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

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     Clauses 38 and 40: Application for prosecution for trial to be conducted without jury where danger of jury tampering; discharge of jury because of jury tampering

209.     Clauses 38 and 40 provide for a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering.

210.     The power of a judge to discharge a jury on the grounds of jury tampering exists at common law. The phrase "jury tampering" is intended to be understood from that context as covering a range of circumstances in which the jury's independence is, may be or may appear to be compromised, for example, because of actual or attempted harm or threats to, or intimidation or bribery of, a jury or any of its members. It could also include improper approaches to a juror's family or friends, or threats etc in respect of a juror's property.

211.     Clause 38 allows the prosecution to make an application for a juryless trial. For this to be granted, the court must be satisfied that there is a real and present danger that jury tampering would take place (subsection (4)); this echoes the test in considering whether police protection should be ordered in respect of a jury. In addition, the court must be satisfied that one or other of the conditions set out in subsections (5) and (6) are fulfilled:

  • ???Subsection (5) provides that the danger of jury tampering must be such that it would be necessary to provide police protection for the members of a jury hearing the trial. Furthermore, it must be shown that the level and duration of this protection would be excessively burdensome upon the life of a typical juror.

  • ???Subsection (6) provides that the risk of jury tampering remains sufficiently high notwithstanding any steps (including police protection) that could reasonably be taken to prevent it, to make it necessary in the interests of justice for the trial to be conducted without a jury.

212.     Clause 40 concerns trials already under way where jury tampering has, or appears to have, occurred. In these circumstances, if the judge is minded to discharge the jury (in exercise of his common law powers) he must notify the prosecution and defence that he is so minded, explain his reasons for doing so, and hear what each party has to say on the matter (subsection (2)). If the judge then decides to discharge the jury (in the exercise of his common law powers), the trial will continue without a jury (subsection (3)) - unless he considers it necessary in the interests of justice to terminate the trial. In that event, he may order a retrial, and if he does so, he will have the option of ordering that the retrial takes place without a jury (subsection (5)). However, if he is to order the retrial is to take place without a jury, he will need to have satisfied himself that the condition set out in clause 38(4), and either or both of the conditions in clauses 38(5) and (6), are likely to be met in respect of the retrial.

     Clause 39: Procedure for applications under sections 36 to 38.

213.     This clause indicates the procedure for determining certain applications for a trial to be conducted without a jury under clauses 36 (defendants' applications), 37 (long or complex trials) and 38 (danger of jury tampering); this provision is likely to be supplemented by rules of court.

214.     Subsection (2) makes clear that any such application will be determined at a preparatory hearing. Provisions governing preparatory hearings are contained in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. Clause 39 builds on and amends these provisions to allow for applications for non-jury trial to be considered either at a preparatory hearing ordered under the existing provisions of those Acts, or at a preparatory hearing to be ordered particularly for that purpose.

215.     The effect of subsections (5) and (9) is that an appeal will lie to the Court of Appeal for both prosecution and defendant against the determination made by the court at a preparatory hearing on any application for a trial without a jury under clause 36, 37, or 38.

     Clause 41: Appeals

216.     This clause provides a right of appeal to the Court of Appeal against:

  • an order made under clause 40(3) to continue a trial in the absence of a jury and

  • an order made under clause 40(5) for a retrial to be conducted in the absence of a jury

     following the discharge of a jury because of jury tampering.

     Clause 42: Further provision about trials without a jury

217.     These provisions ensure that, where a court orders a trial to be conducted (under clauses 36 to 38 or 40(5)) or continued (under clause 40(3)) without a jury, the trial will proceed in the usual way, except that the functions which would otherwise have been performed by a jury can be fully performed by the judge sitting alone, with suitable allowance for the obvious requirements of the change of context.

218.     Where a trial is conducted or continued without a jury, and a defendant is convicted, subsection (5)(a) requires the court to give its reasons for the conviction.


