Title, commencement and transitional provision

1.—(1) This Order may be cited as the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.

(2) This Article, and Articles 2 and 11, shall come into operation on the expiration of 21 days from the day on which the Order is made.

(3) The remaining provisions of this Order shall come into operation on such day or days as the Secretary of State may by order appoint.

(4) An order under paragraph (3) may make such transitional provision as appears to the Secretary of State to be necessary or expedient in connection with any provision thereby brought into operation.

Interpretation

2.  The Interpretation Act (Northern Ireland) 1954(4) shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

Transfer of serious fraud cases to Crown Court

Notices of transfer and designated authorities

3.—(1) If—

(a)a person has been charged with an indictable offence; and

(b)in the opinion of an authority designated by paragraph (2) or of one of such an authority’s officers acting on the authority’s behalf the evidence of the offence charged—

(i)would be sufficient for the person charged to be committed for trial; and

(ii)reveals a case of fraud of such seriousness and complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court; and

(c)before the magistrates' court in whose jurisdiction the offence has been committed—

(i)has commenced hearing the evidence for the prosecution (other than a deposition relating to the arrest or to the remand of the accused), where the court is conducting a preliminary investigation, or

(ii)has begun to conduct a preliminary inquiry,

the authority or one of the authority’s officers acting on the authority’s behalf gives the court a notice (in this Order referred to as a “notice of transfer”) certifying that opinion,

the functions of the magistrates' court shall cease in relation to the case, except as provided by Article 4(3) and (6) of this Order and by Article 29(2)(c) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981(5).

(2) The authorities mentioned in paragraph (1) (in this Order referred to as “designated authorities”) are—

(a)the Director of Public Prosecutions for Northern Ireland;

(b)the Director of the Serious Fraud Office;

(c)the Commissioners of Inland Revenue;

(d)the Commissioners of Customs and Excise; and

(e)the Secretary of State.

(3) A designated authority’s decision to give notice of transfer shall not be subject to appeal or liable to be questioned in any court.

Notices of transfer—procedure

4.—(1) A notice of transfer shall specify the proposed place of trial and in selecting that place the designated authority shall have regard to the considerations to which section 48(1) of the Judicature (Northern Ireland) Act 1978(6) requires a magistrates' court committing a person for trial to have regard when selecting the place at which he is to be tried.

(2) A notice of transfer shall specify the charge or charges to which it relates and include or be accompanied by such additional matter as regulations under paragraph (7) may require.

(3) If a magistrates' court has remanded a person to whom a notice of transfer relates in custody, it shall have power—

(a)to order that he shall be safely kept in custody until delivered in due course of law; or

(b)to release him on bail that is to say, by directing him to appear before the Crown Court for trial;

and where his release on bail is conditional on his providing one or more surety or sureties and the court fixes the amount in which the surety is to be bound with a view to his entering into his recognizance subsequently, the court shall in the meantime make an order such as is mentioned in sub-paragraph (a).

(4) Where notice of transfer is given after a person to whom it relates has been remanded on bail to appear before a magistrates' court on an appointed day, the requirement that he shall so appear shall cease on the giving of the notice, unless the notice states that it is to continue.

(5) Where the requirement that a person, to whom the notice of transfer relates, shall appear before a magistrates' court ceases by virtue of paragraph (4), it shall be his duty to appear before the Crown Court at the place specified by the notice of transfer as the proposed place of trial or at any place substituted for it by a direction under section 48(2) or (3) of the Judicature (Northern Ireland) Act 1978(7).

(6) If the notice states that the requirement to appear is to continue, when a person, to whom the notice of transfer relates, appears before the magistrates' court, the court shall have—

(a)the powers and duty conferred on a magistrates' court by paragraph (3), but subject as there provided; and

(b)power to enlarge, in the surety’s absence, a recognizance conditioned in accordance with Article 47(1)(b) or 48 of the Magistrates' Courts (Northern Ireland) Order 1981(8) so that the surety is bound to secure that the person charged also appears before the Crown Court.

(7) The Attorney General—

(a)shall by regulations make provision requiring the giving of a copy of a notice of transfer, together with a statement of the evidence on which any charge to which it relates is based—

(i)to any person to whom the notice of transfer relates; and

(ii)to the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial; and

(b)may by regulations make such further provision in relation to notices of transfer, including provision as to the duties of a designated authority in relation to such notices, as appears to him to be appropriate.

