Citation, commencement and interpretation

1. These Rules may be cited as The Criminal Procedure (Amendment) Rules 2010 and shall come into force on 4th October 2010.

2. In these Rules, a reference to a Part or rule by number alone means the Part or rule so numbered in The Criminal Procedure Rules 2010(3).

Amendments to The Criminal Procedure Rules 2010

3. In Part 2 (Understanding and applying the rules)–

(a) in paragraph (1) of rule 2.2 (Definitions), in the entry relating to -˜Practice Direction´, after -˜amended´, insert -˜, and -˜Criminal Costs Practice Direction´ means the Lord Chief Justice´s Practice Direction (Costs in Criminal Proceedings), as amended´; and

(b) in the note to rule 2.5 (Representatives), for -˜section 27 or 28 of the Courts and Legal Services Act 1990(4)´, substitute -˜section 13 of the Legal Services Act 2007(5)´.

4. For rule 3.10 (Conduct of a trial or an appeal), and the note to that rule, substitute–

"3.10. In order to manage a trial or an appeal, the court–

(a) must establish, with the active assistance of the parties, what are the disputed issues;

(b) must consider setting a timetable that–

(i) takes account of those issues and of any timetable proposed by a party, and

(ii) may limit the duration of any stage of the hearing;

(c) may require a party to identify–

(i) which witnesses that party wants to give evidence in person,

(ii) the order in which that party wants those witnesses to give their evidence,

(iii) whether that party requires an order compelling the attendance of a witness,

(iv) what arrangements are desirable to facilitate the giving of evidence by a witness,

(v) what arrangements are desirable to facilitate the participation of any other person, including the defendant,

(vi) what written evidence that party intends to introduce,

(vii) what other material, if any, that person intends to make available to the court in the presentation of the case, and

(viii) whether that party intends to raise any point of law that could affect the conduct of the trial or appeal; and

(d) may limit–

(i) the examination, cross-examination or re-examination of a witness, and

(ii) the duration of any stage of the hearing.

[Note. See also rules 3.5 and 3.8.]".

5. In Part 5 (Forms and court records)–

(a) in Section 1 of the table of contents, omit -˜by justices´ clerks´;

(b) in rule 5.1 (Forms), after -˜Practice Direction´, insert -˜and in the Criminal Costs Practice Direction´;

(c) for rule 5.3 (Signature of magistrates´ courts forms by justices´ clerks) and the heading to that rule, substitute–

"Signature of magistrates´ courts forms

5.3.–(1) This rule applies where a form for use in connection with a magistrates´ court case provides for its signature.

(2) Unless other legislation otherwise requires, signature may be by any written or electronic authentication of the form by, or with the authority of, the signatory.

[Note. Section 7 of the Electronic Communications Act 2000(6) provides for the use of an electronic signature in an electronic communication.]"; and

(d) in rule 5.7 (Proof of proceedings in magistrates´ courts), for -˜admissible´, substitute -˜available for admission´.

6. In rule 7.4 (Summons, warrant and requisition), for paragraph (3), substitute–

"(3) A summons or requisition must–

(a) contain notice of when and where the defendant is required to attend the court;

(b) specify each offence in respect of which it is issued;

(c) in the case of a summons, identify–

(i) the court that issued it, unless that is otherwise recorded by the court officer, and

(ii) the court office for the court that issued it; and

(d) in the case of a requisition, identify the person under whose authority it is issued.".

7. For Part 18 (Warrants), substitute the Part as set out in Schedule 1 to these Rules.

8. In rule 19.17 (Crown Court procedure on appeal against grant of bail by a magistrates´ court)–

(a) for paragraph (4), substitute–

"(4) The person concerned shall be entitled to be present at the hearing of the appeal."; and

(b) at the end of the rule, insert–

"[Note. Under sections 57A and 57B of the Crime and Disorder Act 1998(7), the person concerned is to be treated as present in court when, by virtue of a live link direction within the meaning of those sections, that person attends a hearing through a live link.]".

9. In Part 29 (Measures to assist a witness or defendant to give evidence)–

(a) in the table of contents, after -˜rule 29.22´, insert–

(i) in the first column–

"Section 6: live link directions

Exercise of court´s powers

Content of application for a live link direction

Application to discharge a live link direction

Representations in response", and

(ii) in the second column–

"rule 29.23

rule 29.24

rule 29.25

rule 29.26";

(b) in rule 29.1 (When this Part applies)–

(i) for -˜29.1.–(1)´, substitute -˜29.1.´,

(ii) re-number paragraph -˜(e)´ as -˜(f)´, and

(iii) after paragraph -˜(d)´, insert–

"(e) where the court can give or discharge a direction (a -˜live link direction´), on an application or on its own initiative, for a witness to give evidence by live link under–

(i) section 32 of the Criminal Justice Act 1988(8), or

(ii) sections 51 and 52 of the Criminal Justice Act 2003(9);";

(c) at the end of the note to rule 29.4 (Decisions and reasons), insert -˜and sections 51(8) and 52(7) of the Criminal Justice Act 2003(10)´;

(d) after rule 29.22 (Representations in response), insert–

"SECTION 6: LIVE LINK DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply. The rules in this Section do not apply to an application for a special measures direction allowing a witness to give evidence by live link: as to which, see the rules in Section 3 (special measures directions).]

