Appendix 5
S.I. 2011/1709: memorandum from the Ministry of
Justice
Criminal Procedure Rules 2011 (S.I. 2011/1709)
1. The Committee has requested a memorandum on the
following 10 points:
(1) In the light of the Committee's 11th
Report of Session 2009-10 on the Criminal Procedure Rules 2010,
explain whether new issues arise in relation to the 2011 rules
that affect the question of the inclusion of empty Parts.
(2) In relation to rule 2(4)—
(a) are the expressions in the Glossary intended
to have legal effect as part of the Rules;
(b) if so, why is the expression "is a guide
to" used (as opposed to wording such as "sets out"
or similarly clear wording); and
(c) if not, why is neither the rule nor the glossary
in the layout used for the Notes in the Rules?
(3) What is intended by the proposition of a "general
rule" in rule 4.2, in the absence of specified criteria by
reference to which the generality is to be departed from?
(4) What is meant by the reference to a "correspondent
DX" in rule 4.10(2)(c) and how is the meaning made clear?
(5) By what method are fees to be prescribed for
the purposes of, for example, rule 5.5? If they are to be prescribed
under some other statutory power, where is that power identified?
And if they are to be prescribed under the Rules, what is the
source of the power to prescribe?
(6) Explain why the expression "will"
is used in rules 5.8(5), 5.8(7), 62.8(3), 62.10(3), 73(7)(3) and
75(4)(a).
(7) What does "when" in rule 6.19(a)(iii)
add to (a)(ii)?
(8) Explain—
(a) why rule 16.10 applies only to devices of
the kind described in rule 16.9(1)(a)(i) and not to devices of
the kind described in rule 16.9(1)(a)(ii), and
(b) what sanctions are available in relation to
the latter device.
(9) In relation to each note at the foot of each
rule in Part 17 -
(a) what, apart from the note itself, ensures
that the rule has effect only for proceedings where the request
for expedition was received by the relevant authority in the United
Kingdom on or before 31 December 2003;
(b) if it is ensured by legislation still in force,
why does the note not indicate it; and
(c) if nothing but the note ensures it, why is
the note presented as purely referential material?
(10) In the apparent absence of use of the expression
"advance information" elsewhere, what is the purpose
of including a definition of that expression in the Glossary?
Context
2. By section 69 of the Courts Act 2003:
(1) There are to be rules of court (to be called
'Criminal Procedure Rules') governing the practice and procedure
to be followed in the criminal courts.
(2) Criminal Procedure Rules are to be made by a
committee known as the Criminal Procedure Rule Committee.
…
(4) Any power to make Criminal Procedure Rules is
to be exercised with a view to securing that—
(a) the criminal justice system is accessible, fair
and efficient; and
(b) the rules are both simple and simply expressed.
3. Section 1 of the Civil Procedure Act 1997, enacted
in substantially the same terms, confers on the Civil Procedure
Rule Committee a corresponding power to make Civil Procedure Rules.
4. 'Govern' means 'control or influence' (Concise
Oxford Dictionary). 'Practice and procedure' are to be distinguished
from (i) that which confers jurisdiction on the courts, (ii) that
which determines the admissibility of evidence in proceedings
before the courts and (iii) rights and obligations that are not
of a procedural character: see, for example, R (Kelly) v Warley
Magistrates' Court [2007] EWHC 1836 (Admin). Criminal Procedure
Rules cannot lawfully confer rights, or impose obligations and
sanctions, that are not procedural, and therefore should not purport
to do so. But, to meet the statutory requirements of accessibility
and simplicity, the effects of such other rights, obligations
and sanctions must be accommodated by the Rules.
5. References appear beneath to the inclusion of
rules in the Civil Procedure Rules, in the Criminal Procedure
Rules 2005 and in the Criminal Procedure Rules 2010. Those Rules
were contained in, respectively, S.I. 1998/3132, S.I. 2005/384
and S.I. 2010/60.
Question 1
6. The reasons for, and the matters arising in connection
with, the retention of empty Parts of the Criminal Procedure Rules
were set out in a letter addressed to the chairman of the Committee
by the deputy chairman of the Rule Committee, writing on behalf
of the Lord Chief Justice and fellow members, dated 7th
April, 2011. A copy of that letter accompanies this memorandum.
7. In summary, the observations made in that letter
are:
(a) The legal argument about the significance of
numbering, at paragraph 2.4 of the Committee's Report in question,
is misconceived. As it is put in the Rule Committee letter, "the
number is not an operative part of its corresponding rule. The
number merely provides a convenient device by which to refer to
that rule, and serves as an aid to the interpretation of that
rule by establishing its intended sequence within a series of
rules. Adopting this logic, a rule still would be a valid rule
even if it had no corresponding number. And the inclusion in a
statutory instrument of a number with no corresponding rule plainly
does not convert that number into a rule itself."
(b) Research conducted by the Rule Committee among
those who use and publish the Rules indicated that the repeated
renumbering of the Rules apparently required by the Committee
would produce expense and confusion disproportionate to any (unidentified)
advantage in adopting what is said to be 'proper legislative practice'.
