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The Criminal Procedure Rules 2011

Type Statutory-Instrument

Publication 2011-07-07

Last updated 2012-10-01

State In force

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[Note. See sections 9, 10 and 11 of the Magistrates’ Courts Act 1980[^f00405], and sections 143, 158, 164, 172 and 174 of the Criminal Justice Act 2003[^f00406].

Procedure where a party is absent

37.11

(1) This rule—

(a) applies where a party is absent; but

(b) does not apply where the defendant has served a notice of guilty plea under rule 37.8 (written guilty plea: special rules).

(2) Where the prosecutor is absent, the court may—

(a) if it has received evidence, deal with the case as if the prosecutor were present; and

(b) in any other case—

(i) enquire into the reasons for the prosecutor’s absence, and

(ii) if satisfied there is no good reason, exercise its power to dismiss the allegation.

(3) Where the defendant is absent—

(a) the general rule is that the court will proceed as if the defendant—

(i) were present, and

(ii) had pleaded not guilty (unless a plea already has been taken)

and the court must give reasons if it does not do so; but

(b) the general rule does not apply if the defendant is under 18;

(i) any summons or requisition was served on the defendant a reasonable time before the hearing, or

(ii) in a case in which the hearing has been adjourned, the defendant had reasonable notice of where and when it would resume;

(d) the general rule is subject also to rule 37.10(10)(a) (restrictions on passing sentence in the defendant’s absence); and

(e) the hearing must be treated as if it had not taken place at all if—

(i) the case started with a summons or requisition,

(ii) the defendant makes a statutory declaration of not having found out about the case until after the hearing began, and

(iii) the defendant serves that declaration on the court officer not more than 21 days after the date of finding out about the case, unless the court extends that time limit.

(4) Where the defendant is absent, the court—

(a) must exercise its power to issue a warrant for the defendant’s arrest, if it passes a custodial sentence; and

(b) may exercise its power to do so in any other case, if it does not apply the general rule in paragraph (3)(a) of this rule about proceeding in the defendant’s absence.

[Note. See sections 11, 14, 15 and 16 of the Magistrates’ Courts Act 1980[^f00416].

Provision of documents for the court

37.12

(1) This rule applies where a party—

(a) introduces in evidence any document; or

(b) relies on any other document in the presentation of that party’s case.

(2) Unless the court otherwise directs, that party must supply sufficient copies of such a document for—

(a) each other party;

(b) the court; and

Place of trial

37.13

(1) Unless the court otherwise directs, the hearing must take place in a courtroom provided by the Lord Chancellor.

(2) Where the hearing takes place in Wales—

(a) any party or witness may use the Welsh language; and

(b) if practicable, at least one member of the court must be Welsh-speaking.

[Note. See section 3 of the Courts Act 2003[^f00419]and section 22 of the Welsh Language Act 1993[^f00420].

Duty of justices' legal adviser

37.14

(1) A justices’ legal adviser must attend, unless the court—

(a) includes a District Judge (Magistrates’ Courts); and

(b) otherwise directs.

(2) A justices’ legal adviser must—

(a) give the court legal advice; and

(b) if necessary, attend the members of the court outside the courtroom to give such advice; but

(3) A justices’ legal adviser must—

(a) assist an unrepresented defendant;

(b) assist the court by—

(i) making a note of the substance of any oral evidence or representations, to help the court recall that information,

(ii) if the court rules inadmissible part of a written statement introduced in evidence, marking that statement in such a way as to make that clear,

(iii) ensuring that an adequate record is kept of the court’s decisions and the reasons for them, and

(iv) making any announcement, other than of the verdict or sentence.

(4) Where the defendant has served a notice of guilty plea to which rule 37.8 (written guilty plea: special rules) applies, a justices’ legal adviser must read aloud to the court—

(a) the material on which the prosecutor relies to set out the facts of the offence and to provide information relevant to sentence (or summarise any written statement included in that material, if the court so directs); and

(b) any written representations by the defendant.

[Note. Section 28 of the Courts Act 2003[^f00421]provides for the functions of a justices’ legal adviser. See also section 12 of the Magistrates’ Courts Act 1980[^f00422].]

Duty of court officer

37.15

The court officer must—

(a) serve on each party notice of where and when an adjourned hearing will resume, unless—

(i) the party was present when that was arranged, or

(ii) the defendant has served a notice of guilty plea to which rule 37.8 applies, and the adjournment is for not more than 4 weeks;

(b) if the reason for the adjournment was to postpone sentence, include that reason in any such notice to the defendant;

(d) where the court has ordered a defendant to provide information under section 25 of the Road Traffic Offenders Act 1988[^f00423], serve on the defendant notice of that order unless the defendant was present when it was made;

(e) serve on the prosecutor—

(i) any notice of guilty plea to which rule 37.8 applies, and

(ii) any declaration served under rule 37.11(3)(e) that the defendant did not know about the case;

(f) record in the magistrates’ court register the court’s reasons for not proceeding in the defendant’s absence where rule 37.11(3)(a) applies; and

(g) give the court such other assistance as it requires.

[Note. See sections 10, 11 and 12 of the Magistrates’ Courts Act 1980[^f00424].

PART 38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 39 — TRIAL ON INDICTMENT

Contents of this Part

Time limits for beginning of trials	rule 39.1
Appeal against refusal to excuse from jury service or
to defer attendance	rule 39.2
Application to change a plea of guilty	rule 39.3

Time limits for beginning of trials

39.1

The periods set out for the purposes of section 77(2)(a) and (b) of the Senior Courts Act 1981[^f00425] shall be 14 days and 8 weeks respectively and accordingly, the trial of a person committed by a magistrates’ court—

(a) shall not begin until the expiration of 14 days beginning with the date of his committal, except with his consent and the consent of the prosecution; and

(b) shall, unless the Crown Court has otherwise ordered, begin not later than the expiration of 8 weeks beginning with the date of his committal.

Appeal against refusal to excuse from jury service or to defer attendance

39.2

(1) A person summoned under the Juries Act 1974[^f00426] for jury service may appeal in accordance with the provisions of this rule against any refusal of the appropriate court officer to excuse him under section 9(2), or to defer his attendance under section 9A(1), of that Act.

(2) Subject to paragraph (3), an appeal under this rule shall be heard by the Crown Court.

(3) Where the appellant is summoned under the 1974 Act to attend before the High Court in Greater London the appeal shall be heard by a judge of the High Court and where the appellant is summoned under that Act to attend before the High Court outside Greater London or before a county court and the appeal has not been decided by the Crown Court before the day on which the appellant is required by the summons to attend, the appeal shall be heard by the court before which he is summoned to attend.

(4) An appeal under this rule shall be commenced by the appellant’s giving notice of appeal to the appropriate court officer of the Crown Court or the High Court in Greater London, as the case may be, and such notice shall be in writing and shall specify the matters upon which the appellant relies as providing good reason why he should be excused from attending in pursuance of the summons or why his attendance should be deferred.

(5) The court shall not dismiss an appeal under this rule unless the appellant has been given an opportunity of making representations.

(6) Where an appeal under this rule is decided in the absence of the appellant, the appropriate court officer of the Crown Court or the High Court in Greater London, as the case may be, shall notify him of the decision without delay.

Application to change a plea of guilty

39.3

(1) The defendant must apply as soon as practicable after becoming aware of the grounds for making an application to change a plea of guilty, and may only do so before the final disposal of the case, by sentence or otherwise.

