Criminal Practice Directions

Published June 2021

This legal guide is intended to assist lawyers representing children in the criminal courts and explains how the Criminal Practice Directions1 can support in this context.

The Criminal Practice Directions supplement the Criminal Procedure Rules by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children. Throughout this guide, we refer to both the Rules, the CrimPR, and the Practice Directions, the CrimPD.

It is well known that many children appearing in criminal courts have communication or learning difficulties.2 They are disproportionately likely to have a neurodisability, mental health problem or to have suffered a traumatic brain injury.3 These factors, as well as age and normal adolescent development, can make it difficult for children to participate in criminal proceedings, particularly in the Crown Court.

Defendants have a right to effective participation when they appear in criminal proceedings. This right has been articulated by the European Court of Human Rights (ECtHR)4 through Article 6 of the European Convention on Human Rights (ECHR), ‘right to a fair trial’. The CrimPD is the key domestic provision that sets out in detail ways to implement that effective participation right – it details a range of adjustments to proceedings that should be considered when children appear in the criminal courts.

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Status of the Criminal Practice Directions

The CrimPR are the ‘rules’ governing the practice and procedure to be followed in the criminal courts.5 They are secondary legislation.

The CrimPD, on the other hand, are not secondary legislation. They:

• supplement the rules acting as a guide for the exercise of judicial discretion
• are binding on the criminal courts6
• detail a range of adjustments (special measures and procedural modifications) that should be considered in all cases that involve a child defendant.7

Overview of modifications for child defendants

The CrimPD permits the use of modifications to the trial process, including:8

• the support of intermediaries
• removal of wigs and gowns
• allowing the child to sit not in the dock but rather with family members or others in a like relationship, and with another suitable supporting adult (e.g. social worker), and in a place which permits easy and informal communication with lawyers
• giving evidence via live link
• a ‘ground rules hearing’ (GRH) to plan the questioning of a child defendant
• regular breaks and appropriate timetabling, and
• appropriate use of language.

Applying the Criminal Practice Directions

• Legal representatives must be familiar with the detailed provisions in the CrimPD and ensure that they are complied with.9
• Time for raising the CrimPD:
  • In the Crown Court, at the plea and trial preparation hearing (PTPH), where the PTPH form requires identification of any modifications sought or likely to be sought.10
  • In the youth court, at the first appearance.11
• Where an application for special measures is granted or refused, the court must give its reasons.12

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In 1999, in the case of V v UK13 the ECtHR was asked to consider whether there had been a violation of Article 6 of the ECHR where two very young children had been tried in the adult Crown Court. The defendants were 11 years old at the time of their trials, and both had learning difficulties. The court had to decide whether the children had been able to ‘effectively participate’ in their trial.14 The ECtHR was critical of the way England and Wales treated young children in the criminal justice system, stating that:

... it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.15

The ECtHR further noted that proceedings involving children in the adult Crown Court should be conducted in such a way as ‘to reduce as far as possible [the child defendant’s] feelings of intimidation and inhibition’.16

The decision led to domestic reforms for children in the criminal justice system in England and Wales in the form of a Criminal Practice Direction – ‘Practice Direction (Crown Court: Young Defendants)’ – issued in 2000 by the then Lord Chief Justice (Lord Bingham), which set out the steps that should be taken in the trials of ‘young defendants’.17

In 2000, the CrimPD applied specifically and exclusively to young defendants, which it defined as ‘children and young persons’, aligning with the language of other legislation concerning children. Since 2000, there have been various amendments and overhauls that have extended the protective elements of the CrimPD to include all vulnerable people in court, whether children or adults. This legal guide explains the CrimPD as it can be applied specifically to children in the criminal courts.

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The duty of the parties

The CrimPR state that the parties are under a duty to alert the court to any potential impediment to the defendant’s effective participation in the trial.18

The court’s duty

The court is under a duty to:

• take ‘every reasonable step’ to encourage
  and facilitate the participation of any person,
  including the defendant19
• have regard to the welfare of a child defendant, as required by s44 Children and Young Persons Act 193320 and
• enable a witness or defendant to give their best evidence.20

Discharging the court’s duty

The court discharges the duty by (a) identifying the needs of witnesses at an early stage and (b) making provision for arrangements (whether statutory special measures or other modifications to the trial process) to meet those needs.

