The Criminal Procedure Rules 2020

PART 44 E+W REOPENING A CASE IN A MAGISTRATES’ COURT

Contents of this Part
When this Part applies	rule 44.1
Statutory declaration of ignorance of proceedings	rule 44.2
Setting aside a conviction or varying a costs, etc. order	rule 44.3

When this Part applies E+W

44.1.—(1) This Part applies in a magistrates’ court where—

(a) under section 14 or section 16E of the Magistrates’ Courts Act 1980(1), the defendant makes a statutory declaration of not having found out about the case until after the trial began; or

(b) under section 142 of the 1980 Act(2), the court can—

(i) set aside a conviction, or

(ii) vary or rescind a costs order, or an order to which Part 31 applies (Behaviour orders).

Commencement Information

I1 Rule 44.1 in force at 5.10.2020, see Preamble

Statutory declaration of ignorance of proceedings E+W

44.2.—(1) This rule applies where—

(a) the case started with—

(i) an application for a summons,

(ii) a written charge and requisition, or

(iii) a written charge and single justice procedure notice; and

(b) under section 14 or section 16E of the Magistrates’ Courts Act 1980(3), the defendant makes a statutory declaration of not having found out about the case until after the trial began.

(2) The defendant must—

(a) serve such a declaration on the court officer—

(i) not more than [F1 21 days] after the date of finding out about the case, or

(ii) with an explanation for the delay, if serving it more than 21 days after that date; and

(b) serve with the declaration one of the following, as appropriate, if the case began with a written charge and single justice procedure notice—

(i) a notice under rule 24.9(4)(a) (notice of guilty plea), with any representations that the defendant wants the court to consider and a statement of the defendant’s assets and other financial circumstances, as required by that rule,

(ii) a notice under rule 24.9(4)(b) (notice of intention to plead guilty at a hearing before a court comprising more than one justice), or

(iii) a notice under rule 24.9(4)(c) (notice of intention to plead not guilty).

(3) The court may extend that time limit, even after it has expired—

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

(b) without a hearing.

(4) Where the defendant serves such a declaration, in time or with an extension of time in which to do so, and the case began with a summons or requisition—

(a) the court must treat the summons or requisition and all subsequent proceedings as void (but not the application for the summons or the written charge with which the case began);

(b) if the defendant is present when the declaration is served, the rules in [F2 Part 24 (Trial and sentence in a magistrates’ court)] apply as if the defendant had been required to attend the court on that occasion; and

(c) if the defendant is absent when the declaration is served—

(i) the rules in Part 7 apply (Starting a prosecution in a magistrates’ court) as if the prosecutor had just served an application for a summons in the same terms as the original application or written charge;

(ii) the court may exercise its power to issue a summons in accordance with those rules; and

(iii) except for rule 24.8 (Written guilty plea: special rules), the rules in [F3 Part 24] then apply.

(5) Where the defendant serves such a declaration, in time or with an extension of time in which to do so, and the case began with a single justice procedure notice—

(a) the court must treat the single justice procedure notice and all subsequent proceedings as void (but not the written charge with which the case began);

(b) rule 24.9 (Single justice procedure: special rules) applies as if the defendant had served the notice required by paragraph (2)(b) of this rule within the time allowed by rule 24.9(4); and

(c) where that notice is under rule 24.9(4)(b) (notice of intention to plead guilty at a hearing before a court comprising more than one justice) or under rule 24.9(4)(c) (notice of intention to plead not guilty), then—

(i) if the defendant is present when the declaration is served, the rules in [F4 Part 24] apply as if the defendant had been required to attend the court on that occasion, or

(ii) if the defendant is absent when the declaration is served, paragraph (6) of this rule applies.

(6) Where this paragraph applies, the court must exercise its power to issue a summons and—

(a) the rules in Part 7 apply (Starting a prosecution in a magistrates’ court) as if the prosecutor had just served an application for a summons in the same terms as the written charge;

(b) except for rule 24.8 (Written guilty plea: special rules) and rule 24.9 (Single justice procedure: special rules), the rules in [F5 Part 24] apply.

(7) A court officer may take the statutory declaration to which this rule refers if that officer—

(a) is a justices’ legal adviser; or

(b) is nominated for the purpose by such a legal adviser.

