Appendix 7
S.R. 2021/16
Crown Court (Amendment) Rules (Northern Ireland) 2021
1.The Committee has requested a memorandum on the following points:
(1) Explain why the free-issue procedure was not used, given that this instrument corrects errors made by the Criminal Procedure (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/908; see paragraphs 2.3 and 7.8 of the Explanatory Memorandum).
(2) Having regard to the principles set down by Hodgson J in R. v Secretary of State for Trade, Ex p. Chris International Foods Limited (Case CO/1020/82, Friday 4 March 1983 QBD), and noted in relation to S.I. 2015/1953 in the Committee’s Fourteenth Report of Session 2015–16, confirm that despite being designated Parliamentary Under Secretary of State to the Minister of Justice, Mr Chalk signed the allowance of these Rules in his capacity as Parliamentary Under Secretary of State to the Lord Chancellor.
(3) In a case where an overseas production order is sought in relation to proceedings already instituted, rather than to an offence that is being investigated or a terrorist investigation, explain how the requirement in rule 62O(2)(c) to “briefly describe the investigation for the purposes of which the electronic data is sought” is intended to operate.
(4) In relation to rules 62O(3) to (5) and 62P(3)(c), explain—
a)why rules 62O(3) and 62P(3)(c) place no time limit on service, in contrast to the requirements for documents to be notified to specified parties “as soon as practicable” in rule 62O(4) and “as soon as reasonably practicable” in rule 62O(5);
b)the intended difference in meaning between “as soon as practicable” and “as soon as reasonably practicable” and the reason for that difference;
c)what is meant by “if applicable” in rule 62P(3)(c) (by reference to examples, and by contrast with rule 62O(3)); and
d)why rule 62P(3)(c) (requirement for service) is subject to rule 62Q(7)(c) (discretion for court to consider applications orally instead of in writing) and not rule 62Q(7)(b) (discretion for court to waive requirements for service).
Question 1
2.It was an oversight not to use the free-issue procedure. The Department of Justice, Northern Ireland has made enquiries with the Statutory Publications Office and the National Archives regarding remedial actions and will request that any purchasers of the original instrument are identified and issued with a refund. The Committee may also wish to note that analogous correcting amendments to magistrates’ courts rules have been made by the Magistrates’ Courts (Amendment) Rules (Northern Ireland) 2021, again not using the free-issue procedure. The Department will also undertake the same arrangements in respect of this instrument.
Question 2
3.Under section 53A of the Judicature (Northern Ireland) Act 1978, the relevant authority (in this case, the Lord Chancellor) must “allow or disallow” the rules previously made by the Committee under section 52(1). The purpose of the signature of these rules is to indicate the Lord Chancellor’s “allowance” of them. This is why the words “signed by the authority of the Lord Chancellor” were included ahead of the signature of Minister Chalk “allowing” the rules on behalf of the Lord Chancellor. (The Lord Chancellor was unavailable.) Minister Chalk’s title is correctly stated as “the Parliamentary Under Secretary of State, the Ministry of Justice”; there is no such role as “the Parliamentary Under Secretary of State to the Lord Chancellor”.
Questions 3 and 4—General Note:
4.The rules contained in the Schedule to The Crown Court (Amendment) Rules (Northern Ireland) 2021 make equivalent provision to, and where appropriate mirror, section 10 (Orders for Access to Electronic Data under the Crime (Overseas Production Orders) Act 2019) of Part 47 (Investigation Orders and Warrants) of the Criminal Procedure Rules 2020, S.I. 2020/759. What is now section 10 of Part 47 was inserted into the then Criminal Procedure Rules 2015, S.I. 2015/1490, by the Criminal Procedure (Amendment No. 2) Rules 2019, S.I. 2019/1119 (listed in the Annex to the Committee’s 68th Report of session 2017–19, published 6th September 2019). This approach maintains, wherever possible and appropriate, procedural equivalence in the operation of applicable primary legislation across the relevant UK jurisdictions.
Question 3
5.Rule 62O(2)(c) mirrors rule 47.65(3)(f) of the Criminal Procedure Rules 2020. It is anticipated that an application for an overseas production order may be made after proceedings have been instituted, for example, where an investigation is continuing by direction of a prosecutor after the decision to prosecute or as a result of developments in proceedings prior to trial. The application will contain a brief description of this on-going investigation.
Question 4(a)
6.Rules 62O(3) makes provision equivalent to rules 47.65(1)(e) and (f) of the Criminal Procedure Rules 2020. Rule 62P(3)(c) makes provision equivalent to rule 47.66(3)(b) of the Criminal Procedure Rules 2020. Rules 62O(3) and 62P(3)(c) are to be read in conjunction with rule 62Q(3) which closely follows rule 47.64(3) of the Criminal Procedure Rules 2020. No time limit for service is prescribed by the Criminal Procedure Rules 2020 and it was not considered that there were any Northern Ireland-specific reasons to depart from the established procedure in England and Wales. It is anticipated that in the normal course of events service will be simultaneous with the giving of notice to the chief clerk.
Question 4(b)
7.The intended difference in meaning between ‘as soon as practicable’ and ‘as soon as reasonably practicable’ relates to the strictness of the requirement. Usage in this context is based upon the definition in Stroud’s Judicial Dictionary, 10th Edition, which, in the entry relating to ‘practicable’, states, “Where the drafter of a statute uses “practicable” rather than “reasonably practicable”, he is taken to intend a stricter requirement (Nikonos v Governor of Brixton Prison [2005] EWHC Admin 2405 at [21]).” In rules 62O(4) and 62P(3), it was considered that the context merited a stricter requirement whereas in rule 62O(5), the context was not considered to merit a stricter requirement.
Question 4(c)
8.Rule 62P(3)(c) closely follows rule 47.66(3)(b)(ii) of the Criminal Procedure Rules 2020. The words ‘if applicable’ in rule 62P(3)(c) reflect the potential position whereby the application to vary or revoke the original order is made by the respondent to the original application for an order. In such circumstances, service upon the respondent would not be applicable.
Question 4(d)
9.It is accepted that this rule may benefit from elucidation and steps will be taken to seek to have the wording rectified in the next available instrument.
Ministry of Justice
18 March 2021
Published: 16 April 2021 Site information Accessibility statement