PART 23RESTRICTION ON CROSS-EXAMINATION BY A DEFENDANT
GENERAL RULES
Appointment of advocate to cross-examine witnessI123.2
1
This rule applies where a defendant may not cross-examine in person a witness in consequence of—
a
the prohibition imposed by section 34 or section 35 of the Youth Justice and Criminal Evidence Act 1999; or
b
a prohibition imposed by the court under section 36 of the 1999 Act.
2
The court must, as soon as practicable, explain in terms the defendant can understand (with help, if necessary)—
a
the prohibition and its effect;
b
that if the defendant will not be represented by a lawyer with a right of audience in the court for the purposes of the case then the defendant is entitled to arrange for such a lawyer to cross-examine the witness on his or her behalf;
c
that the defendant must notify the court officer of the identity of any such lawyer, with details of how to contact that person, by no later than a date set by the court; and
d
that if the defendant does not want to make such arrangements, or if the defendant gives no such notice by that date, then—
i
the court must decide whether it is necessary in the interests of justice to appoint such a lawyer to cross-examine the witness in the defendant’s interests, and
ii
if the court decides that that is necessary, the court will appoint a lawyer chosen by the court who will not be responsible to the defendant.
3
Having given those explanations, the court must—
a
ask whether the defendant wants to arrange for a lawyer to cross-examine the witness, and set a date by when the defendant must notify the court officer of the identity of that lawyer if the answer to that question is ‘yes’; and
b
if the answer to that question is ‘no’, or if by the date set the defendant has given no such notice—
i
decide whether it is necessary in the interests of justice for the witness to be cross-examined by an advocate appointed to represent the defendant’s interests, and
ii
if the court decides that that is necessary, give directions for the appointment of such an advocate.
4
The court may give the explanations and ask the questions required by this rule—
a
at a hearing, in public or in private; or
b
without a hearing, by written notice to the defendant.
5
The court may extend (even after it has expired) the time limit that it sets under paragraph (3)(a)—
a
on application by the defendant; or
b
on its own initiative.
6
Paragraphs (7), (8), (9) and (10) apply where the court appoints an advocate.
7
The directions that the court gives under paragraph (3)(b)(ii) must provide for the supply to the advocate of a copy of—
a
all material served by one party on the other, whether before or after the advocate’s appointment, to which applies—
i
Part 8 (Initial details of the prosecution case),
ii
in the Crown Court, rule 3.19 (service of prosecution evidence in a case sent for trial),
iii
Part 16 (Written witness statements),
iv
Part 19 (Expert evidence),
v
Part 20 (Hearsay evidence),
vi
Part 21 (Evidence of bad character), or
vii
Part 22 (Evidence of a complainant’s previous sexual behaviour);
b
any material disclosed, given or served, whether before or after the advocate’s appointment, which is—
i
prosecution material disclosed to the defendant under section 3 (Initial duty of prosecutor to disclose) or section 7A (Continuing duty of prosecutor to disclose) of the Criminal Procedure and Investigations Act 1996464,
ii
a defence statement given by the defendant under section 5 (Compulsory disclosure by accused) or section 6 (Voluntary disclosure by accused) of the 1996 Act465,
iii
a defence witness notice given by the defendant under section 6C of that Act466 (Notification of intention to call defence witnesses), or
iv
an application by the defendant under section 8 of that Act467 (Application by accused for disclosure);
c
any case management questionnaire prepared for the purposes of the trial or, as the case may be, the appeal; and
d
all case management directions given by the court for the purposes of the trial or the appeal.
8
Where the defendant has given a defence statement—
a
section 8(2) of the Criminal Procedure and Investigations Act 1996 is modified to allow the advocate, as well as the defendant, to apply for an order for prosecution disclosure under that subsection if the advocate has reasonable cause to believe that there is prosecution material concerning the witness which is required by section 7A of the Act to be disclosed to the defendant and has not been; and
b
rule 15.5 (Defendant’s application for prosecution disclosure) applies to an application by the advocate as it does to an application by the defendant.
9
Before receiving evidence the court must establish, with the active assistance of the parties and of the advocate, and in the absence of any jury in the Crown Court—
a
what issues will be the subject of the advocate’s cross-examination; and
b
whether the court’s permission is required for any proposed question, for example where Part 21 or Part 22 applies.
10
The appointment terminates at the conclusion of the cross-examination of the witness.
[Note. See section 38 of the Youth Justice and Criminal Evidence Act 1999468. Under section 38(8) the references in that section to a ‘legal representative’ are to a representative who is an advocate within the meaning of rule 2.2.
Under section 38(7) of the 1999 Act, where the court appoints an advocate Criminal Procedure Rules may apply with modifications any of the provisions of Part I of the Criminal Procedure and Investigations Act 1996. A summary of the disclosure requirements of the 1996 Act is at the end of Part 15 (Disclosure). Under section 5 of that Act, in the Crown Court the defendant must give a defence statement. Under section 6, in a magistrates’ court the defendant may give such a statement but need not do so. Under section 6C, in the Crown Court and in magistrates’ courts the defendant must give a defence witness notice indicating whether he or she intends to call any witnesses (other than him or herself) and, if so, identifying them. Under section 8 a defendant may apply for prosecution disclosure only if the defendant has given a defence statement.]