15/08/2019
Corporate Crime analysis: Jasvinder Nakhwal, partner at Peters & Peters, and Craig Hogg, associate at the firm, consider some of the key provisions of the Criminal Procedure (Amendment No 2) Rules 2019 and the potential implications.
Original news
Criminal Procedure (Amendment No 2) Rules 2019, LNB News 16/07/2019
SI 2019/1119: Amendments are made to the Criminal Procedure Rules 2015, SI 2015/1490 (Crim PR 2015), in order to add new rules about applications to a Crown Court judge for an order under the Crime (Overseas Production Orders) Act 2019, about applications for the suspension of certain orders pending appeal, and about taking statutory declarations in magistrates’ courts, among other things, in England and Wales. These Rules will come into force on 7 October 2019 and provide for adaptations should the Criminal Procedure (Amendment) (EU Exit) Regulations 2019, SI 2019/908, come into force before that date.
What are the key provisions of this SI? In what way do they change the Criminal Procedure Rules?
The Criminal Procedure (Amendment No 2) Rules 2019, SI 2019/1119, amend the Criminal Procedure Rules 2015, SI 2015/1490 (CrimPR 2015) in five primary respects. Taking the amendments in turn:
- there are changes to the indictment process—rr 4 and 7 of SI 2019/1119 amend rr 3.24 and 25.2 of CrimPR 2015, respectively, to now require the Crown Court to be satisfied that (i) the indictment has been adequately explained to the defendant at arraignment and before trial; and (ii) the prosecution and defence are content with the terms of the indictment (in terms of both its content, and validity) immediately before a trial begins
- for efficiency reasons, r 6 of SI 2019/1119 has amended r 24.17 of CrimPR 2015, to allow justices’ legal advisers (or their nominees) to take a statutory declaration regarding so-called ‘ignorance of proceedings’. This amendment now avoids the need for a justice of the peace or a district judge to be interrupted for a declaration to be taken. Such declarations are used in circumstances where, for example, a summons is left for a defendant with someone else at their address, who failed to pass it on, and has the potential effect of making those proceedings, of which a defendant is unaware, void
- r 8 of SI 2019/1119 has amended CrimPR 2015 28.4, to require the announcement, in public, of a decision to vary or rescind a sentence or order, or a refusal to do so, following criticisms levelled by the Court of Appeal in the case of R v Cox [2019] EWCA Crim 71
- rr 10 and 11 of SI 2019/1119 amends CrimPR 2015 34 and 39, respectively, to expressly permit suspension of a defendant’s disqualification from driving and/or the forfeiture or suspension of a driving licence, pending an appeal made from the Crown Court to the Court of Appeal. CrimPR 2015 already contained the same rules in circumstances pending an appeal from the magistrates’ court made to the Crown Court, and this amendment was made to address this lacuna
- SI 2019/1119 has introduced a mechanism through which an application for an overseas production order (OPO) under the Crime (Overseas Production Orders) Act 2019 (C(OPO)A 2019) can be made by a relevant investigator to a Crown Court judge (for more details, see below)
The Criminal Procedure (Amendment) (EU Exit) Regulations 2019, make changes to Pt 47 Investigation Orders on exit day—how do those amendments sit with the amendments made by SI 2019/1119?
The Criminal Procedure (Amendment) (EU Exit) Regulations 2019, SI 2019/908 amend CrimPR 2015 to account for legislative changes which will be brought about by the UK’s withdrawal from the EU, in a no-deal Brexit scenario.
More specifically, SI 2019/908 makes necessary changes to legislation which will be repealed or revoked by the contents of SI 2019/908, or by the Criminal Justice (Amendment etc) (EU Exit) Regulations 2019, SI 2019/780 both of which are a direct consequence of the European Union (Withdrawal) Act 2018.
SI 2019/908 also removes references to the procedure for the preparation and submission of a request, by a UK court, to the Court of Justice of the European Union for a preliminary ruling on the interpretation of European Union law.
Unlike SI 2019/1119, which provides investigators with stronger investigatory powers through the introduction of the OPO scheme, SI 2019/908 will yield a significant loss—of particular note, SI 2019/908, reg 8(15) provides that the UK will no longer have access to the European Investigation Order (EIO) regime, post-Brexit.
SI 2019/1119 takes account of the possibility that SI 2019/908 comes into force before SI 2019/1119 and provides for amendments to be made to its provisions should that happen.
When will the changes come into force?
SI 2019/1119 enters into force on 7 October 2019. SI 2019/908 comes into force on the date the UK leaves the EU (exit day)—currently, 31 October 2019 at 11pm.
Which of the amendments will have the most practical impact for lawyers?
Introduction of the OPO regime through SI 2019/1119 is, for financial crime lawyers certainly, highly significant. Under C(OPO)A 2019, constables, and officers from HMRC, the Serious Fraud Office (SFO) and the Financial Conduct Authority (FCA), for example, are granted the power to require a respondent, typically a communications service provider (CSP) based overseas to produce or give access to ‘electronic data’, regardless of where it is stored.
For an OPO to be granted, a Crown Court judge must be satisfied that the ‘electronic data’ in question, which is defined widely to mean ‘any data stored electronically’, is likely to be of substantial value to Criminal proceedings or investigations for which the OPO is sought, and that granting such an order is in the public interest. A person subject to an OPO must be in a country that is subject to a so-called ‘designated international co-operation agreement’ (DICA): essentially, a freestanding cooperation treaty between the UK and the country concerned. The UK is currently negotiating its first DICA with the US.
However, it is very much a case of one hand giveth, the other taketh away, and the separate loss of the EIO regime for UK prosecutors under SI 2019/908 holds equal significance in the area of financial crime. EIOs essentially provided the UK, as an EU Member State, and defendants in UK criminal proceedings, with a single instrument to request certain investigatory measures to be carried out by another EU state: measures including the provision of bank records, covert investigations, and the interception of telecommunications, subject to certain prescribed grounds of refusal. No deal puts an end to all of these measures in their current form, and the EIO’s successor remains uncertain.
Interviewed by Alex Heshmaty. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor