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The Criminal Procedure Rules 2015

Type Statutory-Instrument

Publication 2015-07-03

Last updated 2020-10-05

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(4) Where an appeal is abandoned under paragraph (1), the application for permission to appeal or appeal must be treated, for the purposes of section 85 of the 2002 Act (Conclusion of proceedings), as having been refused or dismissed by the Court of Appeal.

APPEAL ABOUT COMPLIANCE, RESTRAINT OR RECEIVERSHIP ORDER

Permission to appeal

42.14

(1) Permission to appeal to the Court of Appeal under section 13B, section 43 or section 65 of the Proceeds of Crime Act 2002[^f00838] may only be given where—

(a) the Court of Appeal considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

(2) An order giving permission to appeal may limit the issues to be heard and be made subject to conditions.

Notice of appeal

42.15

(1) Where an appellant wishes to apply to the Court of Appeal for permission to appeal under section 13B, 43 or 65 of the Proceeds of Crime Act 2002 Act, the appellant must serve a notice of appeal in the form set out in the Practice Direction on the Crown Court officer.

(2) Unless the Registrar, a single judge or the Court of Appeal directs otherwise, the appellant must serve the notice of appeal, accompanied by a respondent’s notice in the form set out in the Practice Direction for the respondent to complete, on—

(a) each respondent;

(b) any person who holds realisable property to which the appeal relates; and

as soon as practicable and in any event not later than 5 business days after the notice of appeal is served on the Crown Court officer.

(3) The appellant must serve the following documents with the notice of appeal—

(a) four additional copies of the notice of appeal for the Court of Appeal;

(b) four copies of any skeleton argument;

(d) four copies of any witness statement or affidavit in support of the application for permission to appeal;

(e) four copies of a suitable record of the reasons for judgment of the Crown Court; and

(f) four copies of the bundle of documents used in the Crown Court proceedings from which the appeal lies.

(4) Where it is not possible to serve all of the documents referred to in paragraph (3), the appellant must indicate which documents have not yet been served and the reasons why they are not currently available.

(5) The appellant must provide the Crown Court officer with a certificate of service stating that the notice of appeal has been served on each respondent in accordance with paragraph (2) and including full details of each respondent or explaining why it has not been possible to effect service.

Respondent's notice

42.16

(1) This rule applies to an appeal under section 13B, 43 or 65 of the Proceeds of Crime Act 2002.

(2) A respondent may serve a respondent’s notice on the Registrar.

(3) A respondent who—

(a) is seeking permission to appeal from the Court of Appeal; or

(b) wishes to ask the Court of Appeal to uphold the decision of the Crown Court for reasons different from or additional to those given by the Crown Court,

must serve a respondent’s notice on the Registrar.

(4) A respondent’s notice must be in the form set out in the Practice Direction and where the respondent seeks permission to appeal to the Court of Appeal it must be requested in the respondent’s notice.

(5) A respondent’s notice must be served on the Registrar not later than 14 days after—

(a) the date the respondent is served with notification that the Court of Appeal has given the appellant permission to appeal; or

(b) the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together.

(6) Unless the Registrar, a single judge or the Court of Appeal directs otherwise, the respondent serving a respondent’s notice must serve the notice on the appellant and any other respondent—

(a) as soon as practicable; and

(b) in any event not later than 5 business days,

after it is served on the Registrar.

Amendment and abandonment of appeal

42.17

(1) The appellant may amend a notice of appeal served under rule 42.15 or abandon an appeal under section 13B, 43 or 65 of the Proceeds of Crime Act 2002—

(a) without the permission of the court at any time before the Court of Appeal has begun hearing the appeal; and

(b) with the permission of the court after the Court of Appeal has begun hearing the appeal,

by serving notice in writing on the Registrar.

(2) Where the appellant serves a notice under paragraph (1), the appellant must send a copy of it to each respondent.

Stay

42.18

Unless the Court of Appeal or the Crown Court orders otherwise, an appeal under section 13B, 43 or 65 of the Proceeds of Crime Act 2002 does not operate as a stay of any order or decision of the Crown Court.

Striking out appeal notices and setting aside or imposing conditions on permission to appeal

42.19

(1) The Court of Appeal may—

(a) strike out the whole or part of a notice of appeal served under rule 42.15; or

(b) impose or vary conditions upon which an appeal under section 13B, 43 or 65 of the Proceeds of Crime Act 2002 may be brought.

(2) The Court of Appeal may only exercise its powers under paragraph (1) where there is a compelling reason for doing so.

(3) Where a party is present at the hearing at which permission to appeal was given, that party may not subsequently apply for an order that the Court of Appeal exercise its powers under paragraph (1)(b).

Hearing of appeals

42.20

(1) This rule applies to appeals under section 13B, 43 or 65 of the Proceeds of Crime Act 2002.

(2) Every appeal must be limited to a review of the decision of the Crown Court unless the Court of Appeal considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(3) The Court of Appeal may allow an appeal where the decision of the Crown Court was—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the Crown Court.

(4) The Court of Appeal may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in that party’s notice of appeal unless the Court of Appeal gives permission.

PART 43 — APPEAL OR REFERENCE TO THE SUPREME COURT

Contents of this Part

When this Part applies	rule 43.1
Application for permission or reference	rule 43.2
Determination of detention pending appeal, etc.	rule 43.3
Bail pending appeal	rule 43.4

When this Part applies

43.1

(1) This Part applies where—

(a) a party wants to appeal to the Supreme Court after—

(i) an application to the Court of Appeal to which Part 27 applies (Retrial following acquittal), or

(ii) an appeal to the Court of Appeal to which applies Part 37 (Appeal to the Court of Appeal against ruling at preparatory hearing), Part 38 (Appeal to the Court of Appeal against ruling adverse to prosecution), or Part 39 (Appeal to the Court of Appeal about conviction or sentence); or

(b) a party wants to refer a case to the Supreme Court after a reference to the Court of Appeal to which Part 41 applies (Reference to the Court of Appeal of point of law or unduly lenient sentencing).

(2) A reference to an ‘appellant’ in this Part is a reference to such a party.

[Note. Under section 33 of the Criminal Appeal Act 1968[^f00839], a party may appeal to the Supreme Court from a decision of the Court of Appeal on—

(a) an application to the court under section 76 of the Criminal Justice Act 2003[^f00840](prosecutor’s application for retrial after acquittal for serious offence). See also Part 27.

(b) an appeal to the court under—

(i) section 9 of the Criminal Justice Act 1987[^f00841]or section 35 of the Criminal Procedure and Investigations Act 1996[^f00842](appeal against order at preparatory hearing). See also Part 37.

(ii) section 47 of the Criminal Justice Act 2003[^f00843](appeal against order for non-jury trial after jury tampering.) See also Part 37.

(iii) Part 9 of the Criminal Justice Act 2003[^f00844](prosecutor’s appeal against adverse ruling). See also Part 38.

(iv) Part 1 of the Criminal Appeal Act 1968[^f00845](defendant’s appeal against conviction, sentence, etc.). See also Part 39.

Application for permission or reference

43.2

(1) An appellant must—

(a) apply orally to the Court of Appeal—

(i) for permission to appeal or to refer a sentencing case, or

(ii) to refer a point of law

immediately after the court gives the reasons for its decision; or

(b) apply in writing and serve the application on the Registrar and every other party not more than—

(i) 14 days after the court gives the reasons for its decision if that decision was on a sentencing reference to which Part 70 applies (Attorney General’s reference of sentencing case), or

(ii) 28 days after the court gives those reasons in any other case.

