uksi/2016/120 — The Criminal Procedure (Amendment) Rules 2016

2016 No. 120 (L. 1) Senior Courts Of England And Wales Magistrates’ Courts, England And Wales The Criminal Procedure (Amendment) Rules 2016 Made 27th January 2016 Laid before Parliament 5th February 2016 Coming into force 4th April 2016 The Criminal Procedure Rule Committee makes the following Rules under section 69 of the Courts Act 2003 , after consulting in accordance with section 72(1)(a) of that Act. Citation, commencement and interpretation 1 These Rules may be cited as the Criminal Procedure (Amendment) Rules 2016 and shall come into force on 4th April 2016. 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 2015 . Amendments to the Criminal Procedure Rules 2015 3 In rule 2.2 (Definitions), in the definition of ‘live link’, for ‘in court’ substitute ‘in the courtroom’. 4 In rule 3.24 (Arraigning the defendant on the indictment)— a after paragraph (4) insert— 5 In a case in which a magistrates’ court sends the defendant for trial, the Crown Court must take the defendant’s plea— a not less than 2 weeks after the date on which that sending takes place, unless the parties otherwise agree; and b not more than 16 weeks after that date, unless the court otherwise directs (either before or after that period expires). ; and b in the first paragraph of the note to the rule, after ‘section 6 of the Criminal Law Act 1967 ’ insert ‘, section 77 of the Senior Courts Act 1981 ’. 5 In Part 4 (Service of documents)— a in rule 4.3 (Service by handing over a document)— i after paragraph (4)(a) insert— b in relation to an application to a High Court judge for permission to serve a draft indictment— i in London, the Listing Office of the Queen’s Bench Division of the High Court, and ii elsewhere, the office at which court staff administer the business of any court then constituted of a High Court judge; , and ii renumber paragraph (4)(b) as paragraph (4)(c); and b in rule 4.4 (Service by leaving or posting a document)— i after paragraph (3)(a) insert— b in relation to an application to a High Court judge for permission to serve a draft indictment— i in London, the Queen’s Bench Listing Office, Royal Courts of Justice, Strand, London WC2A 2LL, and ii elsewhere, the office at which court staff administer the business of any court then constituted of a High Court judge; , and ii renumber paragraph (3)(b) as paragraph (3)(c). 6 In Part 10 (The indictment)— a omit the fourth paragraph of the note to rule 10.1 (Service of indictment); b after rule 10.2 (Form and content of indictment) insert— Application to a High Court judge for permission to serve a draft indictment 10.3 1 This rule applies where a prosecutor wants a High Court judge’s permission to serve a draft indictment. 2 Such a prosecutor must— a apply in writing; b serve the application on— i the court officer, and ii the proposed defendant, unless the judge otherwise directs; and c ask for a hearing, if the prosecutor wants one, and explain why it is needed. 3 The application must— a attach— i the proposed indictment, ii copies of the documents containing the evidence on which the prosecutor relies, including any written witness statement or statements complying with rule 16.2 (Content of written witness statement) and any documentary exhibit to any such statement, iii a copy of any indictment on which the defendant already has been arraigned, and iv if not contained in such an indictment, a list of any offence or offences for which the defendant already has been sent for trial; b include— i a concise statement of the circumstances in which, and the reasons why, the application is made, and ii a concise summary of the evidence contained in the documents accompanying the application, identifying each passage in those documents said to evidence each offence alleged by the prosecutor and relating that evidence to each count in the proposed indictment; and c contain a statement that, to the best of the prosecutor’s knowledge, information and belief— i the evidence on which the prosecutor relies will be available at the trial, and ii the allegations contained in the application are substantially true unless the application is made by or on behalf of the Director of Public Prosecutions or the Director of the Serious Fraud Office. 4 A proposed defendant served with an application who wants to make representations to the judge must— a serve the representations on the court officer and on the prosecutor; b do so as soon as practicable, and in any event within such period as the judge directs; and c ask for a hearing, if the proposed defendant wants one, and explain why it is needed. 5 The judge may determine the application— a without a hearing, or at a hearing in public or in private; b with or without receiving the oral evidence of any proposed witness. 6 At any hearing, if the judge so directs a statement required by paragraph (3)(c) must be repeated on oath or affirmation. 7 If the judge gives permission to serve a draft indictment, the decision must be recorded in writing and endorsed on, or annexed to, the proposed indictment. [Note. See section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933 .] ; and c amend the table of contents correspondingly. 7 In Part 17 (Witness summonses, warrants and orders)— a in rule 17.3 (Application for summons, warrant or order: general rules)— i in paragraph (2), for ‘The party applying must’ substitute ‘A party applying for a witness summons or order must’, ii after paragraph (2) insert— 3 A party applying for an order to be allowed to inspect and copy an entry in bank records must— a identify the entry; b explain the purpose for which the entry is required; and c propose— i the terms of the order, and ii the period within which the order should take effect, if 3 days from the date of service of the order would not be appropriate. , iii renumber paragraph (3) as paragraph (4), and iv after paragraph (4), as so renumbered, insert— 5 The applicant must serve any order made on the witness to whom, or the bank to which, it is directed. ; and b in rule 17.5 (Application for summons to produce a document, etc.: special rules), in paragraph (5) for ‘a banker’s book’ substitute ‘bank records’. 