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Order 68C - Criminal Procedure Act 2021

I. Preliminary

1. (1) In this Order:-

the “2021 Act” means the Criminal Procedure Act 2021;

“preliminary trial hearing” has the same meaning as in section 6(1) of the 2021 Act;

unless the context requires otherwise, expressions defined in section 2 and section 3(1) of the 2021 Act have the same meanings in this Order as are assigned to them by section 2 or, as the case may be, section 3(1) of the 2021 Act.


II. Application for preliminary trial hearing

2. (1) Where either the accused or the prosecution intends to apply to the Court to direct the holding of a preliminary trial hearing as regards the trial of an indictable offence to which section 4 of the 2021 Act applies, the moving party shall notify the Court and the other party at the first available opportunity and, subject to any direction of the Court in that regard, shall serve and file in the Office particulars of the application, which may be in the Form 56 in the Schedule of Forms, (hereafter in this Order referred to as the “PTH Notice”) on the prosecutor or, as the case may be, the accused (or, where the accused is represented by a solicitor, the solicitor for the accused), at the time and in the manner directed or notified by the Court for such applications or, as the case may be, for such applications of the kind concerned.

(2) Where it is practicable to do so, a PTH Notice shall be served at least two months prior to the trial.

(3) The PTH Notice shall:

(a) include the case or bill number, the name of the accused and (where known) the date of the trial;

(b) specify the charges to which the application relates;

(c) specify whether a preliminary trial hearing is required to be held in accordance with section 6(2) of the 2021 Act;

(d) if the trial is not one in which a preliminary trial hearing is required to be held in accordance with section 6(2) of the 2021 Act, set out briefly the reasons why the moving party seeks a preliminary trial hearing, including the reasons why it would be conducive to the expeditious and efficient conduct of the proceedings, and not contrary to the interests of justice for a preliminary trial hearing to be held;

(e) specify each order under section 6(7) and/or section 6(8) of the 2021 Act which the moving party will apply or request to be made at a preliminary trial hearing; set out briefly the grounds or reasons for each such application or request, and indicate whether evidence (and if so, of whom) is intended to be offered or is required in support of any such application.


III. Response to application for preliminary trial hearing

3.(1) Where the prosecution or the accused is served with a PTH Notice, that party shall at the time and in the manner directed or notified by the Court:

(a) serve replying particulars (hereafter in this Order referred to as the “PTH Reply”), which may be done by completion of the response section contained within Form 56 on the accused (or, where the accused is represented by a solicitor, the solicitor for the accused) or, as the case may be, the prosecutor, and

(b) lodge copies of the PTH Notice and PTH Reply in the Office.

(2) The PTH Reply shall:

(a) indicate whether the replying party agrees or disagrees that a preliminary trial hearing is required to be held in accordance with section 6(2) of the 2021 Act;

(b) if a preliminary trial hearing is not required to be held in accordance with section 6(2) of the 2021 Act, indicate whether the replying party consents to, does not oppose, or opposes the application for a preliminary trial hearing, and set out in summary terms any reasons or grounds for any disagreement;

(c) indicate whether the replying party consents to, does not oppose, or opposes the making of each order sought by the moving party under section 6(7) and/or section 6(8) of the 2021 Act or, where the replying party seeks an alternative form of order, the form of alternative order sought; set out briefly the grounds or reasons why any such order is opposed or an alternative order sought, and indicate if the replying party expects to require oral evidence (and if so, of whom) in support of any such opposition or such alternative order.

 

IV. Direction for preliminary trial hearing

4.(1) The Court may direct and fix a time for the holding of a preliminary trial hearing on any PTH Notice. 

(2) Where each party applies for a preliminary trial hearing by serving a PTH Notice on the other, both such applications may be heard or determined together. 

5. Whether or not any application for a preliminary trial hearing has been made or intimated to the Court by either party, the Court may, having heard the parties, exercise its power under section 6(1) of the 2021 Act to direct the holding of a preliminary trial hearing, on any occasion on which the matter of the trial concerned is before the Court, and may direct the attendance of the parties before the Court for that purpose. 