(2) An application for permission to appeal or to refer a sentencing case must—

(a) identify the point of law of general public importance that the appellant wants the court to certify is involved in the decision; and

(b) give reasons why—

(i) that point of law ought to be considered by the Supreme Court, and

(ii) the court ought to give permission to appeal.

(3) An application to refer a point of law must give reasons why that point ought to be considered by the Supreme Court.

(4) An application must include or attach any application for the following, with reasons—

(a) an extension of time within which to make the application for permission or for a reference;

(b) bail pending appeal;

(5) A written application must be in the form set out in the Practice Direction.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as ‘leave to appeal’.

Determination of detention pending appeal, etc.

43.3

On an application for permission to appeal, the Court of Appeal must—

(a) decide whether to order the detention of a defendant who would have been liable to be detained but for the decision of the court; and

(b) determine any application for—

(i) bail pending appeal,

(ii) permission to attend any hearing in the Supreme Court, or

(iii) a representation order.

[Note. For the liability of a defendant to be detained pending a prosecutor’s appeal to the Supreme Court and afterwards, see—

(a) section 37 of the Criminal Appeal Act 1968[^f00863];

(b) article 19 of the Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006[^f00864].

Bail pending appeal

43.4

Rules 39.8 (Application for bail pending appeal or retrial), 39.9 (Conditions of bail pending appeal or re-trial) and 39.10 (Forfeiture of a recognizance given as a condition of bail) apply.

PART 44 — REQUEST TO THE EUROPEAN COURT FOR A PRELIMINARY RULING

Contents of this Part

When this Part applies	rule 44.1
Preparation of request	rule 44.2
Submission of request	rule 44.3

When this Part applies

44.1

This Part applies where the court can request the Court of Justice of the European Union (‘the European Court’) to give a preliminary ruling, under Article 267 of the Treaty on the Functioning of the European Union.

[Note. Under Article 267, if a court of a MemberState considers that a decision on the question is necessary to enable it to give judgment, it may request the European Courtto give a preliminary ruling concerning—

(a) the interpretation of the Treaty on European Union, or of the Treaty on the Functioning of the European Union;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.]

Preparation of request

44.2

(1) The court may—

(a) make an order for the submission of a request—

(i) on application by a party, or

(ii) on its own initiative;

(b) give directions for the preparation of the terms of such a request.

(2) The court must—

(a) include in such a request—

(i) the identity of the court making the request,

(ii) the parties’ identities,

(iii) a statement of whether a party is in custody,

(iv) a succinct statement of the question on which the court seeks the ruling of the European Court,

(v) a succinct statement of any opinion on the answer that the court may have expressed in any judgment that it has delivered,

(vi) a summary of the nature and history of the proceedings, including the salient facts and an indication of whether those facts are proved, admitted or assumed,

(vii) the relevant rules of national law,

(viii) a summary of the relevant contentions of the parties,

(ix) an indication of the provisions of European Union law that the European Court is asked to interpret, and

(x) an explanation of why a ruling of the European Court is requested;

(b) express the request in terms that can be translated readily into other languages; and

Submission of request

44.3

(1) The court officer must serve the order for the submission of the request on the Senior Master of the Queen’s Bench Division of the High Court.

(2) The Senior Master must—

(a) submit the request to the European Court; but

(b) unless the court otherwise directs, postpone the submission of the request until—

(i) the time for any appeal against the order has expired, and

(ii) any appeal against the order has been determined.

PART 45 — COSTS

Contents of this Part

General rules
When this Part applies	rule 45.1
Costs orders: general rules	rule 45.2
Court's power to vary requirements	rule 45.3

Costs out of central funds
Costs out of central funds	rule 45.4

Payment of costs by one party to another
Costs on conviction and sentence, etc.	rule 45.5
Costs on appeal	rule 45.6
Costs on an application	rule 45.7
Costs resulting from unnecessary or improper act, etc.	rule 45.8

Other costs orders
Costs against a legal representative	rule 45.9
Costs against a third party	rule 45.10

Assessment of costs
Assessment and re-assessment	rule 45.11
Appeal to a costs judge	rule 45.12
Appeal to a High Court judge	rule 45.13
Application for an extension of time	rule 45.14

GENERAL RULES

When this Part applies

45.1

(1) This Part applies where the court can make an order about costs under—

(a) Part II of the Prosecution of Offences Act 1985[^f00866] and Part II, IIA or IIB of The Costs in Criminal Cases (General) Regulations 1986[^f00867];

(b) section 109 of the Magistrates’ Courts Act 1980[^f00868];

(d) section 8 of the Bankers Books Evidence Act 1879[^f00870];

(e) section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00871];

(f) section 36(5) of the Criminal Justice Act 1972[^f00872];

(g) section 159(5) and Schedule 3, paragraph 11, of the Criminal Justice Act 1988[^f00873];

(h) section 14H(5) of the Football Spectators Act 1989[^f00874];

(i) section 4(7) of the Dangerous Dogs Act 1991[^f00875];

(j) Part 3 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008[^f00876]; or

(k) Part 1 or 2 of the Extradition Act 2003[^f00877].

(2) In this Part, ‘costs’ means—

(a) the fees payable to a legal representative;

(b) the disbursements paid by a legal representative; and

[Note. A costs order can be made under—

(a) section 16 of the Prosecution of Offences Act 1985[^f00878](defence costs), for the payment out of central funds of a defendant’s costs (see rule 45.4);

(b) section 17 of the Prosecution of Offences Act 1985[^f00879](prosecution costs), for the payment out of central funds of a private prosecutor’s costs (see rule 45.4);

(c) section 18 of the Prosecution of Offences Act 1985[^f00880](award of costs against accused), for the payment by a defendant of another person’s costs (see rules 45.5 and 45.6);

(d) section 19(1) of the Prosecution of Offences Act 1985[^f00881]and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, for the payment by a party of another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party (see rule 45.8);

(e) section 19A of the Prosecution of Offences Act 1985[^f00882](costs against legal representatives, etc.)—

(i) for the payment by a legal representative of a party’s costs incurred as a result of an improper, unreasonable or negligent act or omission by or on behalf of the representative, or

(ii) disallowing the payment to that representative of such costs

(see rule 45.9);

(f) section 19B of the Prosecution of Offences Act 1985[^f00883](provision for award of costs against third parties) and regulation 3F of the Costs in Criminal Cases (General) Regulations 1986[^f00884], for the payment by a person who is not a party of a party’s costs where there has been serious misconduct by the non-party (see rule 45.10);

(g) section 109 of the Magistrates’ Courts Act 1980, section 52 of the Senior Courts Act 1981 and rule 45.6, for the payment by an appellant of a respondent’s costs on abandoning an appeal to the Crown Court (see rule 45.6);

(h) section 52 of the Senior Courts Act 1981 and—

(i) rule 45.6, for the payment by a party of another party’s costs on an appeal to the Crown Court in any case not covered by (c) or (g),

(ii) rule 45.7, for the payment by a party of another party’s costs on an application to the Crown Court about the breach or variation of a deferred prosecution agreement, or on an application to lift the suspension of a prosecution after breach of such an agreement;

