The Criminal Procedure (Amendment) Rules 2007

Rule 5

SCHEDULE 1

“Part 4Service of documents

When this Part applies

4.1  The rules in this Part apply to the service of every document in a case to which these Rules apply, subject to any special rules in other legislation (including other Parts of these Rules) or in the Practice Direction.

Methods of service

4.2  A document may be served by any of the methods described in rules 4.3 to 4.6 (subject to rule 4.7), or in rule 4.8.

Service by handing over a document

4.3—(1) A document may be served on—

(a)an individual by handing it to him or her;

(b)a corporation by handing it to a person holding a senior position in that corporation;

(c)an individual or corporation who is legally represented in the case by handing it to that representative;

(d)the prosecution by handing it to the prosecutor or to the prosecution representative;

(e)the court officer by handing it to a court officer with authority to accept it at the relevant court office; and

(f)the Registrar of Criminal Appeals by handing it to a court officer with authority to accept it at the Criminal Appeal Office.

(2) If an individual is 17 or under, a copy of a document served under paragraph (1)(a) must be handed to his or her parent, or another appropriate adult, unless no such person is readily available.

[Note. Certain legislation treats a body that is not a corporation as if it were one for the purposes of rules about service of documents. See for example section 143 of the Adoption and Children Act 2002.(1)]

Service by leaving or posting a document

4.4—(1) A document may be served by leaving it at the appropriate address for service under this rule or by sending it to that address by first class post or by the equivalent of first class post.

(2) The address for service under this rule on—

(a)an individual is an address where it is reasonably believed that he or she will receive it;

(b)a corporation is its principal office in England and Wales, and if there is no readily identifiable principal office then any place in England and Wales where it carries on its activities or business;

(c)an individual or corporation who is legally represented in the case is that representative’s office;

(d)the prosecution is the prosecutor’s office;

(e)the court officer is the relevant court office; and

(f)the Registrar of Criminal Appeals is the Criminal Appeal Office, Royal Courts of Justice, Strand, London WC2A 2LL.

Service through a document exchange

4.5  A document may be served by document exchange (DX) where—

(a)the writing paper of the person to be served gives a DX box number; and

(b)that person has not refused to accept service by DX.

Service by fax, e-mail or other electronic means

4.6—(1) A document may be served by fax, e-mail or other electronic means where—

(a)the person to be served has given a fax, e-mail or other electronic address; and

(b)that person has not refused to accept service by that means.

(2) Where a document is served under this rule the person serving it need not provide a paper copy as well.

Documents that must be served only by handing them over, leaving or posting them

4.7—(1) The documents listed in this rule may be served—

(a)on an individual only under rule 4.3(1)(a) or rule 4.4(1) and (2)(a); and

(b)on a corporation only under rule 4.3(1)(b) or rule 4.4(1) and (2)(b).

(2) Those documents are—

(a)a summons, requisition or witness summons;

(b)notice of an order under section 25 of the Road Traffic Offenders Act 1988(2);

(c)a notice of registration under section 71(6) of that Act(3);

(d)a notice of discontinuance under section 23(4) of the Prosecution of Offences Act 1985(4);

(e)notice under rule 37.3(1) of the date, time and place to which the trial of an information has been adjourned, where it was adjourned in the defendant’s absence;

(f)a notice of fine or forfeited recognizance required by rule 52.1(1);

(g)notice under section 86 of the Magistrates' Courts Act 1980(5) of a revised date to attend a means inquiry;

(h)notice of a hearing to review the postponement of the issue of a warrant of commitment under section 77(6) of the Magistrates' Courts Act 1980(6);

(i)a copy of the minute of a magistrates' court order required by rule 52.7(1);

(j)an invitation to make observations or attend a hearing under rule 53.1(2) on the review of a compensation order under section 133 of the Powers of Criminal Courts (Sentencing) Act 2000(7);

(k)any notice or document served under Part 19.

Service by person in custody

4.8—(1) A person in custody may serve a document by handing it to the custodian addressed to the person to be served.

(2) The custodian must—

(a)endorse it with the time and date of receipt;

(b)record its receipt; and

(c)forward it promptly to the addressee.

Service by another method

4.9—(1) The court may allow service of a document by a method other than those described in rules 4.3 to 4.6 and in rule 4.8.