• The CrimPD note that ‘communication needs … are common to many witnesses and defendants under 18. Consideration should therefore be given to the communication needs of all children and young people appearing in the criminal courts and adapting the trial process to address any such needs’.21
• The modifications provided for by the CrimPD are not exhaustive. The court retains its inherent power at common law to make directions to ensure the effective participation of vulnerable defendants.22
• Special measures are also available under the Youth Justice and Criminal Evidence Act (YJCEA) 1999. CrimPR Part 18 sets out the procedure to be followed. CrimPD 3D.3 draws attention to the ‘primary rule’ which requires the court to give a direction for a special measure to assist a child witness or qualifying witness (an application to the court in such cases not being required).23 Child defendants were originally specifically excluded from these special measures, but a ‘defendant’s live link direction’, according to which a child defendant may be allowed to give evidence by live link, is now available.24
• The CrimPD makes explicit provision for intermediaries to be used for the benefit of child defendants.
• The following sections of the CrimPD detail the relevant modifications available to vulnerable and child defendants:
  • CrimPD 3D: ‘Vulnerable people in the
    courts’
  • CrimPD 3E: ‘Ground rules hearings to plan the questioning of a vulnerable witness or defendant’
  • CrimPD 3F: ‘Intermediaries’
  • CrimPD 3G: ‘Vulnerable defendants’
  • CrimPD 3N: ‘Use of live links and telephone
    hearings’
  • CrimPD 3P: ‘Commissioning medical reports’.
• Certain parts of the CrimPD apply solely to children – ie witnesses and defendants who are under 18:
  • CrimPD 3F.24–3F.26 (intermediaries and communication needs)
  • CrimPD 3N.13–3N.15 (producing child defendants in court rather than over live link).

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CrimPD 3D: ‘Vulnerable people in the courts’

3D.1 Eligibility for special measures

• ‘Vulnerable’ and ‘intimidated’ witnesses.27
• Vulnerable witness: includes those under 18; those with a mental disorder or learning disability and/or a physical disorder or disability; those who are likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case.
• Intimidated witness: where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.28

3D.2 Other assistance

• ‘Every reasonable step’ must be taken to facilitate the participation of any witness (whether ‘vulnerable’ or ‘intimidated’), including the defendant.29
• Facilitating participation includes:
  • enabling a witness or defendant to give their best evidence and
  • enabling a defendant to comprehend proceedings and engage fully with their defence.
• The pre-trial and trial process should, so far as is necessary, be adapted to meet those ends.

3D.3 Identification of special measures and modifications

The court must identify the needs of witnesses at an early stage.30

• The court may require the parties to identify arrangements to facilitate the giving of evidence and participation in the trial.31
• Under the ‘primary rule’, an application is not necessary for the court to give a direction as to special measures / modifications.32

3D.5–3D.8 Endorsement of the use of other resources

Advocates should consult and follow the relevant guidance whenever they prepare to question a young or otherwise vulnerable witness or defendant. Examples given are:

• Advocacy Training Council (ATC), ‘Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court’ (2011)33
• Advocate’s Gateway toolkits34
• ‘Achieving Best Evidence in Criminal Proceedings’ (Ministry of Justice, 2011).35

CrimPD 3E: ‘Ground rules hearings to plan the questioning of a vulnerable witness or defendant’

3E.1 The judiciary is responsible for controlling questioning.

• Over-rigorous or repetitive cross-examination of a child or vulnerable witness should be stopped.
• The need for intervention will be minimised if the communication needs of vulnerable witnesses are discussed in advance and ground rules are agreed and adhered to.

3E.2–3E.3 Ground rules hearings (GRHs):36

• are required in all trials where an intermediary is used, with the intermediary present, and
• are good practice ‘in all young witness cases and in other cases where a witness or defendant has communication needs’.
• The timing of a GRH should be before the first day of trial, so that advocate’s questions can be adapted.
• Recommended approach: the creation of a ‘trial practice note’ of boundaries for questioning to ensure that the agreed ground rules are complied with.