(i) section 8 of the Bankers Books Evidence Act 1879, for the payment of costs by a party or by the bank against which an application for an order is made (see rule 45.7);

(j) section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965, for the payment by the applicant for a witness summons of the costs of a party who applies successfully under rule 17.7 to have it withdrawn (see rule 45.7);

(k) section 36(5) of the Criminal Justice Act 1972 or Schedule 3, paragraph 11, of the Criminal Justice Act 1988, for the payment out of central funds of a defendant’s costs on a reference by the Attorney General of—

(i) a point of law, or

(ii) an unduly lenient sentence

(see rule 45.4);

(l) section 159(5) of the Criminal Justice Act 1988, for the payment by a person of another person’s costs on an appeal about a reporting or public access restriction (see rule 45.6);

(m) section 14H(5) of the Football Spectators Act 1989, for the payment by a defendant of another person’s costs on an application to terminate a football banning order (see rule 45.7);

(n) section 4(7) of the Dangerous Dogs Act 1991, for the payment by a defendant of another person’s costs on an application to terminate a disqualification for having custody of a dog (see rule 45.7);

(o) article 14 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008[^f00885], corresponding with section 16 of the Prosecution of Offences Act 1985 (see rule 45.4);

(p) article 15 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with section 18 of the Prosecution of Offences Act 1985 (see rule 45.6);

(q) article 16 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19(1) of the 1985 Act (see rule 45.8);

(r) article 17 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19A of the 1985 Act (see rule 45.9);

(s) article 18 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19B of the 1985 Act (see rule 45.10);

(t) section 60 or 133 of the Extradition Act 2003 (costs where extradition ordered) for the payment by a defendant of another person’s costs (see rule 45.4); or

(u) section 61 or 134 of the Extradition Act 2003[^f00886](costs where discharge ordered) for the payment out of central funds of a defendant’s costs (see rule 45.4).

Costs orders: general rules

45.2

(1) The court must not make an order about costs unless each party and any other person directly affected—

(a) is present; or

(b) has had an opportunity—

(i) to attend, or

(ii) to make representations.

(2) The court may make an order about costs—

(a) at a hearing in public or in private; or

(b) without a hearing.

(3) In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including—

(a) the conduct of all the parties; and

(b) any costs order already made.

(4) If the court makes an order about costs, it must—

(a) specify who must, or must not, pay what, to whom; and

(b) identify the legislation under which the order is made, where there is a choice of powers.

(5) The court must give reasons if it—

(a) refuses an application for a costs order; or

(b) rejects representations opposing a costs order.

(6) If the court makes an order for the payment of costs—

(a) the general rule is that it must be for an amount that is sufficient reasonably to compensate the recipient for costs—

(i) actually, reasonably and properly incurred, and

(ii) reasonable in amount; but

(b) the court may order the payment of—

(i) a proportion of that amount,

(ii) a stated amount less than that amount,

(iii) costs from or until a certain date only,

(iv) costs relating only to particular steps taken, or

(v) costs relating only to a distinct part of the case.

(7) On an assessment of the amount of costs, relevant factors include—

(a) the conduct of all the parties;

(b) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(d) the time spent on the case;

(e) the place where and the circumstances in which work or any part of it was done; and

(f) any direction or observations by the court that made the costs order.

(8) If the court orders a party to pay costs to be assessed under rule 45.11, it may order that party to pay an amount on account.

(9) An order for the payment of costs takes effect when the amount is assessed, unless the court exercises any power it has to order otherwise.

[Note. Under the powers to which apply rule 45.8 (Costs resulting from unnecessary or improper act, etc.) and rule 45.9 (Costs against a legal representative), specified conduct must be established for such orders to be made.

Court's power to vary requirements

45.3

(1) The court may—

(a) extend a time limit for serving an application or representations under rules 45.4 to 45.10, even after it has expired; and

(b) consider an application or representations—

(i) made in a different form to one set out in the Practice Direction, or

(ii) made orally instead of in writing.

(2) A person who wants an extension of time must—

(a) apply when serving the application or representations for which it is needed; and

(b) explain the delay.

COSTS OUT OF CENTRAL FUNDS

Costs out of central funds

45.4

(1) This rule applies where the court can order the payment of costs out of central funds.

(2) In this rule, costs—

(a) include—

(i) on an appeal, costs incurred in the court that made the decision under appeal, and

(ii) at a retrial, costs incurred at the initial trial and on any appeal; but

(b) do not include costs met by legal aid.

(3) The court may make an order—

(a) on application by the person who incurred the costs; or

(b) on its own initiative.

(4) Where a person wants the court to make an order that person must—

(a) apply as soon as practicable; and

(b) outline the type of costs and the amount claimed, if that person wants the court to direct an assessment; or

(5) The general rule is that the court must make an order, but—

(a) the court may decline to make a defendant’s costs order if, for example—

(i) the defendant is convicted of at least one offence, or

(ii) the defendant’s conduct led the prosecutor reasonably to think the prosecution case stronger than it was; and

(b) the court may decline to make a prosecutor’s costs order if, for example, the prosecution was started or continued unreasonably.

(6) If the court makes an order—

(a) the court may direct an assessment under, as applicable—

(i) Part III of the Costs in Criminal Cases (General) Regulations 1986[^f00897], or

(ii) Part 3 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008[^f00898];

(b) the court may assess the amount itself in a case in which either—

(i) the recipient agrees the amount, or

(ii) the court decides to allow a lesser sum than that which is reasonably sufficient to compensate the recipient for expenses properly incurred in the proceedings;

(c) an order for the payment of a defendant’s costs which includes an amount in respect of fees payable to a legal representative, or disbursements paid by a legal representative, must include a statement to that effect.

(7) If the court directs an assessment, the order must specify any restriction on the amount to be paid that the court considers appropriate.

(8) If the court assesses the amount itself, it must do so subject to any restriction on the amount to be paid that is imposed by regulations made by the Lord Chancellor.

[Note. See also rule 45.2.

PAYMENT OF COSTS BY ONE PARTY TO ANOTHER

Costs on conviction and sentence, etc.

45.5

(1) This rule applies where the court can order a defendant to pay the prosecutor’s costs if the defendant is—

(a) convicted or found guilty;

(b) dealt with in the Crown Court after committal for sentence there;

(d) in an extradition case—

(i) ordered to be extradited, under Part 1 of the Extradition Act 2003,

(ii) sent for extradition to the Secretary of State, under Part 2 of that Act, or

(iii) unsuccessful on an appeal by the defendant to the High Court, or on an application by the defendant for permission to appeal from the High Court to the Supreme Court.

(2) The court may make an order—

(a) on application by the prosecutor; or

(b) on its own initiative.

(3) Where the prosecutor wants the court to make an order—

(a) the prosecutor must—

(i) apply as soon as practicable, and

(ii) specify the amount claimed; and

(b) the general rule is that the court must make an order if it is satisfied that the defendant can pay.

(4) A defendant who wants to oppose an order must make representations as soon as practicable.

(5) If the court makes an order, it must assess the amount itself.

