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The Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 2003

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Statutory Rules of Northern Ireland

2003 No. 477

MAGISTRATES' COURTS

The Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 2003

Made

12th November 2003

Coming into operation

1st December 2003

The Lord Chancellor, in exercise of the powers conferred upon him by Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981(1) and Articles 8(6), 25(5), 26(6), 30(3) and 39(1) of the Criminal Evidence (Northern Ireland) Order 1999(2), on the advice of the Magistrates' Courts Rules Committee and after consultation with the Lord Chief Justice, hereby makes the following Rules:

Citation, commencement and interpretation

1.—(1) These Rules may be cited as the Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 2003 and shall come into operation on 1st December 2003.

(2) In these Rules, a reference to a Rule, a Schedule or a Form by number means the Rule, Schedule or Form so numbered in the Magistrates' Courts Rules (Northern Ireland) 1984(3).

Amendment to the principal Rules

2.—(1) In Rule 11, for paragraph (1) there shall be substituted the following new paragraph –

(1) Subject to Rule 12 and Rule 12A, in the case of an offence prosecuted by a member of the Police Service of Northern Ireland or by the Director of Public Prosecutions a summons shall be served by a member of the Police Service of Northern Ireland who is not in charge of the investigation or prosecution of the offence.

(2) For the heading to Rule 12A, there shall be substituted the following new heading –

  • Postal Service of Summons for offences prosecuted by the Police Service of Northern Ireland or the Director of Public Prosecutions.

(3) In Rule 12A, for paragraph (1) there shall be substituted the following new paragraph –

(1) Subject to paragraph (6), in cases of summary offences prosecuted by a member of the Police Service of Northern Ireland or by the Director of Public Prosecutions, service of the summons may be effected by post in accordance with paragraph (2).

(4) For the heading to Rule 13, there shall be substituted the following new heading –

  • Postal Service of Summons other than for offences prosecuted by the Police Service of Northern Ireland or the Director of Public Prosecutions.

(5) Rule 149A shall be revoked.

(6) Rule 149AA shall be amended as follows –

(a)in paragraph (5), for the words “Article 4(1)(a)” there shall be substituted the words “Article 4 or 5”; and

(b)in paragraph (7), for sub-paragraph (a) there shall be substituted the following new sub-paragraph –

(a)a party shall state in the written notification whether he –

(i)disputes that the witness is eligible for assistance by virtue of Article 4 or 5 of the 1999 Order;

(ii)disputes that any of the special measures available would be likely to improve the quality of evidence given by the witness or that such measures (or a combination of them) would be likely to maximise the quality of that evidence; and

(iii)opposes the granting of a special measures direction; and.

(7) Rule 149AC(3) shall be amended by substituting for the word “application”, the word “question”.

(8) Rule 149AF shall be amended as follows –

(a)in paragraph (2), for the words “a witness”, there shall be substituted the words “a child witness”; and

(b)in paragraph (3), for the words “a witness”, there shall be substituted the words “a child witness”.

(9) After Rule 149AG(4)(c), there shall be inserted the following new sub-paragraph –

(ca)in relation to each person present at any point during the recording, a statement confirming that the said person when present is visible in the recording;.

(10) After Rule 149AH, there shall be inserted the following new Rules:

Prohibition on cross-examination of particular witness

149AI.(1) An application by the prosecutor for a direction under Article 24 of the 1999 Order in relation to any witness shall be made by giving notice in Form 15D to the clerk of petty sessions and at the same time the applicant shall serve a copy thereof on every other party to the proceedings.

(2) In an application under paragraph (1), the prosecutor shall state why, in his opinion –

(a)the evidence given by the witness is likely to be diminished if cross-examination is undertaken by the defendant in person;

(b)the evidence would be improved if a direction were given under Article 24(2) of the 1999 Order; and

(c)it would not be contrary to the interests of justice to give such a direction.

(3) On receipt of the application, the clerk of petty sessions shall refer it –

(a)if the proceedings to which the application relates have commenced, to the resident magistrate hearing those proceedings;

(b)if the proceedings to which the application relates have not commenced when the application is received, to a resident magistrate sitting in the petty sessions district in which the proceedings are to be heard.

(4) Where a copy of a notice under paragraph (1) is served on a party to the proceedings more than 14 days before the date set for the commencement of the proceedings to which the application relates, that party may, within 14 days, make observations in writing in relation to the application to the clerk of petty sessions and shall serve a copy of such observations on every other party to the proceedings.

(5) A party on whom a copy of the notice is served in accordance with paragraph (1) may notify the clerk of petty sessions and every other party to the proceedings, in writing, of his opposition to the application and give reasons for it.