3E.4 Limitations on questioning

Limitations will arise where there is a risk of a child ‘failing to understand, becoming distressed or acquiescing to leading questions’. Where limitations on questioning are prescribed, these limitations:

• must meet the specific needs of the witness in a particular case
• must be clearly defined and
• may include ‘departing radically from traditional cross-examination’, including restrictions on the advocate ‘putting his case’.

CrimPD 3F: ‘Intermediaries’

3F.1 Intermediary role and function

• Role: to ‘facilitate communication with witnesses and defendants who have communication needs’.37
• Function: to ‘improve the quality of evidence and aid understanding between the court, the advocates and the witness or defendant’.
• For example, intermediaries:
  • commonly advise on the formulation of questions and
  • on occasion actively assist and intervene during questioning.

3F.2 Duty to court

• Intermediaries are ‘independent of parties and owe their duty to the court’.38

3F.4 Assessment

• The process ‘should begin with assessment by an intermediary and a report’.39

3F.5

• The decision as to whether an intermediary is required should be made on ‘an individual basis, in the context of the circumstances of the particular case’.

3F.12

• The court ‘may direct the appointment of an intermediary to assist a defendant in reliance on its inherent powers (C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin))’ but there is ‘no presumption that a defendant will be so assisted’ and ‘even where an intermediary would improve the trial process, appointment is not mandatory’.
• The court should nonetheless:
  • adapt the trial process to address a defendant’s communication needs40 and
  • ‘consider sympathetically’ an application for the defendant to be accompanied by a support worker or other appropriate companion who can assist the defendant to follow the proceedings.

3F.13

• The court may exercise its inherent powers to direct appointment of an intermediary to assist a defendant giving evidence or for the entire trial.
• Appointing an intermediary to assist a defendant giving evidence will be ‘rare’, and ‘extremely rare’ for the entire trial.

* The CrimPR, updated in April 2021, postdates 3F.13 and therefore it is this which should be followed when considering the appointment of an intermediary to facilitate a defendant’s participation. CrimPR 18.27(3) makes clear that the court may exercise its power to appoint an intermediary (a) for the duration of every hearing that the defendant is due to attend; (b) for the duration of any specified such hearing(s), or for the duration of a specified part of such a hearing; or (c) for a specified purpose during a hearing. CrimPR 18.27(4) provides that, unless the court otherwise directs, the appointment of an intermediary extends to facilitating the defendant’s communication with their legal representatives for the duration and for the purpose of the appointment. For more information, see Practical Advice below.

3F.15

• The witness intermediary scheme (WIS) is not presently available to identify intermediaries for defendants.

3F.16

• Where the defendant is publicly funded, an application should be made to the Legal Aid Agency (LAA) for prior authority to fund the pre-trial assessment by an intermediary. If refused, an application can be made to the court to use its inherent powers to direct a pre-trial assessment.
• Where a court appoints an intermediary to assist a defendant at trial, the ‘court staff are responsible for arranging payment from Central Funds’.

3F.24–3F.26 Intermediaries for witnesses and defendants under 18

• 3F.24: Communication needs (such as short attention span, suggestibility and reticence in relation to authority figures) are common to many witnesses and defendants under 18. Consideration should therefore be given to the communication needs of all children and young people appearing in the criminal courts and to adapting the trial process to address any such needs.
• 3F.25: The appropriateness of an intermediary assessment for witnesses and defendants under 18 must be decided with care. Whilst there is no presumption that they will be assessed by an intermediary or assisted by an intermediary at court, the decision should be made on an individual basis in the context of the circumstances of the particular case.
• 3F.26: Assessment by an intermediary should be considered for witnesses and defendants under 18 who seem liable to misunderstand questions or to experience difficulty expressing answers, including those who seem unlikely to be able to recognise a problematic question (such as one that is misleading or not readily understood), and those who may be reluctant to tell a questioner in a position of authority if they do not understand.