[Note. See—

(a) rule 45.2;

(b) section 18 of the Prosecution of Offences Act 1985[^f00905]and regulation 14 of the Costs in Criminal Cases (General) Regulations 1986; and

Costs on appeal

45.6

(1) This rule—

(a) applies where a magistrates’ court, the Crown Court or the Court of Appeal can order a party to pay another person’s costs on an appeal, or an application for permission to appeal;

(b) authorises the Crown Court, in addition to its other powers, to order a party to pay another party’s costs on an appeal to that court, except on an appeal under—

(i) section 108 of the Magistrates’ Courts Act 1980[^f00906], or

(ii) section 45 of the Mental Health Act 1983[^f00907].

(2) In this rule, costs include—

(a) costs incurred in the court that made the decision under appeal; and

(b) costs met by legal aid.

(3) The court may make an order—

(a) on application by the person who incurred the costs; or

(b) on its own initiative.

(4) A person who wants the court to make an order must—

(a) apply as soon as practicable;

(b) notify each other party;

(i) the amount claimed, and

(ii) against whom; and

(d) where an appellant abandons an appeal to the Crown Court by serving a notice of abandonment—

(i) apply in writing not more than 14 days later, and

(ii) serve the application on the appellant and on the Crown Court officer.

(5) A party who wants to oppose an order must—

(a) make representations as soon as practicable; and

(b) where the application was under paragraph (4)(d), serve written representations on the applicant, and on the Crown Court officer, not more than 7 days after it was served.

(6) Where the application was under paragraph (4)(d), the Crown Court officer may—

(a) submit it to the Crown Court; or

(b) serve it on the magistrates’ court officer, for submission to the magistrates’ court.

(7) If the court makes an order, it may direct an assessment under rule 45.11, or assess the amount itself where—

(a) the appellant abandons an appeal to the Crown Court;

(b) the Crown Court decides an appeal, except an appeal under—

(i) section 108 of the Magistrates’ Courts Act 1980, or

(ii) section 45 of the Mental Health Act 1983; or

(c) the Court of Appeal decides an appeal to which Part 40 applies (Appeal to the Court of Appeal about reporting or public access restriction).

(8) If the court makes an order in any other case, it must assess the amount itself.

[Note. See also rule 45.2.

Costs on an application

45.7

(1) This rule—

(a) applies where the court can order a party to pay another person’s costs in a case in which—

(i) the court decides an application for the production in evidence of a copy of a bank record,

(ii) a magistrates’ court or the Crown Court decides an application to terminate a football banning order,

(iii) a magistrates’ court or the Crown Court decides an application to terminate a disqualification for having custody of a dog,

(iv) the Crown Court allows an application to withdraw a witness summons, or

(v) the Crown Court decides an application relating to a deferred prosecution agreement under rule 11.5 (breach), rule 11.6 (variation) or rule 11.7 (lifting suspension of prosecution);

(b) authorises the Crown Court, in addition to its other powers, to order a party to pay another party’s costs on an application to that court under rule 11.5, 11.6 or 11.7.

(2) The court may make an order—

(a) on application by the person who incurred the costs; or

(b) on its own initiative.

(3) A person who wants the court to make an order must—

(a) apply as soon as practicable;

(b) notify each other party; and

(i) the amount claimed, and

(ii) against whom.

(4) A party who wants to oppose an order must make representations as soon as practicable.

(5) If the court makes an order, it may direct an assessment under rule 45.11, or assess the amount itself.

[Note. See—

(a) rule 45.2;

(b) section 8 of the Bankers Books Evidence Act 1879[^f00912];

(d) section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00914]; and

(e) section 4(7) of the Dangerous Dogs Act 1991[^f00915].

Costs resulting from unnecessary or improper act, etc.

45.8

(1) This rule applies where the court can order a party to pay another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party.

(2) In this rule, costs include costs met by legal aid.

(3) The court may make an order—

(a) on application by the party who incurred such costs; or

(b) on its own initiative.

(4) A party who wants the court to make an order must—

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

(b) serve the application on—

(i) the court officer (or, in the Court of Appeal, the Registrar), and

(ii) each other party;

(i) the party by whom costs should be paid,

(ii) the relevant act or omission,

(iii) the reasons why that act or omission meets the criteria for making an order,

(iv) the amount claimed, and

(v) those on whom the application has been served.

(5) Where the court considers making an order on its own initiative, it must—

(a) identify the party against whom it proposes making the order; and

(b) specify—

(i) the relevant act or omission,

(ii) the reasons why that act or omission meets the criteria for making an order, and

(iii) with the assistance of the party who incurred the costs, the amount involved.

(6) A party who wants to oppose an order must—

(a) make representations as soon as practicable; and

(b) in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.

(7) If the court makes an order, it must assess the amount itself.

[Note. See—

(a) rule 45.2;

(b) section 19(1) of the Prosecution of Offences Act 1985[^f00916]and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986[^f00917]; and

OTHER COSTS ORDERS

Costs against a legal representative

45.9

(1) This rule applies where—

(a) a party has incurred costs—

(i) as a result of an improper, unreasonable or negligent act or omission by a legal or other representative or representative’s employee, or

(ii) which it has become unreasonable for that party to have to pay because of such an act or omission occurring after those costs were incurred; and

(b) the court can—

(i) order the representative responsible to pay such costs, or

(ii) prohibit the payment of costs to that representative.

(2) In this rule, costs include costs met by legal aid.

(3) The court may make an order—

(a) on application by the party who incurred such costs; or

(b) on its own initiative.

(4) A party who wants the court to make an order must—

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

(b) serve the application on—

(i) the court officer (or, in the Court of Appeal, the Registrar),

(ii) the representative responsible,

(iii) each other party, and

(iv) any other person directly affected;

(i) the representative responsible,

(ii) the relevant act or omission,

(iii) the reasons why that act or omission meets the criteria for making an order,

(iv) the amount claimed, and

(v) those on whom the application has been served.

(5) Where the court considers making an order on its own initiative, it must—

(a) identify the representative against whom it proposes making that order; and

(b) specify—

(i) the relevant act or omission,

(ii) the reasons why that act or omission meets the criteria for making an order, and

(iii) with the assistance of the party who incurred the costs, the amount involved.

(6) A representative who wants to oppose an order must—

(a) make representations as soon as practicable; and

(b) in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.

(7) If the court makes an order—

(a) the general rule is that it must do so without waiting until the end of the case, but it may postpone making the order; and

(b) it must assess the amount itself.

(8) Instead of making an order, the court may make adverse observations about the representative’s conduct for use in an assessment where—

(a) a party’s costs are—

(i) to be met by legal aid, or

(ii) to be paid out of central funds; or

(b) there is to be an assessment under rule 45.11.

[Note. See—

(a) rule 45.2;

(b) section 19A of the Prosecution of Offences Act 1985[^f00919];

Costs against a third party

45.10

(1) This rule applies where—

(a) there has been serious misconduct by a person who is not a party; and

(b) the court can order that person to pay a party’s costs.

(2) In this rule, costs include costs met by legal aid.

(3) The court may make an order—

(a) on application by the party who incurred the costs; or

(b) on its own initiative.

(4) A party who wants the court to make an order must—

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

(b) serve the application on—

(i) the court officer (or, in the Court of Appeal, the Registrar),

(ii) the person responsible,

(iii) each other party, and

(iv) any other person directly affected;

(i) the person responsible,

(ii) the relevant misconduct,

(iii) the reasons why the criteria for making an order are met,

(iv) the amount claimed, and

(v) those on whom the application has been served.