6. Where the Court determines an application for a preliminary trial hearing or exercises its power to direct the holding of a preliminary trial hearing under section 6(1) of the 2021 Act, or is required to direct the holding of a preliminary trial hearing under section 6(2) of the 2021 Act, the Court may, having heard the parties and having had regard to the requirements of sections 6(4) and 6(5) of the 2021 Act, make such orders and give such directions for the preparation for, listing before the Court, and conduct, of any one or more preliminary trial hearings in respect of the trial concerned as the Court considers are necessary or appropriate consistent with the requirement of section 6 of the 2021 Act, including, without limitation:

(i) directions as to the applications, requests and/or matters to be considered at any preliminary trial hearing and where the Court intends that a particular matter referred to in section 6(7) or 6(8) of the 2021 Act which is not the subject of a request or application by either party should be considered at a preliminary trial hearing, the Court may direct the parties to address that matter at a preliminary trial hearing;

(ii) orders under section 6(9) of the 2021 Act and directions with regard to the conduct of any preliminary trial hearing;

(iii) orders directing the attendance or production of the accused at the preliminary trial hearing, for the purposes of section 6(6) of the 2021 Act or otherwise;

(iv) orders for the attendance of any witness at any preliminary trial hearing;

(v) an order permitting the evidence of any witness at any preliminary trial hearing to be given by affidavit or otherwise, subject to the right of either party to apply to cross-examine such witness;

(vi) orders for the exchange between the parties and filing in the Office of any written submissions in relation to any application, request and/or matter to be considered at a preliminary trial hearing, and time limits for same; 

(vii) orders for the exchange between the parties and filing in the Office of any written information which the Court considers necessary or desirable in order to enable the Court make any assessment required under section 6(7) of the 2021 Act; 

(viii) orders under section 9(2) of the 2021 Act; 

(ix) orders providing for the exchange of documents or information between the parties, or for the transmission by the parties to the Office of documents or information electronically on such terms and subject to such conditions and exceptions as the Court may direct. 


V. Conduct of preliminary trial hearing

7. At any preliminary trial hearing, the Court may, having heard the parties and having had regard to the requirements of sections 6(4) and 6(5) of the 2021 Act: 

(i) make any order or ruling referred to in section 6(7) or 6(8) of the 2021 Act; 

(ii) as necessary, adjourn the preliminary trial hearing from time to time; 

(iii) make or amend any order mentioned in rule 6. 

8. Unless otherwise directed or permitted by the Court, any evidence given at a preliminary trial hearing shall be given viva voce and on oath. 


VI. Matters to be notified

9. At the first available opportunity: 

(a) if either party intends to serve a PTH Notice, that party shall notify the Court accordingly, and the Court may give such directions as it thinks appropriate for the service of a PTH Notice and PTH Reply and may fix a time at which the PTH Notice is to be listed before it, or may dispense with the requirement of a PTH Notice and PTH Reply and direct the holding of a preliminary trial hearing and make further orders and give directions in relation to such preliminary trial hearing in accordance with rule 6; 

(b) if either party intends to apply for an order referred to in section 6(8)(a), (b) or (c) of the 2021 Act, that party shall notify the Court accordingly and failing such notification on that occasion, such intention shall be notified in writing which may be by electronic mail to the Office at the next opportunity. 


VII. Miscellaneous

10. The Court, having heard the parties, may make an order under section 6(11) of the 2021 Act, or an order under section 6(15)(a) of the 2021 Act on any occasion on which the accused is before the Court prior to the commencement of the trial. 

11.(1) Any application under section 6(15)(b) of the 2021 Act may be made at any sitting of the Court for criminal business or at the commencement of the trial. 

(2) Unless otherwise directed or permitted by the Court, notice in writing of any such application shall be in the Form 57 and shall be served on the opposing party and a copy lodged in the Office not later than four days before the application is intended to be made. 

(3) The notice shall specify the variation sought or the order sought to be discharged and shall set out brief particulars of the material change in circumstances relied on