(c) The Rule Committee adopted this technique at
the outset, but it provoked no comment before the Report in question.
As it is put in the Rule Committee letter, "when the Criminal
Procedure Rules 2005 were made, Parts 9, 22, 23, 33, 51, 76 and
77 all were left empty at the outset, anticipating that rules
in all those Parts might be required in due course as the Rule
Committee's programme of reform progressed. On that occasion,
the JCSI made no comment. On several occasions since, as the Rule
Committee has revised and consolidated rules, Parts and rules
have been omitted without altering the numbering of subsequent
rules and Parts. On those occasions, too, the JCSI has made no
comment. It is established practice for Acts of Parliament to
repeal sections of earlier Acts without renumbering subsequent
sections of those earlier Acts. I see no obvious difference in
principle."
8. The Department respectfully concurs. A statutory
instrument containing Criminal Procedure Rules differs from statutory
instruments made by Ministers of the Crown in that it is made
by the Rule Committee, a subordinate legislature of appointed
members established by Parliament. Subject to its abolition by
Parliament, the Rule Committee's programme of reform of the secondary
legislation for which it is responsible is less susceptible to
the vagaries to which paragraph 2.7 of the Committee's Report
referred than the Committee may have assumed.
Question 2
9. Adopting the Committee's comminution:
(a) No. The definition of expressions used in the
Rules is dealt with by rule 2.2, headed 'Definitions'.
(b) Not applicable, therefore.
(c) Interpolated notes to individual rules, and notes
appended to Parts of the Rules, appear in italic type to differentiate
them clearly and immediately from the surrounding operative text.
Rule 2.4 describes the function of the glossary, just as rule
2.3 describes the convention adopted by the Rules for references
to legislation. The Glossary follows, and is clearly and visually
distinct from, the operative text of the Rules. Its function is
again described in the sentence by which it is introduced. Consequently
it requires no italicisation.
10. Rule 2.4 and the Glossary appeared in the same
terms, and in the same presentation, in the Criminal Procedure
Rules 2005 and in the Criminal Procedure Rules 2010, without provoking
comment. They are modelled on the corresponding, and correspondingly
presented, rule 2.2 of the Civil Procedure Rules and Glossary
to those Rules.
Questions 3 and 6
11. The English language recognises, and the Criminal
Procedure Rules adopt, use of the following auxiliaries to express
a gradation of compulsion, from (in the following sequence) obligation,
through expectation, to discretion:
(i) 'must';
(ii) 'will';
(iii) 'as a general rule, will';
(iv) 'may'.
Each may, but need not, be subjected to qualification
or exception.
12. As a matter of ordinary English usage:
(a) 'will' expresses the future tense and incorporates
'a strong intention or assertion about the future' or 'a probability
or expectation' (Concise Oxford Dictionary), but does not itself
import obligation; and
(b) 'as a general rule' connotes 'usually, but not
always' (ibid).
13. Thus:
(a) in rule 4.2, if the opportunity to use electronic
service is available to the person serving a document, then that
person is expected usually to use that method but is not required
to do so;
(b) in rules 5.8(5) and 5.8(7), the court officer
can be expected to act as there indicated under the compulsion
of (i) rule 5.8(4), in the first instance, and (ii) judicial direction
('if the court so directs') in the second;
(c) in rules 62.8(3) and 62.10(3), the court can
be expected to admit in evidence the information there listed,
if it is offered, under the compulsion of the common law;
(d) in rule 73.7(3) the Court of Appeal can be expected
to allow the appeal that is the subject of that rule, in the circumstances
there identified, under the compulsion of the common law defining
the jurisdiction of that court; and
(e) in rule 75.4(a), the court can be expected usually
to act as there indicated but it is not required to do so.
14. Rules 62.8 and 62.10 appeared first in the Criminal
Procedure (Amendment No. 2) Rules 2010 (S.I. 2010/3026).
Rule 73.7 remains in the same terms as in the antecedent Criminal
Appeal (Confiscation, Restraint and Receivership) Rules 2003 (S.I. 2003/428)
and appeared in the Criminal Procedure Rules 2005 and 2010. Rule
75.4 appeared in the Criminal Procedure Rules 2010 and corresponding
expressions appear elsewhere in the Criminal Procedure Rules,
for example in rule 76.2(6). None of these rules hitherto has
provoked comment by the Committee; by any court applying the rules;
or by any other user of the Criminal Procedure Rules. The expressions
'will' and 'as a general rule, will' appear often in the Civil
Procedure Rules, for example in rules 3.7, 3.9, 6.3, 6.14, 7.6,
8.8, 12.5, 12.8, etc.: sometimes subject to qualifications or
exceptions, but not always.
Question 4
15. The meaning of the abbreviation 'DX' is indicated
by parentheses in rule 4.5. 'Correspondent', as a matter of ordinary
English, means one who regularly corresponds with another. Thus
a 'correspondent DX' is a document exchange which regularly sends
documents to, and receives documents from, the document exchange
at which the addressee, in accordance with rule 4.5, has indicated
that he or she has a DX box.
