Twenty-Sixth Report of Session 2019-21 Contents

Instruments reported

At its meeting on 14 October 2020 the Committee scrutinised a number of instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to two of those considered. The instruments and the grounds for reporting them are given below. The relevant departmental memoranda are published as appendices to this report.

1S.I. 2020/759: Reported for defective drafting and for requiring elucidation

Criminal Procedure Rules 2020

1.1The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in three respects and that they require elucidation in three respects.

1.2These Rules update and supersede the Criminal Procedure Rules 2015 (S.I. 2015/1490) and consolidate amendments made to the 2015 Rules over the past five years. One of the new amendments is to express time limits in business days rather than days, except where to do so would be incompatible with other legislation. A “business day” is defined in rule 2.2(1) as any day except Saturday, Sunday, Christmas Day, Boxing Day, Good Friday, Easter Monday or a bank holiday. Rule 44.2 deals with a declaration under section 14 or 16E of the Magistrates’ Courts Act 1980 that the defendant did not find out about the case until after the trial began. Rule 44.2(2)(a) requires the defendant to serve the declaration on the court officer “(i) not more than 15 business days after the date of finding out about the case; or (ii) with an explanation for the delay, if serving it more than 21 days after that date”. Sections 14 and 16E of the 1980 Act both require the declaration to be served within 21 days of the date the defendant found out about the case, but allow the court to extend that time limit if it takes the view that it was not reasonable to expect the defendant to serve the declaration within that time limit. It appeared to the Committee that if the 15-business-day period in rule 44.2(2)(a)(i) included a bank holiday, the procedural time limit in that rule would be longer than the statutory time limit in the 1980 Act. It asked the Ministry of Justice to explain whether, in such a case, the Rules are purporting to require the court to exercise its discretion to extend the statutory time limit so that it matches the procedural time limit.

1.3In a memorandum printed at Appendix 1, the Department acknowledges that the procedural time limit in rule 44.2(2)(a)(i) is incorrect and misleading because it is incompatible with the statutory time limit, to which rule 44.2(2)(a)(ii) correctly refers. It asserts that the statutory time limit takes precedence, but that where a defendant serves a declaration out of time but within the 15-business-day time limit in reliance on rule 44.2(2)(a)(i), it is inconceivable that a court applying the overriding objective would not exercise its discretion to extend the time limit. That may be true, but the inconsistency is clearly undesirable, and the Committee notes that the Department undertakes to ask the Criminal Procedure Rule Committee to correct rule 44.2(2)(a)(i) in its next round of amendments, which is expected to take place in December. The Committee accordingly reports rule 44.2(2)(a)(i) for defective drafting, acknowledged by the Department.

1.4In the 2015 Rules, Part 44 set out the procedure that applied if a court wished to apply to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling on a matter of EU law. In anticipation of Part 44 becoming vacant on 31 December 2020 as a result of Brexit, rules that had been inserted into Part 24 but did not sit comfortably there were moved to Part 44 of these Rules. It appeared to the Committee that references in rule 44.2 to “the rules in this Part” applying, or the rules in this Part applying “except for rule 24.8 … and rule 24.9”, were no longer appropriate as a consequence of that move. It asked the Department to explain. In its memorandum, the Department acknowledges that references to “the rules in this Part” should be to “the rules in Part 24” and undertakes to request amendments correcting these errors. The Committee accordingly reports rule 44.2(4)(b) and (c), (5)(c), and (6)(b) for defective drafting, acknowledged by the Department.

1.5The Committee also asked the Department to explain how the court would deal with a referral to the CJEU between these Rules coming into force and 31 December 2020, given that the relevant rules (formerly in Part 44) have been omitted. In its memorandum, the Department explains that if such a case were to arise, the court would follow the procedure set out in paragraphs IX 44A.1 to 7 of the Criminal Practice Directions 2015 [2015] EWCA Crim 1567 (as amended). The Committee accordingly reports these Rules for requiring elucidation, provided in the Department’s memorandum.

1.6The Committee asked the Department to confirm whether in rule 33.59(5)(a), the reference to section 31B of the Bankruptcy (Scotland) Act 1985 should be to section 82 of the Bankruptcy (Scotland) Act 2016. In its memorandum, the Department confirms that it should and undertakes to request a correcting amendment. The Committee accordingly reports rule 33.59(5)(a) for defective drafting, acknowledged by the Department.