(6) Those reasons shall be notified –

(a)within 14 days of the date a copy of the notice was served on him, if that date is more than 14 days before the date set for commencement of the proceedings to which the application relates;

(b)if the proceedings to which the application relates have commenced, in accordance with any directions issued by the resident magistrate hearing those proceedings; or

(c)if neither sub-paragraph (a) nor sub-paragraph (b) apply, before the date set for the commencement of the proceedings to which the application relates.

(7) Where the application made in accordance with paragraph (1) is made before the date set for the commencement of the proceedings to which the application relates and the application –

(a)is not contested by any party to the proceedings, the court may determine the application without a hearing;

(b)is contested by a party to the proceedings, the court shall direct a hearing of the application.

(8) Where the application is made after the commencement of the proceedings to which the application relates –

(a)the application may be made orally; and

(b)the resident magistrate hearing those proceedings may give such directions as he considers appropriate in order to deal with the application.

(9) Where a hearing of the application is to take place, the clerk of petty sessions shall notify each party to the proceedings of the time and place of the hearing.

(10) A party notified in accordance with paragraph (9) may be present at the hearing and be heard.

(11) The clerk of petty sessions shall, as soon as reasonably practicable after the determination of an application made in accordance with paragraph (1), notify all the parties to the proceedings of the decision and the reasons for it.

(12) A person making an oral application under paragraph (8)(a) shall –

(a)give reasons why the application was not made before the commencement of the proceedings to which the application relates; and

(b)provide the court with the information set out in paragraph (2).

Restrictions on cross-examination of witness by the accused person

149AJ.(1) This Rule and Rules 149AK and 149AL apply where a defendant is prevented from cross-examining a witness in person by virtue of Article 22, 23 or 24 of the 1999 Order.

(2) The court shall as early in the proceedings as is reasonably practicable –

(a)explain to the defendant that he is prevented from cross-examining a witness in person; and

(b)invite him to arrange for a legal representative to act for him for the purpose of cross-examining the witness.

(3) The defendant shall within 7 days of the court giving its explanation, or within such other period as the court may in any particular case allow, give notice to the clerk of petty sessions in Form 15E or otherwise in writing as to whether or not he has arranged for a legal representative to act on his behalf.

(4) Where the defendant has arranged for a legal representative to act for him, the notice under paragraph (3) shall include details of the name and address of the representative.

(5) The clerk of petty sessions shall notify all other parties to the proceedings of the name and address of any person appointed by the defendant to act on his behalf.

(6) Where the court gives its explanation under paragraph (2) to the defendant –

(a)within 7 days of the date set for the commencement of any hearing at which a witness in respect of whom a prohibition under Article 22, 23 or 24 of the 1999 Order applies may be cross-examined, or

(b)after such a hearing has commenced,

the period of 7 days within which the defendant is required to give notice under paragraph (3) shall be reduced in accordance with any direction issued by the court.

(7) Where at the end of the period of 7 days or such other period as the court has allowed, the court has not received notice from the defendant under paragraph (3), it may grant the defendant an extension of time, whether of its own motion or on the application of the defendant.

(8) Before granting an extension of time, the court may direct a hearing at which all parties to the proceedings may attend and be heard.

(9) Any extension of time shall be for such period as the court considers appropriate in the circumstances of the case.

(10) The decision of the court as to whether or not to grant the defendant an extension of time shall be notified to all parties to the proceedings by the clerk of petty sessions in Form 15F.

Appointment by the court

149AK.(1) Where the court decides, in accordance with Article 26(4) of the 1999 Order, to appoint a qualified legal representative, the clerk of petty sessions shall notify all parties to the proceedings of the name and address of that representative.

(2) An appointment made by the court under Article 26(4) of the 1999 Order shall, except to such extent as the court may in any particular case determine, terminate at the conclusion of the cross-examination of any witness in respect of whom a prohibition under Article 22, 23 or 24 of the 1999 Order applies.

Appointment arranged by the defendant

149AL.(1) The defendant may arrange for the qualified legal representative, appointed by the court under Article 26(4) of the 1999 Order, to be appointed to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under Article 22, 23 or 24 of the 1999 Order applies.

(2) Where such an appointment is made –

(a)the defendant shall notify the court of the appointment in Form 15E;

(b)the qualified legal representative shall notify the court of the appointment in Form 15G; and

(c)the qualified legal representative shall, from the time of his appointment, act for the defendant as though the arrangement had been made under Article 26(2)(a) of the 1999 Order and shall cease to be the representative of the court under Article 26(4) of the 1999 Order.

(3) Where the court receives notification of the appointment either from the qualified legal representative or from the defendant but not from both, the court shall investigate whether the appointment has been made, and if it concludes that the appointment has not been made, paragraph (2)(c) shall not apply.

