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Statutory Rules of Northern Ireland |
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You are here: BAILII >> Databases >> Statutory Rules of Northern Ireland >> The Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 2003 No. 477 URL: http://www.bailii.org/nie/legis/num_reg/2003/20030477.html |
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| Made | 12th November 2003 | ||
| Coming into operation | 1st December 2003 |
(2) For the heading to Rule 12A, there shall be substituted the following new heading -
(3) In Rule 12A, for paragraph (1) there shall be substituted the following new paragraph -
(4) For the heading to Rule 13, there shall be substituted the following new heading -
(5) Rule 149A shall be revoked.
(6) Rule 149AA shall be amended as follows -
(7) Rule 149AC(3) shall be amended by substituting for the word "application", the word "question".
(8) Rule 149AF shall be amended as follows -
(9) After Rule 149AG(4)(c), there shall be inserted the following new sub-paragraph -
(10) After Rule 149AH, there shall be inserted the following new Rules:
(3) On receipt of the application, the clerk of petty sessions shall refer it -
(4) Where a copy of a notice under paragraph (1) is served on a party to the proceedings more than 14 days before the date set for the commencement of the proceedings to which the application relates, that party may, within 14 days, make observations in writing in relation to the application to the clerk of petty sessions and shall serve a copy of such observations on every other party to the proceedings.
(5) A party on whom a copy of the notice is served in accordance with paragraph (1) may notify the clerk of petty sessions and every other party to the proceedings, in writing, of his opposition to the application and give reasons for it.
(6) Those reasons shall be notified -
(7) Where the application made in accordance with paragraph (1) is made before the date set for the commencement of the proceedings to which the application relates and the application -
(8) Where the application is made after the commencement of the proceedings to which the application relates -
(9) Where a hearing of the application is to take place, the clerk of petty sessions shall notify each party to the proceedings of the time and place of the hearing.
(10) A party notified in accordance with paragraph (9) may be present at the hearing and be heard.
(11) The clerk of petty sessions shall, as soon as reasonably practicable after the determination of an application made in accordance with paragraph (1), notify all the parties to the proceedings of the decision and the reasons for it.
(12) A person making an oral application under paragraph (8)(a) shall -
Restrictions on cross-examination of witness by the accused person
149AJ.
- (1) This Rule and Rules 149AK and 149AL apply where a defendant is prevented from cross-examining a witness in person by virtue of Article 22, 23 or 24 of the 1999 Order.
(2) The court shall as early in the proceedings as is reasonably practicable -
(3) The defendant shall within 7 days of the court giving its explanation, or within such other period as the court may in any particular case allow, give notice to the clerk of petty sessions in Form 15E or otherwise in writing as to whether or not he has arranged for a legal representative to act on his behalf.
(4) Where the defendant has arranged for a legal representative to act for him, the notice under paragraph (3) shall include details of the name and address of the representative.
(5) The clerk of petty sessions shall notify all other parties to the proceedings of the name and address of any person appointed by the defendant to act on his behalf.
(6) Where the court gives its explanation under paragraph (2) to the defendant -
the period of 7 days within which the defendant is required to give notice under paragraph (3) shall be reduced in accordance with any direction issued by the court.
(7) Where at the end of the period of 7 days or such other period as the court has allowed, the court has not received notice from the defendant under paragraph (3), it may grant the defendant an extension of time, whether of its own motion or on the application of the defendant.
(8) Before granting an extension of time, the court may direct a hearing at which all parties to the proceedings may attend and be heard.
(9) Any extension of time shall be for such period as the court considers appropriate in the circumstances of the case.
(10) The decision of the court as to whether or not to grant the defendant an extension of time shall be notified to all parties to the proceedings by the clerk of petty sessions in Form 15F.
Appointment by the court
149AK.
- (1) Where the court decides, in accordance with Article 26(4) of the 1999 Order, to appoint a qualified legal representative, the clerk of petty sessions shall notify all parties to the proceedings of the name and address of that representative.
(2) An appointment made by the court under Article 26(4) of the 1999 Order shall, except to such extent as the court may in any particular case determine, terminate at the conclusion of the cross-examination of any witness in respect of whom a prohibition under Article 22, 23 or 24 of the 1999 Order applies.
Appointment arranged by the defendant
149AL.
- (1) The defendant may arrange for the qualified legal representative, appointed by the court under Article 26(4) of the 1999 Order, to be appointed to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under Article 22, 23 or 24 of the 1999 Order applies.
(2) Where such an appointment is made -
(3) Where the court receives notification of the appointment either from the qualified legal representative or from the defendant but not from both, the court shall investigate whether the appointment has been made, and if it concludes that the appointment has not been made, paragraph (2)(c) shall not apply.
