The Criminal Procedure (Amendment No. 2) Rules 2024

Amendments to the Criminal Procedure Rules

12.  In Part 41 (Reference to the Court of Appeal of point of law or unduly lenient sentencing)—

(a) in rule 41.1 (When this Part applies)—

(i) for the words of the rule substitute—

“41.1.   This Part applies where—

(a) the Attorney General wants to refer to the Court of Appeal—

(i) a point of law under section 36 of the Criminal Justice Act 1972(1), or

(ii) a sentencing case under section 36 of the Criminal Justice Act 1988(2);

(b) the Attorney General or the Counsel General for Wales wants to refer to the Court of Appeal a point of law under section 6B of the European Union (Withdrawal) Act 2018(3); or

(c) a magistrates’ court or the Crown Court decides to refer to the Court of Appeal a point of law under section 6A of the European Union (Withdrawal) Act 2018(4).”, and

(ii) after the second paragraph of the note to the rule insert—

“Under section 6A of the European Union (Withdrawal) Act 2018, where a magistrates’ court or the Crown Court must apply assimilated case law, as defined in section 6 of that Act, then unless that assimilated case law is case law of the Supreme Court the court can refer to the Court of Appeal for decision one or more points of law (i) which arise on the interpretation or application of that case law, (ii) which are relevant to a case proceeding in the referring court, and (iii) which the referring court considers to be of general public importance. (Assimilated case law of the Supreme Court must be referred direct to that court.)

Under section 6B of the 2018 Act the Attorney General can refer such a point of law which arose in a case in a magistrates’ court or the Crown Court which has ended.”;

(b) in rule 41.2 (Service of notice of reference and application for permission)—

(i) in paragraph (1) after “notice” insert “of reference of a point of law under section 36 of the Criminal Justice Act 1972” and after “sentencing case” insert “under section 36 of the Criminal Justice Act 1988”,

(ii) in paragraph (2) after “refers” insert “such”,

(iii) in paragraph (3) and in paragraph (4) after “permission to refer” insert “such”,

(iv) after paragraph (4) insert—

“(5) The Attorney General or the Counsel General for Wales must serve any notice of reference of a point of law under section 6B of the European Union (Withdrawal) Act 2018 on—

(a) the Registrar;

(b) the defendant; and

(c) each other law officer listed in section 6B(2).

(6) A reference to which paragraph (5) applies must be served not more than 6 months after—

(a) the last day on which an appeal in the case could have been made, if there has been no appeal; or

(b) the day on which any such appeal finally was dealt with.”, and

(v) for the note to the rule substitute—

“[Note. The time limit for serving an application for permission to refer a sentencing case is prescribed by paragraph 1 of Schedule 3 to the Criminal Justice Act 1988(5). The time limit for serving a reference of a point of law under section 6B of the European Union (Withdrawal) Act 2018 is prescribed by section 6B(3). Neither time limit may be extended or shortened.]”;

(c) in rule 41.3 (Form of notice and reference and application for permission)—

(i) in paragraph (1) after “sentencing case” insert “under rule 41.2”,

(ii) in paragraph (2), in the words before sub-paragraph (a), after “point of law” insert “under section 36 of the Criminal Justice Act 1972”,

(iii) in paragraph (2)(a) for “opinion” substitute “conclusion on the matter raised” and for “give” substitute “reach”,

(iv) in paragraph (3) after “sentencing case” insert “under section 36 of the Criminal Justice Act 1988”,

(v) in paragraph (6) after “notice of reference” insert “under paragraph (2) or (4)”, and

(vi) after paragraph (6) insert—

“(7) A notice of reference of a point of law under section 6B of the European Union (Withdrawal) Act 2018 must—

(a) confirm that the conditions for making a reference listed in section 6B(1) are met;

(b) specify the point of law in issue and explain the relevance of that point of law to the proceedings which have ended;

(c) indicate the conclusion on the matter raised that the Attorney General or the Counsel General for Wales (as the case may be) invites the court to reach;

(d) identify each ground for that invitation, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(e) summarise the relevant facts; and

(f) identify any relevant authorities.”;

(d) in rule 41.4 (Respondent’s notice) in paragraph (1) after “defendant on whom” insert “under rule 41.2” and after “point of law” insert “under section 36 of the Criminal Justice Act 1972”;

(e) in rule 41.5 (Variation or withdrawal of notice of reference or application for permission) in paragraph (1) after “notice of reference” insert “under rule 41.2”;

(f) renumber rules 41.6 (Right to attend hearing) and 41.7 (Anonymity of defendant on reference of point of law) as 41.7 and 41.8 respectively;

(g) after rule 41.5 insert—

“Reference of point of law by a court

41.6.— (1) A magistrates’ court or the Crown Court—

(a) may refer to the Court of Appeal a point of law arising on assimilated case law, other than case law of the Supreme Court, under section 6A of the European Union (Withdrawal) Act 2018—

(i) on application by a party, or

(ii) on the referring court’s own initiative; and

(b) may direct the preparation of the reference by a party.

(2) Such a reference must—

(a) specify—

(i) the assimilated case law concerned, and

(ii) the point or points of law referred;

(b) identify the referring court and the prosecutor in the case;

(c) summarise—

(i) the nature and history of the case,

(ii) the relevant facts, and

(iii) the relevant contentions of the parties;

(d) explain why the referring court—

(i) considers the point or points of law referred to be relevant to the case proceeding in that court, and

(ii) why that court considers that point or those points of law to be of general public importance; and

(e) exclude any reference to the defendant’s name and any other information that may identify the defendant.

(3) The court officer for the referring court must—

(a) serve the reference on the Registrar; and

(b) give the Registrar details of the defendant affected.”;

(h) in rule 41.7, as renumbered, for “respondent” substitute “defendant” in each place it occurs; and

(i) amend the table of contents correspondingly.

(1)

1972 c. 71; section 36 was amended by section 31 of, and paragraph 8 of Schedule 1 to, the Prosecution of Offences Act 1985 (c. 23), section 148 of, and paragraph 23 of Schedule 9 to, the Constitutional Reform Act 2005 (c. 4) and section 151 of, and paragraph 9 of Schedule 7 to, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10).

(2)

1988 c. 33; section 36 was amended by section 272 of, and paragraphs 45 and 46 of Schedule 32 and paragraph 96 of Schedule 36 to, the Criminal Justice Act 2003 (c. 44), section 40 of, and paragraph 48 of Schedule 9 to, the Constitutional Reform Act 2005 (c. 4), sections 49 and 65 of, and paragraph 3 of Schedule 1 and Schedule 5 to, the Violent Crime Reduction Act 2006 (c. 38), sections 46, 148 and 149 of, and paragraphs 22 and 23 of Schedule 26 and Part 3 of Schedule 28 to, the Criminal Justice and Immigration Act 2008 (c. 4), paragraph 2 of Schedule 19 and paragraphs 4 and 5 of Schedule 26 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), section 28 of, and paragraph 2 of Schedule 5 to, the Criminal Justice and Courts Act 2015 (c. 2) and section 416 of, and paragraphs 89 and 267 of Schedule 24 to, the Sentencing Act 2020 (c. 17).

(3)

2018 c. 16; section 6B is inserted by section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (c. 28) with effect from a date to be appointed.

(4)

2018 c. 16; section 6A is inserted by section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (c. 28) with effect from a date to be appointed.

(5)

1988 c. 33.