(2) Unless the court otherwise directs, the application must be in writing and it must—

(a) set out the reasons why it would be unjust for the guilty plea to remain unchanged;

(b) indicate what, if any, evidence the defendant wishes to call;

(d) indicate whether legal professional privilege is waived, specifying any material name and date.

(3) The defendant must serve the written application on—

(a) the court officer; and

(b) the prosecutor.

PART 40 — TAINTED ACQUITTALS

Contents of this Part

Time of certification	rule 40.1
Form of certification in the Crown Court	rule 40.2
Service of a copy of the certification	rule 40.3
Entry in register or records in relation to the conviction
which occasioned certification	rule 40.4
Entry in the register or records in relation to the acquittal	rule 40.5
Display of copy certification form	rule 40.6
Entry in the register or records in relation to
decision of High Court	rule 40.7
Display of copy of notice received from High Court	rule 40.8

Time of certification

40.1

Where a person is convicted of an offence as referred to in section 54(1)(b) of the Criminal Procedure and Investigations Act 1996[^f00427] and it appears to the court before which the conviction has taken place that the provisions of section 54(2) are satisfied, the court shall make the certification referred to in section 54(2) at any time following conviction but no later than—

(a) immediately after the court sentences or otherwise deals with that person in respect of the offence; or

(b) where the court, being a magistrates’ court, commits that person to the Crown Court, or remits him to another magistrates’ court, to be dealt with in respect of the offence, immediately after he is so committed or remitted, as the case may be; or

(c) where that person is a child or young person and the court, being the Crown Court, remits him to a youth court to be dealt with in respect of the offence, immediately after he is so remitted.

Form of certification in the Crown Court

40.2

A certification referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996 by the Crown Court shall be drawn up in the form set out in the Practice Direction.

Service of a copy of the certification

40.3

Where a magistrates’ court or the Crown Court makes a certification as referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996, the court officer shall, as soon as practicable after the drawing up of the form, serve a copy on the acquitted person referred to in the certification, on the prosecutor in the proceedings which led to the acquittal, and, where the acquittal has taken place before a court other than, or at a different place to, the court where the certification has been made, on—

(a) the clerk of the magistrates’ court before which the acquittal has taken place; or

(b) the Crown Court officer at the place where the acquittal has taken place.

Entry in register or records in relation to the conviction which occasioned certification

40.4

A clerk of a magistrates’ court or an officer of a Crown Court which has made a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 shall enter in the register or records, in relation to the conviction which occasioned the certification, a note of the fact that certification has been made, the date of certification, the name of the acquitted person referred to in the certification, a description of the offence of which the acquitted person has been acquitted, the date of the acquittal, and the name of the court before which the acquittal has taken place.

[Note. For the general requirement to make court records, see rule 5.4.]

Entry in the register or records in relation to the acquittal

40.5

The court officer of the court before which an acquittal has taken place shall, as soon as practicable after receipt of a copy of a form recording a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 relating to the acquittal, enter in the register or records a note that the certification has been made, the date of the certification, the name of the court which has made the certification, the name of the person whose conviction occasioned the making of the certification, and a description of the offence of which that person has been convicted. Where the certification has been made by the same court as the court before which the acquittal has occurred, sitting at the same place, the entry shall be made as soon as practicable after the making of the certification. In the case of an acquittal before a magistrates’ court, the entry in the register shall be signed by the clerk of the court.

[Note. For the general requirement to make court records, see rule 5.4.]

Display of copy certification form

40.6

(1) Where a court makes a certification as referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996, the court officer shall, as soon as practicable after the drawing up of the form, display a copy of that form at a prominent place within court premises to which place the public has access.

(2) Where an acquittal has taken place before a court other than, or at a different place to, the court which has made the certification under section 54(2) of the 1996 Act in relation to the acquittal, the court officer at the court where the acquittal has taken place shall, as soon as practicable after receipt of a copy of the form recording the certification, display a copy of it at a prominent place within court premises to which place the public has access.

(3) The copy of the form referred to in paragraph (1), or the copy referred to in paragraph (2), shall continue to be displayed as referred to, respectively, in those paragraphs at least until the expiry of 28 days from, in the case of paragraph (1), the day on which the certification was made, or, in the case of paragraph (2), the day on which the copy form was received at the court.

Entry in the register or records in relation to decision of High Court

40.7

(1) The court officer at the court where an acquittal has taken place shall, on receipt from the Administrative Court Office of notice of an order made under section 54(3) of the Criminal Procedure and Investigations Act 1996 quashing the acquittal, or of a decision not to make such an order, enter in the register or records, in relation to the acquittal, a note of the fact that the acquittal has been quashed by the said order, or that a decision has been made not to make such an order, as the case may be.

(2) The court officer of the court which has made a certification under section 54(2) of the 1996 Act shall, on receipt from the Administrative Court Office of notice of an order made under section 54(3) of that Act quashing the acquittal referred to in the certification, or of a decision not to make such an order, enter in the register or records, in relation to the conviction which occasioned the certification, a note that the acquittal has been quashed by the said order, or that a decision has been made not to make such an order, as the case may be.

(3) The entries in the register of a magistrates’ court referred to, respectively, in paragraphs (1) and (2) above shall be signed by the magistrates’ court officer.

[Note. For the general requirement to make court records, see rule 5.4. As to the procedure to be followed in the High Court, see RSC Order 116 in Schedule 1 to The Civil Procedure Rules 1998[^f00428].]

Display of copy of notice received from High Court

40.8

(1) Where the court officer of a court which has made a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 or before which an acquittal has occurred to which such a certification refers, receives from the Administrative Court Office notice of an order quashing the acquittal concerned, or notice of a decision not to make such an order, he shall, as soon as practicable after receiving the notice, display a copy of it at a prominent place within court premises to which place the public has access.

(2) The copy notice referred to in paragraph (1) shall continue to be displayed as referred to in that paragraph at least until the expiry of 28 days from the day on which the notice was received at the court.

[Note. As to the procedure to be followed in the High Court, see RSC Order 116 in Schedule 1 to The Civil Procedure Rules 1998.]

PART 41 — RETRIAL FOLLOWING ACQUITTAL FOR SERIOUS OFFENCE

Contents of this Part

Interpretation	rule 41.1
Notice of a section 76 application	rule 41.2
Response of the acquitted person	rule 41.3
Examination of witnesses or evidence by the Court of Appeal	rule 41.4
Bail or custody hearings in the Crown Court	rule 41.5
Further provisions regarding bail and custody in the Crown Court	rule 41.6
Bail or custody orders in the Court of Appeal	rule 41.7
Application for restrictions on publication	rule 41.8
Variation or revocation of restrictions on publication	rule 41.9
Powers exercisable by a single judge of the Court of Appeal	rule 41.10
Powers exercisable by the Registrar	rule 41.11
Determination by full court	rule 41.12
Notice of the determination of the application	rule 41.13
Notice of application to set aside order for retrial	rule 41.14
Leave to arraign	rule 41.15
Abandonment of the application	rule 41.16

Interpretation

41.1

In this Part, ‘section 76 application’ means an application made by a prosecutor under section 76(1) or (2) of the Criminal Justice Act 2003[^f00429].

Notice of a section 76 application

41.2

(1) A prosecutor who wants to make a section 76 application must serve notice of that application in the form set out in the Practice Direction on the Registrar and the acquitted person.