(8) Regulations made under paragraph (6) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946(9) shall apply accordingly.

Applications for dismissal

5.—(1) Where notice of transfer has been given, any person to whom the notice relates, at any time before he is arraigned (and whether or not an indictment has been presented against him), may apply orally or in writing to the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial or at any place substituted for it by a direction mentioned in Article 4(5), for the charge, or any of the charges, in the case to be dismissed; and the judge shall dismiss a charge (and accordingly quash a count relating to it in any indictment presented against the applicant) if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him.

(2) No oral application may be made under paragraph (1) unless the applicant has given the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial or at any place substituted for it by a direction mentioned in Article 4(5) written notice of his intention to make the application.

(3) Oral evidence may be given on such an application only with the leave of the judge or by his order, and the judge shall give leave or make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so.

(4) If the judge gives leave permitting, or makes an order requiring, a person to give oral evidence, but he does not do so, the judge may disregard any document indicating the evidence that he might have given.

(5) Dismissal of the charge, or all the charges, against the applicant shall have the same effect as a refusal by a magistrates' court to commit for trial, except that no further proceedings may be brought on a dismissed charge except by means of the presentment of an indictment such as is specified in paragraph (c), (d), (e) or (f) of section 2(2) of the Grand Jury (Abolition) Act (Northern Ireland) 1969(10).

(6) Crown Court rules may make provision for the purposes of this Article and, without prejudice to the generality of this paragraph—

(a)as to the time or stage in the proceedings at which anything required to be done is to be done (unless the court grants leave to do it at some other time or stage);

(b)as to the contents and form of notices or other documents;

(c)as to the manner in which evidence is to be submitted; and

(d)as to persons to be served with notices or other material.

Preparatory hearings

Power to order preparatory hearing

6.—(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness and complexity that substantial benefits are likely to accrue from a hearing (in this Order referred to as a “preparatory hearing”) before the jury are sworn, for the purpose of—

(a)identifying issues which are likely to be material to the verdict of the jury;

(b)assisting their comprehension of any such issues;

(c)expediting the proceedings before the jury; or

(d)assisting the judge’s management of the trial,

he may order that such a hearing shall be held.

(2) A judge may make an order under paragraph (1) on the application either of the prosecution or of the person indicted or, if the indictment charges a number of persons, any of them, or of his own motion.

(3) If a judge orders a preparatory hearing, he may also order the prosecution to prepare and serve any documents that appear to him to be relevant and whose service could be ordered at the preparatory hearing by virtue of this Order or Crown Court rules.

(4) Where—

(a)a judge has made an order under paragraph (3); and

(b)the prosecution have complied with it,

the judge may order the person indicted or, if the indictment charges a number of persons, any of them to prepare and serve any documents that appear to him to be relevant and whose service could be so ordered at the preparatory hearing.

(5) An order under this Article may specify the time within which it is to be complied with, but Crown Court rules may make provision as to the minimum or maximum time that may be specified for compliance.

Commencement of trial and arraignment

7.—(1) If a judge orders a preparatory hearing, the trial shall begin with that hearing.

(2) Arraignment shall accordingly take place at the start of the preparatory hearing.

The preparatory hearing

8.—(1) At the preparatory hearing the judge may exercise any of the powers specified in this Article.

(2) The judge may adjourn a preparatory hearing from time to time.

(3) He may determine—

(a)any question as to the admissibility of evidence; and

(b)any other question of law relating to the case.

(4) He may order the prosecution—

(a)to supply the court and the defendant or, if there is more than one, each of them with a statement (a “case statement”) of the following—

(i)the principal facts of the prosecution case;

(ii)the witnesses who will speak to those facts;

(iii)any exhibits relevant to those facts;

(iv)any proposition of law on which the prosecution proposes to rely; and

(v)the consequences in relation to any of the counts in the indictment that appear to the prosecution to flow from the matters stated in pursuance of heads (i) to (iv);

(b)to prepare their evidence and other explanatory material in such a form as appears to him to be likely to aid comprehension by the jury and to supply it in that form to the court and to the defendant or, if there is more than one, to each of them;

(c)to give the court and the defendant or, if there is more than one, each of them notice of documents the truth of the contents of which ought in the prosecution’s view to be admitted and of any other matters which in their view ought to be agreed;

(d)to make any amendments of any case statement supplied in pursuance of an order under sub-paragraph (a) that appear to the court to be appropriate, having regard to objections made by the defendant or, if there is more than one, by any of them.