Exercise of court´s powers

29.23. The court may decide whether to give or discharge a live link direction–

(a) at a hearing, in public or in private, or without a hearing;

(b) in a party´s absence, if that party–

(i) applied for the direction or discharge, or

(ii) has had at least 14 days in which to make representations.

Content of application for a live link direction

29.24. An applicant for a live link direction must–

(a) unless the court otherwise directs, identify the place from which the witness will give evidence;

(b) if that place is in the United Kingdom, explain why it would be in the interests of the efficient or effective administration of justice for the witness to give evidence by live link;

(c) if the applicant wants the witness to be accompanied by another person while giving evidence–

(i) name that person, if possible, and

(ii) explain why it is appropriate for the witness to be accompanied;

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

[Note. See section 32 of the Criminal Justice Act 1988 and section 51 of the Criminal Justice Act 2003.

The Practice Direction sets out a form of application for use in connection with this rule.]

Application to discharge a live link direction

29.25.–(1) A party who wants the court to discharge a live link direction must–

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

(b) serve the application on–

(i) the court officer, and

(ii) each other party.

(2) The applicant must–

(a) explain what material circumstances have changed since the direction was given;

(b) explain why it is in the interests of justice to discharge the direction; and

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

[Note. See section 32(4) of the Criminal Justice Act 1988(11) and section 52(3) of the Criminal Justice Act 2003(12).]

Representations in response

29.26.–(1) This rule applies where a party wants to make representations about–

(a) an application for a live link direction;

(b) an application for the discharge of such a direction; or

(c) a direction or discharge that the court proposes on its own initiative.

(2) Such a party must–

(a) serve the representations on–

(i) the court officer, and

(ii) each other party;

(b) do so not more than 14 days after, as applicable–

(i) service of the application, or

(ii) notice of the direction or discharge that the court proposes; and

(c) ask for a hearing, if that party wants one, and explain why it is needed.

(3) Representations against a direction or discharge must explain, as applicable, why the conditions prescribed by the Criminal Justice Act 1988 or the Criminal Justice Act 2003 are not met."; and

(e) after the summary at the end of Part 29 (Measures to assist a witness or defendant to give evidence), insert–

"Live link direction

Under section 32 of the Criminal Justice Act 1988, the court can allow a witness who is outside the United Kingdom to give evidence by live link–

(a) in proceedings in a youth court, or on appeal from such proceedings; or

(b) at a trial in the Crown Court, or on appeal from such a trial.

Under section 51 of the Criminal Justice Act 2003, on an application or on its own initiative, the court can allow a witness who is in the United Kingdom, but outside the building in which the proceedings are held, to give evidence by live link. The court must be satisfied that that is in the interests of the efficient or effective administration of justice.

If a witness is eligible for the assistance of a special measures direction (as to which, see the note above), the court can allow the witness to give evidence by live link under sections 19 and 24 of the Youth Justice and Criminal Evidence Act 1999(13). Section 3 of this Part contains relevant rules.".

10. In the note following rule 35.3 (Application to introduce evidence of non-defendant´s bad character), for -˜rule 35.6´, substitute -˜rule 35.5´.

11. In the note following rule 35.4 (Notice to introduce evidence of a defendant´s bad character), for -˜rule 35.6´, substitute -˜rule 35.5´.

12. In rule 37.10 (Procedure if court convicts), paragraph (3)(d)(iii)–

(a) after -˜any´, insert -˜sentencing´; and

(b) after -˜guidelines´ omit -˜issued by the Sentencing Guidelines Council,´.

13. In the note after rule 37.10 (Procedure if court convicts), for -˜The Sentencing Guidelines Council may issue sentencing guidelines under section 170 of the Criminal Justice Act 2003(14)´, substitute -˜The Sentencing Council may issue sentencing guidelines under section 120 of the Coroners and Justice Act 2009(15)´.

14. For Part 42 (Remittal from one magistrates´ court to another for sentence), substitute the Part set out in Schedule 2 to these Rules.

15. For Part 44 (Breach, revocation and amendment of community and other orders in a magistrates´ court), substitute the Part set out in Schedule 3 to these Rules.

16. In Part 50 (Civil behaviour orders after verdict or finding)–

(a) for rule 50.2 (Behaviour orders: general rules), substitute–

"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

(c) a drinking banning order,

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.

See section 14A(3) of the Football Spectators Act 1989(16); section 8A(4) of the Crime and Disorder Act 1998(17); and section 6(4) of the Violent Crime Reduction Act 2006(18).]"; and

(b) for rule 50.5 (Application to vary or revoke behaviour order), substitute–

"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.

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

17. For Part 52 (Enforcement of fines), substitute the Part as set out in Schedule 4 to these Rules.

18. For Part 55 (Road traffic penalties), substitute the Part as set out in Schedule 5 to these Rules.

19. For the table in paragraph (2) of rule 57.15 (External requests and orders), substitute–

20. In rule 58.10 (Compensation - general), in paragraph (4)(b)–

(a) after -˜person´, insert -˜or authority´;

(b) after -˜72(9)´, insert -˜or 302(7A)(19)´; and

(c) after -˜72(9)(a)´, insert -˜or 302(7A)´.

21. In Part 60 (Proceeds of Crime Act 2002: Rules applicable only to receivership proceedings)–

(a) in rules 60.1(3)(e) (Application for appointment of a management or an enforcement receiver), 60.5(1) (Security) and 60.6(1) (Remuneration), for -˜member of staff of the Crown Prosecution Service or the Revenue and Customs Prosecutions Office´, substitute -˜person falling within section 55(8) of the 2002 Act(20)´; and

(b) in rule 60.5(1) (Security) and rule 60.6(1) (Remuneration), for -˜member or he is on secondment´, substitute -˜member of staff or on secondment´.

22. Omit Part 30 (Use of live television link other than for vulnerable witnesses), Part 43 (Committal to the Crown Court for sentence), Part 45 (Deferred sentence), Part 47 (Suspended sentences of imprisonment), Part 48 (Community penalties), Part 49 (Hospital and guardianship orders), Part 53 (Compensation orders) and Part 54 (Conditional discharge).

23. In the preamble to The Criminal Procedure Rules 2010–

(a) in the first column, headed -˜Rule´–

(i) omit -˜5.7´, and

(ii) for -˜34.3´, substitute -˜34.4´, and

(iii) insert, in the appropriate place, -˜42.4´; and

(b) in the second column, headed -˜Power´–

(i) omit -˜Section 145(1)(c) of the Magistrates´ Courts Act 1980(21)´, and

(ii) insert, beside -˜42.4´, -˜Section 155(7) of the Powers of Criminal Courts (Sentencing) Act 2000(22)´.

24. In the Arrangement of Rules contained in The Criminal Procedure Rules 2010–

(a) omit the entries for Part 30 (Use of live television link other than for vulnerable witnesses), Part 43 (Committal to the Crown Court for sentence), Part 45 (Deferred sentence), Part 47 (Suspended sentences of imprisonment), Part 48 (Community penalties), Part 49 (Hospital and guardianship orders), Part 53 (Compensation orders) and Part 54 (Conditional discharge);

(b) for the entry for Part 42 (Remand from one magistrates´ court to another for sentence), substitute -˜Sentencing procedures in special cases´;

(c) in the entry for Part 44 (Breach, revocation and amendment of community and other orders in a magistrates´ court), omit -˜in a magistrates´ court´; and

(d) in the entry for Part 52 (Enforcement of fines), after -˜fines´, insert -˜and other orders for payment´.

Rule 7

SCHEDULE 1

"PART 18 WARRANTS FOR ARREST, DETENTION OR IMPRISONMENT

[Note. Part 52 contains rules about warrants to take goods to pay fines, etc.]

When this Part applies

18.1.–(1) This Part applies where the court can issue a warrant for arrest, detention or imprisonment.

(2) In this Part, -˜defendant´ means anyone against whom such a warrant is issued.

Terms of a warrant for arrest

18.2. A warrant for arrest must require the person(s) to whom it is directed to arrest the defendant and–

(a) bring the defendant to a court–

(i) specified in the warrant, or

(ii) required or allowed by law; or

(b) release the defendant on bail (with conditions or without) to attend court at a date, time and place–

(i) specified in the warrant, or

(ii) to be notified by the court.

[Note. The principal provisions under which the court can issue a warrant for arrest are–

(a) section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965(23);

(b) section 7 of the Bail Act 1976(24);

(c) sections 1 and 97 of the Magistrates´ Courts Act 1980(25); and

(d) sections 79, 80 and 81(4), (5) of the Senior Courts Act 1981(26).

See also section 27A of the Magistrates´ Courts Act 1980(27) (power to transfer criminal proceedings) and section 78(2) of the Senior Courts Act 1981(28) (adjournment of Crown Court case to another place).]

Terms of a warrant for detention or imprisonment

18.3.–(1) A warrant for detention or imprisonment must–

(a) require the person(s) to whom it is directed to–

(i) arrest the defendant,

(ii) take the defendant to any place specified in the warrant, and

(iii) deliver the defendant to the custodian of that place; and

(b) require that custodian to keep the defendant in custody, as ordered by the court, until in accordance with the law–

(i) the defendant is delivered to the appropriate court or place, or

(ii) the defendant is released.

(2) Where a magistrates´ court remands a defendant to police detention under section 128(7)(29) or section 136 of the Magistrates´ Courts Act 1980(30), or to customs detention under section 152 of the Criminal Justice Act 1988(31), the warrant it issues must–

(a) be directed, as appropriate, to–

(i) a constable, or

(ii) an officer of Her Majesty´s Revenue and Customs; and

(b) require that constable or officer to keep the defendant in custody–

(i) for a period (not exceeding the maximum permissible) specified in the warrant, or

(ii) until in accordance with the law the defendant is delivered to the appropriate court or place.

[Note. Under section 128(7) of the Magistrates´ Courts Act 1980, a magistrates´ court can remand a defendant to police detention for not more than 3 clear days.

Under section 136 of the 1980 Act, a magistrates´ court can order a defendant´s detention in police custody until the following 8 am for non-payment of a fine, etc.

Under section 152 of the Criminal Justice Act 1988, a magistrates´ court can remand a defendant to customs detention for not more than 192 hours if the defendant is charged with a drug trafficking offence.]

Information to be included in a warrant

18.4.–(1) A warrant must identify–

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

(b) the defendant against whom it was issued;

(c) the reason for its issue;

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

(e) the court office for the court that issued it.

(2) A warrant for detention or imprisonment must contain a record of any decision by the court under–

(a) section 23 of the Children and Young Persons Act 1969(32) (remand to local authority accommodation);

(b) section 80 of the Magistrates´ Courts Act 1980(33) (application of money found on defaulter to satisfy sum adjudged); or

(c) section 82(1) or (4) of the 1980 Act(34) (conditions for issue of a warrant).

(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; and

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

[Note. See section 23(8) of the Children and Young Persons Act 1969. Under section 23 of that Act, the court can remand a person aged between 12 and 18 years to secure accommodation, if it decides that the prescribed conditions are met.

Under section 80 of the Magistrates´ Courts Act 1980, the court may decide that any money found on the defendant must not be applied towards payment of the sum for which a warrant is issued under section 76 of that Act (enforcement of sums adjudged to be paid).

See section 82(6) of the 1980 Act. Under section 82(1) and (4), the court may only issue a warrant for the defendant´s imprisonment for non-payment of a sum due where it finds that the prescribed conditions are met.

Under section 123 of the 1980 Act(35), "no objection shall be allowed to any -¦ warrant to procure the presence of the defendant, for any defect in it in substance or in form -¦".]

Execution of a warrant

18.5.–(1) A warrant may be executed–

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

(b) if the warrant was issued by a magistrates´ court, by anyone authorised to do so by section 125(36) (warrants), 125A(37) (civilian enforcement officers) or 125B (execution by approved enforcement agency) of the Magistrates´ Courts Act 1980(38).

(2) The person who executes a warrant must–

(a) explain, in terms the defendant can understand, what the warrant requires, and why;

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

(c) if the defendant asks–

(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.

(3) The person who executes a warrant of arrest that requires the defendant to be released on bail must–

(a) make a record of–

(i) the defendant´s name,

(ii) the reason for the arrest,

(iii) the defendant´s release on bail, and

(iv) when and where the warrant requires the defendant to attend court; and

(b) serve the record on–

(i) the defendant, and

(ii) the court officer.

(4) The person who executes a warrant of detention or imprisonment must–

(a) take the defendant–

(i) to any place specified in the warrant, or

(ii) if that is not immediately practicable, to any other place at which the defendant may be lawfully detained (and the warrant then has effect as if it specified that place);

(b) obtain a receipt from the custodian; and

(c) notify the court officer that the defendant has been taken to that place.

[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.

Certain warrants issued by a magistrates´ court may be executed anywhere in England and Wales by a civilian enforcement officer, under section 125A of the 1980 Act; or by an approved enforcement agency, under section 125B of the Act. In either case, the person executing the warrant must, if the defendant asks, show a written statement indicating: that person´s name; the authority or agency by which that person is employed, or in which that person is a director or partner; that that person is authorised to execute warrants; and, where section 125B applies, that the agency is registered as one approved by the Lord Chancellor.

See also section 125D of the 1980 Act(39), under which–

(a) a warrant to which section 125A applies may be executed by any person entitled to execute it even though it is not in that person´s possession at the time; and

(b) certain other warrants, including any warrant to arrest a person in connection with an offence, may be executed by a constable even though it is not in that constable´s possession at the time.]

Warrants that cease to have effect on payment

18.6.–(1) This rule applies to a warrant issued by a magistrates´ court under any of the following provisions of the Magistrates´ Courts Act 1980–

(a) section 76(40) (enforcement of sums adjudged to be paid);

(b) section 83(41) (process for securing attendance of offender);

(c) section 86(42) (power of magistrates´ court to fix day for appearance of offender at means inquiry, etc.);

(d) section 136(43) (committal to custody overnight at police station for non-payment of sum adjudged by conviction).

(2) The warrant no longer has effect if–

(a) the sum in respect of which the warrant was issued is paid to the person executing it;

(b) that sum is offered to, but refused by, that person; or

(c) that person is shown a receipt for that sum given by–

(i) the court officer, or

(ii) the authority to which that sum is due.

[Note. See sections 79(44) and 125(1) of the Magistrates´ Courts Act 1980.]

Warrant issued when the court office is closed

18.7.–(1) This rule applies where the court issues a warrant when the court office is closed.

(2) The applicant for the warrant must, not more than 72 hours later, serve on the court officer–

(a) a copy of the warrant; and

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

Rule 14

SCHEDULE 2

"PART 42 SENTENCING PROCEDURES IN SPECIAL CASES

[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);

(c) Part 52 (Enforcement of fines and other orders for payment on conviction); and

(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;

(c) not to order, where it could–

(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(45); section 73(8) of the Powers of Criminal Courts (Sentencing) Act 2000(46); section 130(3) of the 2000 Act(47); section 33(2) of the Criminal Justice and Police Act 2001(48); paragraph 8(3) of Schedule 12 to the 2003 Act(49); and section 47(1) of the Road Traffic Offenders Act 1988(50).

For the duty to explain the sentence the court has passed, see section 174(1) of the 2003 Act(51) and, in a magistrates´ court, rule 37.10(9) (Procedure if the court convicts).

Under section 125 of the Coroners and Justice Act 2009(52), the court when sentencing must follow any relevant sentencing guideline unless satisfied that to do so would be contrary to the interests of justice.

For the circumstances in which the court may make–

(a) a reparation or compensation order, see sections 73(53) and 130(54) of the 2000 Act;

(b) a travel restriction order against a defendant convicted of drug trafficking, see sections 33 and 34 of the 2001 Act(55).]

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(56); paragraph 34(1) of Schedule 1 to the Criminal Justice and Immigration Act 2008(57); and section 1A(7) of the Street Offences Act 1959(58).

For the circumstances in which the court–

(a) may pass a community sentence (defined by section 147 of the Criminal Justice Act 2003(59)), or a youth rehabilitation order (defined by section 7 of the Criminal Justice and Immigration Act 2008(60)), and for the identity and duties of responsible officers and qualifying officers, see generally–

(i) Part 12 of the 2003 Act, and

(ii) Part 1 of the 2008 Act;

(b) may pass a suspended sentence of imprisonment, see section 189 of the 2003 Act(61);

(c) may order the defendant to attend meetings with a supervisor, see section 1(2A) of the Street Offences Act 1959(62).

Under sections 190 or 215 of the 2003 Act(63), or section 1(2) of the 2008 Act(64), the court may impose an electronic monitoring requirement to secure the monitoring of the defendant´s compliance with certain other requirements (for example, a curfew or an exclusion).]

Defendant´s duty to notify information to police

42.3.–(1) This rule applies where, on a conviction, sentence or order, legislation requires the defendant to notify information to the police.

(2) The court must tell the defendant that notification 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(65) (notification after conviction of a specified sexual offence for which a specified sentence is imposed);

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

These notification requirements are not part of the court´s sentence.]

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

(c) in the application–

(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(66), 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.

Under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000(67), the Crown Court can vary or rescind a sentence or other order that it has imposed or made. The power cannot be exercised–

(a) after the period of 56 days beginning with the sentence or order (but see the note below); or

(b) if an appeal or application for permission to appeal against that sentence or order has been determined.

Under section 155(7), Criminal Procedure Rules can extend that period of 56 days where another defendant is tried separately in the Crown Court on the same or related facts alleged in one or more indictments.]

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(68);

(b) a magistrates´ court with power to enforce such an order may vary or discharge it under the 2000 Act, see section 133(69). (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

(c) in the application–

(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.

For the circumstances in which the court may–

(a) remove a disqualification from keeping a dog, see section 4(6) of the Dangerous Dogs Act 1991(70). The court may not consider an application made within 1 year of the disqualification; or, after that, within 1 year of any previous application that was refused.

(b) revoke or suspend a travel restriction order against a defendant convicted of drug trafficking, see section 35 of the Criminal Justice and Police Act 2001(71). The court may not consider an application made within 2 years of the disqualification, in any case; or, after that, before a specified period has expired.]

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

(c) in the application–

(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(72);

(a) 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

(c) sets out or summarises any relevant information available to the court.

[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(73), under which the Crown Court may determine a defendant´s fitness to plead;

(b) section 35 of the Mental Health Act 1983(74), 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(75), 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(76), 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(77), 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 207 of the Criminal Justice Act 2003(78) (in the case of a defendant aged 18 or over), or section 1(1)(k) of the Criminal Justice and Immigration Act 2008(79) (in the case of a defendant who is under 18), under which the court may impose a mental health treatment requirement.

For the purposes of the legislation listed in (a), (d) and (e) above, the court requires the written or oral evidence of at least two registered medical practitioners, at least one of whom is approved as having special experience in the diagnosis or treatment of mental disorder. For the purposes of (b), the court requires one medical practitioner´s evidence. For the purposes of (c), the court requires two medical practitioners´ evidence. For the purposes of (f), the court requires the evidence of a registered medical practitioner with special experience in the diagnosis or treatment of mental disorder.