(2) That notice shall, where practicable, be accompanied by―

(a) relevant witness statements which are relied upon as forming new and compelling evidence of guilt of the acquitted person as well as any relevant witness statements from the original trial;

(b) any unused statements which might reasonably be considered capable of undermining the section 76 application or of assisting an acquitted person’s application to oppose that application under rule 41.3;

(d) copies of the transcript of the summing up and any other relevant transcripts from the original trial; and

(e) any other documents relied upon to support the section 76 application.

(3) The prosecutor must, as soon as practicable after service of that notice on the acquitted person, file with the Registrar a witness statement or certificate of service which exhibits a copy of that notice.

Response of the acquitted person

41.3

(1) An acquitted person who wants to oppose a section 76 application must serve a response in the form set out in the Practice Direction on the Registrar and the prosecutor which―

(a) indicates if he is also seeking an order under section 80(6) of the Criminal Justice Act 2003[^f00430] for―

(i) the production of any document, exhibit or other thing, or

(ii) a witness to attend for examination and to be examined before the Court of Appeal; and

(b) exhibits any relevant documents.

(2) The acquitted person must serve that response not more than 28 days after receiving notice under rule 41.2.

(3) The Court of Appeal may extend the period for service under paragraph (2), either before or after that period expires.

Examination of witnesses or evidence by the Court of Appeal

41.4

(1) Prior to the hearing of a section 76 application, a party may apply to the Court of Appeal for an order under section 80(6) of the Criminal Justice Act 2003 for―

(a) the production of any document, exhibit or other thing; or

(b) a witness to attend for examination and to be examined before the Court of Appeal.

(2) An application under paragraph (1) must be in the form set out in the Practice Direction and must be sent to the Registrar and a copy sent to each party to the section 76 application.

(3) An application must set out the reasons why the order was not sought from the Court when―

(a) the notice was served on the Registrar under rule 41.2, if the application is made by the prosecutor; or

(b) the response was served on the Registrar under rule 41.3, if the application is made by the acquitted person.

(4) An application must be made at least 14 days before the day of the hearing of the section 76 application.

(5) If the Court of Appeal makes an order under section 80(6) of the 2003 Act on its own motion or on application from the prosecutor, it must serve notice and reasons for that order on all parties to the section 76 application.

Bail or custody hearings in the Crown Court

41.5

(1) Rules 19.18, 19.22 and 19.23 shall apply where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the Criminal Justice Act 2003[^f00431] (with the modification as set out in paragraph (2)), as if they were applications under rule 19.18(1).

(2) Substitute the following for Rule 19.18:

Where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the Criminal Justice Act 2003, the prosecutor must serve notice of the need for such a hearing on the court officer.

(3) Where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the 2003 Act the Crown Court may order that the person shall be released from custody on entering into a recognizance, with or without sureties, or giving other security before―

(a) the Crown Court officer; or

(b) any other person authorised by virtue of section 119(1) of the Magistrates’ Courts Act 1980[^f00432] to take a recognizance where a magistrates’ court having power to take the recognizance has, instead of taking it, fixed the amount in which the principal and his sureties, if any, are to be bound.

(4) The court officer shall forward to the Registrar a copy of any record made in pursuance of section 5(1) of the Bail Act 1976[^f00433].

Further provisions regarding bail and custody in the Crown Court

41.6

(1) The prosecutor may only apply to extend or further extend the relevant period before it expires and that application must be served on the Crown Court officer and the acquitted person.

(2) A prosecutor’s application for a summons or a warrant under section 89(3)(a) or (b) of the Criminal Justice Act 2003 must be served on the court officer and the acquitted person.

Bail or custody orders in the Court of Appeal

41.7

Rules 68.8 and 68.9 shall apply to bail or custody orders made in the Court of Appeal under section 90 of the Criminal Justice Act 2003[^f00434] as if they were orders made pursuant to an application under rule 68.7.

Application for restrictions on publication

41.8

(1) An application by the Director of Public Prosecutions, under section 82 of the Criminal Justice Act 2003[^f00435], for restrictions on publication must be in the form set out in the Practice Direction and be served on the Registrar and the acquitted person.

(2) If notice of a section 76 application has not been given and the Director of Public Prosecution has indicated that there are reasons why the acquitted person should not be notified of the application for restrictions on publication, the Court of Appeal may order that service on the acquitted person is not to be effected until notice of a section 76 application is served on that person.

(3) If the Court of Appeal makes an order for restrictions on publication of its own motion or on application of the Director of Public Prosecutions, the Registrar must serve notice and reasons for that order on all parties, unless paragraph (2) applies.

Variation or revocation of restrictions on publication

41.9

(1) A party who wants to vary or revoke an order for restrictions on publication, under section 82(7) of the Criminal Justice Act 2003[^f00436], may apply to the Court of Appeal in writing at any time after that order was made.

(2) A copy of the application to vary or revoke shall be sent to all parties to the section 76 application unless paragraph (3) applies.

(3) If the application to vary or revoke is made by the Director of Public Prosecutions and―

(a) the notice of a section 76 application has not been given under rule 41.2; and

(b) the Director of Public Prosecutions has indicted that there are reasons why the acquitted person should not be notified of an application for restrictions on publication,

the Court of Appeal may order that service on the acquitted person is not to be effected until notice of a section 76 application is served on that person.

(4) If the Court of Appeal varies or revokes an order for restrictions on publication of its own motion or on application, it must serve notice and reasons for that order on all parties, unless paragraph (3) applies.

Powers exercisable by a single judge of the Court of Appeal

41.10

(1) The following powers under the Criminal Justice Act 2003 and under this Part may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions, namely to―

(a) order the production of any document, exhibit or thing under section 80(6)(a) of the 2003 Act;

(b) order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the Court of Appeal under section 80(6)(b) of the 2003 Act;

(d) delay the requirement of service on the acquitted person of an application for restrictions on publication under rules 41.8(2) and 41.9(3).

(2) A single judge may, for the purposes of exercising any of the powers specified in paragraph (1), sit in such place as he appoints and may sit otherwise than in open court.

(3) Where a single judge exercises one of the powers set out in paragraph (1), the Registrar must serve notice of the single judge’s decision on all parties to the section 76 application.

Powers exercisable by the Registrar

41.11

(1) The Registrar may require the Crown Court at the place of original trial to provide the Court of Appeal with any assistance or information which it may require for the purposes of exercising its jurisdiction under Part 10 of the Criminal Justice Act 2003[^f00437] or this Part.

(2) The following powers may be exercised by the Registrar in the same manner as the Court of Appeal and subject to the same provisions―

(a) order the production of any document, exhibit or thing under section 80(6)(a) of the 2003 Act;

(b) order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the Court of Appeal under section 80(6)(b) of the 2003 Act; and

(3) Where the Registrar exercises one of the powers set out in paragraph (2) the Registrar must serve notice of that decision on all parties to the section 76 application.

(4) Where the Registrar has refused an application to exercise any of the powers referred to in paragraph (2), the party making the application may have it determined by a single judge by serving a renewal in the form set out in the Practice Direction within 14 days of the day on which notice of the Registrar’s decision is served on the party making the application, unless that period is extended by the Court of Appeal.

Determination by full court

41.12

(1) Where a single judge has refused an application to exercise any of the powers referred to in rule 41.10, the applicant may have that application determined by the Court of Appeal by serving a notice of renewal in the form set out in the Practice Direction.

(2) A notice under paragraph (1) must be served on the Registrar within 14 days of the day on which notice of the single judge’s decision is served on the party making the application, unless that period is extended by the Court of Appeal.

(3) If a notice under paragraph (1) is not served on the Registrar within the period specified in paragraph (2) or such extended period as the Court of Appeal has allowed, the application shall be treating as having been refused by the Court of Appeal.