(5) Where the court considers making an order on its own initiative, it must—

(a) identify the person against whom it proposes making that order; and

(b) specify—

(i) the relevant misconduct,

(ii) the reasons why the criteria for making an order are met, and

(iii) with the assistance of the party who incurred the costs, the amount involved.

(6) A person who wants to oppose an order must—

(a) make representations as soon as practicable; and

(b) in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.

(7) If the court makes an order—

(a) the general rule is that it must do so at the end of the case, but it may do so earlier; and

(b) it must assess the amount itself.

[Note. See—

(a) rule 45.2;

(b) section 19B of the Prosecution of Offences Act 1985 and regulation 3F of the Costs in Criminal Cases (General) Regulations 1986; and

ASSESSMENT OF COSTS

Assessment and re-assessment

45.11

(1) This rule applies where the court directs an assessment under—

(a) rule 33.48 (Confiscation and related proceedings – restraint and receivership proceedings: rules that apply generally – assessment of costs);

(b) rule 45.6 (Costs on appeal); or

(2) The assessment must be carried out by the relevant assessing authority, namely—

(a) the Lord Chancellor, where the direction was given by a magistrates’ court or by the Crown Court; or

(b) the Registrar, where the direction was given by the Court of Appeal.

(3) The party in whose favour the court made the costs order (‘the applicant’) must—

(a) apply for an assessment—

(i) in writing, in any form required by the assessing authority, and

(ii) not more than 3 months after the costs order; and

(b) serve the application on—

(i) the assessing authority, and

(ii) the party against whom the court made the costs order (‘the respondent’).

(4) The applicant must—

(a) summarise the work done;

(b) specify—

(i) each item of work done, giving the date, time taken and amount claimed,

(ii) any disbursements or expenses, including the fees of any advocate, and

(iii) any circumstances of which the applicant wants the assessing authority to take particular account; and

(i) receipts or other evidence of the amount claimed, and

(ii) any other information or document for which the assessing authority asks, within such period as that authority may require.

(5) A respondent who wants to make representations about the amount claimed must—

(a) do so in writing; and

(b) serve the representations on the assessing authority, and on the applicant, not more than 21 days after service of the application.

(6) The assessing authority must—

(a) if it seems likely to help with the assessment, obtain any other information or document;

(b) resolve in favour of the respondent any doubt about what should be allowed; and

(7) Where either party wants the amount allowed re-assessed—

(a) that party must—

(i) apply to the assessing authority, in writing and in any form required by that authority,

(ii) serve the application on the assessing authority, and on the other party, not more than 21 days after service of the assessment,

(iii) explain the objections to the assessment,

(iv) supply any additional supporting information or document, and

(v) ask for a hearing, if that party wants one; and

(b) a party who wants to make representations about an application for re-assessment must—

(i) do so in writing,

(ii) serve the representations on the assessing authority, and on the other party, not more than 21 days after service of the application, and

(iii) ask for a hearing, if that party wants one;

(i) must arrange a hearing, in public or in private, if either party asks for one,

(ii) subject to that, may re-assess the amount allowed with or without a hearing,

(iii) must re-assess the amount allowed on the initial assessment, taking into account the reasons for disagreement with that amount and any other representations,

(iv) may maintain, increase or decrease the amount allowed on the assessment,

(v) must serve the re-assessment on the parties, and

(vi) must serve written reasons on the parties, if not more than 21 days later either party asks for such reasons.

(8) A time limit under this rule may be extended even after it has expired—

(a) by the assessing authority, or

(b) by the Senior Costs Judge, if the assessing authority declines to do so.

Appeal to a costs judge

45.12

(1) This rule applies where—

(a) the assessing authority has re-assessed the amount allowed under rule 45.11; and

(b) either party wants to appeal against that amount.

(2) That party must—

(a) serve an appeal notice on—

(i) the Senior Costs Judge,

(ii) the other party, and

(iii) the assessing authority

not more than 21 days after service of the written reasons for the re-assessment;

(b) explain the objections to the re-assessment;

(i) the applications for assessment and re-assessment,

(ii) any other information or document considered by the assessing authority,

(iii) the assessing authority’s written reasons for the re-assessment, and

(iv) any other information or document for which a costs judge asks, within such period as the judge may require; and

(d) ask for a hearing, if that party wants one.

(3) A party who wants to make representations about an appeal must—

(a) serve representations in writing on—

(i) the Senior Costs Judge, and

(ii) the applicant

not more than 21 days after service of the appeal notice; and

(b) ask for a hearing, if that party wants one.

(4) Unless a costs judge otherwise directs, the parties may rely only on—

(a) the objections to the amount allowed on the initial assessment; and

(b) any other representations and material considered by the assessing authority.

(5) A costs judge—

(a) must arrange a hearing, in public or in private, if either party asks for one;

(b) subject to that, may determine an appeal with or without a hearing;

(i) consult the assessing authority,

(ii) consult the court which made the costs order, and

(iii) obtain any other information or document;

(d) must reconsider the amount allowed by the assessing authority, taking into account the objections to the re-assessment and any other representations;

(e) may maintain, increase or decrease the amount allowed on the re-assessment;

(f) may provide for the costs incurred by either party to the appeal; and

(g) must serve reasons for the decision on—

(i) the parties, and

(ii) the assessing authority.

(6) A costs judge may extend a time limit under this rule, even after it has expired.

[Note. The Criminal Costs Practice Direction sets out a form for use in connection with this rule.]

Appeal to a High Court judge

45.13

(1) This rule applies where—

(a) a costs judge has determined an appeal under rule 45.12; and

(b) either party wants to appeal against the amount allowed.

(2) A party who wants to appeal—

(a) may do so only if a costs judge certifies that a point of principle of general importance was involved in the decision on the review; and

(b) must apply in writing for such a certificate and serve the application on—

(i) the costs judge,

(ii) the other party

not more than 21 days after service of the decision on the review.

(3) That party must—

(a) appeal to a judge of the High Court attached to the Queen’s Bench Division as if it were an appeal from the decision of a master under Part 52 of the Civil Procedure Rules 1998[^f00921]; and

(b) serve the appeal not more than 21 days after service of the costs judge’s certificate under paragraph (2).

(4) A High Court judge—

(a) may extend a time limit under this rule even after it has expired;

(b) has the same powers and duties as a costs judge under rule 45.12; and

[Note. See also section 70 of the Senior Courts Act 1981[^f00922].]

Application for an extension of time

45.14

A party who wants an extension of time under rule 45.11, 45.12 or 45.13 must—

(a) apply in writing;

(b) explain the delay; and

PART 46 — REPRESENTATIVES

Contents of this Part

Functions of representatives and supporters	rule 46.1
Notice of appointment, etc. of legal representative: general rules	rule 46.2
Application to change legal representative: legal aid	rule 46.3

Functions of representatives and supporters

46.1

(1) Under these Rules, anything that a party may or must do may be done—

(a) by a legal representative on that party’s behalf;

(b) by a person with the corporation’s written authority, where that corporation is a defendant;

(i) who is under 18, or

(ii) whose understanding of what the case involves is limited

unless other legislation (including a rule) otherwise requires.

(2) A member, officer or employee of a prosecutor may, on the prosecutor’s behalf—

(a) serve on the magistrates’ court officer, or present to a magistrates’ court, an information under section 1 of the Magistrates’ Courts Act 1980[^f00923]; or

(b) issue a written charge and requisition, or single justice procedure notice, under section 29 of the Criminal Justice Act 2003[^f00924].

