Criminal
Procedure (Jersey) Rules 2021
Made 17th September 2021
Coming into
force 1st October 2021
THE CRIMINAL PROCEDURE RULES COMMITTEE makes these Rules under Articles 4,
43, 64(5), 65(4), 83(2), 84(4), 85(3), 98(11), 101(8), 105(6), 108(2) and 112
of the Criminal
Procedure (Jersey) Law 2018, Articles 13(5), 14(5) and 21
of the Criminal
Procedure (Bail) (Jersey) Law 2017, Articles 7 and 17 of
the Criminal
Justice (Evidence and Procedure) (Jersey) Law 1998 and Articles 48A,
67I and 82K of the Police
Procedures and Criminal Evidence (Jersey) Law 2003 –
PART 1
Preliminary
1 Interpretation
(1) In
these Rules –
“Bail Law” means the Criminal
Procedure (Bail) (Jersey) Law 2017;
“expert” means a person
who appears to the court to possess the particular specialisation,
qualifications or experience that enable him or her to give opinion on matters
relevant to any aspects of the trial to which the person’s evidence relates;
“expert evidence” means
evidence of an expert provided for the purpose of criminal proceedings based on
the specialised knowledge or skill of that expert, and includes –
(a) evidence given in the
form of an opinion;
(b) evidence required to
determine fitness to plead; or
(c) evidence for the purpose
of sentencing;
“expert report” means the
report given under Rule 49;
“Law” means the Criminal
Procedure (Jersey) Law 2018;
“PPCE Law” means the Police
Procedures and Criminal Evidence (Jersey) Law 2003;
“ordinary service” means
service of a document in accordance with Rule 3(1);
“personal service” means
service of a document in accordance with Rule 3(2);
“proper address” means a
person’s address for service, or, if the address for service is not known –
(a) the business address of
any advocate or solicitor who has agreed to accept service;
(b) a person’s usual or last
known address;
(c) in the case of a body
corporate, the registered or principal office of the body; and
(d) in the case of a
Minister, the official address of that Minister.
“prosecutor” means the
Attorney General or a person conducting proceedings on behalf of the Attorney
General.
(2) Any
wording identified as a “Note” is included for the convenience of the reader
only and does not form part of the Rules.
2 Jurisdiction of the Inferior Number
(1) The
Inferior Number may impose a custodial sentence for one or more terms the
aggregate of which shall not exceed 4 years.
(2) If
a person pleads guilty before, or is found guilty by, the Inferior Number and
the Inferior Number considers that the offences concerned warrant a custodial
sentence in excess of 4 years, it shall refer the sentencing of that
person to the Superior Number.
(3) In
this Rule “custodial sentence” does not include custody for failure to pay a
fine.
3 Service of documents
(1) Ordinary
service of a document may be effected –
(a) by leaving it at the
proper address of the person to be served;
(b) by post;
(c) by email or other
electronic communication (where the parties agree that such communication may
be used to effect service); or
(d) in such manner as the
court may direct.
(2) Personal
service of a document may be effected, through the intermediary of the Viscount’s
Department, by –
(a) leaving it with the
person to be served; or
(b) in the case of a body
corporate, leaving a copy with any director, manager, secretary or other
similar officer of the body, or by leaving it at or delivering it to the
registered office of the body.
(3) Except
when rules of court or any other enactment otherwise expressly provide or the
court otherwise orders, service of any document in any cause or matter may be
effected by ordinary service.
(4) When
provision is made for the service of any document in any cause or matter to be
effected by ordinary service, service may be effected by personal service.
(5) Personal
service is required in the case of a summons –
(a) to reply to an action in
criminal or quasi-criminal proceedings brought by the Attorney General;
(b) to reply to an appeal if
the determination of that appeal is within the competence of the court;
(c) to reply to a reference
if the determination of that reference is within the competence of the court.
(6) A
document served by a party to criminal proceedings –
(a) shall be served on the
Greffier of the relevant court, and on each other party; and
(b) shall be served
electronically.
4 Substituted service
(1) If,
in the case of any document which is required to be served personally on any
person, it appears to the court that it is impracticable for any reason to
serve that document personally on that person, the court may make an order for
substituted service of that document.
(2) An
application for an order for substituted service shall be made by affidavit
stating the facts on which the application is founded.
(3) An
order giving permission to effect substituted service of a document which
requires the person to be served to appear before the court shall specify the
date on which the appearance is required.
