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Blackstone's Criminal Practice 2009

Appendices

Updates to Appendices

Appendix 1

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076), which take effect on 6 October 2008, add new provisions to the Criminal Procedure Rules 2005, including the following:

- new rules in part 2 (understanding and applying the Rules) make transitional provision and explain when the new rules in parts 7 and 63 will apply and part 2 is further amended to include a new rule about representatives and `supporting adults' to clarify which representatives can act in criminal proceedings;

- part 4 (service of documents) is amended to clarify the operation of r. 4.4 (service by leaving or posting a document) and to avoid confusion in respect of service on a company registered in Scotland or in Northern Ireland;

- a new part 7 (starting a prosecution in a magistrates' court), in substitution for the existing part 7 (commencing proceedings in a magistrates' court);

- part 37 (summary trial) is amended to include three rules transferred from part 7;

- part 55 (road traffic penalties) is amended to include the provision which was r. 7.6 (statutory declaration under section 72 and 73 of the Road Traffic Offenders Act 1988), which has been transferred, with minor revision, on the revision and simplification of part 7;

- a new part 63 (appeal to the Crown Court) revises and simplifies the rules so that they correspond broadly with the other appeal rules which have recently been revised and simplified;

- part 65 (appeal to the Court of Appeal: general rules) is amended to reflect recent legislation and to enhance the notes;

- part 66 (appeal to the Court of Appeal against ruling at preparatory hearing) is amended to reflect the amendment to s. 31 of the Criminal Appeal Act 1968 effected by s. 47 of, and para. 11 of sch. 8 to, the Criminal Justice and Immigration Act 2008;

- part 68 (appeal to the Court of Appeal about conviction or sentence) is amended to make provision for rights of appeal to the Court of Appeal (i) against wasted costs orders and third party costs orders, and (ii) against a serious crime prevention order where a case is certified fit for appeal;

- part 78 (costs orders against the parties) is amended because the new part 63 rules remove the three-day time-limit for giving notice to abandon an appeal to the Crown Court so the associated costs rule in part 78 is amended to remove reference to that time limit and to allow the exercise of judicial discretion as to costs where such an appeal is abandoned.

Appendix 1a Criminal Procedure Rules 2005

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR with effect from 6 April 2009 inter alia as follows:

Part 19 is amended to give legislative effect to the well established court practice of requiring prosecutors (with the police) to investigate the suitability of an address proposed as a condition of residence when a defendant is released on bail. The prosecutor is placed under an obligation to assist the court and a defendant who may be released under such a condition is required to co-operate with the prosecutor in providing the court with such assistance. The requirement to give notice of an intention to apply for variation of bail conditions (which already applies in the Crown Court) is extended to magistrates' courts.

Part 21 is substituted - the new part 21 (initial details of prosecution case) revises and simplifies the rules about the early provision of details of the prosecution case.

A new part 37 (trial and sentence in a magistrates' court) is to apply in substitution for the existing part 37 (summary trial) and part 38 (trial of children and young persons). It consolidates, revises and simplifies the rules about procedure at trial in magistrates' courts, including youth courts.

Part 44 (breach, revocation and amendment of community and other orders in a magistrates' court) substitutes for the existing part 44 (sentencing children and young persons). The rules about trial and sentence procedure in magistrates' courts now are all contained in the new part 37 so the new part 44 rules deal only with the procedures relating to community and other orders to which some of the old part 38 and part 44 rules applied.

Appendix 2 Codes of Practice under the Police and Criminal Evidence 1984

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008 (SI 2008 No. 2638) provides for revisions of the Code to come into force on 27 October 2008. In certain police force areas, where a person in a public place is requested to account for themselves under Code A, para. 4.12, the recording requirements are amended. Under the amended provisions, the officer must provide a receipt of the encounter, but need only record information on the person's self-defined ethnicity.

