Appendix 1
S.I. 2020/759
Criminal Procedure Rules 2020
1.The Committee has requested a memorandum on the following points:
(1) In a case where, as a result of a bank holiday, the 21-day time limit set by sections 14(1)(b) and 16E(3)(c) of the Magistrates’ Courts Act 1980 ends before the 15-business-day time limit set by rule 44.2(2)(a)(i), explain—
(a) whether these Rules are purporting to require the court to exercise its discretion, under section 14(3) or section 16E(5), to extend the statutory time limit so that it matches the procedural time limit in rule 44.2(2)(a)(i);
(b) if they are, what enabling power is relied on; and
(c) if they are not, what is the effect of the mismatch between the statutory and procedural time limits.
(2) Confirm that in rule 44.2, the references to “the rules in this Part” in paragraphs (4)(b) and (c), (5)(c), and (6)(b), and the exceptions for rules 24.8 and 24.9 in paragraphs (4)(c) and (6)(b), are no longer correct.
(3) Explain how the court would deal with a referral to the Court of Justice of the European Union if such a referral were required, given that the relevant rules (formerly in Part 44) have been omitted (in contrast to other rules that deal with procedure arising from EU law and remain in force, e.g. rules 18.24(2) and (3), 18.25(3), 30.10, 31.9, 31.10, 39.8, 47.59–47.61 and 49.12–49.17).
(4) In relation to rules 22.4 and 22.5—
(a) confirm whether section 43(3) of the Youth Justice and Criminal Evidence Act 1999 is relied on as an enabling power; and
(b) if so, explain why it is not cited in the preamble.
(5) Confirm whether the reference in rule 33.59(5)(a) should be to section 82 of the Bankruptcy (Scotland) Act 2016 rather than to section 31B of the Bankruptcy (Scotland) Act 1985.
(6) Confirm whether rule 47.31 and the accompanying note should refer to an application to a District Judge (Magistrates’ Courts) as well as to a Circuit judge.
(7) Confirm whether the list in rule 47.32(2)(a) – and other paragraphs of that rule and its note as appropriate – should also include “an exploitation proceeds investigation”.
Question 1
2.The reference to 21 days in rule 44.2(2)(a)(ii) is correct. The reference to 15 business days in rule 44.2(2)(a)(i) is incompatible with the statutory provisions cited in the note to the rule; incompatible with the assertion in the Explanatory Note to the instrument that “Time limits to which the Rules refer but which are set by other legislation remain unchanged”; and is an error. The effect is that where the statutory time limit expires before the expiry of 15 business days then the statutory time limit takes precedence. Where a defendant serves a statutory declaration out of time but still within 15 business days of his or her declared discovery of the case, and especially where he or she had relied upon the terms of rule 44.2(2)(a)(i), then in practice it is inconceivable that a court applying the overriding objective in Part 1 of the Criminal Procedure Rules would not exercise the discretion conferred by section 14(3) or section 16E(5) of the Magistrates’ Courts Act 1980, as the case may be; but the error is misleading nonetheless.
Question 2
3.The reference in rule 44.2(4)(b) to “the rules in this Part” should read “the rules in Part 24 (Trial and sentence in a magistrates’ court)”. The references to “the rules in this Part” in rules 44.2(4)(c)(iii), 44.2(5)(c)(i) and 44.2(6)(b) each should read “the rules in Part 24”. These are errors. Paragraphs (4), (5) and (6) of rule 44.2 otherwise are correct.
Question 3
4.If between 5th October and 31st December, 2020, a court in which the Criminal Procedure Rules apply wished to request the Court of Justice of the European Union to give a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union then that 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).* However, such requests by such courts have long been discouraged. In Henn and Darby v D.P.P. [1981] A.C. 580 Lord Diplock observed (in relation to Crown Court trial, but declaring a general principle), “it can seldom be a proper exercise of the presiding judge’s discretion to seek a preliminary ruling before the facts of the alleged offence have been ascertained, with the result that the proceedings will be held up for nine months or more in order that at the end of the trial he may give to the jury an accurate instruction as to the relevant law, if the evidence turns out in the event to be as was anticipated at the time the reference was made—which may not always be the case. It is generally better … that the question be decided by him in the first instance and reviewed thereafter if necessary through the hierarchy of the national courts.”
Question 4
5.No, it is not relied upon. Section 43(3) of the Youth Justice and Criminal Evidence Act 1999 confers no more extensive enabling powers than does section 69 of the Courts Act 2003.
Question 5
6.Yes, it should. This is an error.
Question 6
7.No, they should not. The insertion into paragraph 11(1) of Schedule 5 to the Terrorism Act 2000 of a reference to a District Judge (Magistrates’ Courts) would be effected by paragraph 9(a) of Schedule 4 to the Courts Act 2003. That Schedule is introduced by subsection (1) of section 65 of the 2003 Act. Section 65 was brought into force on 1st April, 2005, by article 3(u) of the Courts Act 2003 (Commencement No. 10) Order 2005, S.I. 2005/910. However, no provision of that or any other commencement order yet has brought into force Schedule 4 to the 2003 Act. Contrast with article 3(u) of S.I. 2005/910 the discrete provisions for the commencement of section 109(1), (2) and (3) and Schedules 8, 9 and 10 of the 2003 Act made by article 3(y), (z), (aa) and (bb) of that commencement order.
Question 7
8.No, it should not. The power to make an exploitation proceeds order under section 155 of the Coroners and Justice Act 2009 is conferred on the High Court in England and Wales. Consistently with that provision, by section 343(1) and (3) of the Proceeds of Crime Act 2002 only a judge of the High Court may issue a search and seizure warrant under section 352 of that Act in relation to an application for the purposes of an exploitation proceeds investigation. Neither the High Court (save in relation to its jurisdiction under the Extradition Act 2003), nor a judge of the High Court, constitutes a “criminal court” within the meaning of section 68 of the Courts Act 2003 and hence, by section 69, a court in which the Criminal Procedure Rules apply. Section 352(8) of the 2002 Act allows the Rules to govern procedure on an application under that section to an individual judge exercising a jurisdiction possessed by reason of that judge’s appointment to exercise the jurisdiction of the Crown Court. The subsection is not apt to extend the legislative competence of the Criminal Procedure Rules to proceedings before a High Court judge acting by reason of his or her appointment as such. Nor would such an expansive interpretation of that subsection be consistent with the legislative scheme of the 2002 and 2009 Acts, read together, by which matters appertaining to exploitation proceeds orders and investigations are assigned not to the Crown Court and its judges but to the High Court and to the judges of that court: by contrast with matters appertaining to confiscation, money laundering, detained cash, detained property, frozen funds and external investigations.
9.The penultimate paragraph of the note to rule 47.4 alludes to the corresponding statutory complexity in relation to the orders listed in that rule but there is no note to comparable effect to rule 47.24, in which there is listed section 352 of the 2002 Act. The Criminal Procedure Rule Committee will be asked to consider adding such a note.
Correction of errors
10.The errors to which paragraphs 2, 3 and 6 above refer are deeply regretted. The Criminal Procedure Rule Committee will be asked to make amendments correcting those errors, and some others identified since publication of the Criminal Procedure Rules 2020 which the Joint Committee generously has not advertised, when the Rule Committee next amends those Rules; in December, as presently anticipated.
Ministry of Justice
6 October 2020
* The relevant Criminal Practice Directions are published, among other places, at: http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu-2015#Anchor10.
Published: 16 October 2020