     Clause 43: Live links in criminal proceedings

219.     This clause enables a court to authorise witnesses, other than the defendant, to give evidence through a live link in certain criminal proceedings. "Live link" is defined in clause 48(2) and will usually mean a closed circuit television link, but could apply to any technology with the same effect such as video conferencing facilities or the internet.

     220.     Subsections (4)(a) and (4)(b) provide that a court may only authorise the use of a live link if:

  • it is in the interests of the efficient or effective administration of justice for the witness to give evidence by way of a live link (for example, a witness may be able to give evidence from his place of work in a different part of the United Kingdom rather than have to travel to court); and

  • the court has been notified by the Secretary of State that suitable facilities are available in the area where the proceedings are to take place: this will allow for phased implementation of the facilities required for live links. The responsibility for ensuring that there are facilities in the remote location from which the witness intends to give evidence falls to the parties and is therefore not covered by this clause.

     221.     Subsection (6) directs the court to consider all the circumstances of the case when deciding whether to authorise the use of a live link and subsection (7) points out some of the most important considerations the court must take into account.

     Clause 44: Effect of, and rescission of, direction

222.     This clause provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so. A party may only apply for the direction to be rescinded if there has been a material change of circumstances since the decision was made. An example of when a direction might be rescinded is where problems with the live link technology arise after a direction has been given.

     Clause 45: Magistrates' courts permitted to sit at other locations

     223.     Lack of facilities in particular areas or courts should, as far as possible, not frustrate the aims of this Part. Clause 45 therefore allows a magistrates' court to move temporarily to a different location where the necessary live link facilities are available.

     Clause 46: Warning to the jury

224.     This clause allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.

     Clause 47: Rules of court

225.     The rule-making power provided by this clause will enable rules of court to be made governing the procedure to be followed, and the arrangements which must be put in place, when an application is made for evidence to be given through a live link.

     Clause 48: Interpretation of Part 8

     226.     Subsection (5) makes clear that the provisions in this Part of the Bill are not intended to affect the inherent discretion of the court to authorise evidence to be heard by live link in circumstances not covered by clause 43, or to make to make any other directions or orders in relation to witnesses, including the defendant.


     Clause 49: Meaning of "terminating ruling"

227.     This clause defines the term "terminating ruling" both in relation to one defendant or several and in relation to one or more offences. The definition will cover rulings which, but for the new right of appeal, would have immediately resulted in the premature termination of the proceedings without any further intervention on the part of the prosecution. Examples of rulings which are intended to fall within this definition are rulings that there is no case to answer and rulings that the proceedings be stayed as an abuse of process.

     Clause 50: Prosecution right of appeal against certain terminating rulings

228.     This clause sets out the circumstances in which the prosecution may appeal to the Court of Appeal against a ruling under this Part. A distinction is drawn between terminating rulings and other rulings.

229.     Terminating rulings: subsections (1) and (2) provide that the prosecution may appeal against a terminating ruling made before the trial or during the trial at any time up to the conclusion of the prosecution evidence providing it complies with the procedure set out in clause 51(3). An appeal against a terminating ruling which is a ruling that there is no case to answer may be made regardless of when the ruling is made.

230.     Other rulings: Subsections (3) and (4) give the prosecution a right of appeal against rulings made before the trial and up to the conclusion of the prosecution evidence during the trial that do not in themselves terminate the proceedings. An appeal against a ruling of this nature will only be permitted if the prosecution complies with the procedure set out in clause 52. The intended effect of the procedure in clause 52 is that this right will only be exercised in relation to rulings which are so damaging to the prosecution case, that, but for the right of appeal, the prosecution would terminate its case.

231.     Subsections (6) and (7) set out two further limitations on appeals under this Part:

  • ???Subsection (6) provides that the prosecution must obtain leave to appeal, either from the trial judge or the Court of Appeal; and

  • ???Subsection (7) prohibits the prosecution from appealing rulings on fitness to plead, discharge of the jury and those rulings that may be appealed by the prosecution under other legislation, for example, appeals from preparatory hearings against rulings on admissibility of evidence and other points of law.