Appendix 2a Codes of Practice under the Police and Criminal Evidence Act 1984

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (SI 2008 No. 3146) brings into operation on 1 January 2009 a revision of para. 4 of Code A. It also brings into operation the clarification in paras. 2.2 and 2.3 of Code A regarding reasonable suspicion not being based on single factors alone. Paragraphs 4.10A and 4.10B of PACE Code A are also amended to clarify the position on providing receipts for stops and searches. The revision of para. 4 (recording requirements including recording of encounters not governed by statutory powers), together with the consequential deletion of Annexes D and E, will mean that constables will no longer be required to record all encounters not governed by statutory powers. Constables will need to record only information on the ethnicity of a person who is the subject of such an encounter. A receipt will also be made available to the person. The amended Code A may be viewed here.

Appendix 7 The Consolidated Criminal Practice Direction

The 21st amendment to the Consolidated Criminal Practice Direction deals with the procedure for applications under the Criminal Evidence (Witness Anonymity) Act 2008 and creates new paras. I.15.1 to I.15.24.

Appendix 7a The Consolidated Criminal Practice Direction

II.17 Skeleton arguments; and

II.19 Citation of judgments in court

In Erskine [2009] EWCA Crim 1425 Lord Judge CJ considered the Consolidated Criminal Practice Direction and issued the following instructions to counsel in criminal appeals:

[75] The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.

[76] It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it. Detailed rules are set out in paragraphs II.17 and II.19 of the Consolidated Criminal Practice Direction.

[77] Paragraph II.17 specifies the requirements for skeleton arguments and paragraph II.19 incorporates the detailed provisions relating to the citation of authority in the Court of Appeal (Civil Division). We propose to highlight the most significant features.

Conviction Appeals

[78] Advocates must expect to be required to justify the citation of each authority relied on or included in the bundle. The court is most unlikely to be prepared to look at an authority which does no more than illustrate or restate an established proposition.

[79] It is good practice for advocates on each side to agree a list of relevant authorities and prepare a joint bundle. If authorities are copied for the use of the court, they must (a) be copied from the principal law report in which the case appears, with headnote: and (b) have marked by sidelining the passage(s) relied on. Authorities should only be copied if they do in fact identify or represent a principle or the development of a principle.

Sentence

[80] Advocates must expect to be required to justify the citation of any authority. In particular where a definitive Sentencing Guidelines Council guideline is available there will rarely be any advantage in citing an authority reached before the issue of the guideline, and authorities after its issue which do not refer to it will rarely be of assistance. In any event, where the authority does no more than uphold a sentence imposed at the Crown Court, the advocate must be ready to explain how it can assist the court to decide that a sentence is manifestly excessive or wrong in principle.

[81] If authorities are reported in the Criminal Appeal (Sentencing) Reports, that reference should be given. If authorities are copied for the use of the court, they must (a) be copied from the principal law report in which the case appears, with headnote: and (b) have marked by sidelining the passage(s) relied on. Authorities should only be copied if they do in fact identify or represent a principle or the development of a principle.

Appendix 8 Sentencing Guidelines Council Guidelines

The Sentencing Guidelines Council has issued two new sentencing guidelines.

The first relates to Theft and Burglary in a building other than a dwelling (December 2008), which applies to offenders aged over 18 falling to be sentenced for theft, or for that particular form of burglary, on or after 5 January 2009. The guidelines cover (i) theft in breach of trust (thereby superseding the former Court of Appeal guidelines in Barrick (1985) 81 Cr App R 78 and Clark [1998] 2 Cr App R 137: see B4.8) (ii) theft in a dwelling, (ii) theft from the person and (v) theft from a shop (superseding Page [2005] 2 Cr App R (S) 221: see B4.6), as well as (vi) burglary in a building other than a dwelling. House burglary offences remain subject to the well known guidelines issued by the Court of Appeal in McInerney [2002] EWCA 3003 and these sentences are not affected by the new SGC guidelines.

The second guideline deals with sentencing for Breach of an Anti-Social Behaviour Order (December 2008). Again, it is applicable to offenders falling to be sentenced for such a breach, on or after 5 January 2009. This document provides separate guidelines applicable to adults and to young offenders.

The full text of these guidelines can be found at www.sentencing-guidelines.gov.uk

Appendix 8a Sentencing Guidelines Council Guidelines

The Sentencing Guidelines Council has issued a final guideline in relation to sentencing for offences of attempted murder. This applies to defendants who are sentenced for attempted murder on or after 27 July 2009. The guidelines can be accessed at: www.sentencing-guidelines.gov.uk

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