Notice of the determination of the application

41.13

(1) The Court of Appeal may give its determination of the section 76 application at the conclusion of the hearing.

(2) If determination is reserved, the Registrar shall as soon as practicable, serve notice of the determination on the parties to the section 76 application.

(3) If the Court of Appeal orders under section 77 of the Criminal Justice Act 2003[^f00438] that a retrial take place, the Registrar must as soon as practicable, serve notice on the Crown Court officer at the appropriate place of retrial.

Notice of application to set aside order for retrial

41.14

(1) If an acquitted person has not been arraigned before the end of 2 months after the date of an order under section 77 of the Criminal Justice Act 2003 he may apply in the form set out in the Practice Direction to the Court of Appeal to set aside the order.

(2) An application under paragraph (1) must be served on the Registrar and the prosecutor.

Leave to arraign

41.15

(1) If the acquitted person has not been arraigned before the end of 2 months after the date of an order under section 77 of the Criminal Justice Act 2003, the prosecutor may apply in the form set out in the Practice Direction to the Court of Appeal for leave to arraign.

(2) An application under paragraph (1) must be served on the Registrar and the acquitted person.

Abandonment of the application

41.16

(1) A section 76 application may be abandoned by the prosecutor before the hearing of that application by serving a notice in the form set out in the Practice Direction on the Registrar and the acquitted person.

(2) The Registrar must, as soon as practicable, after receiving a notice under paragraph (1) send a copy of it endorsed with the date of receipt to the prosecutor and acquitted person.

PART 42 — SENTENCING PROCEDURES IN SPECIAL CASES

Contents of this Part

Reasons for deciding not to follow a guideline or make an order	rule 42.1
Requirements of community sentence, etc.	rule 42.2
Notification requirements	rule 42.3
Variation of sentence	rule 42.4
Application to vary or discharge a compensation order	rule 42.5
Application to remove, revoke or suspend a disqualification or restriction	rule 42.6
Application for a restitution order by the victim of a theft	rule 42.7
Requests for medical reports, etc.	rule 42.8
Information to be supplied on admission to hospital or guardianship	rule 42.9
Information to be supplied on committal for sentence, etc.	rule 42.10

[Note. See also—

(a) Part 37, which contains rules about the general procedure on sentencing in a magistrates’ court;

(b) Part 44 (Breach, revocation and amendment of community and other orders);

(d) Part 55 (Road traffic penalties).]

Reasons for deciding not to follow a guideline or make an order

42.1

(1) This rule applies where the court decides—

(a) not to follow a relevant sentencing guideline;

(b) not to make, where it could—

(i) a reparation order (unless it passes a custodial or community sentence),

(ii) a compensation order, or

(iii) a travel restriction order;

(i) that a suspended sentence of imprisonment is to take effect,

(ii) the endorsement of the defendant’s driving record, or

(iii) the defendant’s disqualification from driving, for the usual minimum period or at all.

(2) The court must explain why it has not done so, when it explains the sentence that it has passed.

[Note. See section 174(2) of the Criminal Justice Act 2003[^f00439]; section 73(8) of the Powers of Criminal Courts (Sentencing) Act 2000[^f00440]; section 130(3) of the 2000 Act[^f00441]; section 33(2) of the Criminal Justice and Police Act 2001[^f00442]; paragraph 8(3) of Schedule 12 to the 2003 Act[^f00443]; and section 47(1) of the Road Traffic Offenders Act 1988[^f00444].

Requirements of community sentence, etc.

42.2

(1) This rule applies where the court—

(a) imposes a requirement in connection with—

(i) a community sentence,

(ii) a youth rehabilitation order, or

(iii) a suspended sentence of imprisonment; or

(b) orders the defendant to attend meetings with a supervisor.

(2) The court officer must—

(a) notify the defendant and, where the defendant is under 14, an appropriate adult, of—

(i) the requirement or requirements imposed, and

(ii) the name of the responsible officer or supervisor, and the means by which that person may be contacted; and

(b) notify the responsible officer or supervisor, and, where the defendant is under 14, the appropriate qualifying officer (if that is not the responsible officer), of—

(i) the defendant’s name, address and telephone number (if available),

(ii) the offence or offences of which the defendant was convicted, and

(iii) the requirement or requirements imposed.

(3) If the court imposes an electronic monitoring requirement, the monitor of which is not the responsible officer, the court officer must—

(a) notify the defendant and, where the defendant is under 16, an appropriate adult, of the monitor’s name, and the means by which the monitor may be contacted; and

(b) notify the monitor of—

(i) the defendant’s name, address and telephone number (if available),

(ii) the offence or offences of which the defendant was convicted,

(iii) the place or places at which the defendant’s presence must be monitored,

(iv) the period or periods during which the defendant’s presence there must be monitored, and

(v) the responsible officer’s name, and the means by which that officer may be contacted.

[Note. See section 219(1) of the Criminal Justice Act 2003[^f00450]; paragraph 34(1) of Schedule 1 to the Criminal Justice and Immigration Act 2008[^f00451]; and section 1A(7) of the Street Offences Act 1959[^f00452].

Notification requirements

42.3

(1) This rule applies where, on a conviction, sentence or order, legislation requires the defendant—

(a) to notify information to the police; or

(b) to be included in a barred list.

(2) The court must tell the defendant that such requirements apply, and under what legislation.

[Note. For the circumstances in which a defendant is required to notify information to the police, see—

(a) Part 2 of, and Schedule 3 to, the Sexual Offences Act 2003[^f00459](notification after conviction of a specified sexual offence for which a specified sentence is imposed);

(b) Part 4 of the Counter Terrorism Act 2008[^f00460](notification after conviction of a specified offence of, or connected with, terrorism, for which a specified sentence is imposed).

Variation of sentence

42.4

(1) This rule—

(a) applies where a magistrates’ court or the Crown Court can vary or rescind a sentence or order; and

(b) authorises the Crown Court, in addition to its other powers, to do so within the period of 56 days beginning with another defendant’s acquittal or sentencing where—

(i) defendants are tried separately in the Crown Court on the same or related facts alleged in one or more indictments, and

(ii) one is sentenced before another is acquitted or sentenced.

(2) The court may exercise its power—

(a) on application by a party; or

(b) on its own initiative.

(3) A party who wants the court to exercise that power must—

(a) apply in writing as soon as reasonably practicable after—

(i) the sentence or order that that party wants the court to vary or rescind, or

(ii) where paragraph (1)(b) applies, the other defendant’s acquittal or sentencing;

(b) serve the application on—

(i) the court officer, and

(ii) each other party; and

(i) explain why the sentence should be varied or rescinded,

(ii) specify the variation that the applicant proposes, and

(iii) if the application is late, explain why.

(4) The court must not exercise its power in the defendant’s absence unless—

(a) the court makes a variation proposed by the defendant; or

(b) the defendant has had an opportunity to make representations at a hearing (whether or not the defendant in fact attends).

(5) The court may—

(a) extend (even after it has expired) the time limit under paragraph (3), unless the court’s power to vary or rescind the sentence cannot be exercised; and

(b) allow an application to be made orally.

[Note. Under section 142 of the Magistrates’ Courts Act 1980[^f00463], in some cases a magistrates’ court can vary or rescind a sentence or other order that it has imposed or made, if that appears to be in the interests of justice. The power cannot be exercised if the Crown Court or the High Court has determined an appeal about that sentence or order.

Application to vary or discharge a compensation order

42.5

(1) This rule applies where a magistrates’ court can vary or discharge a compensation order on application by the defendant.