Under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000(80), a magistrates´ court may adjourn a trial to obtain medical reports.

Part 33 contains rules about the content of expert medical reports.

For the authorities from whom the court may require information about hospital treatment or guardianship, see sections 39 and 39A of the 1983 Act(81).]

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(82), 36(83), 37(84), 38(85) and 44(86) 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

(c) makes an order that another court is, or may be, required to enforce.

(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(87), 3A(88), 3B, 3C(89), 4(90), 4A(91) and 6(92) of the Powers of Criminal Courts (Sentencing) Act 2000 and section 43 of the Mental Health Act 1983(93);

(b) a magistrates´ court may adjourn the case to another magistrates´ court for sentence, see section 10 of the Magistrates´ Courts Act 1980(94) and section 10 of the 2000 Act(95);

(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(96);

(d) a youth court may adjourn the case to a magistrates´ court for sentence, see section 9 of the 2000 Act(97);

(e) a magistrates´ court may transfer a fine to be enforced to another court, see sections 89 and 90 of the 1980 Act(98).

For the court´s powers where it convicts a defendant who is subject to a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by another court, see sections 1C and 13 of the 2000 Act(99) and section 189 of, and Schedule 12 to, the Criminal Justice Act 2003(100).

Under section 140 of the 2000 Act(101), a fine imposed or other sum ordered to be paid in the Crown Court is enforceable by a magistrates´ court specified in the order, or from which the case was committed or sent to the Crown Court.

See also section 219(3) of the 2003 Act(102); paragraph 34(3) of Schedule 1 to the Criminal Justice and Immigration Act 2008(103); and section 1A(9) of the Street Offences Act 1959(104).]"

Rule 15

SCHEDULE 3

"PART 44

BREACH, REVOCATION AND AMENDMENT OF COMMUNITY AND OTHER ORDERS

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(105),

(ii) Schedule 8 or 12 to the Criminal Justice Act 2003(106),

(iii) Schedule 2 to the Criminal Justice and Immigration Act 2008(107), or

(iv) the Schedule to the Street Offences Act 1959(108)

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

(c) the court considers exercising on its own initiative any power it has to revoke or amend such an order.

[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;

(c) Schedule 7 deals with the breach, revocation and amendment of supervision 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.

In the Criminal Justice Act 2003–

(a) Schedule 8 deals with the breach, revocation and amendment of community orders; and

(b) Schedule 12 deals with the breach and amendment of suspended sentence orders.

Schedule 2 to the Criminal Justice and Immigration Act 2008 deals with the breach, revocation and amendment of youth rehabilitation orders.

Under Schedule 8 to the 2000 Act, Schedule 8 to the 2003 Act and Schedule 2 to the 2008 Act, a single member of the court can adjourn a hearing to which this Part applies.]

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."

Rule 17

SCHEDULE 4

"PART 52 ENFORCEMENT OF FINES AND OTHER ORDERS FOR PAYMENT

[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 penalty 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(109); and

(b) Schedule 5 to the Courts Act 2003(110) and The Fines Collection Regulations 2006(111).

Under that Schedule and those Regulations, some enforcement powers may be exercised by a fines officer.

In some legislation, including the 1980 and 2003 Acts, a warrant to which this Part applies is described as -˜a warrant of distress´. On the coming into force of the Tribunals, Courts and Enforcement Act 2007(112), such a warrant will be described as -˜a warrant of control´.]

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(113); and paragraphs 12 and 13 of Schedule 5 to the Courts Act 2003(114).]

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;

(c) any–

(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(115) and 125(1)(116) of the Magistrates´ Courts Act 1980;

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

For the circumstances in which the court may appoint a person to supervise payment, see section 88 of the 1980 Act(117).]

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(118)–

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

(ii) paragraph 31(119) (Application to fines officer for variation of reserve terms), or

(iii) paragraph 37(120) (Functions of fines officer in relation to defaulters: referral or further steps notice); and

(c) the defendant wants to appeal against that decision.

(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

(c) in the appeal–

(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.

For the circumstances in which a defendant may appeal against a decision to which this rule applies, see paragraphs 23, 32 and 37(9) of Schedule 5 to the 2003 Act(121). The time limit for appeal is prescribed by those paragraphs. It may be neither extended nor shortened.]

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

(c) in the application, explain–

(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(122), 85(123) and 85A(124) 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(125).

For the circumstances in which a sum may be registered for enforcement as a fine after failure to comply with a penalty notice, see sections 8 and 9 of the 2001 Act(126).]

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;

(c) the sum for which it was issued and the reason that sum is owed;

(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(127) and 125ZA(128) 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(129) (warrants), 125A(130) (civilian enforcement officers) or 125B(131) (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;

(c) if the defendant asks–

(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

(c) that person–

(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.