8 In rule 21.4 (Notice to introduce evidence of a defendant’s bad character)— a in paragraph (2), for ‘That party’ substitute ‘A prosecutor or co-defendant who wants to introduce such evidence’; b in paragraph (3), for ‘A prosecutor who wants to introduce such evidence must serve the notice’ substitute ‘A prosecutor must serve any such notice’; c in paragraph (4), for ‘A co-defendant who wants to introduce such evidence must serve the notice’ substitute ‘A co-defendant must serve any such notice’; d in paragraph (5), after ‘A party who objects to the introduction of the evidence’ insert ‘identified by such a notice’; e in paragraph (6)(a), after ‘determine’ insert ‘such’; f in paragraph (7), after ‘receive’ insert ‘such’; and g after paragraph (7), insert— 8 A defendant who wants to introduce evidence of his or her own bad character must— a give notice, in writing or orally— i as soon as reasonably practicable, and in any event ii before the evidence is introduced, either by the defendant or in reply to a question asked by the defendant of another party’s witness in order to obtain that evidence; and b in the Crown Court, at the same time give notice (in writing, or orally) of any direction about the defendant’s character that the defendant wants the court to give the jury under rule 25.14 (Directions to the jury and taking the verdict). 9 In rule 24.3 (Trial and sentence in a magistrates’ court, Procedure on plea of not guilty)— a for paragraph (3)(a) substitute— a the prosecutor may summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute; ; b after paragraph (3)(a) insert— b to help the members of the court to understand the case and resolve any issue in it, the court may invite the defendant concisely to identify what is in issue; ; c renumber paragraphs (3)(b) to (3)(h) accordingly; and d in the note to the rule, for ‘rule 37.3(3)(d)’ substitute ‘rule 24.3(3)(e)’. 10 In Part 25 (Trial and sentence in the Crown Court)— a in rule 25.9 (Procedure on plea of not guilty)— i for paragraph (2)(b) substitute— b the prosecutor may summarise the prosecution case, concisely outlining the facts and the matters likely to be in dispute; , ii after paragraph (2)(b) insert— c where there is a jury, to help the jurors to understand the case and resolve any issue in it the court may— i invite the defendant concisely to identify what is in issue, if necessary in terms approved by the court, ii if the defendant declines to do so, direct that the jurors be given a copy of any defence statement served under rule 15.4 (Defence disclosure), edited if necessary to exclude any reference to inappropriate matters or to matters evidence of which would not be admissible; , iii renumber paragraphs (2)(c) to (2)(j) accordingly, iv in paragraph (3), for ‘Paragraph (2)(d)’ substitute ‘Paragraph (2)(e)’, and v in paragraph (4), for ‘Paragraph (2)(e)’ substitute ‘Paragraph (2)(f)’; vi in the note to the rule, after the first paragraph insert— Under section 6E of the Criminal Procedure and Investigations Act 1996 the court may make the direction for which rule 25.9(2)(c)(ii) provides on application or on the court’s own initiative. , and vii in the note to the rule, for ‘rule 25.9(2)(e)’ substitute ‘rule 25.9(2)(f)’; b in rule 25.12 (Evidence of a witness in writing), for paragraph (2) substitute— 2 If the court admits such evidence each relevant part of the statement must be read or summarised aloud, unless the court otherwise directs. ; and c in rule 25.14 (Directions to the jury and taking the verdict), in paragraph (6) for ‘paragraph (4)(b)’ substitute ‘paragraph (5)(b)’. 11 In Part 34 (Appeal to the Crown Court)— a in rule 34.7 (Application to introduce further evidence)— i for the heading to the rule, substitute ‘Application to introduce further evidence or for ruling on procedure, evidence or other question of law’, ii in paragraph (1), for ‘This rule applies where’ substitute ‘Paragraph (2) of this rule applies where’, iii after paragraph (2) insert— 3 Paragraph (4) of this rule applies to an application— a about— i case management, or any other question of procedure, or ii the introduction or admissibility of evidence, or any other question of law; b that has not been determined before the hearing of the appeal begins. 4 The application is subject to any other rule that applies to it (for example, as to the time and form in which the application must be made). , and iv for the note to the rule substitute— [Note. See also Part 16 (Written witness statements), Part 19 (Expert evidence) and Part 23 (Restriction on cross-examination by a defendant), which may apply where this Part applies.] ; b amend the table of contents correspondingly; and c for rule 34.11 (Constitution of the Crown Court) substitute— 34.11 1 On the hearing of an appeal the general rule is that— a the Crown Court must comprise— i a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate, and ii no less than two and no more than four justices of the peace, none of whom took part in the decision under appeal; and b if the appeal is from a youth court— i each justice of the peace must be qualified to sit as a member of a youth court, and ii the Crown Court must include a man and a woman. 2 Despite the general rule— a the Crown Court may include only one justice of the peace and need not include both a man and a woman if— i the presiding judge decides that otherwise the start of the appeal hearing will be delayed unreasonably, or ii one or more of the justices of the peace who started hearing the appeal is absent; and b the Crown Court may comprise only a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate if— i the appeal is against conviction, under section 108 of the Magistrates’ Courts Act 1980 , and ii the respondent agrees that the court should allow the appeal, under section 48(2) of the Senior Courts Act 1981. 