The Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules (Northern Ireland) 1997

Statutory Rules of Northern Ireland

1997 No. 520

SUPREME COURT, NORTHERN IRELAND

CROWN COURT

The Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules (Northern Ireland) 1997

Made

1st December 1997

To be laid before Parliament

Coming into operation

1st January 1998

We, the Crown Court Rules Committee, in exercise of the powers conferred upon us by section 52(1) of the Judicature (Northern Ireland) Act 1978(1) and section 19 of the Criminal Procedure and Investigations Act 1996(2) and of all other powers enabling us in that behalf, hereby with the concurrence of the Lord Chancellor make the following Rules:—

Citation, commencement and interpretation

1.—(1) These Rules may be cited as the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules (Northern Ireland) 1997 and shall come into operation on 1st January 1998.

(2) In these Rules—

“the Act” means the Criminal Procedure and Investigations Act 1996(3) and a reference to a section or Part by number is a reference to the section or Part so numbered in the Act;

“the chief clerk” means the chief clerk of the Crown Court at the place where a case is being or is to be tried and includes such other member of the Northern Ireland Court Service as may be authorised to act on his behalf for the purpose in question;

“a scheduled offence” means an offence which is scheduled within the meaning of section 1 of the Northern Ireland (Emergency Provisions) Act 1996(4);

“the start of the trial” and cognate expressions shall be construed in accordance with section 39(3)(5) of the Act.

Public interest: application by prosecutor

2.—(1) This rule applies to the making of an application by the prosecutor under section 3(6), 7(5), 8(5) or 9(8) where Part I applies by virtue of section 1(2) (trial on indictment).

(2) Subject to paragraphs (3) to (5) below, notice of an application to which this rule applies shall be served on the chief clerk and on the accused and shall specify the nature of the material to which the application relates.

(3) Where the prosecutor has reason to believe that to reveal to the accused the nature of the material to which the application relates would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed, paragraph (2) above shall have effect as if the words from “and shall specify” to the end were omitted.

(4) Where the prosecutor has reason to believe that to reveal to the accused the fact that an application is being made would have the effect of disclosing that which the prosecutor contends should not in the public interest be disclosed, paragraph (2) above shall have effect as if the words from “and on the accused” to the end were omitted.

(5) Where an application to which this rule applies is made under paragraph (2) above as it has effect in accordance with paragraph (4) above, notice of the application instead of being served on the chief clerk may be served—

(a) where the offence charged is a scheduled offence, on such judge as has been designated by the Lord Chief Justice for the purposes of hearing the application;

(b) in any other case, on the trial judge, or if the application is made before the start of the trial, on the judge, if any, who has been designated to conduct the trial or to hear the application.

Public interest: hearing of an application by the prosecutor

3.—(1) This rule applies to the hearing of an application by the prosecutor under section 3(6), 7(5), 8(5) or 9(8) where Part I applies by virtue of section 1(2).

(2) On receipt of an application to which this rule applies, the chief clerk shall refer it—

(a) where the offence charged is a scheduled offence, to such judge as has been designated by the Lord Chief Justice for the purposes of hearing the application;

(b) in any other case—

(i) if the trial has started, to the trial judge, or

(ii) if the application is received before the start of the trial, either to the judge who has been designated to conduct the trial or, if no judge has been designated for that purpose, to such judge as may be designated for the purposes of hearing the application.

(3) Subject to paragraphs (4) and (5) below and to rule 6(4), where the application is made in accordance with rule 2(2)—

(a) the chief clerk shall give notice to—

(i) the prosecutor;

(ii) the accused; and

(iii) any person claiming to have an interest in the material to which the application relates who has applied under section 16(b) to be heard by the Court,

of the date and time when, and the place where, the hearing will take place and unless the Court orders otherwise, such notice shall be given in writing;

(b) the hearing shall be inter partes; and

(c) the prosecutor and the accused shall be entitled to make representations to the Court.