(4) The defendant may, notwithstanding an appointment by the court under Article 26(4) of the 1999 Order, arrange for a legal representative to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under Article 22, 23 or 24 applies.

(5) Where the defendant arranges for, or informs the court of his intention to arrange for a legal representative to act for him, he shall notify the court within such period as the court may allow, of the name and address of any person appointed to act for him.

(6) Where the court is notified within the time allowed that such an appointment has been made, any qualified legal representative appointed by the court in accordance with Article 26(4) of the 1999 Order shall be discharged.

(7) The clerk of petty sessions shall as soon as reasonably practicable after notification is received by the court, or where paragraph (3) applies, after the court is satisfied that the appointment has been made, notify all the parties to the proceedings in Form 15H –

(a)that the appointment has been made;

(b)where paragraph (4) applies, of the name and address of the person appointed;

(c)that the person appointed by the court under Article 26(4) of the 1999 Order has been discharged or has ceased to act for the court.

Procedure for applications in proceedings for sexual offences

149AM.(1) Application under Article 28(2) of the 1999 Order for leave to adduce evidence of, or ask questions about, any sexual behaviour of a complainant shall be made by giving notice in Form 15I to the clerk of petty sessions and shall, subject to paragraph (10) –

(a)be served on the clerk of petty sessions not less than 14 days before the day fixed for the commencement of the proceedings to which the application relates; or

(b)be accompanied by a full written explanation specifying the reasons why the application could not have been served in accordance with sub-paragraph (a).

(2) An application under paragraph (1) shall contain the following –

(a)a summary of the evidence it is proposed to adduce and of the questions it is proposed to put to any witness;

(b)a full explanation of the reasons why it is considered that the evidence and questions fall within paragraphs (3) or (5) of Article 28 of the 1999 Order;

(c)a summary of any document or other evidence to be submitted in support of such evidence and questions;

(d)where it is proposed that a witness give evidence as to the complainant’s sexual behaviour, the name and date of birth of any such witness.

(3) A copy of the application under paragraph (1) shall be served, by the applicant, on every other party to the proceedings at the same time as it is served on the clerk of petty sessions.

(4) The prosecutor shall notify the clerk of petty sessions and the other parties to the proceedings in Form 15J –

(a)whether or not he opposes the application, giving reasons for any such opposition, and

(b)whether or not he wishes to be represented at any hearing of the application,

and where the notice of application is received by the prosecutor more than 14 days before the date set for commencement of the proceedings to which the application relates, the notification must be served by the prosecutor within 14 days of receipt.

(5) Where a copy of the application is received by a party to the proceedings other than the prosecutor more than 14 days before the date set for the commencement of the proceedings to which the application relates, that party may, within 14 days, make observations in writing in relation to the application to the clerk of petty sessions and shall serve a copy of such observations on every other party to the proceedings.

(6) In considering any application under this Rule, the court may request a party to the proceedings to provide the court with such information as it may specify in Form 15K and which the court considers would assist in determining the application.

(7) Where the court makes such a request, the person required to provide the information shall do so within 14 days of the court making the request or by such time as the court considers appropriate in the circumstances of the case.

(8) An application under paragraph (1) shall be determined by a resident magistrate following a hearing.

(9) The date and time of the hearing shall be –

(a)determined by the clerk of petty sessions after taking into consideration –

(i)any time which a party to the proceedings has been given to respond to a request for information; and

(ii)the date fixed for any other hearing relevant to the proceedings; and

(b)notified by the clerk of petty sessions to both the applicant and the prosecutor.

(10) An application under Article 28(2) of the 1999 Order may be made orally to the court where the application is made after the proceedings to which the application relates have begun.

(11) The person making the application under paragraph (10) shall –

(a)give reasons why the applicant failed to make the application in accordance with paragraph (1); and

(b)provide the court with the information set out in paragraph (2).

(12) The clerk of petty sessions shall, as soon as reasonably practicable after the hearing of an application under paragraph (1), notify all the parties to the proceedings of the decision of the court in Form 15L..

(11) Schedule 1 shall be amended as follows:

(a)Form 15A shall be deleted;

(b)for Form 15B, there shall be substituted the new Form 15B in the Schedule to these Rules;

(c)after Form 15C, there shall be inserted the new Forms 15D to 15L in the Schedule to these Rules; and

(d)for Form 93, there shall be substituted the new Form 93 in the Schedule to these Rules.