[Note. See also section 122 of the Magistrates’ Courts Act 1980[^f00925]. A party’s legal representative must be entitled to act as such under section 13 of the Legal Services Act 2007[^f00926].

Notice of appointment, etc. of legal representative: general rules

46.2

(1) This rule applies—

(a) in relation to a party who does not have legal aid for the purposes of a case;

(b) where such a party—

(i) appoints a legal representative for the purposes of the case, or

(ii) dismisses such a representative, with or without appointing another;

(2) Where paragraph (1)(b) applies, that party must give notice of the appointment or dismissal to—

(a) the court officer;

(b) each other party; and

as soon as practicable and in any event within 5 business days.

(3) Where paragraph (1)(c) applies, that legal representative must, as soon as practicable, give notice to—

(a) the court officer;

(b) the party whom he or she has represented; and

(4) Any such notice—

(a) may be given orally, but only if—

(i) it is given at a hearing, and

(ii) it specifies no restriction under paragraph (5)(b) (restricted scope of appointment);

(b) otherwise, must be in writing.

(5) A notice of the appointment of a legal representative—

(a) must identify—

(i) the legal representative who has been appointed, with details of how to contact that representative, and

(ii) all those to whom the notice is given;

(b) may specify a restriction, or restrictions, on the purpose or duration of the appointment; and

(c) if it specifies any such restriction, may nonetheless provide that documents may continue to be served on the represented party at the representative’s address until—

(i) further notice is given under this rule, or

(ii) that party obtains legal aid for the purposes of the case.

(6) A legal representative who is dismissed by a party or who withdraws from representing a party must, as soon as practicable, make available to that party such documents in the representative’s possession as have been served on that party.

Application to change legal representative: legal aid

46.3

(1) This rule applies—

(a) in relation to a party who has legal aid for the purposes of a case;

(b) where such a party wants to select a legal representative in place of the representative named in the legal aid representation order.

(2) Such a party must—

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

(b) serve the application on—

(i) the court officer, and

(ii) the legal representative named in the legal aid representation order.

(3) The application must—

(a) explain what the case is about, including what offences are alleged, what stage it has reached and what is likely to be in issue at trial;

(b) explain how and why the applicant chose the legal representative named in the legal aid representation order;

(c) if an advocate other than that representative has been instructed for the applicant, explain whether the applicant wishes to replace that advocate;

(d) explain, giving relevant facts and dates—

(i) in what way, in the applicant’s opinion, there has been a breakdown in the relationship between the applicant and the current representative such that neither the individual representing the applicant nor any colleague of his or hers any longer can provide effective representation, or

(ii) what other compelling reason, in the applicant’s opinion, means that neither the individual representing the applicant nor any colleague of his or hers any longer can provide effective representation;

(e) give details of any previous application by the applicant to replace the legal representative named in the legal aid representation order;

(f) state whether the applicant—

(i) waives the legal professional privilege attaching to the applicant’s communications with the current representative, to the extent required to allow that representative to respond to the matters set out in the application, or

(ii) declines to waive that privilege and acknowledges that the court may draw such inferences as it thinks fit in consequence;

(g) explain how and why the applicant has chosen the proposed new representative;

(h) include or attach a statement by the proposed new representative which—

(i) confirms that that representative is eligible and willing to conduct the case for the applicant,

(ii) confirms that that representative can and will meet the current timetable for the case, including any hearing date or dates that have been set, if the application succeeds,

(iii) explains what, if any, dealings that representative has had with the applicant before the present case; and

(i) ask for a hearing, if the applicant wants one, and explain why it is needed.

(4) The legal representative named in the legal aid representation order must—

(a) respond in writing no more than 5 business days after service of the application; and

(b) serve the response on—

(i) the court officer,

(ii) the applicant, and

(iii) the proposed new representative.

(5) The response must—

(a) explain which, if any, of the matters set out in the application the current representative disputes;

(b) explain, as appropriate, giving relevant facts and dates—

(i) whether, and if so in what way, in the current representative’s opinion, there has been a breakdown in the relationship with the applicant such that neither the individual representing the applicant nor any colleague of his or hers any longer can provide effective representation,

(ii) whether, in the current representative’s opinion, there is some other compelling reason why neither the individual representing the applicant nor any colleague of his or hers any longer can provide effective representation, and if so what reason,

(iii) whether the current representative considers there to be a duty to withdraw from the case in accordance with professional rules of conduct, and if so the nature of that duty, and

(iv) whether the current representative no longer is able to represent the applicant through circumstances outside the representative’s control, and if so the particular circumstances that render the representative unable to do so;

(d) ask for a hearing, if the current representative wants one, and explain why it is needed.

(6) The court may determine the application—

(a) without a hearing, as a general rule; or

(b) at a hearing, which must be in private unless the court otherwise directs.

(7) Unless the court otherwise directs, any hearing must be in the absence of each other party and each other party’s representative and advocate (if any).

(8) If the court allows the application, as soon as practicable—

(a) the current representative must make available to the new representative such documents in the current representative’s possession as have been served on the applicant party; and

(b) the new representative must serve notice of appointment on each other party.

(9) Paragraph (10) applies where—

(a) the court refuses the application;

(b) in response to that decision—

(i) the applicant declines further representation by the current representative or asks for legal aid to be withdrawn, or

(ii) the current representative declines further to represent the applicant; and

(10) The court officer must serve notice of the withdrawal of legal aid on—

(a) the applicant; and

(b) the current representative.

[Note. Under sections 16 and 19 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00932]and Part 2 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013[^f00933], a court before which criminal proceedings take place may determine whether an individual qualifies for legal aid representation in accordance with the 2012 Act.

PART 47 — INVESTIGATION ORDERS AND WARRANTS

Contents of this Part

Section 1: understanding and applying this Part
When this Part applies	rule 47.1
Meaning of ‘court’, ‘applicant’ and ‘respondent’	rule 47.2

Section 2: general rules
Exercise of court's powers	rule 47.3
Court's power to vary requirements under this Part	rule 47.4
Documents served on the court officer	rule 47.5

Section 3: orders under the Terrorism Act 2000
Application for an order under the Terrorism Act 2000	rule 47.6
Content of application for a production etc. order	rule 47.7
Content of application for an explanation order	rule 47.8
Content of application for a customer information order	rule 47.9
Content of application for an account monitoring order	rule 47.10
Application to vary or discharge an order	rule 47.11
Application containing information withheld from
a respondent or other person	rule 47.12
Application to punish for contempt of court	rule 47.13

Section 4: orders under the Proceeds of Crime Act 2002 etc.
Application for an order under the Proceeds of Crime Act 2002 etc.	rule 47.14
Content of application for a production order	rule 47.15
Content of application for an order to grant entry	rule 47.16
Content of application for a disclosure order	rule 47.17
Content of application for a customer information order	rule 47.18
Content of application for an account monitoring order	rule 47.19
Application to vary or discharge an order	rule 47.20
Application containing information withheld from
a respondent or other person	rule 47.21
Application to punish for contempt of court	rule 47.22

Section 5: orders under the Coroners and Justice Act 2009
Exercise of court's powers	rule 47.23
Application for an investigation anonymity order	rule 47.24
Application to discharge an investigation anonymity order	rule 47.25
Appeal	rule 47.26