(4) Where the prosecutor applies to the Court for leave to make representations in the absence of the accused, the Court may for that purpose sit in the absence of the accused and any legal representative of his.

(5) Subject to rule 6(4), where the application is made under rule 2(2) as it has effect in accordance with rule 2(3) or (4)—

(a) the accused shall not be given notice as specified in paragraph (3) above;

(b) the hearing shall be ex parte; and

(c) only the prosecutor shall be entitled to make representations to the Court;

and, where notice of the application has been served in accordance with rule 2(5), the judge on whom it is served shall take such steps as he considers appropriate to ensure that notice is given as required by paragraph (3)(a)(i) and (iii) above.

Public interest: non-disclosure order

4.—(1) This rule applies to an order under section 3(6), 7(5), 8(5) or 9(8).

(2) On making an order to which this rule applies, the Court shall state its reasons for doing so and a record shall be made of that statement.

(3) In a case where such an order is made following—

(a) an application which has been made under rule 2(2) as it has effect in accordance with rule 2(3), or

(b) an application which has been made under rule 2(2) but the accused has not appeared or been represented at the hearing of that application,

the chief clerk shall notify the accused that an order has been made:

Provided that no notification under this paragraph shall be given in a case where an order is made following an application which has been made under rule 2(2) as it has effect in accordance with rule 2(4).

Review of non-disclosure order: application by accused

5.—(1) This rule applies to an application by the accused under section 14A(2) or section 15(4).

(2) An application under section 14A(2) or section 15(4) shall be made by notice in writing to the chief clerk and shall specify the reason why the accused believes the Court should review—

(a) in an application under section 14A(2), the question mentioned in that section;

(b) in an application under section 15(4), the question mentioned in section 15(3).

(3) The accused shall at the same time serve a copy of the notice referred to in paragraph (2) above on the prosecutor.

(4) On receipt of an application under section 14A(2), the chief clerk shall refer it to such judge as has been designated by the Lord Chief Justice for the purposes of determining the application.

(5) On receipt of an application under section 15(4), the chief clerk shall refer it—

(a) if the trial has started, to the trial judge, or

(b) if the application is received before the start of the trial either—

(i) to the judge who has been designated to conduct the trial, or

(ii) if no judge has been designated for that purpose, to the judge who made the order to which the application relates.

(6) The judge to whom an application to which this rule applies has been referred in accordance with paragraph (4) or (5) above shall consider whether the application may be determined without a hearing and, subject to paragraph (7) below, may so determine it if he thinks fit.

(7) No application to which this rule applies shall be determined without a hearing if it appears to the judge that there are grounds on which the Court might conclude that it is in the public interest to disclose material to any extent.

(8) Subject to paragraphs (9) and (10) below and to rule 6(4), the hearing of an application to which this rule applies shall be inter partes and the accused and the prosecutor shall be entitled to make representations to the Court.

(9) Where after hearing the accused’s representations, the prosecutor applies to the Court for leave to make representations in the absence of the accused, the Court may for that purpose sit in the absence of the accused and any legal representative of his.

(10) Subject to rule 6(4), where the order to which the application relates was made following an application which was made under rule 2(2) as it has effect in accordance with rule 2(4), the hearing shall be ex parte and only the prosecutor shall be entitled to make representations to the Court.

(11) The chief clerk shall give notice in writing to—

(a) the prosecutor;

(b) except where a hearing takes place in accordance with paragraph (10) above, the accused; and

(c) any person claiming to have an interest in the material to which the application relates who has applied under section 16(b) to be heard by the Court,

of the date and time when, and place where, the hearing of an application to which this rule applies will take place and of any order which is made by the Court following its determination on the hearing of the application.