Clause 51: Appeals against terminating rulings

232.     This clause sets out the procedure that must be followed when the prosecution wishes to appeal against a terminating ruling.

233.     Following the ruling, the prosecution must either inform the court that it intends to appeal or request an adjournment to consider whether to appeal (subsection (3)(a)). If such an adjournment is requested, the judge is required to grant it (subsection (4)). Following such an adjournment the prosecution must advise the court whether or not it intends to appeal (subsection (3)(b)).

234.     Subsections (2), (5) and (6) provide that the judge's terminating ruling has no effect while the prosecution follows the procedure in subsection (3) in order to consider whether to appeal or is pursuing an appeal.

Clause 52: Appeals against certain other rulings

235.     This clause sets out the procedure that must be followed when the prosecution wishes to appeal against other judicial rulings.

236.     Subsections (2) and (3) are broadly the same as clauses 51(3) and (4). However, when the prosecution indicates an intention to appeal, subsection (4) requires it to agree to the acquittal of the defendant(s) in respect of the offence(s) that are the subject of the ruling in certain specified circumstances. Those circumstances are:

  • The prosecution does not obtain leave to appeal;

  • The prosecution abandons the appeal; or

  • The result of the appeal is that proceedings against the defendant(s) for the offence(s) should not take place or be resumed.

Clause 53: Expedited and non-expedited appeals

237.     This clause provides two alternative appeal routes, an expedited (fast) route and a non-expedited (slower) route. The judge must determine which route the appeal will follow (subsection (1)). In the case of an expedited appeal the trial may be adjourned (subsection (2)). If the judge decides that the appeal should follow the non-expedited route he may either adjourn the proceedings or discharge the jury, if one has been sworn (subsection (3)). Subsection (4) gives both the judge and the Court of Appeal power to reverse a decision to expedite an appeal, thus transferring the case to the slower non-expedited route. If a decision is reversed under this subsection, the jury may be discharged.

Clause 54: Continuation of proceedings for offences not affected by ruling

238.     This provision deals with cases where the trial in question involves more than one defendant and/or more than one offence but the ruling does not apply to all of those offences or defendants. Subsections (2) and (3) enable proceedings to continue in relation to one or more of the offences and/or defendants to which the ruling does not apply.

Clause 55: Determination of appeal by Court of Appeal

239.     This clause sets out the powers of the Court of Appeal when determining a prosecution appeal.

240.     Subsection (1) authorises the Court of Appeal to confirm, reverse or vary a ruling appealed against. When making any of these decisions, subsection (2) gives the Court power to order the acquittal of the defendant(s) for the offence(s) concerned.

241.     When the Court of Appeal reverses or varies the ruling, subsections (3) and (4) provide that it may, if it is in the interests of justice to do so, order that the proceedings in the Crown Court should be resumed or that a fresh trial should take place in respect of the defendant(s) and/or offence(s) to which the ruling applies.

Clause 56: Appeals to the House of Lords

242.     Subsection (1) amends section 33(1) of the Criminal Appeal Act 1968 to give both the prosecution and defence a right of appeal to the House of Lords from a decision by the Court of Appeal on a prosecution appeal against a ruling made under this Part of the Bill.

243.     Subsection (2) amends section 36 of the Criminal Appeal Act 1968 to prevent the Court of Appeal from granting bail to a defendant who is appealing, or is applying for leave to appeal, to the House of Lords from a Court of Appeal decision made under this Part of the Bill. Bail will continue to be a matter for the trial court.

Clause 57: Costs

244.     Subsections (2) and (3) amend sections 16(4A) and 18 of the Prosecution of Offences Act 1985 to give the Court of Appeal power, on an appeal under this Part, to award costs to and against the defendant.