(4) The defendant may, notwithstanding an appointment by the court under Article 26(4) of the 1999 Order, arrange for a legal representative to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under Article 22, 23 or 24 applies.
(5) Where the defendant arranges for, or informs the court of his intention to arrange for a legal representative to act for him, he shall notify the court within such period as the court may allow, of the name and address of any person appointed to act for him.
(6) Where the court is notified within the time allowed that such an appointment has been made, any qualified legal representative appointed by the court in accordance with Article 26(4) of the 1999 Order shall be discharged.
(7) The clerk of petty sessions shall as soon as reasonably practicable after notification is received by the court, or where paragraph (3) applies, after the court is satisfied that the appointment has been made, notify all the parties to the proceedings in Form 15H -
Procedure for applications in proceedings for sexual offences
149AM.
- (1) Application under Article 28(2) of the 1999 Order for leave to adduce evidence of, or ask questions about, any sexual behaviour of a complainant shall be made by giving notice in Form 15I to the clerk of petty sessions and shall, subject to paragraph (10) -
(2) An application under paragraph (1) shall contain the following -
(3) A copy of the application under paragraph (1) shall be served, by the applicant, on every other party to the proceedings at the same time as it is served on the clerk of petty sessions.
(4) The prosecutor shall notify the clerk of petty sessions and the other parties to the proceedings in Form 15J -
and where the notice of application is received by the prosecutor more than 14 days before the date set for commencement of the proceedings to which the application relates, the notification must be served by the prosecutor within 14 days of receipt.
(5) Where a copy of the application is received by a party to the proceedings other than the prosecutor more than 14 days before the date set for the commencement of the proceedings to which the application relates, that party may, within 14 days, make observations in writing in relation to the application to the clerk of petty sessions and shall serve a copy of such observations on every other party to the proceedings.
(6) In considering any application under this Rule, the court may request a party to the proceedings to provide the court with such information as it may specify in Form 15K and which the court considers would assist in determining the application.
(7) Where the court makes such a request, the person required to provide the information shall do so within 14 days of the court making the request or by such time as the court considers appropriate in the circumstances of the case.
(8) An application under paragraph (1) shall be determined by a resident magistrate following a hearing.
(9) The date and time of the hearing shall be -
(b) notified by the clerk of petty sessions to both the applicant and the prosecutor.
(10) An application under Article 28(2) of the 1999 Order may be made orally to the court where the application is made after the proceedings to which the application relates have begun.
(11) The person making the application under paragraph (10) shall -
(12) The clerk of petty sessions shall, as soon as reasonably practicable after the hearing of an application under paragraph (1), notify all the parties to the proceedings of the decision of the court in Form 15L.".
(11) Schedule 1 shall be amended as follows:
Signed by the authority of the Lord Chancellor
Lord Filkin
Parliamentary Under Secretary of State, Department for Constitutional Affairs
Dated 12th November 2003
A copy of this form shall be given at the same time to the other party or parties to the case.
| Details required | Notes |
| Case details | |
| Complainant: | |
| Petty Sessions District of: | |
| Defendant: | |
| County Court Division of: | |
| The name of the defendant to whom this application relates: | |
| Court venue: | The venue of the court hearing the case. |
| Date of next court appearance: | |
| Charges: | Give brief details (including date and location of offence) of those charges to which this application applies. |
| Name of PSNI Central Process Office: | |
| Central Process Office or District Command Unit reference number: | |
| DPP reference number: | |
| Details of witness | |
|
Name of witness Date of birth of witness If an application has been made to tender in evidence a video recording of testimony from the witness, give the date and (if known) result of that application. If the applicant is the prosecutor, give the name of the witness (otherwise leave blank). |
An application by the defence for evidence to be given through a live link or by means of a video recording need not disclose who that witness is, except to the extent that the disclosure is required by section 5(7) of the Criminal Procedure and Investigations Act 1996 (alibi). |
|
Details of application Specify the special measures being sought. |
|
| State the grounds on which the witness relies in support of the application for a special measures direction. | The statement should make clear whether the applicant seeks automatic eligibility or whether the applicant alleges that the quality of the evidence will be reduced unless a direction is given. In the latter case, the grounds on which the applicant alleges that the quality of the witness's evidence is likely to be diminished in terms of completeness, coherence and accuracy should be clearly stated. |
| Give a description of evidence submitted in support of this application. |
This requirement is optional. Examples of evidence might be: birth certificate; medical report; expert evidence; police report. |
|
Arrangements available Give a description of the arrangements relevant to the measures applied for, which may be made available in the area in which it is likely the hearing will take place. |
|
|
Reasons for application Give the grounds for believing the special measures being sought in this application will increase the quality of the witness's evidence. Give the views of the witness as to why the measures sought in this application are required. |