Certain warrants issued by a magistrates´ court may be executed anywhere in England and Wales by a civilian enforcement officer, under section 125A of the 1980 Act; or by an approved enforcement agency, under section 125B of the Act. In either case, the person executing the warrant must, if the defendant asks, show a written statement indicating: that person´s name; the authority or agency by which that person is employed, or in which that person is a director or partner; that that person is authorised to execute warrants; and, where section 125B applies, that the agency is registered as one approved by the Lord Chancellor.

See also section 125D of the 1980 Act(132), under which–

(a) a warrant to which section 125A applies may be executed by any person entitled to execute it, even though it is not in that person´s possession at the time; and

(b) certain other warrants, including any warrant to which this Part applies, may be executed by a constable, even though it is not in that constable´s possession at the time.]

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."

Rule 18

SCHEDULE 5

"PART 55 ROAD TRAFFIC PENALTIES

[Note. Part 37 contains rules about the general procedure on sentencing in a magistrates´ court.]

Application to remove a disqualification from driving

55.1.–(1) This rule applies where, on application by the defendant, the court can remove a disqualification from driving.

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

(c) in the application–

(i) specify the disqualification that the defendant wants the court to remove, and

(ii) explain why.

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

[Note. For the circumstances in which the court may remove a disqualification from driving imposed under section 34 or 35 of the Road Traffic Offenders Act 1988(133), see section 42 of the Act(134). The court may not consider an application made within 2 years of the disqualification, in any case; or, after that, before a specified period has expired.]

Information to be supplied on order for endorsement of driving record, etc.

55.2.–(1) This rule applies where the court–

(a) convicts the defendant of an offence involving obligatory endorsement, and orders there to be endorsed on the defendant´s driving record and on any counterpart licence–

(i) particulars of the conviction,

(ii) particulars of any disqualification from driving that the court imposes, and

(iii) the penalty points to be attributed to the offence;

(b) disqualifies the defendant from driving for any other offence; or

(c) suspends or removes a disqualification from driving.

(2) The court officer must, as soon as practicable, serve on the Secretary of State notice that includes details of–

(a) where paragraph (1)(a) applies–

(i) the local justice area in which the court is acting,

(ii) the dates of conviction and sentence,

(iii) the offence, and the date on which it was committed,

(iv) the sentence, and

(v) the date of birth, and sex, of the defendant, where those details are available;

(b) where paragraph (1)(b) applies–

(i) the date and period of the disqualification,

(ii) the power exercised by the court;

(c) where paragraph (1)(c) applies–

(i) the date and period of the disqualification,

(ii) the date and terms of the order for its suspension or removal,

(iii) the power exercised by the court, and

(iv) where the court suspends the disqualification pending appeal, the court to which the defendant has appealed.

[Note. See sections 39(3), 42(5) and 44A of the Road Traffic Offenders Act 1988(135).

Under section 25 of the 1988 Act(136), the court may order a defendant to disclose his or her date of birth, and sex, where that is not apparent (for example, where the defendant is convicted in his or her absence). Under section 27 of the 1988 Act(137), and under sections 146(4) and 147(5) of the Powers of Criminal Courts (Sentencing) Act 2000(138), the court may order a defendant to produce his or her driving licence, if not already produced.

For the circumstances in which the court–

(a) must usually order endorsement, see sections 9, 44 and 96 of, and Schedule 2 to, the 1988 Act(139);

(b) may (and in some cases must) order disqualification from driving, see sections 26(140), 34(141), 35(142) and 36 of the 1988 Act; and sections 146 and 147 of the 2000 Act(143);

(c) may suspend a disqualification from driving pending appeal, see section 39 of the 1988 Act(144);

(d) may remove a disqualification from driving imposed under section 34 or 35 of the 1988 Act, see section 42 of the Act.]

Statutory declaration to avoid fine after fixed penalty notice

55.3.–(1) This rule applies where–

(a) a chief officer of police, or the Secretary of State, 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 fixed penalty notice;

(b) the court officer notifies the defendant of the registration; and

(c) the defendant makes a statutory declaration with the effect that–

(i) the fixed penalty notice, or any associated notice sent to the defendant as owner of the vehicle concerned, and

(ii) the registration and any enforcement proceedings

become void.

(2) The defendant must serve that statutory declaration not more than 21 days after service of notice of the registration, unless the court extends that time limit.

(3) The court officer must–

(a) serve a copy of the statutory declaration on the person by whom the certificate was registered,

(b) cancel any endorsement on the defendant´s driving record and on any counterpart licence, and

(c) notify the Secretary of State of any such cancellation.

[Note. See sections 72(1), (6), (6A), 73(1) and 74(2) of the Road Traffic Offenders Act 1988(145).

For the circumstances in which–

(a) a sum may be registered for enforcement as a fine after failure to comply with a fixed penalty notice, see sections 54(146), 55, 62(147), 63(148), 64, 70(149) and 71(150) of the 1988 Act;

(b) the registration may become void on the making of a statutory declaration by the defendant, see sections 72(151) and 73(152) of the 1988 Act.]