16. This expression first appeared in the Criminal
Procedure (Amendment) Rules 2007 (S.I. 2007/699) and subsequently
in the Criminal Procedure Rules 2010, without provoking comment.
Question 5
17. Under any power for the time being supplied by
Parliament and exercised by the authority on which such power
is conferred. Hence the indefinite passive, 'any … prescribed'.
Such a power is that conferred on the Lord Chancellor by section
92 of the Courts Act 2003. But it has not yet been exercised in
relation to matters governed by the Rules.
18. The antecedent to rule 5.5 appeared in substantially
corresponding terms in the Criminal Appeal Rules 1968 (S.I. 1968/1262);
it was adopted in the Criminal Procedure Rules 2005; it appeared
in amendments made by the Criminal Procedure (Amendment No. 2)
Rules 2007 (S.I. 2007/2317); and it subsequently appeared
in Part 65 of the Criminal Procedure Rules 2010: without provoking
comment.
Question 7
19. Rule 6.19 governs an application for an account
monitoring order under section 370 of the Proceeds of Crime Act
2002. The same construction appears in rule 6.10, which rule governs
an application for an account monitoring order under paragraph
2 of Schedule 6A to the Terrorism Act 2000.
20. Section 370 of the 2002 Act provides, at subsections
(6) and (7):
(6) An account monitoring order is an order that
the financial institution specified in the application for the
order must, for the period stated in the order, provide account
information of the description specified in the order to an appropriate
officer in the manner, and at or by the time or times, stated
in the order.
(7) The period stated in an account monitoring order
must not exceed the period of 90 days beginning with the day on
which the order is made.
21. Paragraph 2 of Schedule 6A to the 2000 Act provides,
at subparagraphs (4) and (5):
(4) An account monitoring order is an order that
the financial institution specified in the application for the
order must—
(a) for the period specified in the order;
(b) in the manner so specified;
(c) at or by the time or times so specified; and
(d) at the place or places so specified,
provide information of the description specified
in the application to an appropriate officer.
(5) The period stated in an account monitoring order
must not exceed the period of 90 days beginning with the day on
which the order is made.
22. The rule draws the same distinction as is drawn
in subsection (6) and in subparagraph (4) between, on the one
hand, the duration of the account monitoring period and, on the
other, the occasion or occasions on which the information gleaned
is to be supplied to the applicant.
23. The rules in Part 6 first appeared in the Criminal
Procedure (Amendment) Rules 2009 (S.I. 2009/2087) and subsequently
in the Criminal Procedure Rules 2010, without provoking comment.
However, if the Committee now concludes that the word 'for' is
to be preferred to the word 'during' in the two rules concerned,
the Department will invite the Rule Committee to substitute the
former for the latter at the first available opportunity.
Question 8
24. The only relevant power of forfeiture is that
conferred by section 9 of the Contempt of Court Act 1981, and
it extends only to devices in the category to which rule 16.9(1)(a)(i)
refers.
25. For the use without permission of a device in
the category to which rule 16.9(1)(a)(ii) refers, the potential
sanction is punishment of the user for contempt of court. See
the penultimate note to rule 16.1.
Question 9
26. The rules in Part 17 refer to and supplement
the provisions which they identify of the Backing of Warrants
(Republic of Ireland) Act 1965 and of the Extradition Act 1989.
By section 218 of the Extradition Act 2003, the 1965 and 1989
Acts ceased to have effect on the coming into force of the 2003
Act. By article 2 of the Extradition Act 2003 (Commencement and
Savings) Order 2003, S.I. 2003/3103, the 2003 Act came into force
on 1st January, 2004, subject to the savings contained
in that Order. By article 3 of that Order, as substituted by article
2 of the Extradition Act 2003 (Commencement and Savings) (Amendment
No. 2) Order 2003, S.I. 2003/3312:
The coming into force of the Act shall not apply
for the purposes of any request for extradition, whether made
under any of the provisions of the Extradition Act 1989 or of
the Backing of Warrants (Republic of Ireland) Act 1965 or otherwise,
which is received by the relevant authority in the United Kingdom
on or before 31st December 2003.
27. The application of the rules in Part 17 thus
is correspondingly confined; and the notes to those rules so indicate,
in the manner of other such notes. Legislative history is indicated
by the legislative footnotes. No useful purpose would be served
by duplicating that information. None of the notes has an operative
effect.
28. The same rules and notes appeared in the Criminal
Procedure Rules 2005 and 2010, without provoking comment.
Question 10
29. The Committee correctly identifies the expression
'advance information' as one no longer appearing in the Rules:
it having been superseded by the expression 'initial details of
the prosecution case' (see Part 21). The Department will invite
the Rule Committee to remove it from the Glossary at the first
available opportunity; and likewise the expressions 'in camera'
and 'evidence in chief', now similarly superfluous.
Ministry of Justice
24th October, 2011
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