3 Before the hearing of an appeal begins— a the Crown Court may comprise only a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate; and b so constituted, the court may, among other things, exercise the powers to which the rules in this Part and in Part 3 (Case management) apply. [Note. See sections 73 and 74 of the Senior Courts Act 1981 (which allow rules of court to provide for the constitution of the Crown Court in proceedings on appeal), section 45 of the Children and Young Persons Act 1933 and section 9 of the Courts Act 2003 . Under section 8(1A) of the Senior Courts Act 1981 , a qualifying judge advocate may not exercise the jurisdiction of the Crown Court on an appeal from a youth court.] . 12 In rule 38.5 (Appeal to the Court of Appeal against ruling adverse to prosecution, Crown Court judge’s permission to appeal), in paragraph (1)(b) for ‘rule 67.2’ substitute ‘rule 38.2’. 13 In rule 43.2 (Appeal or reference to the Supreme Court, Application for permission or reference), in paragraph (1)(b)(i) for ‘Part 70’ substitute ‘Part 41’. 14 In Part 45 (Costs)— a in rule 45.1 (When this Part applies), in paragraph (1)(c) for ‘rule 76.6 or rule 76.7’ substitute ‘rule 45.6 or rule 45.7’; b in rule 45.3 (Court’s power to vary requirements)— i in paragraph (1), for ‘The court may’ substitute ‘Unless other legislation otherwise provides, the court may’, and ii at the end of the rule insert— [Note. The time limit for applying for a costs order may be affected by the legislation under which the order is made. See, for example, sections 19(1), (2) and 19A of the Prosecution of Offences Act 1985 , regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 and rules 45.8(4)(a) and 45.9(4)(a).] ; c in rule 45.8 (Costs resulting from unnecessary or improper act, etc.)— i at the end of paragraph (4)(a) insert ‘, and in any event no later than the end of the case’, ii after paragraph (7) insert— 8 To help assess the amount, the court may direct an enquiry by— a the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or b the Registrar, where the assessment is by the Court of Appeal. 9 In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including— a any agreement between the parties about the amount to be paid; b the amount likely to be allowed; c the delay and expense that may be incurred in the conduct of the enquiry; and d the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment. 10 If the court directs such an enquiry— a paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply); b the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and c the court must then assess the amount to be paid. , and iii after the first paragraph of the note to the rule insert— Under section 19(1), (2) of the 1985 Act and regulation 3(1) of the 1986 Regulations, the court’s power to make a costs order to which this rule applies can only be exercised during the proceedings. ; d in rule 45.9 (Costs against a legal representative)— i at the end of paragraph (4)(a) insert ‘, and in any event no later than the end of the case’, ii after paragraph (7) insert— 8 To help assess the amount, the court may direct an enquiry by— a the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or b the Registrar, where the assessment is by the Court of Appeal. 9 In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including— a any agreement between the parties about the amount to be paid; b the amount likely to be allowed; c the delay and expense that may be incurred in the conduct of the enquiry; and d the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment. 10 If the court directs such an enquiry— a paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply); b the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and c the court must then assess the amount to be paid. , iii renumber paragraph (8) as paragraph (11), and iv after the first paragraph of the note to the rule insert— Under section 19A(1) of the 1985 Act, the court’s power to make a costs order to which this rule applies can only be exercised during the proceedings. ; and e in rule 45.10 (Costs against a third party), after paragraph (7) insert— 8 To help assess the amount, the court may direct an enquiry by— a the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or b the Registrar, where the assessment is by the Court of Appeal. 9 In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including— a any agreement between the parties about the amount to be paid; b the amount likely to be allowed; c the delay and expense that may be incurred in the conduct of the enquiry; and d the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment. 10 If the court directs such an enquiry— a paragraphs (3) to (8) inclusive of rule 45.11 (Assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (Appeal to a costs judge) and 45.13 (Appeal to a High Court judge) do not apply); b the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and c the court must then assess the amount to be paid. . 15 For Part 47 (Investigation orders and warrants) substitute the Part set out in the Schedule to these Rules. 16 In rule 50.21 (Extradition, Appeal to the High Court, Respondent’s notice), for paragraph (3) substitute— 3 Such a party must serve any such notice, as appropriate— a not more than 10 business days after— i service on that party of an amended appeal notice under rule 50.20(5) (Form of appeal notice), or ii the expiry of the time for service of any such amended appeal notice whichever of those events happens first; b not more than 5 business days after service on that party of— i an appellant’s notice renewing an application for permission to appeal, ii a direction to serve a respondent’s notice. . 17 In the Glossary at the end of the Criminal Procedure Rules 2015, in the entry for ‘hearsay evidence’ for ‘This expression is defined further by rule 34.1 for the purposes of Part 34 and by rule 57.1 for the purposes of Parts 57 - 61’ substitute ‘This expression is defined further by rule 20.1 for the purposes of Part 20 and by rule 33.1 for the purposes of Part 33’. 