(2) A defendant who wants the court to exercise that power must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;

(b) serve the application on the magistrates’ court officer;

(c) where the compensation order was made in the Crown Court, serve a copy of the application on the Crown Court officer; and

(d) in the application, specify the compensation order that the defendant wants the court to vary or discharge and explain (as applicable)—

(i) what civil court finding shows that the injury, loss or damage was less than it had appeared to be when the order was made,

(ii) in what circumstances the person for whose benefit the order was made has recovered the property for the loss of which it was made,

(iii) why a confiscation order makes the defendant now unable to pay compensation in full, or

(iv) in what circumstances the defendant’s means have been reduced substantially and unexpectedly, and why they seem unlikely to increase for a considerable period.

(3) The court officer must serve a copy of the application on the person for whose benefit the compensation order was made.

(4) The court must not vary or discharge the compensation order unless—

(a) the defendant, and the person for whose benefit it was made, each has had an opportunity to make representations at a hearing (whether or not either in fact attends); and

(b) where the order was made in the Crown Court, the Crown Court has notified its consent.

[Note. For the circumstances in which—

(a) the court may make a compensation order, see section 130 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00465];

(b) a magistrates’ court with power to enforce such an order may vary or discharge it under the 2000 Act, see section 133[^f00466]. (Under section 133(4), where the order was made in the Crown Court, the magistrates’ court must first obtain the Crown Court’s consent.)]

Application to remove, revoke or suspend a disqualification or restriction

42.6

(1) This rule applies where, on application by the defendant, the court can remove, revoke or suspend a disqualification or restriction included in a sentence (except a disqualification from driving).

(2) A defendant who wants the court to exercise such a power must—

(a) apply in writing, no earlier than the date on which the court can exercise the power;

(b) serve the application on the court officer; and

(i) specify the disqualification or restriction, and

(ii) explain why the defendant wants the court to remove, revoke or suspend it.

(3) The court officer must serve a copy of the application on the chief officer of police for the local justice area.

[Note. Part 55 contains rules about disqualification from driving. See in particular rule 55.1.

Application for a restitution order by the victim of a theft

42.7

(1) This rule applies where, on application by the victim of a theft, the court can order a defendant to give that person goods obtained with the proceeds of goods stolen in that theft.

(2) A person who wants the court to exercise that power if the defendant is convicted must—

(a) apply in writing as soon as practicable (without waiting for the verdict);

(b) serve the application on the court officer; and

(i) identify the goods, and

(ii) explain why the applicant is entitled to them.

(3) The court officer must serve a copy of the application on each party.

(4) The court must not determine the application unless the applicant and each party has had an opportunity to make representations at a hearing (whether or not each in fact attends).

(5) The court may —

(a) extend (even after it has expired) the time limit under paragraph (2); and

(b) allow an application to be made orally.

[Note. For the circumstances in which the court may order—

(a) the return of stolen goods, see section 148 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00469];

(b) the defendant to give the victim of the theft goods that are not themselves the stolen goods but which represent their proceeds, see section 148(2)(b) of the 2000 Act.]

Requests for medical reports, etc.

42.8

(1) This rule applies where the court—

(a) requests a medical examination of the defendant and a report; or

(b) requires information about the arrangements that could be made for the defendant where the court is considering—

(i) a hospital order, or

(ii) a guardianship order.

(2) Unless the court otherwise directs, the court officer must, as soon as practicable, serve on each person from whom a report or information is sought a note that—

(a) specifies the power exercised by the court;

(b) explains why the court seeks a report or information from that person; and

[Note. The court may request a medical examination of the defendant and a report in connection with—

(a) section 4 of the Criminal Procedure (Insanity) Act 1964[^f00470], under which the Crown Court may determine a defendant’s fitness to plead;

(b) section 35 of the Mental Health Act 1983[^f00471], under which the court may order the defendant’s detention in hospital to obtain a further medical report;

(c) section 36 of the 1983 Act[^f00472], under which the Crown Court may order the defendant’s detention in hospital instead of in custody pending trial;

(d) section 37 of the 1983 Act[^f00473], under which the court may order the defendant’s detention and treatment in hospital, or make a guardianship order, instead of disposing of the case in another way;

(e) section 38 of the 1983 Act[^f00474], under which the court may order the defendant’s temporary detention and treatment in hospital instead of disposing of the case in another way;

(f) section 157 of the Criminal Justice Act 2003[^f00475], under which the court must usually obtain and consider a medical report before passing a custodial sentence if the defendant is, or appears to be, mentally disordered;

(g) section 207 of the 2003 Act[^f00476](in the case of a defendant aged 18 or over), or section 1(1)(k) of the Criminal Justice and Immigration Act 2008[^f00477](in the case of a defendant who is under 18), under which the court may impose a mental health treatment requirement.

Information to be supplied on admission to hospital or guardianship

42.9

(1) This rule applies where the court—

(a) orders the defendant’s detention and treatment in hospital; or

(b) makes a guardianship order.

(2) Unless the court otherwise directs, the court officer must, as soon as practicable, serve on (as applicable) the hospital or the guardian—

(a) a record of the court’s order;

(b) such information as the court has received that appears likely to assist in treating or otherwise dealing with the defendant, including information about—

(i) the defendant’s mental condition,

(ii) the defendant’s other circumstances, and

(iii) the circumstances of the offence.

[Note. For the circumstances in which the court may order the defendant’s detention and treatment in hospital, see sections 35[^f00480], 36[^f00481], 37[^f00482], 38[^f00483]and 44[^f00484]of the Mental Health Act 1983. For the circumstances in which the court may make a guardianship order, see the same section 37.]

Information to be supplied on committal for sentence, etc.

42.10

(1) This rule applies where a magistrates’ court or the Crown Court convicts the defendant and—

(a) commits or adjourns the case to another court—

(i) for sentence, or

(ii) for the defendant to be dealt with for breach of a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by that other court;

(b) deals with a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by another court; or

(2) Unless the convicting court otherwise directs, the court officer must, as soon as practicable—

(a) where paragraph (1)(a) applies, arrange the transmission from the convicting to the other court of relevant copy court records and other relevant documents, including any—

(i) certificate of conviction,

(ii) magistrates’ court register entry,

(iii) record relating to bail,

(iv) note of evidence,

(v) statement or other document introduced in evidence,

(vi) medical or other report,

(vii) representation order or application for such order, and

(viii) interim driving disqualification;

(b) where paragraph (1)(b) or (c) applies, arrange—

(i) the transmission from the convicting to the other court of notice of the convicting court’s order, and

(ii) the recording of that order at the other court;

(c) in every case, notify the defendant and, where the defendant is under 14, an appropriate adult, of the location of the other court.

[Note. For the circumstances in which—

(a) a magistrates’ court may (and in some cases must) commit the defendant to the Crown Court for sentence, see sections 3[^f00485], 3A[^f00486], 3B, 3C[^f00487], 4[^f00488], 4A[^f00489]and 6[^f00490]of the Powers of Criminal Courts (Sentencing) Act 2000 and section 43 of the Mental Health Act 1983[^f00491];

(b) a magistrates’ court may adjourn the case to another magistrates’ court for sentence, see section 10 of the Magistrates’ Courts Act 1980[^f00492]and section 10 of the 2000 Act[^f00493];

(c) a magistrates’ court or the Crown Court may (and in some cases must) adjourn the case to a youth court for sentence, see section 8 of the 2000 Act[^f00494];

(d) a youth court may adjourn the case to a magistrates’ court for sentence, see section 9 of the 2000 Act[^f00495];

(e) a magistrates’ court may transfer a fine to be enforced to another court, see sections 89 and 90 of the 1980 Act[^f00496].