(4) Substituted
service of a document, in relation to which an order is made under this Rule,
is carried out by taking whatever steps the court may direct to bring the
document to the notice of the person to be served.
5 Reckoning of periods of time
(1) Any
period of time fixed by rules of court or by any judgment, order or direction
for doing any act shall be reckoned in accordance with this Rule.
(2) When
an act is required to be done within a specified period after or from a
specified date, the period begins immediately after that date.
(3) When
an act is required to be done within or not less than a specified period before
a specified date, the period ends immediately before that date.
(4) When
an act is required to be done a specified number of clear days before or after
a specified date, at least that number of days shall intervene between the day
on which the act is done and that date.
(5) If,
apart from this sub-paragraph, the period in question, being a period of 7 days
or less includes a Saturday, Sunday, public holiday or bank holiday, Christmas
Day or Good Friday, that day is excluded.
(6) In
paragraph (5) “public holiday” and “bank holiday” mean, respectively, a
day appointed to be observed as a public holiday or as a bank holiday under the
Public
Holidays and Bank Holidays (Jersey) Law 1951.
6 Extension of time in respect of days
when the offices of the Viscount or the Greffier are closed
If the time prescribed by
any judgment, order or direction for doing any act before the Greffier, or at
the offices of the Viscount or the Greffier, expires on a Sunday or other day
on which those offices are closed, the act is in time if done on the next day
on which those offices are open.
7 Power to vary requirements
(1) Nothing
in these Rules prevents the court –
(a) allowing an application
or notice to be given other than as set out in these Rules, or to be made or
given orally; or
(b) dispensing with any
requirement for a party to give notice of an application.
(2) A
direction or dispensation under paragraph (1) may be given by the trial
judge during the trial.
(3) The
court or the Viscount may, on such terms as either thinks just, by order extend
or abridge the period within which a person is required or authorised by rules
of court or by any judgment, order or direction to do any act in any
proceedings.
(4) The
court or the Viscount may extend any period referred to in paragraph (3)
although the application for extension is not made until after the expiration
of that period.
(5) The
period within which a person is required by rules of court or by any order or
direction to serve, file or amend any document may be extended by consent in
writing without an order being made for that purpose.
8 Indictment
(1) An
indictment prepared by the Attorney General under Article 43 of the Law
(notice of proceedings and lodging of indictment) shall be prepared in writing
in the form set out in Schedule 1.
(2) In the paragraph of that form headed
“count”, the Attorney General shall –
(a) describe the offence in
ordinary language;
(b) identify any legislation
that creates the offence; and
(c) give any particulars of
the offence that are needed in order to make clear what the Attorney General
alleges against the defendant.
(3) If an offence has been committed more than
once, the instances of the offence may be included in the same count if those
instances, taken together, amount to a course of conduct with regard to the
time, the place or the purpose of committing the offence.
(4) Counts shall be numbered consecutively.
(5) An indictment may contain –
(a) a count charging an
offence that is substantially the same as the offence for which the defendant
was sent for trial; or
(b) any other count charging
an offence that the court is able to try and which is based on the prosecution
evidence that has been served.
(6) An indictment may contain charges for any
offences, whether crimes, délits or infractions.
(7) If a number of offences of the same or of a
similar character have been admitted by the defendant –
(a) the first offence is to
be set out as prescribed in paragraph (2); and
(b) the remainder of the
offences may be set out as a list, with each entry stating –
(i) the date of the offence,
(ii) the place of the
offence, and
(iii) any other information
necessary to identify the offence.
(8) Where Article 43(3)(b) of the Law
applies, the indictment shall be lodged and served at least 36 hours
before the time directed for the defendant’s first appearance before the court.
9 Application for joint
or separate trials
(1) This rule applies if a party wishes the
court to order –
(a) the joint trial of –
(i) offences charged by separate indictments,
or
(ii) defendants charged in
separate indictments;
(b) separate trials of
offences charged by the same indictment;
(c) separate trials of
defendants charged in the same indictment; or
(d) the deletion of a count
from an indictment.
(2) A party shall –
(a) apply in writing –
(i) as soon as practicable after becoming
aware of the grounds for doing so, and
(ii) before the trial begins,
unless the grounds for the application do not arise before trial;
(b) serve the application on –
(i) the Greffier of the relevant court, and
(ii) each other party; and
(c) in the application –
(i) specify the order proposed, and
(ii) explain why it should be
made.
