Background
Provisions relating to criminal procedure and appeals
Appeals to Court of Appeal: procedural directions
204.This section inserts new sections into the Criminal Appeal Act 1968 (CAA 1968) to extend the powers of (a) a single judge in the Court of Appeal Criminal Division and (b) the Registrar of the Court of Appeal Criminal Division prior to determination by the full court of an appeal or application for leave to appeal. New section 31B will enable either a single judge or the Registrar to give procedural directions that need not trouble the full court, thus reducing delay. Section 31C provides, in the case of a decision of a single judge, for the appellant, or under specified circumstances, the prosecution, to apply to the full court to review such a direction. Section 31C also provides for the decision by the Registrar to be reviewed by a single judge in the first instance, or if the defence or prosecution so wish, further reviewed by the full court.
205.In the Court of Appeal Criminal Division, single judges consider applications for leave to appeal and act as a 'filter' by carrying out certain specified functions of the full Court of Appeal. Section 31 of the CAA 1968 lists the powers of the Court of Appeal which may be exercised by a single judge. However, the inability of the single judge to make a broader range of procedural directions for the conduct and progress of an appeal can lead to delay and unnecessary complication.
206.The Auld Review recommended that a judge of the Court of Appeal should be empowered, when considering applications for leave to appeal, to give procedural directions for the hearing of the application or of the appeal that need not trouble the full court, subject to a right on the part of the applicant or the prosecution, as the case may be, to renew the application to the full court.
207.The role of the Registrar of Criminal Appeals, who is also the Registrar of the Courts-Martial Appeal Court, currently combines both judicial and administrative functions. The Registrar has ultimate responsibility for the management and running of the Criminal Appeal Office, which has a staff of 150. The Registrar also provides a key reference point for the judiciary in the criminal justice system. He undertakes the judicial responsibilities listed in section 31A of the Criminal Appeal Act 1968. In the future, the judicial and administrative functions of the posts of Registrar of Criminal Appeals and Registrar of the Courts-Martial Appeal Court will be separated so that they become more clearly judicial offices. The Registrar's administrative duties will fall to appropriate Court Service staff. These changes will come into effect upon the appointment of the next office holder.
208.The aim is to enable the Registrar to give procedural directions for the preparation or hearing of the application or of the appeal, subject to a right on the part of the applicant or the prosecution, as the case may be, to submit the matter to a single judge for review. However, the intention is also to enable the Lord Chief Justice to further define by practice direction the use and operation of the Registrar’s power to make procedural directions. This would allow maximum flexibility in responding to the changing needs of the Court of Appeal Criminal Division.
Prosecution appeals from Court of Appeal
209.The Act amends section 2 of the Administration of Justice Act 1960 and section 34 of the CAA 1968 by extending the time in which an application by either the defence or the prosecution for leave to appeal from a decision of the Court of Appeal Criminal Division can be made. It also makes clear that time begins to run against either the prosecution or the defendant from the date of the Court of Appeal’s reasoned judgment, rather than from the date of the Court’s decision. The Act makes provision with the same effect in relation to Northern Ireland by amending paragraph 1 of Schedule 1 to the Judicature (Northern Ireland) Act 1978 and section 32 of the Criminal Appeal (Northern Ireland) Act 1980.
210.The Auld Review recommended that section 34(2) of the CAA 1968 should be amended to empower the House of Lords and Court of Appeal, as the case may be, to extend the time within which a prosecutor may apply for leave to appeal, as it does in the case of a defendant.
211.There is a disparity between a defendant and a prosecutor as to the operation of the time limits within which each may petition the House of Lords for leave to appeal where the Court of Appeal, having certified a point of law of general public importance, has refused leave. Both have 14 days from the decision of the Court of Appeal to apply to it for leave and, if leave is refused by the Court, a further 14 days from the date of refusal to petition the House of Lords. Whilst the House or the Court have power at any time to extend a defendant’s time for application for leave, neither has power to do so if the prosecutor wishes leave but fails to apply within time. The Act will now give both the defence and the prosecution an extra 14 days. However, it was not considered appropriate to accept the recommendation that the prosecution should be able to apply for an extension of time – this would leave a defendant with the indefinite possibility of the original conviction being restored by the House of Lords.
Retirement age of the Registrar of Criminal Appeals
212.This section brings the retirement age of the Registrar of Criminal Appeals into line with that for other judicial office holders (i.e. a normal compulsory retirement age of 70 for those appointed after the implementation of the Judicial Pensions and Retirement Act 1993 (JPRA 1993) in March 1995). Currently the registrar must retire at the age of 62. This is not only out of line with the retirement age for judicial office-holders generally but also inconsistent with the terms of the judicial pension scheme under which benefits are normally only payable at the age of 65.
Fees, costs and fines
Fees
213.The Act will provide a single unified power for the Lord Chancellor to set the level of fees in the Supreme Court, county courts and magistrates’ courts, where another power does not take precedence. This power is subject to the consent of Treasury and it replaces the previous separate powers for each tier provided under section 130 of the SCA 1981, section 128 of the CCA 1984 and section 137 of the MCA 1980. It also incorporates and replaces the separate power in relation to family proceedings in the Matrimonial and Family Proceedings Act 1984, section 41. It will allow the Lord Chancellor to set different fees and different levels of fees for different tiers of court and for different types of business and to provide for exemptions, reductions and remissions of fees. It is anticipated that separate fees orders will be made for civil proceedings and family proceedings.