Clause 58: Effect on time limits in relation to preliminary stages

245.     Section 22 of the Prosecution of Offences Act 1985 enables overall and custody time limits to be set which apply during the preliminary stages of criminal proceedings, although not to the trial itself. If the prosecution were to appeal against a terminating ruling made prior to the commencement of trial, the time limits set under section 22 of the 1985 Act would therefore continue to run pending the outcome of the appeal. Clause 58 addresses this problem by inserting a new subsection (6B) into section 22 of the 1985 Act, which disapplies the overall time limit and the custody time limit provisions for the period during which proceedings are adjourned pending a prosecution appeal under this Part of the Bill.

Clause 59: Restrictions on Reporting

246.     Subsection (1) contains a general prohibition on the reporting of appeals arising under this Part of the Bill. This general prohibition is qualified by subsections (7) and (8) which provide that the restriction ends at the conclusion of the trial and does not apply to various matters including details of the court, the defendants, witnesses, legal representatives and the offences at issue.

247.     Subsections (2), (3) and (4) give the judge, the Court of Appeal and the House of Lords respectively, power, by order, to lift the reporting restriction under subsection (1) either completely or to a specified extent. If the defendant(s) object to the making of such an order, such an order may only be made if it would be in the interests of justice to do so (subsections (5) and (6)).

248.     Subsection (10) ensures that any other restrictions on the reporting of court proceedings are preserved.

Clause 60: Offences in connection with reporting

249.     Clause 60 sets out the summary offences created by the new reporting restrictions under clause 59 and the penalties which may be imposed on conviction. Prosecutions under this clause may only be bought in England and Wales by or with the consent of the Attorney General or, where instituted in Northern Ireland, by or with the consent of the Attorney General for Northern Ireland.


     Clause 62: Cases that may be retried

250.     Clause 62 sets out the cases which may be retried under the new evidence exception to the normal rule against double jeopardy. These cases all involve serious offences which carry a maximum sentence of life imprisonment, and which are considered to have a particularly serious impact either on the victim or on society more generally. The offences to which the provisions apply are called "qualifying offences", and are listed in Schedule 4 to the Bill.

251.     The cases which may be retried are those in which a person has been acquitted of one of the qualifying offences, either on indictment or following an appeal, or of a lesser offence of which he could have been convicted at that time. This takes into account cases of "implied acquittals", in which, under the current law, an acquittal would have prevented a further prosecution being brought for a lower level offence. For example, an acquittal for murder may also imply an acquittal for the lower level offence of manslaughter, but new evidence may then come to light which would support a charge of manslaughter.

252.     In certain circumstances cases may also be tried where an acquittal for an offence has taken place abroad, but that offence took place within the United Kingdom. Such cases are likely to be rare. The Government intends to make a declaration under Article 55 of the Schengen Convention, which allows an exception to the normal rule against double jeopardy within member states, in cases where the offences took place within the home state. This will ensure that this measure is compatible with the Convention. The definition of offences within clauses 62(4) and (5) recognises that offences may not be described in exactly the same way in the legislation of other jurisdictions.

253.     The law in Scotland is not being changed in this respect at present, so this Part of the Bill is not applied to acquittals which take place in Scotland.

      Clause 63: Application to Court of Appeal

254.     Clause 63 allows a prosecutor to apply to the Court of Appeal for an order which quashes the person's acquittal and orders him to be retried for the qualifying offence. A "prosecutor" means a person or body responsible for bringing public prosecutions, such as the Crown Prosecution Service or HM Customs and Excise. Where a person has been acquitted outside England and Wales or Scotland the Court will need to consider whether or not the acquittal would otherwise act as a bar to a further trial here and, if it does, the Court can order that it must not be a bar.

255.     Applications to the Court of Appeal require the personal written consent of the Director of Public Prosecutions (DPP). This provides a safeguard to ensure that only those cases in which there is sufficient evidence are referred to the Court of Appeal. The DPP will also consider whether it is in the public interest to proceed. Applications may also be brought by public prosecuting authorities if new evidence arises in cases which have previously been tried by means of a private prosecution.