18 In the preamble to the Criminal Procedure Rules 2015, in sub-paragraph (b)— a in the first column, headed ‘Rule’, before the entry for rules 4.1 and 4.12 insert ‘3.24’ and in the second column, headed ‘Power’, in the corresponding position insert ‘Section 77 of the Senior Courts Act 1981 ’; and b for the three entries for Part 47 and rule 47.26 substitute the following nine entries, in the following sequence— i in the ‘Rule’ column ‘47.4 and 47.10; 47.24 and 47.30’ and in the corresponding position in the ‘Power’ column ‘Paragraph 15A of Schedule 1 to the Police and Criminal Evidence Act 1984 ’, ii in the ‘Rule’ column ‘47.4 and 47.11 to 47.16 inclusive’ and in the corresponding position in the ‘Power’ column ‘Paragraph 10 of Schedule 5, paragraph 4 of Schedule 6, and paragraph 5 of Schedule 6A to the Terrorism Act 2000 ’, iii in the ‘Rule’ column ‘47.4 and 47.17 to 47.22 inclusive’ and in the corresponding position in the ‘Power’ column ‘Sections 351(2), 362(2), 369(2) and 375(1) of the Proceeds of Crime Act 2002 ’, iv in the ‘Rule’ column ‘47.4 and 47.23’ and in the corresponding position in the ‘Power’ column ‘Section 157(9) of the Extradition Act 2003 ’, v in the ‘Rule’ column ’47.24 and 47.31’ and in the corresponding position in the ‘Power’ column ‘Paragraph 11(5) of Schedule 5 to the Terrorism Act 2000 ’, vi in the ‘Rule’ column ‘47.24 and 47.32’ and in the corresponding position in the ‘Power’ column ‘Section 352(8) of the Proceeds of Crime Act 2002 ’, vii in the ‘Rule’ column ‘47.24 and 47.33’ and in the corresponding position in the ‘Power’ column ‘Section 160(10) of the Extradition Act 2003 ’, viii in the ‘Rule’ column ‘47.35 and 47.38’ and in the corresponding position in the ‘Power’ column ‘Section 59(13) of the Criminal Justice and Police Act 2001 ’, and ix in the ‘Rule’ column ‘47.49’ and in the corresponding position in the ‘Power’ column ‘Section 74(3) of the Senior Courts Act 1981 ’. Thomas of Cwmgiedd, C.J. Rafferty, L.J. Leveson, P. Openshaw, J. Martin Picton Martin Edmunds Stephen Earl Louise Bryant Melissa Case Siân Jones Alison Saunders Patrick Gibbs Nathaniel Rudolf Michael Caplan Paul Harris Lynne Owens David Kenyon Matthew Evans I allow these Rules, which shall come into force on 4th April 2016. Michael Gove Lord Chancellor 27th January 2016 SCHEDULE Rule 15 PART 47 INVESTIGATION ORDERS AND WARRANTS Contents of this Part Section 1: general rules When this Part applies rule 47.1 Meaning of ‘court’, ‘applicant’ and ‘respondent’ rule 47.2 Documents served on the court officer rule 47.3 Section 2: investigation orders When this Section applies rule 47.4 Exercise of court’s powers rule 47.5 Application for order: general rules rule 47.6 Application containing information withheld from a respondent or other person rule 47.7 Application to vary or discharge an order rule 47.8 Application to punish for contempt of court rule 47.9 Orders under the Police and Criminal Evidence Act 1984 Application for a production order under the Police and Criminal Evidence Act 1984 rule 47.10 Orders under the Terrorism Act 2000 Application for an order under the Terrorism Act 2000 rule 47.11 Content of application for a production etc. order under the Terrorism Act 2000 rule 47.12 Content of application for an order to grant entry under the Terrorism Act 2000 rule 47.13 Content of application for an explanation order under the Terrorism Act 2000 rule 47.14 Content of application for a customer information order under the Terrorism Act 2000 rule 47.15 Content of application for an account monitoring order under the Terrorism Act 2000 rule 47.16 Orders under the Proceeds of Crime Act 2002 Application for an order under the Proceeds of Crime Act 2002 rule 47.17 Content of application for a production order under the Proceeds of Crime Act 2002 rule 47.18 Content of application for an order to grant entry under the Proceeds of Crime Act 2002 rule 47.19 Content of application for a disclosure order under the Proceeds of Crime Act 2002 rule 47.20 Content of application for a customer information order under the Proceeds of Crime Act 2002 rule 47.21 Content of application for an account monitoring order under the Proceeds of Crime Act 2002 rule 47.22 Orders under the Extradition Act 2003 Application for a production order under the Extradition Act 2003 rule 47.23 Section 3: investigation warrants When this Section applies rule 47.24 Exercise of court’s powers rule 47.25 Application for warrant: general rules rule 47.26 Information to be included in a search warrant rule 47.27 Application for warrant under section 8 of the Police and Criminal Evidence Act 1984 rule 47.28 Application for warrant under section 2 of the Criminal Justice Act 1987 rule 47.29 Application for warrant under paragraph 12 of Schedule 1 to the Police and Criminal Evidence Act 1984 rule 47.30 Application for warrant under paragraph 11 of Schedule 5 to the Terrorism Act 2000 rule 47.31 Application for warrant under section 352 of the Proceeds of Crime Act 2002 rule 47.32 Application for warrant under section 160 of the Extradition Act 2003 rule 47.33 Application for warrant under any other power rule 47.34 Section 4: orders for the retention or return of property When this Section applies rule 47.35 Exercise of court’s powers rule 47.36 Application for an order under section 1 of the Police (Property) Act 1897 rule 47.37 Application for an order under section 59 of the Criminal Justice and Police Act 2001 rule 47.38 Representations in response rule 47.39 Application to punish for contempt of court rule 47.40 Section 5: orders for the retention of fingerprints, etc. When this Section applies rule 47.41 Exercise of court’s powers rule 47.42 Application to extend retention period rule 47.43 Appeal rule 47.44 Section 6: investigation anonymity orders under the Coroners and Justice Act 2009 When this Section applies rule 47.45 Exercise of court’s powers rule 47.46 Application for an investigation anonymity order rule 47.47 Application to discharge an investigation anonymity order rule 47.48 Appeal rule 47.49 Section 7: investigation approval orders under the Regulation of Investigatory Powers Act 2000 When this Section applies rule 47.50 Exercise of court’s powers rule 47.51 Application for approval for authorisation or notice rule 47.52 SECTION 1: GENERAL RULES When this Part applies 47.1 This Part applies to the exercise of the powers listed in each of rules 47.4, 47.24, 47.35, 47.41, 47.45 and 47.50. 