(2) An order allowing service by another method must specify—

(a)the method to be used; and

(b)the date on which the document will be served.

Date of service

4.10—(1) A document served under rule 4.3 or rule 4.8 is served on the day it is handed over.

(2) Unless something different is shown, a document served on a person by any other method is served—

(a)in the case of a document left at an address, on the next business day after the day on which it was left;

(b)in the case of a document sent by first class post or by the equivalent of first class post, on the second business day after the day on which it was posted or despatched;

(c)in the case of a document served by document exchange, on the second business day after the day on which it was left at the addressee’s DX or at a correspondent DX;

(d)in the case of a document transmitted by fax, e-mail or other electronic means, on the next business day after it was transmitted; and

(e)in any case, on the day on which the addressee responds to it if that is earlier.

(3) Unless something different is shown, a document produced by a court computer system is to be taken as having been sent by first class post or by the equivalent of first class post to the addressee on the business day after the day on which it was produced.

(4) In this Part “business day” means any day except Saturday, Sunday, Christmas Day, Boxing Day, Good Friday, Easter Monday or a bank holiday.

(5) Where a document is served on or by the court officer, “business day” does not include a day on which the court office is closed.

Proof of service

4.11  The person who serves a document may prove that by signing a certificate explaining how and when it was served.

Court’s power to give directions about service

4.12—(1) The court may specify the time as well as the date by which a document must be—

(a)served under rule 4.3 or rule 4.8; or

(b)transmitted by fax, e-mail or other electronic means if it is served under rule 4.6.

(2) The court may treat a document as served if the addressee responds to it even if it was not served in accordance with the rules in this Part.”

Rule 9

SCHEDULE 2

“Part 14The indictment

[Note. The rules in this Part derive from rules formerly in the Indictment Rules 1971(8) and the Indictments (Procedure) Rules 1971(9) . See also sections 3, 4 and 5 of the Indictments Act 1915(10) and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933(11).]

Signature and service of indictment

14.1—(1) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after—

(a)service on the defendant and on the Crown Court officer of copies of the documents containing the evidence on which the charge or charges are based, in a case where the defendant is sent for trial;

(b)a High Court judge gives permission to serve a draft indictment;

(c)the Court of Appeal orders a retrial; or

(d)the committal or transfer of the defendant for trial.

(2) The Crown Court may extend the time limit, even after it has expired.

(3) Unless the Crown Court otherwise directs, the court officer must—

(a)sign and date the draft, which then becomes an indictment; and

(b)serve a copy of the indictment on all parties.

[Note. Serving a draft indictment was described as “preferring a bill of indictment” in the rules from which these rules derive.

• See Part 3 for the court’s general powers of case management, including power to consider applications and give directions for (among other things) the amendment of an indictment and for separate trials under section 5 of the Indictments Act 1915.

• A magistrates' court may send a defendant for trial in the Crown Court under section 51 or 51A of the Crime and Disorder Act 1998(12). Under section 51D of that Act(13) the magistrates' court must notify the Crown Court of the offence or offences for which the defendant is sent for trial. Paragraph 1 of Schedule 3 to that Act(14), and the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(15), deal with the service of prosecution evidence in a case sent for trial.

• The procedure for applying for the permission of a High Court judge to serve a draft indictment is in rules 6 to 10 of the Indictments (Procedure) Rules 1971. See also direction IV.35 of the Practice Direction.

• The Court of Appeal may order a retrial under section 8 of the Criminal Appeal Act 1968(16) (on a defendant’s appeal against conviction) or under section 77 of the Criminal Justice Act 2003(17) (on a prosecutor’s application for the retrial of a serious offence after acquittal). Section 8 of the 1968 Act, and rules 41.14 and 41.15, require the arraignment of a defendant within 2 months.

• When it comes into force, Schedule 3 to the Criminal Justice Act 2003 will abolish committal for trial under section 6 of the Magistrates' Courts Act 1980(18), and transfer for trial under section 4 of the Criminal Justice Act 1987(19) (serious fraud cases) or under section 53 of the Criminal Justice Act 1991(20) (certain cases involving children).]