PART 43

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PART 44 — BREACH, REVOCATION AND AMENDMENT OF COMMUNITY AND OTHER ORDERS

Contents of this Part

When this Part applies	rule 44.1
Application by responsible officer or supervisor	rule 44.2
Application by defendant or person affected	rule 44.3
Procedure on application by responsible officer or supervisor	rule 44.4

When this Part applies

44.1

This Part applies where—

(a) the person responsible for a defendant’s compliance with an order to which applies—

(i) Schedule 3, 5, 7 or 8 to the Powers of Criminal Courts (Sentencing) Act 2000[^f00503],

(ii) Schedule 8 or 12 to the Criminal Justice Act 2003[^f00504],

(iii) Schedule 2 to the Criminal Justice and Immigration Act 2008[^f00505], or

(iv) the Schedule to the Street Offences Act 1959[^f00506]

wants the court to deal with that defendant for failure to comply;

(b) one of the following wants the court to exercise any power it has to revoke or amend such an order—

(i) the responsible officer or supervisor,

(ii) the defendant, or

(iii) where the legislation allows, a person affected by the order; or

[Note. In the Powers of Criminal Courts (Sentencing) Act 2000—

(a) Schedule 3 deals with the breach, revocation and amendment of curfew orders and exclusion orders;

(b) Schedule 5 deals with the breach, revocation and amendment of attendance centre orders;

(d) Schedule 8 deals with the breach, revocation and amendment of action plan orders and reparation orders; and

(e) Schedules 3, 5 and 7 are repealed, with savings for existing orders, by the relevant provisions of the Criminal Justice and Immigration Act 2008; and, with savings for existing orders, Schedule 8 no longer refers to action plan orders.

Application by responsible officer or supervisor

44.2

(1) This rule applies where—

(a) the responsible officer or supervisor wants the court to—

(i) deal with a defendant for failure to comply with an order to which this Part applies, or

(ii) revoke or amend such an order; or

(b) the court considers exercising on its own initiative any power it has to—

(i) revoke or amend such an order, and

(ii) summon the defendant to attend for that purpose.

(2) Rules 7.2 to 7.4, which deal, among other things, with starting a prosecution in a magistrates’ court by information and summons, apply—

(a) as if—

(i) a reference in those rules to an allegation of an offence included a reference to an allegation of failure to comply with an order to which this Part applies, and

(ii) a reference to the prosecutor included a reference to the responsible officer or supervisor; and

(b) with the necessary consequential modifications.

Application by defendant or person affected

44.3

(1) This rule applies where—

(a) the defendant wants the court to exercise any power it has to revoke or amend an order to which this Part applies; or

(b) where the legislation allows, a person affected by such an order wants the court to exercise any such power.

(2) That defendant, or person affected, must—

(a) apply in writing, explaining why the order should be revoked or amended; and

(b) serve the application on—

(i) the court officer,

(ii) the responsible officer or supervisor, and

(iii) as appropriate, the defendant or the person affected.

Procedure on application by responsible officer or supervisor

44.4

(1) Except for rule 37.8, the rules in Part 37, which deal with the procedure at a trial in a magistrates’ court, apply—

(a) as if—

(i) a reference in those rules to an allegation of an offence included a reference to an allegation of failure to comply with an order to which this Part applies,

(ii) a reference to the court’s verdict included a reference to the court’s decision to revoke or amend such an order, or to exercise any other power it has to deal with the defendant, and

(iii) a reference to the court’s sentence included a reference to the exercise of any such power; and

(b) with the necessary consequential modifications.

(2) The court officer must serve on each party any order revoking or amending an order to which this Part applies.

PART 45

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PART 46

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PART 47

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PART 48

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PART 49

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PART 50 — CIVIL BEHAVIOUR ORDERS AFTER VERDICT OR FINDING

Contents of this Part

When this Part applies	rule 50.1
Behaviour orders: general rules	rule 50.2
Application for behaviour order: special rules	rule 50.3
Evidence to assist the court: special rules	rule 50.4
Application to vary or revoke behaviour order	rule 50.5
Notice of hearsay evidence	rule 50.6
Cross-examination of maker of hearsay statement	rule 50.7
Credibility and consistency of maker of hearsay statement	rule 50.8
Court's power to vary requirements under this Part	rule 50.9

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

When this Part applies

50.1

(1) This Part applies in magistrates’ courts and in the Crown Court where the court could decide to make, vary or revoke a civil order—

(a) under a power that the court can exercise after reaching a verdict or making a finding, and

(b) that requires someone to do, or not do, something.

(2) A reference to a ‘behaviour order’ in this Part is a reference to any such order.

(3) A reference to ‘hearsay evidence’ in this Part is a reference to evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995[^f00507].

[Note. In the circumstances set out in the Acts listed, the court can make a behaviour order:

(a) on conviction, under—

(i) section 14A of the Football Spectators Act 1989[^f00508](football banning orders),

(ii) section 5 of the Protection from Harassment Act 1997[^f00509](restraining orders),

(iii) sections 1C and 1D of the Crime and Disorder Act 1998[^f00510](anti-social behaviour orders and interim anti-social behaviour orders),

(iv) sections 8 and 9 of the Crime and Disorder Act 1998[^f00511](parenting orders),

(v) section 104 of the Sexual Offences Act 2003[^f00512](sexual offences prevention orders),

(vi) section 19 of the Serious Crime Act 2007[^f00513](serious crime prevention orders),

(vii) section 6 of the Violent Crime Reduction Act 2006[^f00514](drinking banning orders);

(b) on acquittal, under—

section 5A of the Protection from Harassment Act 1997[^f00515](restraining orders on acquittal); and

section 104 of the Sexual Offences Act 2003 (sexual offences prevention orders).

Behaviour orders: general rules

50.2

(1) The court must not make a behaviour order unless the person to whom it is directed has had an opportunity—

(a) to consider what order is proposed and why; and

(b) to make representations at a hearing (whether or not that person in fact attends).

(2) That restriction does not apply to making an interim behaviour order, but such an order has no effect unless the person to whom it is directed—

(a) is present when it is made; or

(b) is handed a document recording the order not more than 7 days after it is made.

(3) Where the court decides not to make, where it could—

(a) a football banning order;

(b) a parenting order, after a person under 16 is convicted of disobeying an anti-social behaviour order; or

the court must announce, at a hearing in public, the reasons for its decision.

[Note. The Acts listed in the note to rule 50.1 impose requirements specific to each different type of behaviour order. Not all allow the court to make an interim behaviour order.

Application for behaviour order: special rules

50.3

(1) This rule applies where a prosecutor wants the court to make—

(a) an anti-social behaviour order; or

(b) a serious crime prevention order,

if the defendant is convicted.

(2) The prosecutor must serve a notice of intention to apply for such an order on—

(a) the court officer;

(b) the defendant against whom the prosecutor wants the court to make the order; and

as soon as practicable (without waiting for the verdict).

(3) The notice must be in the form set out in the Practice Direction and must—

(a) summarise the relevant facts;

(b) identify the evidence on which the prosecutor relies in support;

(d) specify the order that the prosecutor wants the court to make.

(4) The defendant must then—

(a) serve written notice of any evidence on which the defendant relies on—

(i) the court officer, and

(ii) the prosecutor,

as soon as practicable (without waiting for the verdict); and

(b) in the notice, identify that evidence and attach any written statement that has not already been served.