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 c ‘respondent’ means any person— i against whom such an order is sought or made, or ii on whom an application for such an order is served. Documents served on the court officer 47.3 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 .] SECTION 2: INVESTIGATION ORDERS When this Section applies 47.4 This Section applies where— a a Circuit judge can make, vary or discharge an order for the production of, or for giving access to, material under paragraph 4 of Schedule 1 to the Police and Criminal Evidence Act 1984 , other than material that consists of or includes journalistic material; b for the purposes of a terrorist investigation, 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 , ii an explanation order, under paragraphs 10 and 13 of Schedule 5 to the 2000 Act , iii a customer information order, under paragraphs 1 and 4 of Schedule 6 to the 2000 Act ; c for the purposes of a terrorist investigation, 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 ; d 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, a Crown Court judge can make, and the Crown Court can vary or discharge— i a production order, under sections 345 and 351 of the 2002 Act or under articles 6 and 12 of the 2014 Order, ii an order to grant entry, under sections 347 and 351 of the 2002 Act or under articles 8 and 12 of the 2014 Order, iii a disclosure order, under sections 357 and 362 of the 2002 Act or under articles 16 and 21 of the 2014 Order, iv a customer information order, under sections 363 and 369 of the 2002 Act or under articles 22 and 28 of the 2014 Order, v an account monitoring order, under sections 370, 373 and 375 of the 2002 Act or under articles 29, 32 and 34 of the 2014 Order; e in connection with an extradition request, a Circuit judge can make an order for the production of, or for giving access to, material under section 157 of the Extradition Act 2003 . [Note. In outline, the orders to which these rules apply are— a under the Police and Criminal Evidence Act 1984, a production order requiring a person to produce or give access to material, other than material that consists of or includes journalistic material; b 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; c 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; d in connection with extradition proceedings, a production order requiring a person to produce or give access to material. These rules do not apply to an application for a production order under the Police and Criminal Evidence Act 1984 requiring a person to produce or give access to journalistic material: see paragraph 15A of Schedule 1 to the Act . For all the relevant terms under which these orders can be made, see the provisions listed in rule 47.4. Under section 8 of the Senior Courts Act 1981 , a High Court judge, a Circuit judge, a Recorder, a qualifying judge advocate and a District Judge (Magistrates’ Courts) each may act as a Crown Court judge. When the relevant provisions of the Courts Act 2003 come into force, a District Judge (Magistrates’ Courts) will have the same powers as a Circuit judge under the Police and Criminal Evidence Act 1984 and under the Terrorism Act 2000. Under section 66 of the Courts Act 2003 , in criminal cases a High Court judge, a Circuit judge, a Recorder and a qualifying judge advocate each has the powers of a justice of the peace who is a District Judge (Magistrates’ Courts). By section 341 of the Proceeds of Crime Act 2002 , an investigation under Part 8 of the Act may be— a an investigation into whether a person has benefited from criminal conduct, or the extent or whereabouts of such benefit (‘a confiscation investigation’); b an investigation into whether a person has committed a money laundering offence (‘a money laundering investigation’); c an investigation into whether property is recoverable property or associated property (as defined by section 316 of the 2002 Act ), or into who holds the property or its extent or whereabouts (‘a civil recovery investigation’); d an investigation into the derivation of cash detained under the 2002 Act, or into whether such cash is intended to be used in unlawful conduct (‘a detained cash investigation’); e an investigation for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs, etc.) into whether a person is a qualifying offender or has obtained exploitation proceeds from a relevant offence, or into the value of any benefits derived by such a person from such an offence or the amount available (‘an exploitation proceeds investigation’). Under section 343 of the Proceeds of Crime Act 2002 — a any Crown Court judge may make an order to which this Section applies for the purposes of a confiscation investigation, a money laundering investigation or a detained cash investigation; b only a High Court judge may make such an order for the purposes of a civil recovery investigation or an exploitation proceeds investigation (and these rules do not apply to an application to such a judge in such a case). As well as governing procedure on an application to the Crown Court, under the following provisions rules may govern the procedure on an application to an individual judge— a paragraph 15A of Schedule 1 to the Police and Criminal Evidence Act 1984; b paragraph 10 of Schedule 5, paragraph 4 of Schedule 6 and paragraph 5 of Schedule 6A to the Terrorism Act 2000; and c sections 351, 362, 369, 375 and 446 of the Proceeds of Crime Act 2002.] Exercise of court’s powers 47.5 1 Subject to paragraphs (2), (3) and (4), 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 , section 348 or 361 of the Proceeds of Crime Act 2002 or article 9 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014 , 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 determine such an application in the absence of any respondent who, if the order sought by the applicant were made, would be required to produce or give access to journalistic material, unless that respondent has waived the opportunity to attend. 