|
| Material change of circumstances | |
| Give a description of any material change of circumstances relied upon to support this application. |
This requirement applies only where -
(b) a previous application for a special measures direction was refused and this application seeks to reverse that decision |
| Details required | Notes |
| Details of application | |
| Give - | |
|
(a) the address of any venue from which the witness will give evidence if the court's own live link is not used: (b) the name of the person who it is proposed will accompany the witness: (c) the occupation of this person: (d) the relationship (if any) of this person to the witness: |
An application by the defence need not disclose the name of the person proposed to accompany the witness if disclosure could lead to the identification of the witness. |
|
Grounds State why it is believed that this person should accompany the witness: |
| Details required | Notes |
| Video recording(s) | |
| Statement as to circumstances in which video recording made: | These details need to be completed only to the extent that the information is not contained in the video recording itself. |
| Date(s) of video recording(s): | |
| Time(s) of video recording(s): | Give the times at which recording began and finished, including details of any interruptions. |
| Location and normal function of premises where video recording made: | Give address of premises where recording made and state the usual function of those premises. |
| Statement as to whether, and if so at what point in the video recording, an oath was administered to, or a solemn declaration made by, the witness: | |
| Details of those present while recording made | |
| Give details of each person present at any point during the recording: | Include name, age and occupation of anyone present; time for which present; relationship (if any) to witness and to the defendant. |
| In relation to each person present at any point during the recording, a statement confirming that the person when present is visible in the recording. | |
| Equipment used | |
| Give a description of the equipment used for the recording: |
The description shall include the following information - number and type of cameras used (fixed or mobile); the number and location of microphones; the video format used; and whether it offered single or multiple recording facilities and if it did which were used. |
| Recordings of part only of an interview | |
| State whether the video recording contains part only of the interview with the witness: | A copy of any video recordings of other parts of the interview with the witness which it is not proposed to tender in evidence shall also be provided to the court and the other parties. The details of each such recording shall be given as above. Use separate sheets where necessary. |
|
Details of copy State in respect of each video recording whether it is a copy, and give the following details in respect of each copy - Name and address of person who has the mastertape: When, and by whom, the copy was made: |
|
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Attendance and supply of copies Is the witness willing and able to attend the trial for cross-examination? |
|
|
Have copies of the video recording(s) to which this application relates been disclosed to the other parties? Has a copy of this notice and the video recording(s) to which it relates been served on each party to the proceedings? |
Where the application is by the defendant, the video recording(s) do not have to be served on the prosecution until the close of the prosecution case at the trial. |
| Has the agreement of the other parties to the video recording(s) being tendered as evidence been sought? |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| of | } | ||
| } | Petty Sessions District of | ||
| Complainant | } | ||
| of | } | County Court Division of | |
| Defendant | } |
| } | Principal Party |
| } | Suret |
These Rules also make provision relating to Part II (Special measures directions in case of vulnerable and intimidated witnesses), Part III (Protection of witnesses from cross-examination by accused in person) and Part IV (Protection of complainants in proceedings for sexual offences) of the Criminal Evidence (Northern Ireland) Order 1999 ("the 1999 Order"); and
Rule 2(5) revokes Rule 149A of the principal Rules, which is no longer required as an application to use television links where a witness will not give evidence otherwise through fear will be dealt with as an application for a special measures direction, the procedure for which is prescribed in Rule 149AA.
Paragraphs (6) to (9) of Rule 2 make a number of minor amendments to the principal Rules to take account of the extension of Part 2 of the 1999 Order to vulnerable and intimidated adult witnesses in committal proceedings before magistrates' courts.
Rule 2(10) inserts new Rules 149AI to 149AM into the principal Rules.
New Rule 149AI provides for an application by a prosecutor for a direction under Article 24 of the 1999 Order preventing a defendant from cross-examining a witness in person.
New Rule 149AJ prescribes the time when, and the manner in which, a legal representative is to be appointed to act for the defendant for the purpose of cross-examining any witness whom the defendant is prevented from cross-examining in person by virtue of Article 22, 23 or 24 of the 1999 Order.
New Rule 149AK provides for the procedure to be followed when the court appoints a qualified legal representative where the defendant fails to appoint a legal representative to act for him. New Rule 149AL details the procedures where the defendant subsequently arranges for a legal representative to act for him.
New Rule 149AM provides for the procedure to be followed on an application for leave under Article 28(2) of the 1999 Order, to introduce evidence or to ask questions in cross-examination about the sexual behaviour of the complainant, in criminal proceedings relating to a person charged with a sexual offence.
Rule 2(11) amends Schedule 1 to the principal Rules, by:
[2] S.I. 1999/2789 (N.I. 8)back
[3] S.R. 1984 No. 225; to which the most recent relevant amendments were made by S.R. 2003 No. 296back