(5) This rule does not apply to an application for an interim anti-social behaviour order.

[Note. Under section 8 of the Serious Crime Act 2007 a serious crime prevention order may be made only on an application by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, or the Director of the Serious Fraud Office. See also paragraphs 2, 7 and 13 of Schedule 2 to the 2007 Act.

Evidence to assist the court: special rules

50.4

(1) This rule applies where the court indicates that it may make on its own initiative—

(a) a football banning order;

(b) a restraining order;

(d) a drinking banning order.

(2) A party who wants the court to take account of any particular evidence before making that decision must—

(a) serve notice in writing on—

(i) the court officer, and

(ii) every other party,

as soon as practicable (without waiting for the verdict); and

(b) in that notice identify that evidence and attach any written statement that has not already been served.

[Note. If a party relies on hearsay evidence, see also rules 50.6, 50.7, and 50.8.]

Application to vary or revoke behaviour order

50.5

(1) The court may vary or revoke a behaviour order if—

(a) the legislation under which it is made allows the court to do so; and

(b) one of the following applies—

(i) the prosecutor,

(ii) the person to whom the order is directed,

(iii) any other person mentioned in the order,

(iv) the relevant authority or responsible officer,

(v) the relevant Chief Officer of Police, or

(vi) the Director of Public Prosecutions.

(2) A person applying under this rule must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining—

(i) what material circumstances have changed since the order was made, and

(ii) why the order should be varied or revoked as a result; and

(b) serve the application on—

(i) the court officer,

(ii) as appropriate, the prosecutor or defendant, and

(iii) any other person listed in paragraph (1)(b), if the court so directs.

(3) A party who wants the court to take account of any particular evidence before making its decision must, as soon as practicable—

(a) serve notice in writing on—

(i) the court officer,

(ii) as appropriate, the prosecutor or defendant, and

(iii) any other person listed in paragraph (1)(b) on whom the court directed the application to be served; and

(b) in that notice identify the evidence and attach any written statement that has not already been served.

(4) The court may decide an application under this rule with or without a hearing.

(5) But the court must not—

(a) dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b) allow an application under this rule unless everyone required to be served, by this rule or by the court, has had at least 14 days in which to make representations, including representations about whether there should be a hearing.

(6) The court officer must—

(a) serve the application on any person, if the court so directs; and

(b) give notice of any hearing to—

(i) the applicant, and

(ii) any person required to be served, by this rule or by the court.

[Note. The legislation that gives the court power to make a behaviour order may limit the circumstances in which it may be varied or revoked and may require a hearing.

Notice of hearsay evidence

50.6

(1) A party who wants to introduce hearsay evidence must—

(a) serve a notice in writing on—

(i) the court officer, and

(ii) every other party directly affected; and

(b) in that notice—

(i) explain that it is a notice of hearsay evidence,

(ii) identify that evidence,

(iii) identify the person who made the statement which is hearsay, or explain why if that person is not identified, and

(iv) explain why that person will not be called to give oral evidence.

(2) A party may serve one notice under this rule in respect of more than one notice and more than one witness.

[Note. For the time within which to serve a notice of hearsay evidence, see rule 50.3(2) to (4), rule 50.4(2) and rule 50.5(3). See also the requirement in section 2 of the Civil Evidence Act 1995 for reasonable and practicable notice of a proposal to introduce hearsay evidence.

Cross-examination of maker of hearsay statement

50.7

(1) This rule applies where a party wants the court’s permission to cross-examine a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to cross-examine that person must—

(a) apply in writing, with reasons, not more than 7 days after service of the notice of hearsay evidence; and

(b) serve the application on—

(i) the court officer,

(ii) the party who served the hearsay evidence notice, and

(iii) every party on whom the hearsay evidence notice was served.

(3) The court may decide an application under this rule with or without a hearing.

(4) But the court must not—

(a) dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b) allow an application under this rule unless everyone served with the application has had at least 7 days in which to make representations, including representations about whether there should be a hearing.

[Note. See also section 3 of the Civil Evidence Act 1995.]

Credibility and consistency of maker of hearsay statement

50.8

(1) This rule applies where a party wants to challenge the credibility or consistency of a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to challenge the credibility or consistency of that person must—

(a) serve a written notice of intention to do so on—

(i) the court officer, and

(ii) the party who served the notice of hearsay evidence

not more than 7 days after service of that hearsay evidence notice; and

(b) in the notice, identify any statement or other material on which that party relies.

(3) The party who served the hearsay notice—

(a) may call that person to give oral evidence instead; and

(b) if so, must serve a notice of intention to do so on—

(i) the court officer, and

(ii) every party on whom he served the hearsay notice

not more than 7 days after service of the notice under paragraph (2).

[Note. Section 5(2) of the Civil Evidence Act 1995 describes the procedure for challenging the credibility of the maker of a statement of which hearsay evidence is introduced. See also section 6 of that Act. The 1995 Act does not allow the introduction of evidence of a previous inconsistent statement otherwise than in accordance with sections 5, 6 and 7 of the Criminal Procedure Act 1865[^f00520].]

Court's power to vary requirements under this Part

50.9

The court may—

(a) shorten a time limit or extend it (even after it has expired);

(b) allow a notice or application to be given in a different form, or presented orally.

PART 51

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 52 — ENFORCEMENT OF FINES AND OTHER ORDERS FOR PAYMENT

Contents of this Part

When this Part applies	rule 52.1
Exercise of court's powers	rule 52.2
Duty to give receipt	rule 52.3
Appeal against decision of fines officer	rule 52.4
Application to reduce a fine or vary payment terms	rule 52.5
Claim to avoid fine after penalty notice	rule 52.6
Information to be included in a warrant to take goods, etc.	rule 52.7
Execution of a warrant to take goods, etc.	rule 52.8
Sale of goods taken under a warrant	rule 52.9
Financial penalties imposed in other European Union member states	rule 52.10

[Note. Part 18 contains rules about warrants for arrest, detention or imprisonment, including such warrants issued for failure to pay fines, etc.

Part 37 contains rules about the procedure on sentencing in a magistrates’ court.

Part 42 contains rules about the exercise of a magistrates’ court’s powers to enforce an order made by another court.]

When this Part applies

52.1

(1) This Part applies where a magistrates’ court can enforce payment of—

(a) a fine, or a sum that legislation requires the court to treat as a fine; or

(b) any other sum that a court has ordered to be paid—

(i) on a conviction, or

(ii) on the forfeiture of a surety.

(2) Rules 52.7 to 52.9 apply where the court, or a fines officer, issues a warrant that requires someone to—

(a) take control of goods or money belonging to the defendant;

(b) remove and sell any such goods; and

(c) pay any such money, and any proceeds of such a sale, to the court officer towards payment of a sum to which this Part applies.

(3) In this Part—

(a) ‘defendant’ means anyone liable to pay a sum to which this Part applies;

(b) ‘payment terms’ means by when, and by what (if any) instalments, such a sum must be paid.

[Note. For the means by which a magistrates’ court may enforce payment, see—

(a) Part 3 of the Magistrates’ Courts Act 1980[^f00521]; and

(b) Schedule 5 to the Courts Act 2003[^f00522]and The Fines Collection Regulations 2006[^f00523].

Exercise of court's powers

52.2

The court must not exercise its enforcement powers unless—

(a) the court officer has served on the defendant any collection order or other notice of—

(i) the obligation to pay,

(ii) the payment terms, and

(iii) how and where the defendant must pay; and

(b) the defendant has failed to comply with the payment terms.