5 The court officer must arrange for the court to hear such an application no sooner than 2 business days after it was served, unless— a the court directs that no hearing need be arranged; or b the court gives other directions for the hearing. 6 The court must not determine an application unless satisfied that sufficient time has been allowed for it. 7 If the court so directs, the parties to an application may attend a hearing by live link or telephone. 8 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. 9 Where the statement required by paragraph (8) 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. 10 The court may— a shorten or extend (even after it has expired) a time limit under this Section; b dispense with a requirement for service under this Section (even after service was required); and c consider an application made orally instead of in writing. 11 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. Application for order: general rules 47.6 1 This rule applies to each application for an order to which this Section applies. 2 The applicant must— a apply in writing and serve the application on the court officer; b demonstrate that the applicant is entitled to apply, for example as a constable or under legislation that applies to other officers; c give the court an estimate of how long the court should allow— i to read the application and prepare for any hearing, and ii for any hearing of the application; d attach a draft order in the terms proposed by the applicant; e serve notice of the application on the respondent, unless the court otherwise directs; f serve the application on the respondent to such extent, if any, as the court directs. 3 A notice served on the respondent must— a specify the material or information in respect of which the application is made; and b identify— i the power that the applicant invites the court to exercise, and ii the conditions for the exercise of that power which the applicant asks the court to find are met. 4 The applicant must serve any order made on the respondent. Application containing information withheld from a respondent or other person 47.7 1 This rule applies where an application includes information that the applicant thinks ought to be revealed only to the court. 2 The application must— a identify that information; and b explain why that information ought not to be served on the respondent or another person. 3 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 vary or discharge an order 47.8 1 This rule applies where one of the following wants the court to vary or discharge an order to which a rule in this Section refers— a an applicant; b the respondent; or c a person affected by the order. 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; c explain why it is appropriate for the order to be varied or discharged; d propose the terms of any variation; and e ask for a hearing, if one is wanted, and explain why it is needed. Application to punish for contempt of court 47.9 1 This rule applies where a person is accused of disobeying— a a production order made under paragraph 4 of Schedule 1 to the Police and Criminal Evidence Act 1984; b a production etc. order made under paragraph 5 of Schedule 5 to the Terrorism Act 2000; c an explanation order made under paragraph 13 of that Schedule; d an account monitoring order made under paragraph 2 of Schedule 6A to that Act; e a production order made under section 345 of the Proceeds of Crime Act 2002 or article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014; f an account monitoring order made under section 370 of the 2002 Act or article 29 of the 2014 Order; or g a production order made under section 157 of the Extradition Act 2003. 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; sections 351(7) and 375(6) of the Proceeds of Crime Act 2002 and articles 12(6) and 34(5) of the Proceeds of Crime Act 2002 (External Investigations) Order 2014; and section 45 of the Senior Courts Act 1981 . A Circuit judge has power to punish a person who disobeys a production order under the Police and Criminal Evidence Act 1984 as if that were a contempt of the Crown Court: see paragraph 15 of Schedule 1 to the Act . Disobedience to an explanation order or to a customer information order under the Terrorism Act 2000 is an offence: see paragraph 14 of Schedule 5, and paragraph 1(3) of Schedule 6, to the Act. Disobedience to a disclosure order or to a customer information order under the Proceeds of Crime Act 2002 or under the Proceeds of Crime Act 2002 (External Investigations) Order 2014 is an offence: see sections 359 and 366 of the Act and articles 18 and 25 of the Order. Under section 342 of the Act and under article 5 of the Order, subject to the exceptions for which those provide it is an offence to make a disclosure likely to prejudice an investigation or to interfere with documents relevant to it.] ORDERS UNDER THE POLICE AND CRIMINAL EVIDENCE ACT 1984 Application for a production order under the Police and Criminal Evidence Act 1984 47.10 1 This rule applies where an applicant wants the court to make an order to which rule 47.4(a) refers. 2 As well as complying with rule 47.6 (Application for order: general rules), the application must, in every case— a specify the offence under investigation (and see paragraph (3)(a)); b describe the material sought; c identify the respondent; d specify the premises on which the material is believed to be, or explain why it is not reasonably practicable to do so; e explain the grounds for believing that the material is on the premises specified, or (if applicable) on unspecified premises of the respondent; f specify the set of access conditions on which the applicant relies (and see paragraphs (3) and (4)); and g propose— i the terms of the order, and ii the period within which it should take effect. 