(3) A party who wishes to make representations
in response to the application shall, not more than 10 days after service
of the application, serve the representations on –
(a) the Greffier of the
relevant court; and
(b) each other party.
(4) If the same indictment charges more than
one offence, the court may order separate trials of those offences if it is of
the opinion that –
(a) the offences to be tried
together are neither founded on the same facts nor form or are part of a series
of offences of the same or a similar character;
(b) the defendant may
otherwise be prejudiced or embarrassed in the defendant’s defence; or
(c) for any other reason it
is desirable that the defendant should be tried separately for any one or more
of those offences.
10 Procedure on certain
applications under the Sex Offenders (Jersey) Law 2010
(1) The following applications to the court
under the Sex Offenders (Jersey) Law 2010 (applications other than on
conviction or sentencing) shall be made by representation –
(a) by the Attorney General
under Articles 10(2), 10(3), 10(4)(b), 10(11), 11(1), 11(7), 11(10),
11(13), 12(1), 12(6), 13(2), 14(1), 15(2), 15(3) or 16(1);
(b) by the offender under
Article 10(11);
(c) by the defendant under
Article 11(7) or 11(13); or
(d) by the notifier under
Article 12(6).
(2) The Bailiff or the Magistrate (whichever is
appropriate), sitting alone, may rule on a representation by which an application
under paragraph (1) is made, whether or not an interim injunction is
sought.
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Note: Under
Article 9 of the 2018 Law, the court may give any direction and take any step
in order to manage a case (unless it would be inconsistent with these Rules
or another enactment). In particular, the court may –
(a) give
a direction on its own initiative or on application by a party;
(b) ask
or allow a party to propose a direction;
(c) receive
applications and representations by letter, by telephone or by any other
means of electronic communication, and conduct a hearing by such means;
(d) give
a direction –
(i) at a hearing, in public or in private,
or
(ii) without a hearing;
(e) fix,
postpone, bring forward, extend, cancel or adjourn a hearing;
(f) shorten
or extend (even after it has expired) a time limit fixed by the Rules;
(g) require
that issues in the case should be –
(i) identified in writing, and
(ii) determined separately;
(h) decide
in what order the issues will be determined; and
(i) specify
the consequences of failing to comply with a direction.
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PART 2
Bail
11 Form of application to
show reasonable excuse where there is a surety
The prescribed form for an application under Article 13(4) of
the Bail Law (to show that the defendant had a reasonable excuse for his or her
failure to surrender to custody) is set out in Schedule 2.
12 Form of application to
vary conditions of police bail
The prescribed form for an
application to vary conditions of police bail under Article 30(6) or (8)
or Article 31B(4) or (7) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 is set out in Schedule 3.
13 Address for service
(1) A person who agrees to stand as surety
under Article 12 of the Bail Law shall, before the person is approved by a
court as a surety, provide an address for service in Jersey to that court.
(2) A surety may change his or her address for
service in Jersey by providing the new address to the court.
14 Form and content of
summons of a surety
The prescribed form and content for a summons of a surety under
Article 14(2) or (3) of the Bail Law (for the surety to appear before the
court to show cause as to why he or she should not be required to pay the
amount in which he or she is bound) is set out in Schedule 4.
15 Service of summons of a
surety
(1) Subject to an order of the court, a summons
of a surety under Article 14(2) or (3) of the Bail Law may be served on
the surety by –
(a) leaving it at the most
recent address for service provided by the surety under Rule 13;
(b) posting it to that
address;
(c) emailing it, or otherwise
sending it electronically, to the surety, if the court is satisfied that the
surety will receive it; or
(d) leaving it with the
surety.
(2) A summons served by post under paragraph (1)(b)
is treated as having been served on the second day after the day on which it
was posted, with that second day to be determined without taking into account
any days on which there is no postal service in Jersey.
16 Timing of service
A summons shall be served under Rule 15 at least 4 clear days
before the day on which the surety is required to appear before the court.
17 Declaration that summons
is invalid
The court summoning the surety to appear before it may declare that
a summons is invalid if it has not been served in accordance with these Rules.
18 Setting aside order made
in absence of surety
(1) If, in the absence of a surety, a court
makes an order under Article 14(6) of the Bail Law that an amount is to be
forfeited, the surety may apply to the court to have the order set aside.
(2) The application shall be supported by an
affidavit stating the reasons on which the applicant relies to have the order
set aside.
(3) The court may set aside the order if the
court is satisfied that it is in the interests of justice to do so.