(12) Where an application to which this rule applies is determined without a hearing in pursuance of paragraph (6) above, the chief clerk shall give notice in writing to—

(a) the prosecutor;

(b) except where the order to which the application relates was made following an application under rule 2(2) as it has effect in accordance with rule 2(4), the accused; and

(c) any person claiming to have an interest in the material to which the application relates who has applied under section 16(b) to be heard by the Court,

of any order which is made by the Court following its determination of the application.

Applications: interested persons

6.—(1) Where the prosecutor has reason to believe that a person who was involved (whether alone or with others and whether directly or indirectly) in the prosecutor’s attention being brought to any material to which an application under section 3(6), 7(5), 8(5), 9(8), 14A(2) or 15(4) relates may claim to have an interest in that material, the prosecutor shall—

(a) in the case of an application under section 3(6), 7(5), 8(5) or 9(8) at the same time as notice of application is served under rule 2(2) or (5);

(b) in the case of an application under section 14A(2) or section 15(4), when he receives a copy of the notice referred to in rule 5(2),

give notice in writing to—

(i) the person concerned, of the application, and

(ii) the chief clerk or, as the case may require, the judge, of his belief and the grounds for it.

(2) An application under section 16(b) shall be made by notice in writing to the chief clerk or, as the case may require, the judge, as soon as is reasonably practicable after—

(a) notice under paragraph (1)(i) above is received, or

(b) if no such notice is received, the person concerned becomes aware of the application referred to in paragraph (1)(i) above,

and shall specify the nature of the applicant’s interest in the material and his involvement in bringing the material to the prosecutor’s attention.

(3) A copy of the notice referred to in paragraph (2) above shall be served on the prosecutor at the same time as it is sent to the chief clerk or the judge.

(4) At the hearing of an application under section 3(6), 7(5), 8(5), 9(8), 14A(2) or 15(4) a person who has made an application under section 16(b) in accordance with paragraph (2) above shall be entitled to make representations to the Court.

Disclosure: application by the accused and order of the court

7.—(1) This rule applies to an application by the accused under section 8(2).

(2) An application to which this rule applies shall be made by giving notice in writing to the chief clerk and shall specify—

(a) the material to which the application relates;

(b) that the material has not been disclosed to the accused;

(c) the reason why the material might be expected to assist the accused’s defence as disclosed by the defence statement given under section 5; and

(d) the date of service of a copy of the notice on the prosecutor in accordance with paragraph (3) below.

(3) The accused shall at the same time serve a copy of the notice referred to in paragraph (2) above on the prosecutor.

(4) On receipt of an application to which this rule applies, the chief clerk shall refer it—

(a) where the offence charged is a scheduled offence, to such judge as may be designated by the Lord Chief Justice for the purposes of determining the application;

(b) in any other case—

(i) if the trial has started, to the trial judge; or

(ii) if the application is received before the start of the trial, to the judge who has been designated to conduct the trial, or if no judge has been designated for that purpose, to such judge as may be designated for the purposes of determining the application.

(5) The judge to whom an application to which this rule applies has been referred under paragraph (4) above shall consider whether the application may be determined without a hearing and, subject to paragraph (7) below, may so determine it if he thinks fit.

(6) The prosecutor shall give notice in writing to the chief clerk within 14 days of service of a notice under paragraph (3) above that—

(a) he wishes to make representations to the Court concerning the material to which the application relates; or

(b) if he does not so wish, that is willing to disclose that material;

and a notice under sub-paragraph (a) above shall specify the substance of the representations he wishes to make.

(7) No application to which this rule applies shall be determined without a hearing if—

(a) the prosecutor has given notice under paragraph (6)(a) above and the judge to whom the application has been referred considers that the representations should be made at a hearing; or

(b) that judge considers a hearing to be necessary in the interests of justice for the purposes of determining the application.

(8) Subject to paragraph (9) below, where a hearing is held in pursuance of this rule—

(a) the chief clerk shall give notice in writing to the prosecutor and the accused of the date and time when, and the place where, the hearing will take place;

(b) the hearing shall be inter-partes;

(c) the prosecutor and the accused shall be entitled to make representations to the Court.

