10th Amendment to CPD – Key Developments To Bench Warrants and s86A Courts Act 2003

St Philips Chambers reception

Practice Directions (“the Directions”) entered into force on 13th May 2020. Its entrance may have been easily missed having come about while the country observes a new-normal of remote hearings and the beginnings of socially-distanced trials. Here I set out the key parts to be aware of.

1. New CPD III Custody and Bail section 14C.13 – 14C.15 Voluntary attendance at a court after failure to attend
The amendment provides new guidance where a defendant voluntarily attends court, or indicates that they want to, following the issue of a warrant for their arrest at a previous hearing that he or she failed to attend.

Four options are presented in the guidance. If the defendant is present, the court may arrange for the warrant to be executed and/or may deal with the case as if resulting from the execution of the warrant. Whether or not the defendant is present, the court may arrange a resumed hearing at the next convenient opportunity. If it does so, the court may choose to withdraw the warrant but does not have to do so.

The guidance states that the court should not withdraw a warrant unless a defendant provides an established address, a telephone number and, if possible, an email or electronic address. It will therefore be harder for a warrant to be withdrawn against a defendant who lacks these means, however, if they attend court in person it would be open to the court to execute the warrant against them.

The guidance provides two further factors of which defendants and criminal practitioners should be aware. Firstly, it remains possible that even after a voluntary court attendance if another hearing is arranged in the meantime a defendant may still be liable to be arrested if a warrant is not withdrawn or executed. Secondly, if the defendant attends court without arrest the court is under no statutory duty to accommodate the case and may turn the defendant away if the court cannot accommodate the case without disadvantaging the cases already listed.
Special notice is also given in the new Directions to defendants who attend court unexpectedly after noon on a weekday or on a weekend – those cases will only be heard in exceptional circumstances. The inference is therefore that a defendant should attend before noon on a weekday if they want the court to deal with their case without the need for their arrest.

2. New CPD II Preliminary Proceedings 7A: First Court Attendance After Change and Detention
And CPD III Custody and Bail sections 14C.11 and 14C.12

CPD 7A clarifies the practical steps a court must take to ensure a defendant who attends court for the first time after charge and detention is brought to the court within the time limit set by section 46 of the Police and Criminal Evidence Act 1984 (as soon as reasonably practicable and no later than the first subsequent court sitting). It is expressly stated in the new guidance that there is a duty upon the police and HMCTS to ensure section 46 is complied with, and it is a strict duty – only exceptional circumstances which make compliance impossible will be sufficient to excuse a failure to do so. CPD 7A.5, 6 and 7 set out the factors which must be considered when determining whether, and if so how, when and where, a case will be heard within the time limit set. These considerations are now law and representatives may direct the court to them in order to ensure the statutory duty under section 46 is complied with.
It is also of note that, under the new guidance, these considerations also apply to defendants produced before the court for breach of bail (CPD 14C.11)

3. New CPD I General Matters section 3Q: Failure to Comply with Requirement to Give Name, Date of Birth and Nationality (s86A Offence)

This section gives procedural guidance to Magistrates and Crown Court dealing with offences under s86A(3) Courts Act 2003, the offence of failing, without reasonable excuse, to provide name, date of birth and nationality at the first hearing in that court.

Firstly, the Directions make clear that in the Magistrates Court the expectation is that prosecutions for such offences should be dealt with “at once” (CPD 3Q.2) when they occur. To that end, there is no requirement that every allegation must be reported to the police. The prosecutor may begin proceedings for the offence orally, and at the same hearing as dealing with the original offence which brought the D to court.

The obvious outcome is that the prosecution will, in such cases, be determined by the same bench who witnessed the alleged behaviour. Any application to hear a contested case before a different bench is unlikely to be successful in the vast majority of cases. One circumstance in which it may be necessary is where it is not possible for the original bench to determine the allegation with perceived impartiality.

Secondly, the Directions forbid any member of the court before whom the alleged offence occurred, the defendant’s representative or court staff, including legal advisors, from acting as witnesses to the allegation (CPD 3Q.5) significantly curtailing the evidence which may be relied on by the prosecution.

The amendments can be found here.