256.     Only one application for an acquittal to be quashed may be made in relation to any acquittal.

Clause 64 : Determination by Court of Appeal

257.     Clause 64 sets out the decisions which the Court of Appeal may make in response to an application for an acquittal to be quashed. The Court must make an order quashing an acquittal and ordering a retrial if it considers that the requirements set out in clauses 65 and 66 of the Bill are satisfied, namely that there is new and compelling evidence in the case, and that it is in the interests of justice for a retrial to take place. The Court must dismiss an application where it is not satisfied as to these two factors.

258.     Where an acquittal has taken place outside England and Wales or Scotland, the Court must decide whether that acquittal provides a bar to prosecution. A "bar" means that normally the Court would not allow a further prosecution to proceed. If it does not provide a bar, then the Court must make a declaration to that effect. If the acquittal does provide a bar, then the court must make an order that the acquittal is not to be a bar to a trial in respect of the qualifying offence, if it is satisfied that, as above, the requirements in clauses 65 and 66 are met. If it is not satisfied, then the Court must make a declaration that the acquittal remains a bar to retrial.

     Clause 65: New and compelling evidence

259.     Clause 65 sets out the requirement for there to be new and compelling evidence of guilt, and defines evidence which is "new and compelling". Evidence is considered to be "new" if it was not known to officers or prosecutors at or before the time of the previous acquittal. This means that evidence which was known to the prosecution at the time of the original trial, but which for whatever reason was not used at that stage, cannot be used to support an application to quash an acquittal. Evidence is considered to be "compelling" if the Court considers it to be reliable and substantial and, when considered in the context of the issues which were in dispute at the trial, it is highly probable that the acquitted person was in fact guilty of the offence. So, for example, new evidence relating to identification would only be considered compelling if the identity of the offender had been at issue in the original trial. It is not intended that relatively minor evidence which might appear to strengthen an earlier case should justify a retrial.

260.     This applies equally to acquittals abroad. In such cases it will be for the prosecution to provide the Court with information relating to the evidence available and the issues in the trial.

     Clause 66: Interests of justice

261.     Clause 66 sets out the requirement that in all the circumstances it is in the interests of justice for the Court to quash an acquittal and order a retrial. In determining whether it is in the interests of justice, the Court will consider whether the acquitted person can receive a fair trial, if a retrial is ordered; the length of time since the alleged offence was committed; whether the new evidence could have been available to the police or prosecutors more quickly but for the failure of any officer or prosecutor to act with due diligence; and whether an officer or prosecutor failed to act quickly enough once new evidence became available.

262.     Both clauses 65 and 66 apply where a previous prosecution case may have been led by a private rather than public prosecutor.

     Clause 67: Procedure and evidence

263.     Clause 67 sets out a number of technical and evidential procedures to be followed in bringing an application for an acquittal to be quashed. These provide for a notice of the application to be made to the Court of Appeal and served on the acquitted person within 2 days of the notice of the application being made; that there will be a Court of Appeal hearing to consider the application; and that the acquitted person may attend the hearing.

264.     The Court may order the attendance of witnesses and consider any evidence it considers necessary for the determination of the application and may hear linked applications at the same hearing.

     Clause 68: Appeals

265     Clause 68 allows appeals on a point of law to be made to the House of Lords in respect of decisions made by the Court of Appeal on an application, for example to order or refuse a retrial, or to make a declaration with regard to whether an acquittal is a bar to further proceedings, or to decline to order a retrial on the grounds of admissibility of evidence or points of law. It amends the Criminal Appeal Act 1968 accordingly.

     Clause 69: Restrictions on reporting

266.     Clause 69 makes provisions for reporting restrictions to apply in respect of matters surrounding the application for a retrial, until either the end of the retrial or to any point at which it is clear that the acquitted person can no longer be retried. These provisions are aimed at ensuring that a fair trial is not endangered by limiting the extent to which the media can report on the proceedings under this Part of the Bill, to ensure that any potential jury is not influenced by these developments. It will not prevent the media from reporting the re-trial in the normal way once it is underway.

267.     The reporting restrictions may be varied by the Court in particular cases, and an acquitted person who objects to the reporting of these matters has a right to be heard before the court makes its decision

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Prepared: 29 November 2002