Section 6: orders under the Regulation of Investigatory Powers Act 2000
Application for approval for authorisation or notice	rule 47.27
Exercise of court's power to quash an authorisation or notice	rule 47.28

Section 7: search warrants
Exercise of court's powers	rule 47.29
Application for warrant under section 8
of the Police and Criminal Evidence Act 1984	rule 47.30
Application for warrant under section 2 of the Criminal Justice Act 1987	rule 47.31
Application for warrant under another power to which sections 15 and 16
of the Police and Criminal Evidence Act 1984 apply	rule 47.32
Information to be included in a warrant	rule 47.33

Section 8: orders for the retention of fingerprints, etc.
Exercise of court's powers	rule 47.34
Application to extend retention period	rule 47.35
Appeal	rule 47.36

SECTION 1: UNDERSTANDING AND APPLYING THIS PART

When this Part applies

47.1

(1) Sections 2 and 3 of this Part apply where, for the purposes of a terrorist investigation—

(a) a Circuit judge can make, vary or discharge—

(i) an order for the production of, or for giving access to, material, or for a statement of its location, under paragraphs 5 and 10 of Schedule 5 to the Terrorism Act 2000[^f00934],

(ii) an explanation order, under paragraphs 10 and 13 of Schedule 5 to the 2000 Act[^f00935],

(iii) a customer information order, under paragraphs 1 and 4 of Schedule 6 to the 2000 Act[^f00936];

(b) a Circuit judge can make, and the Crown Court can vary or discharge, an account monitoring order, under paragraphs 2 and 4 of Schedule 6A to the 2000 Act[^f00937].

(2) Sections 2 and 4 of this Part apply where, for the purposes of an investigation to which Part 8 of the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 2002 (External Investigations) Order 2014[^f00938] applies, a Crown Court judge can make, and the Crown Court can vary or discharge—

(a) a production order, under sections 345 and 351 of the 2002 Act[^f00939] or under articles 6 and 12 of the 2014 Order;

(b) an order to grant entry, under sections 347 and 351 of the 2002 Act or under articles 8 and 12 of the 2014 Order;

(c) a disclosure order, under sections 357 and 362 of the 2002 Act[^f00940] or under articles 16 and 21 of the 2014 Order;

(d) a customer information order, under sections 363 and 369 of the 2002 Act[^f00941] or under articles 22 and 28 of the 2014 Order;

(e) an account monitoring order, under sections 370, 373 and 375 of the 2002 Act[^f00942] or under articles 29, 32 and 34 of the 2014 Order.

(3) Rule 47.5 and Section 5 of this Part apply where—

(a) a justice of the peace can make or discharge an investigation anonymity order, under sections 76 and 80(1) of the Coroners and Justice Act 2009[^f00943];

(b) a Crown Court judge can determine an appeal against—

(i) a refusal of such an order, under section 79 of the 2009 Act,

(ii) a decision on an application to discharge such an order, under section 80(6) of the 2009 Act.

(4) Sections 2 and 6 of this Part apply where a justice of the peace can make an order approving—

(a) the grant or renewal of an authorisation, or the giving or renewal of a notice, under section 23A of the Regulation of Investigatory Powers Act 2000[^f00944];

(b) the grant or renewal of an authorisation under section 32A of the 2000 Act[^f00945].

(5) Rule 47.5 and Section 7 of this Part apply where a justice of the peace can issue a warrant under—

(a) section 8 of the Police and Criminal Evidence Act 1984[^f00946];

(b) section 2 of the Criminal Justice Act 1987[^f00947];

(6) Rules 47.4 and 47.5 and Section 8 of this Part apply where—

(a) a District Judge (Magistrates’ Court) can make an order under—

(i) section 63F(7) or 63R(6) of the Police and Criminal Evidence Act 1984[^f00949], or

(ii) paragraph 20B(5) or 20G(6) of Schedule 8 to the Terrorism Act 2000[^f00950];

(b) the Crown Court can determine an appeal under—

(i) section 63F(10) of the Police and Criminal Evidence Act 1984, or

(ii) paragraph 20B(8) of Schedule 8 to the Terrorism Act 2000.

[Note. In outline, the orders to which these rules apply are—

(a) for the purposes of a terrorist investigation under the Terrorism Act 2000—

(i) an order requiring a person to produce, give access to, or state the location of material,

(ii) an explanation order, requiring a person to explain material obtained under a production, etc. order,

(iii) a customer information order, requiring a financial institution to provide information about an account holder,

(iv) an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution;

(b) for the purposes of an investigation to which Part 8 of the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 2002 (External Investigations) Order 2014 applies—

(i) a production order, requiring a person to produce or give access to material,

(ii) an order to grant entry, requiring a person to allow entry to premises so that a production order can be enforced,

(iii) a disclosure order, requiring a person to provide information or documents, or to answer questions,

(iv) a customer information order, requiring a financial institution to provide information about an account holder,

(v) an account monitoring order, requiring a financial institution to provide specified information, for a specified period, about an account held at that institution;

(c) under the Coroners and Justice Act 2009, an investigation anonymity order, prohibiting the disclosure of information that identifies, or might identify, a specified person as someone who is, or was, willing to assist the investigation of an offence of murder or manslaughter caused by a gun or knife;

(d) under the Regulation of Investigatory Powers Act 2000, an order approving a local authority officer’s authorisation for the obtaining of information about the use of postal or telecommunications services, or for the use of surveillance or of a ‘covert human intelligence source’;

(e) under the Police and Criminal Evidence Act 1984, a warrant authorising entry to, and the search of, premises for material, articles or persons;

(f) under the Criminal Justice Act 1987, a warrant authorising entry to, and the search of, premises for documents sought by the Director of the Serious Fraud Office;

(g) under the Police and Criminal Evidence Act 1984 or under the Terrorism Act 2000, an order extending the period during which fingerprints, DNA profiles or samples may be retained by the police.

Meaning of ‘court’, ‘applicant’ and ‘respondent’

47.2

In this Part—

(a) a reference to the ‘court’ includes a reference to any justice of the peace or judge who can exercise a power to which this Part applies;

(b) ‘applicant’ means a person who, or an authority which, can apply for an order or warrant to which this Part applies; and

(i) against whom such an order is sought or made, or

(ii) on whom an application for such an order is served.

SECTION 2: GENERAL RULES

Exercise of court's powers

47.3

(1) Subject to paragraphs (2) and (3), the court may determine an application for an order, or to vary or discharge an order—

(a) at a hearing (which must be in private unless the court otherwise directs), or without a hearing; and

(b) in the absence of—

(i) the applicant,

(ii) the respondent (if any),

(iii) any other person affected by the order.

(2) The court must not determine such an application in the applicant’s absence if—

(a) the applicant asks for a hearing; or

(b) it appears to the court that—

(i) the proposed order may infringe legal privilege, within the meaning of section 10 of the Police and Criminal Evidence Act 1984[^f00956] or of section 348 or 361 of the Proceeds of Crime Act 2002[^f00957],

(ii) the proposed order may require the production of excluded material, within the meaning of section 11 of the 1984 Act, or

(iii) for any other reason the application is so complex or serious as to require the court to hear the applicant.