(9) Where the prosecutor applies to the Court for leave to make representations in the absence of the accused, the Court may for that purpose sit in the absence of the accused and any legal representative of his.

(10) The chief clerk shall serve a copy of any order under section 8(2) on the prosecutor and the accused.

Disclosure: application for extension of the time-limit and order of the court

8.—(1) This rule applies to an application under paragraph (2) of Regulation 4 of the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997(6) (‘the 1997 Regulations'), (including that paragraph as applied by Regulation 5(2) those Regulations) to extend the relevant period for section 5.

(2) An application to which this rule applies shall be made by notice in writing to the chief clerk and shall, in addition to the matters referred to in paragraphs (a) to (c) of Regulation 4(3) of the 1997 Regulations, specify the date of service of a copy of the notice of application on the prosecutor in accordance with paragraph (3) below.

(3) The applicant shall at the same time serve a copy of the notice referred to in paragraph (2) above on the prosecutor.

(4) The prosecutor may make representations to the Court concerning the application and if he wishes to do so, he shall do so in writing within 14 days of service of a notice under paragraph (3) above.

(5) The Court shall consider the application and any representations made under paragraph (4) above and may, if it wishes, do so at a hearing.

(6) Where a hearing is held in pursuance of this rule—

(a) the chief clerk shall give notice in writing to the prosecutor and to the applicant of the date and time when, and the place where, the hearing will take place;

(b) the hearing shall be inter partes; and

(c) the prosecutor and the applicant shall be entitled to make representations to the Court.

(7) The chief clerk shall serve a copy of any order made under Regulation 4(1) or 5(1) of the 1997 Regulations on the prosecutor and the applicant.

General

9.—(1) Any hearing held in pursuance of or in accordance with these Rules—

(a) may be adjourned from time to time;

(b) other than one held in pursuance of rule 8, may be held in private.

(2) Where a hearing, or any part thereof, is held in private in pursuance of paragraph (1)(b) above, the Court may specify conditions subject to which the record of its statement of reasons made in pursuance of rule 4(2) is to be kept.

(3) Where an application or order to which any provision of these Rules applies is made after the start of the trial,—

(a) where the offence charged is a scheduled offence, the judge designated for the purposes of determining the application;

(b) in any other case, the trial judge,

may direct that any provisions of these Rules requiring notice of the application or order to be given to any person shall not have effect and may give such direction as to the giving of notice in relation to that application or order as he thinks fit.

R. D. Carswell

John K. Pringle

J. M. Nicholson

A. R. Hart

J. O. Brady

J. W. Wilson

J. L. Bamford

Barra McGrory

Patrick Lynch

R. Appleton

Dated 11th November 1997

I concur,

Irvine of Lairg, C.

Dated 1st December 1997

Explanatory Note

(This note is not part of the Rules.)

These Rules provide for the practice and procedure to be followed in the Crown Court in relation to—

(a) applications under sections 3(6), 7(5), 8(2) and (5), 9(8), 14A(2), 15(4) and 16(b) of the Criminal Procedure and Investigations Act 1996 (‘the Act');

(b) applications under the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 (“the 1997 Regulations”);

(c) orders under sections 3(6), 7(5), 8(2) and (5) and 9(8) of the Act;

(d) orders under sections 14A(3) and 15(5) of the Act;

(e) orders under the 1997 Regulations.

(1)

1978 c. 23

(2)

1996 c. 25; section 19 is modified in its application to Northern Ireland by paragraph 12 of Schedule 4 to the Act

(3)

1996 c. 25; as modified in its application to Northern Ireland by Schedule 4 to the Act

(4)

1996 c. 24

(5)

Section 39 is modified in its application to Northern Ireland by paragraph 15 of Schedule 4 to the Act

(6)

S.I. 1997/2680