On 23 March 2022, the Lord Chief Justice issued the twelfth amendment (the “Twelfth Amendment”) to the Criminal Practice Directions (“CPD”), which came into force on 24 March 2022. Notably, the amendments include new additions to the CPD, which are intended to provide further guidance on the Young Justice and Criminal Evidence Act 1999 ( “YJCEA”) with a view to maximising the quality of the witness’ evidence and addressing some of the practical challenges faced by practitioners.
Amendment No. 12 to the Criminal Practice Directions: Amendment No 12 (judiciary.uk)
Consolidated Criminal Practice Directions: Crim PD 12 CONSOLIDATED March 2022 (judiciary.uk)
Details
The Twelfth Amendment introduces changes to Part 18E of the CPD, which provides guidance relating to the pre-recording of cross-examination and re-examination pursuant to special measure directions given under section 28 of the YJCEA.
Sections 17 and 18 of the YJCEA (read in conjunction with the CPD as amended by the Twelfth Amendment), detail the grounds upon which witnesses may be eligible for special measures, such as incapacity, age, fear or distress about testifying.
Most of the amendments involve reorganisation and minor modifications of existing sections to make the CPD easier to follow, but it is worth highlighting the following key changes:
- At paragraph 18E.5 of the CPD – there is a new requirement that the police should identify witnesses eligible for special measures “promptly”, and that approval should be obtained from the CPS prior to the police discussing with the witness (or the witness’ parent or carer) the special measures that are available[RMH1] ;
- At paragraph 18E.64 of the CPD – section 28 hearings shall be listed at a time determined by the listing officer, or as directed by the Judge or Resident Judge, taking into consideration the circumstances of the witness as well as the availability of the Judge, the advocates and a courtroom with the relevant equipment, including the ability to record the evidence. Notably, the reference that a section 28 hearing must take preference over other hearings has been removed by the Twelfth Amendment;
- At paragraph 18E.60 of the CPD – where it has been ordered that the defence advocate who appeared at the ground rules hearing must conduct the recorded cross-examination, an advocate who has difficulties in attending the section 28 hearing due to conflicting hearings must inform the Court as soon as practicable. The Court, taking into consideration the circumstances of the conflicting cases and the interests of justice, shall resolve the conflict;
- At paragraph 18E.62 of the CPD – the Resident Judge or the Nominated Lead Judge has the discretion to order that the ground rules hearing and section 28 hearing are heard before the same Judge – this is in contrast to the previous drafting, where it was required that the ground rules hearing and the section 28 hearing be heard before the same Judge;
- At paragraph 18E.21 of the CPD – new guidance has been added whereby the Judge is expressly permitted to decide whether a ground rules hearing is necessary, and if one is to take place, the ground rules hearing should be listed either at a convenient date or immediately prior to the recorded cross-examination and re-examination hearing.
Commentary
Overall, the CPD has been relaxed by the Twelfth Amendment in a number of respects, especially through the abandonment of mandatory continuity of counsel and Judge in respect of section 28 hearing. Whilst the relaxation of the rules should have some benefits, including a speedier process, it arguably implies significant departure from the original aspiration of the scheme and may result in the needs of the children not being prioritised to the extent that they previously were. It is therefore vital that practitioners representing children remain conscious of their professional duty to act in their client’s best interests when responding to the Court’s special measures directions. For instance, it will generally be in a child client’s best to strive to provide continuity of representation despite the fact that the Court’s timetable makes this difficult.
Written by Kevin Shum, Associate, Paul Hastings (Europe) LLP