Signed by the authority of the Lord Chancellor

Lord Filkin

Parliamentary Under Secretary of State,

Department for Constitutional Affairs

Dated 12th November 2003

Rule 2(11)

SCHEDULEFORMS TO BE SUBSTITUTED OR INSERTED IN THE MAGISTRATES COURTS RULES (NORTHERN IRELAND) 1984

FORM 15BMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AA)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 7)form of application for a special measures direction under article 7 of the criminal evidence (northern ireland) order 1999

FORM 15DMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149A1)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 24)Application by Prosecutor for a Direction Under Article 24 of the Criminal Evidence (Northern Ireland) Order 1999 Prohibiting the Defendant from Cross-examining a particular witness

FORM 15EMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rules 149AJ and 149AL)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 26)Notice to the Clerk of Petty Sessions of an appointment by the Defendant of a Legal Representative

FORM 15FMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AJ)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 26)NOTICE BY CLERK OF PETTY SESSIONS OF A DECISION OF THE COURT [ON APPLICATION BY THE DEFENDANT]* FOR AN EXTENSION OF TIME TO APPOINT A LEGAL REPRESENTATIVE

FORM 15GMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AL)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 26)Notice to the Clerk of Petty Sessions by a qualified legal representative (Appointed by the Court) that he has now been appointed by the Defendant

FORM 15HMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AL)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 26)Notice by the Clerk of Petty Sessions of the discharge of the person appointed by the Court

FORM 15IMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AM)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 28(2))NOTICE TO THE CLERK OF PETTY SESSIONS OF AN APPLICATION FOR LEAVE TO ADDUCE EVIDENCE UNDER ARTICLE 28(2) OF THE CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999

FORM 15JMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AM)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 28(2))NOTICE TO THE CLERK OF PETTY SESSIONS WHETHER OR NOT THE PROSECUTOR OPPOSES THE APPLICATION MADE UNDER ARTICLE 28(2) OF THE CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999

FORM 15KMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AM)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 28(2) and 30(3))Request by the Court for a Party to the Proceedings to provide information in relation to an application for leave to adduce evidence under Article 28(2)

FORM 15LMAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Rule 149AM)CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1999 (Article 28(2) and 30(3))Notice of the decision of the Court on an application for leave to adduce evidence under Article 28(2)

FORM 93MAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981 (Article 127; Rules 150 and 151)Recognizance to keep the Peace [and] [or] to be of Good Behaviour

Explanatory Note

(This note is not part of the Rules)

These Rules amend the Magistrates' Courts Rules (Northern Ireland) 1984 (“the principal Rules”) to:

  • provide for the service of a summons in cases prosecuted by the Director of Public Prosecutions (Rule 2(1) to (4)); and

  • substitute a new Form of recognizance to keep the peace and / or be of good behaviour. The new form details the particular behaviours from which the party to the recognizance is to refrain (Rule 2(11).

These Rules also make provision relating to Part II (Special measures directions in case of vulnerable and intimidated witnesses), Part III (Protection of witnesses from cross-examination by accused in person) and Part IV (Protection of complainants in proceedings for sexual offences) of the Criminal Evidence (Northern Ireland) Order 1999 (“the 1999 Order”); and

Rule 2(5) revokes Rule 149A of the principal Rules, which is no longer required as an application to use television links where a witness will not give evidence otherwise through fear will be dealt with as an application for a special measures direction, the procedure for which is prescribed in Rule 149AA.

Paragraphs (6) to (9) of Rule 2 make a number of minor amendments to the principal Rules to take account of the extension of Part 2 of the 1999 Order to vulnerable and intimidated adult witnesses in committal proceedings before magistrates' courts.

Rule 2(10) inserts new Rules 149AI to 149AM into the principal Rules.

New Rule 149AI provides for an application by a prosecutor for a direction under Article 24 of the 1999 Order preventing a defendant from cross-examining a witness in person.

New Rule 149AJ prescribes the time when, and the manner in which, a legal representative is to be appointed to act for the defendant for the purpose of cross-examining any witness whom the defendant is prevented from cross-examining in person by virtue of Article 22, 23 or 24 of the 1999 Order.

New Rule 149AK provides for the procedure to be followed when the court appoints a qualified legal representative where the defendant fails to appoint a legal representative to act for him. New Rule 149AL details the procedures where the defendant subsequently arranges for a legal representative to act for him.

New Rule 149AM provides for the procedure to be followed on an application for leave under Article 28(2) of the 1999 Order, to introduce evidence or to ask questions in cross-examination about the sexual behaviour of the complainant, in criminal proceedings relating to a person charged with a sexual offence.

Rule 2(11) amends Schedule 1 to the principal Rules, by:

  • deleting Form 15A;

  • substituting for Form 15B, the new Form 15B in the Schedule to these Rules;

  • inserting after Form 15C, the new Forms 15D to 15L in the Schedule to these Rules; and

  • substituting for Form 93, the new Form 93 in the Schedule to these Rules.

(3)

S.R. 1984 No. 225; to which the most recent relevant amendments were made by S.R. 2003 No. 296

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