(5) Where—

(a)a judge has ordered the prosecution to supply a case statement; and

(b)the prosecution have complied with the order,

he may order the defendant or, if there is more than one, each of them—

(i)to give the court and the prosecution a statement in writing setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution;

(ii)to give the court and the prosecution notice of any objections that he has to the case statement;

(iii)to inform the court and the prosecution of any point of law (including a point as to the admissibility of evidence) which he wishes to take and any authority on which he intends to rely for that purpose;

(iv)to give the court and the prosecution a notice stating the extent to which he agrees with the prosecution as to documents and other matters to which a notice under paragraph (4)(c) relates and the reason for any disagreement.

(6) Crown Court rules may provide that except to the extent that disclosure is required by section 1 of the Evidence of Alibi Act (Northern Ireland) 1972(11) a summary required by virtue of paragraph (5) need not disclose who will give evidence.

(7) A judge making an order under paragraph (5) shall warn the defendant or, if there is more than one, all of them of the possible consequence under Article 9(1) of not complying with it.

(8) If it appears to a judge that reasons given in pursuance of paragraph (5)(iv) are inadequate, he shall so inform the person giving them, and may require him to give further or better reasons.

(9) An order under this Article may specify the time within which any specified requirement contained in it is to be complied with, but Crown Court rules may make provision as to the minimum or maximum time that may be specified for compliance.

(10) An order or ruling made at or for the purposes of a preparatory hearing shall have effect during the trial, unless it appears to the judge, on application made to him during the trial, that the interests of justice require him to vary or discharge it.

(11) An appeal shall lie to the Court of Appeal from any order or ruling of a judge under paragraph (3), but only with the leave of the judge or of the Court of Appeal.

(12) The judge may continue a preparatory hearing notwithstanding that leave to appeal has been granted under paragraph (11), but no jury shall be sworn until after the appeal has been determined or abandoned.

(13) On the termination of the hearing of an appeal, the Court of Appeal may confirm, reverse or vary the decision appealed against.

Provisions relating to later stages of trial

9.—(1) Where there has been a preparatory hearing, any party may depart from the case which he disclosed at the hearing but, in the event of such a departure or of failure to comply with a requirement imposed at the hearing, the judge or with the leave of the judge, any other party may make such comment as appears to him to be appropriate and the jury may draw such inference as appears proper.

(2) In deciding whether to give leave the judge shall have regard in all cases—

(a)to the extent of any departure from a case indicated at the preparatory hearing; and

(b)to whether there was any justification for it.

(3) Except as provided by this Article no part—

(a)of a statement supplied under Article 8(5); or

(b)of any other information relating to the case for the defendant or, if there is more than one, the case for any of them, which was given at the preparatory hearing,

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the person who supplied or gave it.

Reporting restrictions

Restrictions on reporting applications for dismissal and preparatory hearings

10.—(1) Except as provided by this Article, it shall not be lawful to publish in Northern Ireland a written report, or to broadcast or include in a cable programme in Northern Ireland a report of proceedings to which this section applies which contains any matter other than that permitted by this Article.

(2) This Article applies—

(a)to an application under Article 5(1); and

(b)to a preparatory hearing and any appeal or application for leave to appeal relating to such a hearing.

(3) An order that paragraph (1) shall not apply to reports—

(a)of an application under Article 5(1);

(b)of a preparatory hearing;

(c)of an appeal to the Court of Appeal under Article 8(11); or

(d)of an application for leave to appeal under that paragraph,

may be made—

(i)in a case falling within sub-paragraph (a), (b) or (d), by the judge dealing with the matter; and

(ii)in a case falling within sub-paragraph (c), by the Court of Appeal.

(4) Where in the case of two or more accused one of them objects to the making of an order under paragraph (3), the court shall make the order if, and only if, it is satisfied, after hearing the representations of the accused, that it is in the interests of justice to do so.