(3) The court must not determine such an application in the absence of any respondent or other person affected, unless—

(a) the absentee has had at least 2 business days in which to make representations; or

(b) the court is satisfied that—

(i) the applicant cannot identify or contact the absentee,

(ii) it would prejudice the investigation if the absentee were present,

(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the absentee to attend, or

(iv) the absentee has waived the opportunity to attend.

(4) The court must not make, vary or discharge an order unless the applicant states, in writing or orally, that to the best of the applicant’s knowledge and belief—

(a) the application discloses all the information that is material to what the court must decide; and

(b) the content of the application is true.

(5) Where the statement required by paragraph (4) is made orally—

(a) the statement must be on oath or affirmation, unless the court otherwise directs; and

(b) the court must arrange for a record of the making of the statement.

Court's power to vary requirements under this Part

47.4

(1) The court may—

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

(b) dispense with a requirement for service under this Part (even after service was required); and

(2) A person who wants an extension of time must—

(a) apply when serving the application for which it is needed; and

(b) explain the delay.

Documents served on the court officer

47.5

(1) Unless the court otherwise directs, the court officer may—

(a) keep a written application; or

(b) arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose.

(2) Where the court makes an order when the court office is closed, the applicant must, not more than 72 hours later, serve on the court officer—

(a) a copy of the order; and

(b) any written material that was submitted to the court.

(3) Where the court issues a warrant—

(a) the applicant must return it to the court officer as soon as practicable after it has been executed, and in any event not more than 3 months after it was issued (unless other legislation otherwise provides); and

(b) the court officer must—

(i) keep the warrant for 12 months after its return, and

(ii) during that period, make it available for inspection by the occupier of the premises to which it relates, if that occupier asks to inspect it.

[Note. See section 16(10) of the Police and Criminal Evidence Act 1984[^f00958].]

SECTION 3: ORDERS UNDER THE TERRORISM ACT 2000

[Note. The rules in Section 2 (General rules) also apply.]

Application for an order under the Terrorism Act 2000

47.6

(1) This rule applies where an applicant wants the court to make one of the orders listed in rule 47.1(1).

(2) The applicant must—

(a) apply in writing;

(b) serve the application on—

(i) the court officer, and

(ii) the respondent (unless the court otherwise directs);

(d) give the information required by whichever of rules 47.7 to 47.10 applies; and

(e) serve any order made on the respondent.

[Note. See also rules 47.3 and 47.4, under which the court may—

(a) exercise its powers in the parties’ absence;

(b) dispense with a requirement for service; and

Content of application for a production etc. order

47.7

As well as complying with rule 47.6, an applicant who wants the court to make an order for the production of, or access to, material, or for a statement of its location, must—

(a) describe that material;

(b) explain why the applicant thinks the material is—

(i) in the respondent’s possession, custody or power, or

(ii) likely to be so within 28 days of the order;

(d) confirm that none of the material is expected to be subject to legal privilege;

(e) explain why the material is likely to be of substantial value to the investigation;

(f) explain why it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—

(i) the benefit likely to accrue to the investigation if it is obtained, and

(ii) the circumstances in which the respondent has the material, or is expected to have it; and

(g) propose—

(i) the terms of the order, and

(ii) the period within which it should take effect.

[Note. See paragraphs 5 to 9 of Schedule 5 to the Terrorism Act 2000. The applicant for a production, etc. order must be a constable.

Content of application for an explanation order

47.8

As well as complying with rule 47.6, an applicant who wants the court to make an explanation order must—

(a) identify the material that the applicant wants the respondent to explain;

(b) confirm that the explanation is not expected to infringe legal privilege; and

(i) the terms of the order, and

(ii) the period within which it should take effect, if 7 days from the date of the order would not be appropriate.

[Note. See paragraph 13 of Schedule 5 to the Terrorism Act 2000. The applicant for an explanation order must be a constable.

Content of application for a customer information order

47.9

As well as complying with rule 47.6, an applicant who wants the court to make a customer information order must—

(a) explain why it is desirable for the purposes of the investigation to trace property said to be terrorist property within the meaning of the Terrorism Act 2000;

(b) explain why the order will enhance the effectiveness of the investigation; and

[Note. See Schedule 6 to the Terrorism Act 2000. The applicant for a customer information order must be a police officer of at least the rank of superintendent.

‘Customer information’ is defined by paragraph 7 of Schedule 6 to the 2000 Act. ‘Terrorist property’ is defined by section 14 of the Act.]

Content of application for an account monitoring order

47.10

As well as complying with rule 47.6, an applicant who wants the court to make an account monitoring order must—

(a) specify—

(i) the information sought,

(ii) the period during which the applicant wants the respondent to provide that information (to a maximum of 90 days), and

(iii) where, when and in what manner the applicant wants the respondent to provide that information;

(b) explain why it is desirable for the purposes of the investigation to trace property said to be terrorist property within the meaning of the Terrorism Act 2000;

(d) propose the terms of the order.

[Note. See Schedule 6A to the Terrorism Act 2000. The applicant for an account monitoring order must be a police officer.

‘Terrorist property’ is defined by section 14 of the Act.]

Application to vary or discharge an order

47.11

(1) This rule applies where one of the following wants the court to vary or discharge an order listed in rule 47.1(1)—

(a) an applicant;

(b) the respondent; or

(2) That applicant, respondent or person affected must—

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

(b) serve the application on—

(i) the court officer, and

(ii) the respondent, applicant, or any person known to be affected, as applicable;

(d) propose the terms of any variation; and

(e) ask for a hearing, if one is wanted, and explain why it is needed.

Application containing information withheld from a respondent or other person

47.12

(1) This rule applies where—

(a) an applicant serves on a respondent or other person an application for one of the orders listed in rule 47.1(1), or for the variation or discharge of such an order; and

(b) the application includes information that the applicant thinks ought not be revealed to that recipient.

(2) The applicant must—

(a) omit that information from the part of the application that is served on the respondent or other person;

(b) mark the other part, to show that it is only for the court; and

(3) A hearing of an application to which this rule applies may take place, wholly or in part, in the absence of the respondent and any other person.

(4) At a hearing of an application to which this rule applies—

(a) the general rule is that the court must consider, in the following sequence—

(i) representations first by the applicant and then by the respondent and any other person, in the presence of them all, and then

(ii) further representations by the applicant, in the others’ absence; but

(b) the court may direct other arrangements for the hearing.

Application to punish for contempt of court

47.13

(1) This rule applies where a person is accused of disobeying—

(a) a production etc. order made under paragraph 5 of Schedule 5 to the Terrorism Act 2000;

(b) an explanation order made under paragraph 13 of that Schedule; or

(2) An applicant who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court).

[Note. The Crown Court has power to punish for contempt of court a person who disobeys its order. See paragraphs 10(1) and 13(5) of Schedule 5, and paragraph 6(1) of Schedule 6A, to the Terrorism Act 2000, and section 45 of the Senior Courts Act 1981[^f00959].

SECTION 4: ORDERS UNDER THE PROCEEDS OF CRIME ACT 2002 ETC.

[Note. The rules in Section 2 (General rules) also apply.]

Application for an order under the Proceeds of Crime Act 2002 etc.

47.14

(1) This rule applies where an applicant wants the court to make one of the orders listed in rule 47.1(2).

(2) The applicant must—

(a) apply in writing;

(b) serve the application on—

(i) the court officer, and

(ii) the respondent (unless the court otherwise directs);

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