CrimPD 3G: ‘Vulnerable defendants’

3G.1–3G.14

• This section is exclusively directed at vulnerable (including child) defendants.
• Includes a series of modifications available to the court to ensure that a vulnerable defendant can participate.43 For a summary of these, see Annex 1 to this guide.
• The Crown Court PTPH244 form sets out all of the modifications provided for in CrimPD 3G, and has at the end a box for ‘other’ modifications that might be required.

CrimPD 3N:45 ‘Use of live links and telephone hearings’

General – Hearing attendance via live link or telephone

• Ordinarily a child defendant will attend in person. This is to ensure:
  • the court can engage properly with the child defendant and
  • the necessary level of engagement can be facilitated with the YOT worker, defence representative and/or appropriate adult (3N.13).
• Where it is lawful and in the interests of justice to do so, courts should exercise their statutory and other powers to conduct hearings by live link or telephone (3N.1).
• Any application for use of a live link should be dealt with on a case-by-case basis, after consultation with the parties and the YOT (3N.13).
• Hearings that may be conducted via live link include:
  • plea, where child in custody (3N.9)46
  • remand hearing where there is no bail application (3N.13) and
  • case management hearing, particularly if the child is already serving a custodial sentence (3N.13).
• It will rarely be appropriate for a child defendant to be sentenced over a live link. However, there may be circumstances when it may be appropriate (and after consultation with the parties and the YOT) (3N.14):47
  • if the child is already serving a custodial sentence and the sentence to be imposed by the court is bound to be a further custodial sentence, whether concurrent or consecutive
  • if the child is already serving a custodial sentence and the court is minded to impose a non-custodial sentence which will have no material impact on the sentence being served
  • if the child is being detained in a secure establishment at such a distance from the court that the travelling time from one to the other will be significant so as to materially affect the welfare of the child
  • if the child’s condition – whether mental or otherwise – is so disturbed that their production would be a significant detriment to their welfare.

3N.3, 3N.6–3N.7 Circumstances where live link or telephone not appropriate

It is the duty of the parties to alert the court as to any reason why live links or telephones should not be used (3N.3).

Reasons for not using a live link include:

• where a defendant’s effective participation cannot be achieved by such means (3N.6)48
• where defence representatives reasonably need to meet with a defendant, to take their instructions or to explain events to them (3N.7).

3N.10 Trial attendance – live link

The court may allow a defendant to observe the trial via live link, but:

• the defendant can only give evidence via live link if a special measures direction is made under s33A YJCEA 1999, and
• a defendant in custody who observes the trial by live link is not present as a matter of law.

3N.11 Giving evidence by live link

• This is available to defence and prosecution witnesses who meet the statutory criteria.
• Where a live link is sought as a special measure for a young or vulnerable witness or defendant, the applicant must identify someone to accompany them while they give evidence and must name the person and explain why that person would be an appropriate companion.49

CrimPD 3P: ‘Commissioning medical reports’51

3P.2

• Reports must be commissioned promptly.
• Defence representatives may wish to obtain a medical report wholly independently of the court where the view is taken that expert medical opinion is material to the defencecase.

3P.5–3P.10 Timetabling

• A timetable for receiving reports should be set up and reviewed at intervals (3P.5).
• The timetable must be realistic but not protracted (3P.6).
• The schedule for the convening of a further pre-trial case management hearing to consider the report and its implications for the conduct of the proceedings should be:
  • magistrates’/youth court: no more than 6–8 weeks after the court’s request and
  • Crown Court: no more than 10–12 weeks after the court’s request (3P.7).

3P.11–3P.17

• 3P.11: Reference is made to a Ministry of Justice and HM Courts and Tribunals Service publication, ‘Good practice guidance: commissioning, administering and producing psychiatric reports for sentencing’,52 which ‘contains material that will assist court staff and those who are asked to prepare such reports’. The guidance includes standard forms of letters of instruction and other documents.
• 3P.15: Where a medical report has been, or is going to be, commissioned by a party, that party is responsible for arranging payment of the fees incurred, even though the report is intended for the court’s use. This must be made clear in that party’s commission.

______________________________

A legally aided party can apply to the LAA to cover the costs of the expert report. In order to do this, prior authority will be needed from the LAA. It is often useful to have written advice explaining the need for the report. Where the report has been
requested by the court, this should be clearly explained.

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