(5) An order under paragraph (3) shall not apply to reports of proceedings under paragraph (4), but any decisions of the court to make or not to make such an order may be contained in reports published, broadcast or included in a cable programme before the time authorised by paragraph (6).

(6) It shall not be unlawful under this Article to publish, broadcast or include in a cable programme a report of an application under Article 5(1) containing any matter other than that permitted by paragraph (9) where the application is successful.

(7) Where—

(a)two or more persons were jointly charged; and

(b)applications under Article 5(1) are made by more than one of them,

paragraph (6) shall have effect as if for the words “the application is” there were substituted the words “all the applications are”.

(8) It shall not be unlawful under this Article to publish, broadcast or include in a cable programme a report of an unsuccessful application or a preparatory hearing at the conclusion of the trial of the person charged, or of the last of the persons charged to be tried.

(9) The following matters may be contained in a report published, broadcast or included in a cable programme without an order under paragraph (3) before the time authorised by paragraphs (6) and (7), that is to say—

(a)the identity of the court and the name of the judge;

(b)the names, ages, home addresses and occupations of the accused and witnesses;

(c)any relevant business information;

(d)the offence or offences, or a summary of them with which the accused is or are charged;

(e)the names of counsel and solicitors in the proceedings;

(f)where the proceedings are adjourned, the date and place to which they are adjourned;

(g)any arrangements as to bail;

(h)whether legal aid was granted to the accused or any of the accused.

(10) The following is relevant business information for the purposes of paragraph (9)—

(a)any address used by the accused for carrying on a business on his own account;

(b)the name of any business which he was carrying on on his own account at any relevant time;

(c)the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;

(d)the address of any such firm;

(e)the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;

(f)the address of the registered or principal office of any such company; and

(g)any working address of the accused in his capacity as a person engaged by any such company.

(11) In paragraph (10) “engaged” means engaged under a contract of service or a contract for services.

(12) The addresses that may be published or broadcast or included in a cable programme under paragraph (9) are addresses—

(a)at any relevant time; and

(b)at the time of their publication, broadcast or inclusion in a cable programme.

(13) If a report is published, broadcast or included in a cable programme in contravention of this Article, the following persons, that is to say—

(a)in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;

(b)in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;

(c)in the case of a broadcast of a report, any body corporate which transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical;

(d)in the case of an inclusion of a report in a cable programme, any body corporate which sends or provides the programme and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(14) Proceedings for an offence under this Article shall not be instituted otherwise than by or with the consent of the Attorney General.

(15) Paragraph (1) shall be in addition to, and not in derogation from, the provisions of any other enactment with respect to the publication of reports of court proceedings.

(16) In this Article—

“broadcast” means broadcast by wireless telegraphy sounds or visual images intended for general reception;

“cable programme” means a programme included in a cable programme service;

“publish”, in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;

“relevant time” means a time when events giving rise to the charges to which the proceedings relate occurred.

Conspiracy to defraud

Charges of and penalty for conspiracy to defraud

11.—(1) If—

(a)a person agrees with any other person or persons that a course of conduct shall be pursued; and

(b)that course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions,

the fact that it will do so shall not preclude a charge of conspiracy to defraud being brought against any of them in respect of the agreement.

(2) In Article 13(2) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983(12), the words from “and” to the end are hereby revoked.

(3) A person guilty of conspiracy to defraud is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine or both.

Supplementary

Minor and consequential amendments

12.  The statutory provisions mentioned in the Schedule shall have effect with the amendments there specified (being minor amendments and amendments consequential on the foregoing provisions of this Order).

Article 13.

SCHEDULEMINOR AND CONSEQUENTIAL AMENDMENTS

The Costs in Criminal Cases Act (Northern Ireland) 1968 (c. 10)

1.—(1) In section 3(1), after the word “offence” insert the words “or a judge of the Crown Court conducting a preparatory hearing under the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988”.

(2) After section 3(2) insert the following subsection—

“(2A) Where a notice of transfer is given under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 but a person in relation to whose case it is given is not tried on a charge to which it relates, the Crown Court shall have the same power to order the payment of costs under this Act as if that person had been tried and acquitted.”.