1.7The Committee asked the Department to confirm whether rule 47.31(1) and the accompanying note should refer to an application to a District Judge (Magistrates’ Courts) as well as to a Circuit judge. In its memorandum, the Department asserts that it should not. It argues that the amendment by which the reference to a District Judge (Magistrates’ Courts) was inserted into paragraph 11 of Schedule 5 to the Terrorism Act 2000 (to which rule 47.31 relates) has not been brought into force: the amendment relies on both section 65 of and Schedule 4 to the Courts Act 2003, and only section 65 has been expressly commenced (by article 3(u) of S.I. 2005/910). The Committee observes that there is some doubt as to whether the courts would construe article 3(u) literally so as to commence only section 65, or purposively so as also to commence Schedule 4—without which the commencement of section 65 has no meaningful effect. (It notes that there is inconsistency in treatment of Schedule 4 as between different commercial and official publishers.) The Committee considers this uncertainty as to a matter of criminal judicial jurisdiction seriously undesirable; but it does not fall to the Committee to express a view as to the meaning of the commencement provisions, and for present purposes the Committee accordingly only reports rule 47.31(1) for requiring elucidation.

1.8The Committee asked the Department to confirm whether rule 47.32 should include an “exploitation proceeds investigation” among the types of investigation listed in that rule (reflecting the list in section 352 of the Proceeds of Crime Act 2002). In its memorandum, the Department asserts that it should not. It explains that in relation to exploitation proceeds orders and investigations, it is the High Court rather than the Crown Court which has jurisdiction, under section 155 of the Coroners and Justice Act 2002 and section 343 of the Proceeds of Crime Act 2002, and the power to issue a search and seizure warrant in relation to an exploitation proceeds investigation (to which rule 47.32 refers) is a power conferred on a High Court judge. As neither the High Court nor a High Court judge constitutes a “criminal court” for this purpose, the Criminal Procedure Rules do not apply in relation to this type of warrant. The Department undertakes to ask the Criminal Procedure Rule Committee to consider adding a note to the relevant rule to explain the statutory complexity in this case. The Committee accordingly reports rule 47.32 for requiring elucidation, provided by the Department’s memorandum.

2S.I. 2020/1029: Reported for defective drafting

Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020

2.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

2.2These Regulations were made under the procedure in section 45R of the Public Health (Control of Disease) Act 1984 under which affirmative procedure regulations may be made without a draft having been laid before, and approved by a resolution of, each House of Parliament where the Secretary of State is of the opinion that, by reason of urgency, it is necessary to do so.

2.3The Regulations make changes to restrictions and requirements imposed by other instruments in response to the threat to public health which is posed by coronavirus. Those changes include the removal of restrictions and requirements relating to the operation of businesses in specified areas (Leicester, Bolton, the North of England and the North East and North West of England). Provisions in those instruments which made it an offence (a “business closure offence”) to contravene those restrictions and requirements are also removed.

2.4However, regulation 9 (transitional and savings provisions) provides for the amended instruments to continue in force as they had effect immediately before those amendments were made (so without the amendments) in relation to a “business closure offence” that was committed before 05:00 am on 24 September 2020 (the point in time at which those amendments came into force).

2.5One of the amended instruments is the Health Protection (Coronavirus, Restrictions) (North East and North West of England) Regulations 2020 (SI 2020/1010). The amendments made to that instrument include the removal of regulations 3, 4 and 5. Regulation 3 required certain businesses to close and regulations 4 and 5 imposed restrictions on the opening hours of certain businesses and on the service of food and drink for consumption on certain premises. The provision in that instrument which made it an offence to contravene a restriction or requirement under regulation 3, 4 or 5 is also removed.

2.6Regulation 9 of SI 2020/1029 provides for SI 2020/1010 to continue in force as it had effect immediately before those amendments were made in relation to a “business closure offence” of contravening a restriction under regulation 4 or 5 of those Regulations that was committed before 05:00 am on 24 September 2020. However, regulation 9 makes no such provision in relation to an offence of contravening a requirement under regulation 3 of those Regulations.

2.7The Committee asked the Department for Health and Social Care to explain. In a memorandum (printed at Appendix 2), the Department acknowledges that provision should have been made in relation to contravention of a requirement under regulation 3 but this was omitted in error. The Committee notes that the Department has acted speedily to make an amendment to address this in paragraph 5 of Schedule 3 to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 (SI 2020/1103). That amendment came into force on 14 October 2020.

2.8The Committee accordingly reports regulation 9 for defective drafting, acknowledged by the Department.





Published: 16 October 2020