214.When including any provision in an order under this section, the Lord Chancellor must have regard to the principle that access to the courts must not be denied. Any fees orders made under the new unified fee setting power will be subject to negative resolution. Any fees orders made under this new power will require prior consultation with the relevant senior judiciary and, for civil business only, the Civil Justice Council. (The Civil Justice Council is an advisory public body established by the AJA 1999, as a continuing body with responsibility for over-seeing and co-ordinating the modernisation of the civil justice system as laid out in Lord Woolf's report "Access to Justice".)
215.The Act also provides for the Lord Chancellor to take reasonable steps to inform persons of the fees they are likely to pay and will enable the recovery of defaulted fees as a civil debt.
Award of costs against third parties
216.The Act provides for criminal courts to have power to order third parties to pay costs incurred by parties to a criminal case as a result of the third party’s serious misconduct.
217.Costs in criminal cases are governed by Part II of the Prosecution of Offences Act 1985 (POA 1985). This provides for certain costs in criminal proceedings, in particular the costs of acquitted defendants, to be paid out of ‘central funds’ (that is public money). This, taken with the fact that most prosecutions are brought by the State and most defendants are legally aided, means that the legal costs of criminal proceedings are mostly met by the taxpayer
218.Section 19 of the POA 1985 provides for the Lord Chancellor to make regulations which empower the court to order one party to pay the costs incurred by the other as a result of the first party’s unnecessary or improper act or omission. Section 19A of the Act provides for the court to make wasted costs orders against legal representatives in criminal proceedings. Regulations provide for costs paid out of central funds or by the Criminal Defence Service to be recouped when an order is made under either of these sections.
219.The POA 1985 does not currently allow for the court to order third parties to pay costs. Where costs are wasted or incurred as a result of a third party’s action these would fall to be paid by the parties to the case or, more likely, the taxpayer. In a recent case, a newspaper published an article that caused the abandonment of a trial, leading to wasted costs, mostly payable by the taxpayer, of some £1m.
220.A power for courts to order third parties to pay costs is not novel. A broader power already exists in the civil courts. However, the power introduced by the Act will be limited to instances of serious misconduct by a third party.
Fines
221.These sections and attendant schedules, coupled with the creation of fines officers in section 36, are intended to improve the effectiveness of fine enforcement. Further background can be found at paragraphs 33-36. The Act introduces (section 97 and Schedules 5 and 6) a range of new powers to improve the effectiveness of fine enforcement.
222.At present, performance in enforcing payment of fines is poor. Much of the work involved in enforcing fines is reserved to magistrates, including tasks that are essentially administrative in nature. The range of incentives and sanctions available to the courts is limited. Courts are constrained by legislation in the approach they can take to enforcing payment of fines and other financial penalties imposed after criminal proceedings.
Register of Judgments etc and execution of writs
High Court Writs of Execution
223.Although High Sheriffs are unpaid volunteers whose duties are mainly social and ceremonial, they also have nominal responsibility for High Court enforcement in the area to which they are appointed. High Sheriffs appoint and delegate these duties to an Under Sheriff and Sheriffs Officers who carry out the day to day involvement in High Court enforcement work. Following the publication of the Green Paper: Towards Effective Enforcement in July 2001 and reports by the Advisory Group on Enforcement Service Delivery, the Government decided that the current system was unsatisfactory and placed an onerous responsibility on volunteers. Section 99 and Schedule 7 provide for a new system of High Court enforcement.
Damages
224.These sections aim to promote the widespread use of periodical payments as the means of paying compensation for future financial loss in personal injury cases. In principle, periodical payments made as the needs arise provide a more appropriate means of compensating claimants than lump sums. The sections amend provisions in the Damages Act 1996 relating to periodical payments and structured settlements (which are periodical payments funded by an annuity). At present, the court can only order that an award of damages for personal injury be made by way of periodical payments where both parties consent, and otherwise will order payment by way of a lump sum.
225.The Act enables courts in England, Wales and Northern Ireland to order periodical payments for future loss and care costs without the consent of the parties. It also gives the Lord Chancellor a power to enable awards or agreements for periodical payments to be varied under specified circumstances, and prevents the assignment of the right to receive payments unless the court is satisfied that there are special circumstances which make this necessary.
226.Provision is made to extend the statutory protection given to structured settlements under the 1996 Act, and ensure that the continuity of periodical payments is fully protected where the payments are self-funded by an insurer, a public sector body protected by Ministerial guarantee, or a specified Government or health service body, or where payments are funded by an annuity. These provisions will apply to the whole of the United Kingdom.
227.These sections implement proposals set out in Damages for future loss: Giving the courts the power to order periodical payments in personal injury cases, a Consultation Paper published by the Lord Chancellor's Department on 13 March 2002. The post-consultation report was published on 7 November 2002. These documents have been placed in the Libraries of both Houses.
Provisions relating to Northern Ireland
228.Sections 102 and 104-106 make provision in respect of Northern Ireland equivalent to sections 64, 86, 88, and 92(2). Section 103 also make changes to the future status of the Official Solicitor of the Supreme Court of Northern Ireland so that the office is no longer included with other judicial type posts (statutory officer posts). Instead it will be made the subject of separate and specific provisions governing such matters as appointment and remuneration. The change will not however affect the existing postholder.