[Note. Under sections 14 and 16E of the Magistrates’ Courts Act 1980, proceedings which begin with a summons, requisition or single justice procedure notice will become void if the defendant, at any time during or after the trial, makes a statutory declaration that he or she did not know of them until a date after the trial began.

Under section 14(3) or section 16E(9) of the 1980 Act, the court which decides whether or not to extend the time limit for serving a declaration under this rule may comprise a single justice.

Section 2 of the Commissioners for Oaths Act 1889(4) allows rules that regulate the procedure of a court to authorise the taking of a statutory declaration by an officer of that court.

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

Textual Amendments

F1 Words in rule 44.2(2)(a)(i) substituted (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 26(a)

F2 Words in rule 44.2(4)(b) substituted (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 26(b)

F3 Words in rule 44.2(4)(c)(iii) substituted (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 26(c)

F4 Words in rule 44.2(5)(c)(i) substituted (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 26(c)

F5 Words in rule 44.2(6)(b) substituted (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 26(c)

Commencement Information

I2 Rule 44.2 in force at 5.10.2020, see Preamble

Setting aside a conviction or varying a costs, etc. order E+W

44.3.—(1) This rule applies where under section 142 of the Magistrates’ Courts Act 1980(5), the court can—

(a) set aside a conviction, or

(b) vary or rescind—

(i) a costs order, or

(ii) an order to which Part 31 applies (Behaviour orders).

(2) The court may exercise its power—

(a) on application by a party, or on its own initiative; and

(b) at a hearing, in public or in private, or without a hearing.

(3) The court must not exercise its power in a party’s absence unless—

(a) the court makes a decision proposed by that party;

(b) the court makes a decision to which that party has agreed in writing; or

(c) that party has had an opportunity to make representations at a hearing (whether or not that party in fact attends).

(4) A party who wants the court to exercise its power must—

(a) apply in writing as soon as reasonably practicable after the conviction or order that that party wants the court to set aside, vary or rescind;

(b) serve the application on—

(i) the court officer, and

(ii) each other party; and

(c) in the application—

(i) explain why, as appropriate, the conviction should be set aside, or the order varied or rescinded,

(ii) specify any variation of the order that the applicant proposes,

(iii) identify any witness that the defendant wants to call, and any other proposed evidence,

(iv) say whether the defendant waives legal professional privilege, giving any relevant name and date, and

(v) if the application is late, explain why.

(5) The court may—

(a) extend (even after it has expired) the time limit under paragraph (4), unless the court’s power to set aside the conviction, or vary the order, can no longer be exercised; and

(b) allow an application to be made orally.

[Note. Under section 142 of the Magistrates’ Courts Act 1980—

(a) where a defendant is convicted by a magistrates’ court, the court may order that the case should be heard again by different justices; and

(b) the court may vary or rescind an order which it has made when dealing with a convicted defendant,

if in either case it appears to the court to be in the interests of justice to do so.

The power cannot be exercised if the Crown Court or the High Court has determined an appeal about that conviction or order.

See also rule 28.4 (Variation of sentence), which applies to an application under section 142 of the 1980 Act to vary or rescind a sentence.]

Commencement Information

I3 Rule 44.3 in force at 5.10.2020, see Preamble

(1)

1980 c. 43; section 14 was amended by section 109 of, and paragraph 205 of Schedule 8 to, the Courts Act 2003 (c. 39). Section 16E was inserted by section 48 of the Criminal Justice and Courts Act 2015 (c. 2).

(2)

1980 c. 43; section 142 was amended by sections 26 and 29 of, and Schedule 3 to, the Criminal Appeal Act 1995 (c. 35).

(3)

1980 c. 43; section 14 was amended by section 109 of, and paragraph 205 of Schedule 8 to, the Courts Act 2003 (c. 39). Section 16E was inserted by section 48 of the Criminal Justice and Courts Act 2015 (c. 2).

(4)

1889 c. 10; section 2 was amended by section 59 of, and paragraph 15 of Schedule 11 to, the Constitutional Reform Act 2005 (c. 4).

(5)

1980 c. 43; section 142 was amended by sections 26 and 29 of, and Schedule 3 to, the Criminal Appeal Act 1995 (c. 35).