant should be sent to the Crown Court for trial, whether in his or her own right, or for joint trial with an adult defendant.

192.     Paragraph 11 amends section 25 of the Magistrates' Courts Act 1980. The current power to switch between summary trial and committal proceedings is abolished, and in its place a new power for the prosecution to apply for an either-way case which has been allocated for summary trial to be tried on indictment instead.

     Sending cases to the Crown Court etc.

193.     Paragraph 16 substitutes section 51 of the Crime and Disorder Act 1998 so that it applies not just (as now) to indictable-only offences (and cases related to such offences), but also where an either-way case involving an adult defendant is allocated for trial on indictment. The provisions for sending to the Crown Court related cases against the same defendant or another defendant (including one under 18) are preserved.

194.     Schedule 3 also inserts into the Crime and Disorder Act 1998 new section 51A, which replaces the existing provisions for moving cases where the principal defendant is under 18 to the Crown Court for trial; and new sections 51B and 51C, which subsume the transfer provisions now in section 4 of the Criminal Justice Act 1987 (serious fraud cases) and section 53 of the Criminal Justice Act 1991 (child witness cases) respectively. The procedure in sections 51B and 51C is initiated, as it is now, by the issue of a notice by the prosecutor.

195.     Paragraphs 18-25 amend the Powers of Criminal Courts (Sentencing) Act 2000. The most important of these concerns the committal to the Crown Court for sentence of offences triable either-way. This power will no longer be available in cases where the magistrates' court has dealt with the case having accepted jurisdiction (whether as a contested case or a guilty plea) but will be limited to cases where a guilty plea has been indicated at plea before venue.

196.     If a defendant is charged with a number of related either-way offences, pleads guilty to one of them at plea before venue and is sent to the Crown Court to be tried for the rest, the existing power in section 4 of the Powers of Criminal Courts (Sentencing) Act 2000 to send the offence to which he has pleaded guilty to the Crown Court for sentence is retained.

PART 7 : TRIALS ON INDICTMENT WITHOUT A JURY

197.     This Part of the Bill sets out the circumstances in which a trial on indictment in the Crown Court must, or may, be heard by a judge sitting alone without a jury.

     Clause 36: Application by defendant for trial to be conducted without jury

198.     This clause permits a defendant (or defendants) being tried on indictment in the Crown Court to make an application to the Court to have the trial heard by a judge sitting alone, instead of by a judge and jury. Subsections (3) and (4) provide that the judge hearing the application must make an order granting it unless any of the circumstances described in subsections (5) to (8) apply. If any of them do, he must refuse the defendant's application and the trial will be heard by a judge and jury. These circumstances are as follows.

199.     In a trial where there is more than one defendant, and one (or more) of them wants a jury trial, then an application by any of the other defendants for a judge-alone trial must be refused (subsection (5)).

200.     Subsection (6) applies in cases where the defendant who applies to be tried by a judge alone, or any other defendant who is to be tried, is, or was, in employment connected with the administration of civil or criminal justice (as explained at subsection (9)): for example, a judge, prosecutor or police officer. The judge must refuse the application to be tried without a jury if he is satisfied that, if convicted, there would be questions as to whether the defendant, who is or was in the relevant employment, had properly discharged the functions of his employment, or about his fitness for the employment, and such matters give rise to exceptional circumstances, which make it desirable in the interests of justice for the trial to be conducted with a jury. There is no requirement for the charges faced by that defendant to arise out of the discharge of his official functions; the subsection is capable of being satisfied by charges which, if proven, would amount to an offence committed in a wholly private capacity but which raises questions about the honesty or good character of that defendant which in turn are capable of impugning his fitness for the employment.

201.     By contrast, subsection (7) applies regardless of the identity or functions of any of the defendants, but requires that the nature of the conduct charged should itself give rise to issues about whether the administration of civil or criminal justice has been prejudiced or brought into disrepute. An example might be someone accused of perjury, or perverting the course of justice. Again, the judge can only refuse a defendant's application for a judge-alone trial on this ground if satisfied that these matters give rise to exceptional circumstances which make it desirable in the interests of justice for the trial to be conducted with a jury.

202.     Subsection (8) requires the judge to refuse an application by a defendant for a judge-alone trial in any other case where exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury. It may be that other rare cases of particular significance for public life arise in which there is a proper and necessary expectation of a jury trial, and this subsection provides accordingly.

203.     These subsections do not specify in detail what a judge must have regard to in deciding under any of these subsections whether exceptional circumstances exist. However, a judge might be expected to have regard to such things as the seriousness of the offence charged and the seniority of the post held by the defendant within the administration of civil or criminal justice where relevant, although all relevant circumstances would need to be taken into account.

     Clause 37: Application by prosecution for complex or lengthy trial to be conducted without jury

204.     Clause 37 makes provision for the prosecution to apply for a trial on indictment in the Crown Court to proceed in the absence of a jury on grounds of the length or complexity of the trial. A successful application would need to satisfy the court of two conditions.

205.     The first is that the trial is to be so long or complex (or both) that either

  • the trial is likely to be so burdensome upon the jury trying it to make it necessary in the interests of justice to conduct the trial without a jury (subsection (4)(a)); or

  • the trial would be likely to place an excessive burden on the life of a typical juror (subsection (4)(b)).

206.     This encompasses two sorts of case. The first are those cases which the judge considers to be so difficult, in terms of their complexity or length (or both) that the consequent strain this would place on a jury trying to grapple with them would be so great, that they must be heard without a jury. The second concerns the extent to which a long and/or complex case would intrude upon and otherwise disrupt the outside life of a typical juror. In deciding whether the burden on a typical juror would be excessive, the judge would need to take account of factors such as the impact of the trial on a typical juror's working and private life, and the physical and mental demands it is likely to impose.

207.     The second condition which must also be satisfied relates to the sorts of issues and evidence which a jury would have to consider in the course of the trial. Subsection (5)(a) stipulates that the length or complexity (or both) must be caused by the need to address arrangements, transactions or records of a financial or commercial nature or which relate to property. As part of this, the judge must also look specifically at the nature and volume of the evidence which would be put before the jury (subsection (5)(b)).

208.     Subsections (6) and (7) require the judge, in deciding whether these conditions are met, to consider whether there is anything that can reasonably be done to make the trial less complex and lengthy. Particularly relevant in this context will be the provision made for the preparatory hearing procedure under section 7 of the Criminal Justice Act 1987 or section 29 of the Criminal Procedure and Investigations Act 1996. However, in so doing the court is not to regard as reasonable any measures which would significantly disadvantage the prosecution. For example, the prosecution may be disadvantaged by the severing of an indictment or by the exclusion of relevant and important evidence simply on jury management grounds.

 
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Prepared: 29 November 2002