[Note. See section 76 of the Magistrates’ Courts Act 1980[^f00525]; and paragraphs 12 and 13 of Schedule5 to the Courts Act 2003[^f00526].]

Duty to give receipt

52.3

(1) This rule applies where the defendant makes a payment to—

(a) the court officer specified in an order or notice served under rule 52.2;

(b) another court officer;

(i) custodian of the defendant,

(ii) supervisor appointed to encourage the defendant to pay, or

(iii) responsible officer appointed under a community sentence or a suspended sentence of imprisonment; or

(d) a person executing a warrant to which rule 18.6 (warrants for arrest, detention or imprisonment that cease to have effect on payment) or this Part applies.

(2) The person receiving the payment must—

(a) give the defendant a receipt; and

(b) as soon as practicable transmit the payment to the court officer specified in an order or notice served under rule 52.2, if the recipient is not that court officer.

[Note. For the effect of payment to a person executing a warrant to which—

(a) rule 18.6 applies, see that rule and sections 79[^f00527]and 125(1)[^f00528]of the Magistrates’ Courts Act 1980;

(b) this Part applies, see rule 52.8(5).

Appeal against decision of fines officer

52.4

(1) This rule applies where—

(a) a collection order is in force;

(b) a fines officer makes a decision under one of these paragraphs of Schedule 5 to the Courts Act 2003[^f00530]—

(i) paragraph 22 (Application to fines officer for variation of order or attachment of earnings order, etc.),

(ii) paragraph 31[^f00531] (Application to fines officer for variation of reserve terms), or

(iii) paragraph 37[^f00532] (Functions of fines officer in relation to defaulters: referral or further steps notice); and

(2) Unless the court otherwise directs, the defendant must—

(a) appeal in writing not more than 10 business days after the decision;

(b) serve the appeal on the court officer; and

(i) explain why a different decision should be made, and

(ii) specify the decision that the defendant proposes.

(3) Where the court determines an appeal—

(a) the general rule is that it will do so at a hearing; but

(b) it may do so without a hearing.

[Note. Under paragraph 12 of Schedule 5 to the Courts Act 2003, where a collection order is in force the court’s powers to deal with the defendant’s liability to pay the sum for which that order was made are subject to the provisions of that Schedule and to fines collection regulations.

Application to reduce a fine or vary payment terms

52.5

(1) This rule applies where—

(a) no collection order is in force; and

(b) the defendant wants the court to—

(i) reduce the amount of a fine, or

(ii) vary payment terms.

(2) Unless the court otherwise directs, the defendant must—

(a) apply in writing;

(b) serve the application on the court officer; and

(i) what relevant circumstances have not yet been considered by the court, and

(ii) why the fine should be reduced, or the payment terms varied.

[Note. See sections 75[^f00534], 85[^f00535]and 85A[^f00536]of the Magistrates’ Courts Act 1980.]

Claim to avoid fine after penalty notice

52.6

(1) This rule applies where—

(a) a chief officer of police serves on the magistrates’ court officer a certificate registering, for enforcement as a fine, a sum payable by a defendant after failure to comply with a penalty notice; and

(b) the court or a fines officer enforces the fine.

(2) A defendant who claims not to be the person to whom the penalty notice was issued must, unless the court otherwise directs—

(a) make that claim in writing; and

(b) serve it on the court officer.

(3) The court officer must—

(a) notify the chief officer of police by whom the certificate was registered; and

(b) refer the case to the court.

(4) Where such a claim is made—

(a) the general rule is that the court will adjourn the enforcement for 28 days and fix a hearing; but

(b) the court may make a different order.

(5) At any such hearing, the chief officer of police must introduce any evidence to contradict the defendant’s claim.

[Note. See section 10 of the Criminal Justice and Police Act 2001[^f00537].

Information to be included in a warrant to take goods, etc.

52.7

(1) A warrant must identify—

(a) the person(s) to whom it is directed;

(b) the defendant against whom it was issued;

(d) the court or fines officer who issued it, unless that is otherwise recorded by the court officer; and

(e) the court office for the court or fines officer who issued it.

(2) A person to whom a warrant is directed must record on it the date and time at which it is received.

(3) A warrant that contains an error is not invalid, as long as—

(a) it was issued in respect of a lawful decision by the court or fines officer; and

(b) it contains enough information to identify that decision.

[Note. See sections 78[^f00539]and 125ZA[^f00540]of the Magistrates’ Courts Act 1980.]

Execution of a warrant to take goods, etc.

52.8

(1) A warrant may be executed by—

(a) any person to whom it is directed; or

(b) anyone authorised to do so by section 125[^f00541] (warrants), 125A[^f00542] (civilian enforcement officers) or 125B[^f00543] (execution by approved enforcement agency) of the Magistrates’ Courts Act 1980.

(2) The person who executes a warrant must—

(a) explain, in terms the defendant can understand—

(i) the order or decision that the warrant was issued to enforce,

(ii) the sum for which the warrant was issued, and

(iii) any extra sum payable in connection with the execution of the warrant;

(b) show the defendant the warrant, if that person has it;

(i) arrange for the defendant to see the warrant, if that person does not have it, and

(ii) show the defendant any written statement of that person’s authority required by section 125A or 125B of the 1980 Act; and

(d) clearly mark any goods that are taken under the warrant, unless that person removes those goods at once.

(3) These goods must not be taken under the warrant—

(a) clothes or bedding used by the defendant or by anyone living with the defendant;

(b) tools, books, vehicles or other equipment that the defendant needs to use in the defendant’s employment, business or vocation, unless the defendant is a corporation.

(4) Unless the court otherwise directs, or the defendant otherwise agrees, if the person who executes the warrant takes household goods they must not be removed until the day of sale.

(5) The warrant no longer has effect if—

(a) there is paid to the person executing it the sum for which it was issued and any extra sum payable in connection with its execution;

(b) those sums are offered to, but refused by, that person; or

(i) is shown a receipt given under rule 52.3 for the sum for which the warrant was issued, and

(ii) is paid any extra sum payable in connection with its execution.

[Note. Under section 125 of the Magistrates’ Courts Act 1980, a warrant issued by a magistrates’ court may be executed by any person to whom it is directed or by any constable acting within that constable’s police area.

Sale of goods taken under a warrant

52.9

(1) Unless the court otherwise directs or the defendant otherwise agrees, goods taken under a warrant must be sold—

(a) at public auction; and

(b) as soon as reasonably practicable after the expiry of 5 business days from the date of execution of the warrant.

(2) After a sale, the person who executed the warrant must, as soon as reasonably practicable—

(a) collect the proceeds of sale;

(b) deduct any sum payable in connection with the execution of the warrant;

(c) pay the court officer specified in an order or notice served under rule 52.2 the sum for which the warrant was issued;

(d) pay any balance remaining to the defendant; and

(e) deliver an account of those deductions and payments to the court officer.

Financial penalties imposed in other European Union member States

52.10

(1) This rule applies where the Lord Chancellor gives the court officer a request to enforce a financial penalty imposed in another European Union member State.

(2) The court officer must serve on the defendant—

(a) notice of the request for enforcement, and of its effect;

(b) a copy of—

(i) the certificate requesting enforcement, and

(ii) the decision requiring payment to which that certificate relates; and

(3) A defendant who wants the court to refuse enforcement must—

(a) serve notice of objection on the court officer;

(b) unless the court otherwise directs, serve that notice not more than 14 days after service of notice of the request; and

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