3 Where the applicant relies on paragraph 2 of Schedule 1 to the Police and Criminal Evidence Act 1984 (‘the first set of access conditions’: general power to gain access to special procedure material), the application must— a specify the indictable offence under investigation; b explain the grounds for believing that the offence has been committed; c explain the grounds for believing that the material sought— i is likely to be of substantial value to the investigation (whether by itself, or together with other material), ii is likely to be admissible evidence at trial for the offence under investigation, and iii does not consist of or include items subject to legal privilege or excluded material; d explain what other methods of obtaining the material— i have been tried without success, or ii have not been tried because they appeared bound to fail; and e explain why it is in the public interest for the respondent to produce the material, having regard to— i the benefit likely to accrue to the investigation if the material is obtained, and ii the circumstances under which the respondent holds the material. 4 Where the applicant relies on paragraph 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 (‘the second set of access conditions’: use of search warrant power to gain access to excluded or special procedure material), the application must— a state the legislation under which a search warrant could have been issued, had the material sought not been excluded or special procedure material (in this paragraph, described as ‘the main search power’); b include or attach the terms of the main search power; c explain how the circumstances would have satisfied any criteria prescribed by the main search power for the issue of a search warrant; and d explain why the issue of such a search warrant would have been appropriate. [Note. See paragraphs 1 to 4 of Schedule 1 to the Police and Criminal Evidence Act 1984 . The applicant for an order must be a constable. Sections 10, 11 and 14 of the 1984 Act define ‘items subject to legal privilege’, ‘excluded material’ and ‘special procedure material’. The period within which an order takes effect must be specified in the order and, unless the court considers a longer period appropriate, must be 7 days from the date of the order. See also the code of practice for searches of premises by police officers and the seizure of property found by police officers on persons or premises issued under section 66 of the Police and Criminal Evidence Act 1984 . The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] ORDERS UNDER THE TERRORISM ACT 2000 Application for an order under the Terrorism Act 2000 47.11 1 This rule applies where an applicant wants the court to make one of the orders to which rule 47.4(b) and (c) refers. 2 As well as complying with rule 47.6 (Application for order: general rules), the application must— a specify the offence under investigation; b explain how the investigation constitutes a terrorist investigation within the meaning of the Terrorism Act 2000 ; c identify the respondent; and d give the information required by whichever of rules 47.12 to 47.16 applies. Content of application for a production etc. order under the Terrorism Act 2000 47.12 As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an order for the production of, or for giving 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 expected to come into existence and then to be in the respondent’s possession, custody or power within 28 days of the order; c explain how the material constitutes or contains excluded material or special procedure material; 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. Under paragraphs 5 and 7 of that Schedule a production order may require a specified person— a to produce to a constable within a specified period for seizure and retention any material which that person has in his or her possession, custody or power and to which the application relates; to give a constable access to any such material within a specified period; and to state to the best of that person’s knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his or her possession, custody or power within the period specified; or b where such material is expected to come into existence within the period of 28 days beginning with the date of the order, to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into that person’s possession, custody or power, and then to produce that material to a constable; to give a constable access to it; and to state to the best of that person’s knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his or her possession, custody or power within that period of 28 days. Under paragraph 4 of Schedule 5 to the 2000 Act, ‘legal privilege’, ‘excluded material’ and ‘special procedure material’ mean the same as under sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984. The period within which an order takes effect must be specified in the order and, unless the court otherwise directs, must be— a where the respondent already has the material, 7 days from the date of the order; or b where the respondent is expected to have the material within 28 days, 7 days from the date the respondent notifies the applicant of its receipt. The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] Content of application for an order to grant entry under the Terrorism Act 2000 47.13 An applicant who wants the court to make an order to grant entry in aid of a production order must— a specify the premises to which entry is sought; b explain why the order is needed; and c propose the terms of the order. [Note. See paragraph 5(5) of Schedule 5 to the Terrorism Act 2000. The applicant for an order to grant entry must be a constable.] Content of application for an explanation order under the Terrorism Act 2000 47.14 As well as complying with rules 47.6 and 47.11, 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 c propose the terms of the order. [Note. See paragraph 13 of Schedule 5 to the Terrorism Act 2000 . The applicant for an explanation order must be a constable. An explanation order can require a lawyer to provide a client’s name and address. The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] Content