Application for declaration about a course or programme certificate decision

55.4.–(1) This rule applies where the court can declare unjustified–

(a) a course provider´s failure or refusal to give a certificate of the defendant´s satisfactory completion of an approved course; or

(b) a programme provider´s giving of a certificate of the defendant´s failure fully to participate in an approved programme.

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

(a) apply in writing, not more than 28 days after–

(i) the date by which the defendant was required to complete the course, or

(ii) the giving of the certificate of failure fully to participate in the programme;

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

(c) in the application, specify the course or programme and explain (as applicable)–

(i) that the course provider has failed to give a certificate,

(ii) where the course provider has refused to give a certificate, why the defendant disagrees with the reasons for that decision, or

(iii) where the programme provider has given a certificate, why the defendant disagrees with the reasons for that decision.

(3) The court officer must serve a copy of the application on the course or programme provider.

(4) The court must not determine the application unless the defendant, and the course or programme provider, each has had an opportunity to make representations at a hearing (whether or not either in fact attends).

[Note. For the circumstances in which the court may reduce a road traffic penalty on condition that the defendant attend an approved course, or take part in an approved programme, see sections 30A(153), 34A(154) and 34D(155) of the Road Traffic Offenders Act 1988.

Under sections 30B(156), 34B(157) and 34E(158) of the 1988 Act, the court that made the order, or the defendant´s local magistrates´ court, on application by the defendant may review a course or programme provider´s decision that the defendant has not completed the course satisfactorily, or has not participated fully in the programme.]

Appeal against recognition of foreign driving disqualification

55.5.–(1) This rule applies where–

(a) a minister gives a disqualification notice under section 57 of the Crime (International Co-operation) Act 2003(159); and

(b) the person to whom it is given wants to appeal under section 59 of the Act(160) to a magistrates´ court.

(2) That person (-˜the appellant´) must serve an appeal notice on–

(a) the court officer, at a magistrates´ court in the local justice area in which the appellant lives; and

(b) the minister, at the address given in the disqualification notice.

(3) The appellant must serve the appeal notice within the period for which section 59 of the 2003 Act provides.

(4) The appeal notice must–

(a) attach a copy of the disqualification notice;

(b) explain which of the conditions in section 56 of the 2003 Act(161) is not met, and why section 57 of the Act therefore does not apply; and

(c) include any application to suspend the disqualification, under section 60 of the Act(162).

(5) The minister may serve a respondent´s notice, and must do so if–

(a) the minister wants to make representations to the court; or

(b) the court so directs.

(6) The minister must–

(a) unless the court otherwise directs, serve any such respondent´s notice not more than 14 days after–

(i) the appellant serves the appeal notice, or

(ii) a direction to do so;

(b) in any such respondent´s notice–

(i) identify the grounds of opposition on which the minister relies,

(ii) summarise any relevant facts not already included in the disqualification and appeal notices, and

(iii) identify any other document that the minister thinks the court will need to decide the appeal (and serve any such document with the notice).

(7) Where the court determines an appeal–

(a) the general rule is that it will do so at a hearing (which will be in public, unless the court otherwise directs); but

(b) it may do so without a hearing.

(8) The court officer must serve on the minister–

(a) notice of the outcome of the appeal; and

(b) notice of any suspension of the disqualification; and

(c) the appellant´s driving licence, if surrendered to the court officer.

[Note. Section 56 of the Crime (International Co-operation) Act 2003 sets out the conditions for recognition in the United Kingdom of a foreign driving disqualification, and provides that section 57 of the Act applies where they are met. Under section 57, the appropriate minister may, and in some cases must, give the person concerned notice that he or she is disqualified in the UK, too, and for what period.

Under section 59 of the 2003 Act, that person may appeal to a magistrates´ court. If the court is satisfied that section 57 of the Act does not apply in that person´s case, the court must allow the appeal and notify the minister. Otherwise, it must dismiss the appeal.

The time limit for appeal under section 59 of the 2003 Act is the end of the period of 21 days beginning with the day on which the minister gives the notice under section 57. That period may be neither extended nor shortened.

Under section 60 of the 2003 Act, the court may suspend the disqualification, on such terms as it thinks fit.

Under section 63 of the 2003 Act(163), it is an offence for a person to whom the minister gives a notice under section 57 not to surrender any licence that he or she holds, within the same period as for an appeal.]"

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules make the following amendments to The Criminal Procedure Rules 2010, S.I. 2010/60:

Amendments to notes to rules. The note to rule 2.5 is amended to bring up to date the legislative references that it contains. The notes to rules 35.3 and 35.4 are amended to correct the cross-references that they contain.

Amendments to the preamble. The preamble that lists the powers exercised by the Criminal Procedure Rule Committee is amended to omit a reference that no longer is required; to correct a reference to a rule; and to include a reference to a power now exercised by the Committee for the first time.

Amendments to the Arrangement of Rules. The Arrangement of Rules is amended in consequence of the amendments listed in the above table.

These Rules come into force on 4th October 2010.