Form and content of indictment

14.2—(1) An indictment must be in one of the forms set out in the Practice Direction and must contain, in a paragraph called a “count”—

(a)a statement of the offence charged that—

(i)describes the offence in ordinary language, and

(ii)identifies any legislation that creates it; and

(b)such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

(2) More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

(3) An indictment may contain more than one count if all the offences charged—

(a)are founded on the same facts; or

(b)form or are a part of a series of offences of the same or a similar character.

(4) The counts must be numbered consecutively.

(5) An indictment may contain—

(a)any count charging substantially the same offence as one—

(i)specified in the notice of the offence or offences for which the defendant was sent for trial,

(ii)on which the defendant was committed for trial, or

(iii)specified in the notice of transfer given by the prosecutor; and

(b)any other count based on the prosecution evidence already served which the Crown Court may try.

[Note. In certain circumstances the Crown Court may try a defendant for an offence other than one sent, committed or transferred for trial: see section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (indictable offences founded on the prosecution evidence on which the sending, committal or transfer was based) and section 40 of the Criminal Justice Act 1988 (specified summary offences founded on that evidence).(21)]”

Rule 16

SCHEDULE 3

“Part 28Witness summonses, warrants and orders

[Note. The rules in this Part derive in part from those formerly contained in rule 107 of the Magistrates' Courts Rules 1981(22) and rules 23, 23ZA, 23ZB and 23ZC of the Crown Court Rules 1982(23).

A magistrates' court may require the attendance of a witness to give evidence or to produce in evidence a document or thing by a summons, or in some circumstances a warrant for the witness' arrest, under section 97 of the Magistrates' Courts Act 1980(24). The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965(25). Either court may order the production in evidence of a copy of an entry in a banker’s book without the attendance of an officer of the bank, under sections 6 and 7 of the Bankers' Books Evidence Act 1879(26).

See Part 3 for the court’s general powers to consider an application and to give directions.]

When this Part applies

28.1—(1) This Part applies in magistrates' courts and in the Crown Court where—

(a)a party wants the court to issue a witness summons, warrant or order under—

(i)section 97 of the Magistrates' Courts Act 1980,

(ii)section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, or

(iii)section 7 of the Bankers' Books Evidence Act 1879;

(b)the court considers the issue of such a summons, warrant or order on its own initiative as if a party had applied; or

(c)one of those listed in rule 28.7 wants the court to withdraw such a summons, warrant or order.

(2) A reference to a ‘witness’ in this Part is a reference to a person to whom such a summons, warrant or order is directed.

[Note. See section 2D of the Criminal Procedure (Attendance of Witnesses) Act 1965 for the Crown Court’s power to issue a witness summons on the court’s own initiative.]

Issue etc. of summons, warrant or order with or without a hearing

28.2—(1) The court may issue or withdraw a witness summons, warrant or order with or without a hearing.

(2) A hearing under this Part must be in private unless the court otherwise directs.

[Note. If rule 28.5 applies, a person served with an application for a witness summons will have an opportunity to make representations about whether there should be a hearing of that application before the witness summons is issued.]

Application for summons, warrant or order: general rules

28.3—(1) A party who wants the court to issue a witness summons, warrant or order must apply as soon as practicable after becoming aware of the grounds for doing so.

(2) The party applying must—

(a)identify the proposed witness;

(b)explain—

(i)what evidence the proposed witness can give or produce,

(ii)why it is likely to be material evidence, and

(iii)why it would be in the interests of justice to issue a summons, order or warrant as appropriate.

(3) The application may be made orally unless—

(a)rule 28.5 applies; or

(b)the court otherwise directs.

[Note. The court may issue a warrant for a witness' arrest if that witness fails to obey a witness summons directed to him: see section 97(3) of the Magistrates' Courts Act 1980 and section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Before a magistrates' court may issue a warrant under section 97(3) of the 1980 Act the witness must first be paid or offered a reasonable amount for costs and expenses.]

Written application: form and service

28.4—(1) An application in writing under rule 28.3 must be in the form set out in the Practice Direction, containing the same declaration of truth as a witness statement.

(2) The party applying must serve the application—

(a)in every case, on the court officer and as directed by the court; and

(b)as required by rule 28.5, if that rule applies.

[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(27) and section 5B of the Magistrates' Courts Act 1980(28). Section 89 of the 1967 Act(29) makes it an offence to make a written statement under section 9 of that Act which the person making it knows to be false or does not believe to be true.]

