Implementation of sections 34 and 51 of the Criminal Justice Act 2003 and associated provisions From:

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1 Circular 2010/10 TITLE Implementation of sections 34 and 51 of the Criminal Justice Act 2003 and associated provisions From: Distribution date: 19 April 2010 Implementation Date: For further information contact: Broad subject: Sub category: This circular is being sent to: Copies are being sent to: 1 st May 2010 (section 34 Criminal Justice Act 2003) 26 th April 2010 (section 51 Criminal Justice Act 2003) Section 34: Stephen Jones stephen.jones1@justice.gsi.gov.uk Section 51: Guy Wilson guy.wilson@justice.gsi.gov.uk Legislation Commencement Lord Chief Justice, Director of Public Prosecutions, President of the Queen s Bench Division, Senior Presiding Judge, Lords of Appeal in Ordinary, Lords Justices of Appeal, High Court Judges, Crown Court Judges, District Judges (Magistrates Courts), HMCS Area Directors, Crown Court Managers, Crown Prosecutors, Chief Officers of Police. Chairman of Justices, Clerks to the Justices, Judicial Studies Board, Council of Circuit Judges, Magistrates Association, Justices Clerks Society, Police Federation, Police Superintendents Association, Criminal Bar Association, Law Society, Association of Chief Police Officers, Witness Service managers.

2 The purpose of this circular is to inform criminal justice professionals and any other interested parties that the Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010 [SI 2010/1183] brings section 34 of the 2003 Act and its associated provisions into force in England and Wales on 1 May The same Commencement Order brings section 51 of the 2003 Act and its associated provisions into force in England and Wales on 26 April 2010 (to the extent that they are not already in force). Section 34 Notification of intention to call defence witnesses Section 34 of the 2003 Act inserts a new section 6C into the Criminal Procedure and Investigations Act It requires the accused to give the prosecutor and the court advance details of any witnesses he or she intends to call at the trial. The new disclosure requirement will be mandatory in both the Crown Court and the magistrates court. It will apply in any case to which the disclosure provisions of Part 1 of the Criminal Procedure and Investigations Act 1996 apply on or after 1 May 2010, regardless of when the accused was charged or the underlying investigation began. In effect, this means any case in which the accused pleads not guilty in the magistrates court on or after 1 May 2010, or any case which is sent/transferred to the Crown Court for trial by jury on or after that date. The accused s disclosure duty will be triggered by initial prosecution disclosure. Under section 6C(3) and section 12 of the 1996 Act, the accused must comply with the disclosure duty within the time limit set out in regulations prescribed by the Secretary of State. Such regulations have recently been made: The Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010 [SI 2010/214], which also come into force on 1 May The time limit will be 14 days in both the Crown Court and the magistrates court. The time limit is extendable on application to the court, provided application is made prior to the expiry of any previous time limit. The Regulations are available at:

3 Additionally there is an Explanatory Memorandum: Where the accused fails to comply with the new disclosure requirement, the same sanctions will be available as for other defence disclosure failures (adverse comment by any party to the proceedings and adverse inference on the part of the court). Section 40 of the 2003 Act requires the Secretary of State to issue a Code of Practice to govern the arranging and conduct of any police interviews of witnesses disclosed under the new requirement. This Code of Practice is also being brought into force by Order on 1 May Section 51 Live links in criminal proceedings Section 51, and associated provisions of the Criminal Justice Act 2003, enable the Court to allow witnesses (other than the defendant) to give evidence by a live link from any suitable facility (it is not limited to those in a court building) if the court is satisfied that it is in the interests of the efficient and effective administration of justice (section 51(4)(a)) and where the necessary facilities are already available. In deciding whether to give a direction under this section the court must consider all the circumstances of the case (section 51(6)). Witnesses are generally required to attend the court in person. The law does however currently provide for the use of live links in limited cases; such as in the case of young, disabled, vulnerable or intimidated witnesses under the Youth Justice and Criminal Evidence Act 1999 ( the 1999 Act ) or where the witness is abroad in the case of the Criminal Justice Act This provision extends live links to all witnesses in cases for all criminal offences in all courts. This provision will be particularly useful for witnesses with limited availability, such as professional witnesses, or those with mobility issues who do not qualify for live links under the 1999 Act provisions for vulnerable and intimidated witnesses.

4 Section 51 live links are covered in the Office for Criminal Justice and Reform (OCJR) live links protocol and HM Courts Service (HMCS) technology protocol. These are available at: The OCJR Protocol provides a national framework of guidance for those responsible during the criminal trial process. It sets out the roles and responsibilities for each agency or organisation for the different types of live link. The HMCS technology protocol provides practical guidance to court staff and court users in magistrates courts, the Youth Court and the Crown Courts on how to make arrangements to provide live television link facilities to support witnesses due to appear in court. Guidance will be issued shortly by the Crown Prosecution Service for Crown Prosecutors. Notification under section 51(4) of the Criminal Justice Act 2003 For the purposes of section 51(4)(b) this circular constitutes notification, by the Secretary of State, that suitable facilities are available for the receiving of evidence through a live link in all courts where such facilities exist. Guidance on making written applications to the court for a section 51 live link Applications should be made to the court in writing at the earliest possible opportunity. When doing so the applicant should include the following information, to help the court make a properly informed decision: the court area case reference number name of the witness name of the defendant(s) the venue from which the witness will give evidence

5 Applicants should state the grounds of the application supporting why it is more efficient or effective for the witness to give evidence by live link. The applicant should also provide details of the case as they relate to the particular circumstances that the court must consider when deciding whether to give a direction as detailed in section 51(7) of the 2003 Act: (a) the availability of the witness, (b) the need for the witness to attend in person, (c) the importance of the witness s evidence to the proceedings, (d) the views of the witness, (e) the suitability of the facilities at the place where the witness would give evidence through a live link, (f) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness s evidence.