of application for a customer information order under the Terrorism Act 2000 47.15 As well as complying with rules 47.6 and 47.11, 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 c propose the terms of the order. [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. The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] Content of application for an account monitoring order under the Terrorism Act 2000 47.16 As well as complying with rules 47.6 and 47.11, 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; c explain why the order will enhance the effectiveness of the investigation; and 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. The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] ORDERS UNDER THE PROCEEDS OF CRIME ACT 2002 Application for an order under the Proceeds of Crime Act 2002 47.17 1 This rule applies where an applicant wants the court to make one of the orders to which rule 47.4(d) refers. 2 As well as complying with rule 47.6 (Application for order: general rules), the application must— a identify— i the respondent, and ii the person or property the subject of the investigation; b in the case of an investigation in the United Kingdom, explain why the applicant thinks that— i the person under investigation has benefited from criminal conduct, in the case of a confiscation investigation, or committed a money laundering offence, in the case of a money laundering investigation, or ii the cash involved is property obtained through unlawful conduct, or is intended to be used in unlawful conduct, in the case of a detained cash investigation; c in the case of an investigation outside the United Kingdom, explain why the applicant thinks that— i there is an investigation by an overseas authority which relates to a criminal investigation or to criminal proceedings (including proceedings to remove the benefit of a person’s criminal conduct following that person’s conviction), and ii the investigation is into whether property has been obtained as a result of or in connection with criminal conduct, or into the extent or whereabouts of such property; d give the additional information required by whichever of rules 47.18 to 47.22 applies. [Note. See also the code of practice for those exercising functions as officers and investigators issued under section 377 of the 2002 Act , and the code of practice for prosecutors and others issued under section 377A of that Act .] Content of application for a production order under the Proceeds of Crime Act 2002 47.18 As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make an order for the production of, or for giving access to, material, must— a describe that material; b explain why the applicant thinks the material is in the respondent’s possession or control; c confirm that none of the material is— i expected to be subject to legal privilege, or ii excluded material; d explain why the material is likely to be of substantial value to the investigation; e 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; and f propose— 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 sections 345 to 350 of the Proceeds of Crime Act 2002 and articles 6 to 11 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014 . Under those provisions— a ‘excluded material’ means the same as under section 11 of the Police and Criminal Evidence Act 1984; and b ‘legal privilege’ is defined by section 348 of the 2002 Act. A Crown Court judge may make a production order for the purposes of a confiscation investigation, a money laundering investigation or a detained cash investigation. The applicant for a production order must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the 2002 Act and article 2(1) of the 2014 Order. The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] Content of application for an order to grant entry under the Proceeds of Crime Act 2002 47.19 An applicant who wants the court to make an order to grant entry in aid of a production order must— a specify the premises to which entry is sought; b explain why the order is needed; and c propose the terms of the order. [Note. See section 347 of the Proceeds of Crime Act 2002 and article 8 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014. The applicant for an order to grant entry must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act and article 2(1) of the 2014 Order.] Content of application for a disclosure order under the Proceeds of Crime Act 2002 47.20 As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make a disclosure order must— a describe in general terms the information that the applicant wants the respondent to provide; b confirm that none of the information is— i expected to be subject to legal privilege, or ii excluded material; c explain why the information is likely to be of substantial value to the investigation; d explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and e propose the terms of the order. [Note. See sections 357, 358 and 361 of the Proceeds of Crime Act 2002 and articles 16, 17 and 20 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014. Where the 2002 Act applies, a Crown Court judge may make a disclosure order for the purposes of a confiscation investigation only. The applicant for a disclosure order must be a ‘relevant authority’ as defined by section 357(7) of the 2002 Act or an ‘appropriate officer’ as defined by article 2(1) of the 2014 Order, where the Order applies. In relation to a confiscation investigation, under section 357(2A) of the 2002 Act the applicant must have been asked to apply by an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act. A disclosure order can require a lawyer to provide a client’s name and address. The Practice Direction sets out forms of application, notice and order for use in connection with this rule.] Content of application for a customer information order under the Proceeds of Crime Act 2002 47.21 As well as complying with rules 47.6 and 47.17, an applicant who wants the court to make a customer information order must— a explain why customer information about the pers