(3) After section 4(2) insert the following subsection—

“(2A) The Court may also order the Secretary of State to pay the costs of the appellant on an appeal under Article 8(11) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.”.

(4) In Section 4(3) for the words “subsection (2)” substitute the words “subsections (2) and (2A)”.

The Grand Jury (Abolition) Act (Northern Ireland) 1969 (c. 15 (N.I.))

2.—(1) In section 2(2) (procedures for indictment of offenders), after paragraph (a) insert the following paragraph—

“(aa)the offence is specified in a notice of transfer under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (serious and complex fraud); or”.

(2) After section 2(5) insert the following subsection—

“(5A) In a case to which subsection (2)(aa) applies, the indictment may include, either in substitution for or in additon to any count charging an offence specified in the notice of transfer, any counts founded on material that accompanied the copy of that notice which, in pursuance of regulations under Article 4(7) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, was given to the person charged, being counts which may lawfully be joined in the same indictment.”.

The Evidence of Alibi Act (Northern Ireland) 1972 (c. 6 (N.I.))

3.  In section 1(1), after paragraph (a) insert the following paragraph—

“(aa)in a case where a notice of transfer has been given under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, within seven days from the day on which that notice is given;”.

The Judicature (Northern Ireland) Act 1978 (c. 23)

4.—(1) In section 48 (alteration by Crown Court of place of trial)—

(a)in subsection (2), after the word “or”, in the second place where it occurs, insert the words “by substituting some other place for the place specified in a notice under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (notices of transfer from magistrates' court to Crown Court) or by varying”;

(b)in subsection (3), for the word “or”, in the second place where it occurs, substitute the words “, as specified in a notice under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 or as fixed”;

(c)in paragraphs (a) and (b) of subsection (5), after the word “committal”, in each place insert the words “or of the giving of a notice of transfer under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988”; and

(d)after subsection (6) insert the following subsection—

“(6A) Where a preparatory hearing has been ordered under Article 6 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, directions altering the place of trial may be given under subsection (2) at any time before the jury are sworn.”

(2) In section 51(4)(a) (power of Crown Court to grant bail to any person committed in custody for appearance before the Crown Court) after the word “Court” insert the words “or in relation to whose case a notice of transfer has been given under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988”.

The Criminal Appeal (Northern Ireland) Act 1980 (c. 47)

5.—(1) In section 19, after subsection (1) insert the following subsection—

“(1A) The Crown Court or the Court of Appeal may order that a person shall be given legal aid for the purpose of—

(a)an application for leave to appeal under Article 8(11) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (appeals against orders or rulings at preparatory hearings); or

(b)of an appeal under that paragraph.”.

(2) At the end of section 31(1) (right of appeal to House of Lords) add the words “or Article 8 (preparatory hearings) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988”.

(3) In section 35 (bail on appeal by defendant) after the word “thereunder” insert the words “other than a person appealing or applying for leave to appeal from a decision on an appeal under Article 8(11) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (appeals against orders or rulings at preparatory hearings),”.

(4) In section 38 (presence of defendant at hearing) after the word “who” insert the words “has been convicted of an offence and”.

The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (NI 8)

6.—(1) In Article 29(1), after the word “offence” insert the words “or in respect of whom a notice of transfer has been given under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988”.

(2) In Article 29(2), after sub-paragraph (b) insert—

“or

(c)where a notice of transfer is given under Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, by the magistrates' court before which the person to whom the notice relates is brought or by the Crown Court sitting at the place specified by the notice as the proposed place of trial or at any place substituted for it by a direction mentioned in Article 4(5) of that Order,”.

Explanatory Note

(This note is not part of the Order)

This Order is made only for purposes corresponding to those of sections 4 to 12 of the Criminal Justice Act 1987 and of section 144 of the Criminal Justice Act 1988.

Articles 3 to 5 lay down a procedure under which serious or complex cases of fraud may be transferred direct to the jurisdiction of the Crown Court without the need for committal proceedings.

Articles 6 to 9 provide for formal preparatory hearings in complex fraud cases. Article 10 contains restrictions on reporting applications for discharge of transferred cases and preparatory hearings, and Article 11 provides that conspiracy to defraud may be charged in circumstances also involving the commission of substantive offences.