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Amendments to the Criminal Practice Directions (March 2022) – summary of key changes

This is the 12th amendment to the Criminal Practice Directions 2015. Issued by the Lord Chief Justice today (Wednesday 23 March 2022), it comes into force on Thursday 24 March 2022.

This update provides amendments to existing Criminal Practice Directions and supplements the Criminal Procedure Rules. The Table of Content is amended accordingly.

1. CPD V Evidence 18E: USE OF S.28 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999; PRE-RECORDING OF CROSS-EXAMINATION AND RE-EXAMINATION FOR WITNESSES CAPTURED BY S.16 YJCEA 1999

These amendments create new paragraphs which provide further guidance on the legislative requirements of the Youth Justice and Criminal Evidence Act 1999, specifically that the judge should pay careful regard to whether a s.28 special measures direction will in fact materially advance the date for the recording of the cross-examination and re-examination, so as to maximise, along with any other measures, the quality of the witness’s evidence.

An amendment to 18E.5 requires the CPS to give prior approval before the police discuss with the witness, parent or carer the special measures that are available if that will not cause undesirable delay.

Changes to listing of s.28 hearings have been made, so that now s.28 hearings should be listed at a time to be determined by the List Officer, or as directed by the judge or Resident Judge, bearing in mind the circumstances of the witness as well the availability of the judge, the advocates and a courtroom with the relevant equipment.

Further amendments mean that the judge now has discretion as to whether they will require the same advocate to appear at both the ground rules hearing and the s.28 cross-examination. Similarly, it is not mandatory for the advocate who conducted the s.28 cross-examination to represent the defendant at trial, though continuity of advocate is to be encouraged. In addition, whether the ground rules hearing and s.28 hearing need to be listed before the same judge is at the Resident judge, or nominated lead judge’s discretion.

Other changes clarify that it will be for the judge to decide whether a ground rules hearing is necessary. Where one is ordered, a minor change explains that potential topics for the hearing may require discussion but it depends on the circumstances of the case.

A change to the renumbered 18E.59 explains that the judge should discuss with advocates what to say to a jury about limits on s.28 questioning at the start of the trial, if not done at the ground rules hearing. In addition, the paragraph now states that the judge should consider giving a direction to a jury on any limitations to s.28 questioning, which will likely be necessary before the recording is played.

Other amendments do not make any substantive changes, but rather revise and reorganise existing sections to make the practice direction easier to read and understand. Some references containing information found elsewhere in the CPD or in other guidance have been removed.

See below for the key changes document, amendment document and the consolidated Criminal Practice Directions.