Application for summons to produce a document, etc.: special rules

28.5—(1) This rule applies to an application under rule 28.3 for a witness summons requiring the proposed witness—

(a)to produce in evidence a document or thing; or

(b)to give evidence about information apparently held in confidence,

that relates to another person.

(2) The application must be in writing in the form required by rule 28.4.

(3) The party applying must serve the application—

(a)on the proposed witness, unless the court otherwise directs; and

(b)on one or more of the following, if the court so directs—

(i)a person to whom the proposed evidence relates,

(ii)another party.

(4) The court must not issue a witness summons where this rule applies unless—

(a)everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and

(b)the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

(5) This rule does not apply to an application for an order to produce in evidence a copy of an entry in a banker’s book.

[Note. Under section 2A of the Criminal Procedure (Attendance of Witnesses) Act 1965(30) a witness summons to produce a document or thing issued by the Crown Court may require the witness to produce it for inspection by the applicant before producing it in evidence.]

Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality

28.6—(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that—

(a)it is not likely to be material evidence; or

(b)even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates outweigh the reasons for issuing a summons.

(2) The court may require the proposed witness to make the document or thing available for the objection to be assessed.

(3) The court may invite—

(a)the proposed witness or any representative of the proposed witness; or

(b)a person to whom the document or thing relates or any representative of such a person,

to help the court assess the objection.

Application to withdraw a summons, warrant or order

28.7—(1) The court may withdraw a witness summons, warrant or order if one of the following applies for it to be withdrawn—

(a)the party who applied for it, on the ground that it no longer is needed;

(b)the witness, on the grounds that—

(i)he was not aware of any application for it, and

(ii)he cannot give or produce evidence likely to be material evidence, or

(iii)even if he can, his duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates outweigh the reasons for the issue of the summons, warrant or order; or

(c)any person to whom the proposed evidence relates, on the grounds that—

(i)he was not aware of any application for it, and

(ii)that evidence is not likely to be material evidence, or

(iii)even if it is, his duties or rights, including rights of confidentiality, or those of the witness outweigh the reasons for the issue of the summons, warrant or order.

(2) A person applying under the rule must—

(a)apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why he wants the summons, warrant or order to be withdrawn; and

(b)serve the application on the court officer and as appropriate on—

(i)the witness,

(ii)the party who applied for the summons, warrant or order, and

(iii)any other person who he knows was served with the application for the summons, warrant or order.

(3) Rule 28.6 applies to an application under this rule that concerns a document or thing to be produced in evidence.

[Note. See sections 2B, 2C and 2E of the Criminal Procedure (Attendance of Witnesses) Act 1965(31) for the Crown Court’s powers to withdraw a witness summons, including the power to order costs.]

Court’s power to vary requirements under this Part

28.8—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part; and

(b)where a rule or direction requires an application under this Part to be in writing, allow that application to be made orally instead.

(2) Someone who wants the court to allow an application to be made orally under paragraph (1)(b) of this rule must—

(a)give as much notice as the urgency of his application permits to those on whom he would otherwise have served an application in writing; and

(b)in doing so explain the reasons for the application and for wanting the court to consider it orally.”

Rule 38

SCHEDULE 4Revocations

The following provisions are revoked:

(a)Rule 7.5(2);

(b)Rule 13.6 and the note after that rule;

(c)Rule 15.6;

(d)Rule 19.1(5);

(e)Rule 19.2(5);

(f)Rule 19.2(8);

(g)Rule 34.6;

(h)Rule 35.7 and the note after that rule;

(i)Rule 37.3(2);

(j)Rule 40.3(2);

(k)Rule 40.3(3);

(l)Rule 40.3(4);

(m)Rule 41.17;

(n)Rule 52.1(2);

(o)Rule 52.5 and the note after that rule;

(p)Rule 52.7(2);

(q)Rule 55.4 and the note after that rule;

(r)Rule 64.5 and the note after that rule;

(s)Rule 65.9 and the note after that rule;

(t)Rule 66.17;

(u)Rule 68.1 and the note after that rule;

(v)Rule 69.6 and the note after that rule;

(w)Rule 70.8 and the note after that rule; and

(x)Rule 71.11 and the note after that rule.