19 Recovery of forfeited
amount
(1) An order under Article 14(6) of the
Bail Law that an amount is to be forfeited authorises the Viscount –
(a) to distrain on the
movables of the surety including, subject to paragraph (2), by arrest on
the surety’s wages; and
(b) to apply the movables, or
the proceeds from their sale (at a public auction or a valuation), towards
satisfying the amount that is forfeited and the costs incurred by the Viscount.
(2) If the court makes an order under Article 14(6)
of the Bail Law that an amount is to be forfeited, the court shall either –
(a) establish the maximum
weekly amount that may be the subject of an arrest on the surety’s wages; or
(b) direct that no arrest of
the surety’s wages may take place.
(3) A sale of the distrained movables may take
place without the leave of the court if the Viscount is satisfied that the
surety is aware of the making of the distraint.
(4) If the Viscount is not satisfied that the
surety is aware of the making of the distraint –
(a) the leave of the court
shall be obtained for the sale of the distrained movables; and
(b) unless the court directs
otherwise or the surety requests otherwise, the sale shall not take place
before the expiration of 15 days after the day on which the court grants
leave for the sale.
(5) The Viscount shall, in respect of any
proposed sale of the distrained movables, ensure that –
(a) notice of the name and
address of the surety and of the proposed sale of the distrained movables is
published in the Jersey Gazette not less than 10 days before the date
fixed for the sale; and
(b) notice of the place and
date fixed for the sale, and of all particulars relating to it, is published in
the Jersey Gazette not less than 2 days before that date.
(6) If the information referred to in paragraph (5)(b)
is not published at the same time as the information referred to in paragraph (5)(a),
the name and address of the surety shall be included as part of the notice
referred to in paragraph (5)(b).
20 Certification by Judicial
Greffier
A copy of the part of the decision of a court to grant a defendant
bail that relates to the time and place appointed for the defendant to
surrender to custody is certified for the purposes of Article 20(6)
(failure to comply with summons) of the Bail Law if the Judicial Greffier,
after comparing the copy to the part of the decision –
(a) sets out the name of the
defendant on the copy;
(b) affirms in writing on the
copy that it is a true copy of that part of the decision; and
(c) signs and dates the copy.
PART 3
Preparatory Hearings
21 Application for a
preparatory hearing
An eligible person making application under Article 53(3) of
the Law (power to order preparatory hearing) for the making of an order for a
preparatory hearing shall –
(a) make the application in
the form set out in Schedule 5;
(b) include a concise
statement of the grounds, having regard to Article 55(1) and (2) of the
Law (preparatory hearing);
(c) deliver the application
to the Bailiff’s Secretary; and
(d) at the same time, deliver
a copy of the application to each other party to the proceedings.
22 Time for making
application
(1) Subject to paragraphs (2) and (3), an
application by the prosecutor or the defendant under Article 53(3) of the
Law shall be made within 28 days of the defendant’s being sent for trial
or the proceedings otherwise being brought before the court.
(2) The time for making such an application may
be extended, either before or after it expires, on an application made under
paragraph (3).
(3) The application for an extension of time
shall –
(a) also be made in the form
set out in Schedule 5;
(b) specify the grounds of
the application; and
(c) be delivered to the
Bailiff’s Secretary, and, at the same time, a copy shall be delivered to each
other party to the proceedings.
(4) Unless the Bailiff otherwise directs, an
application for an extension of time under paragraph (2) is to be
determined by the Bailiff without a hearing.
(5) The Bailiff’s Secretary shall notify the
parties –
(a) of the time and place of
any hearing under paragraph (4); and
(b) of the Bailiff’s decision
on an application under paragraph (2).
23 Representations
concerning an application
If a party receives a copy of an application and proposes to make
written representations to the Bailiff concerning the application, that party
shall, within 7 days of receipt of the copy application –
(a) serve those
representations on the Bailiff’s Secretary; and
(b) serve a copy of the
representations on the other party or, if there is more than one, each of the
other parties in the case.
24 Determination of
application and/or order for preparatory hearing
(1) Unless the Bailiff otherwise directs, an
application under Article 53(3) of the Law is determined by the Bailiff
without a hearing.
(2) The Bailiff’s Secretary shall notify the
parties of the determination of an application, or of an order for a
preparatory hearing made of the Bailiff’s own motion, in the form set out in
Schedule 6.
25 Disclosure of prosecution
case
(1) If an order is made under Article 55(4)
of the Law for the prosecutor to prepare and serve any documents, the order
shall –
(a) identify the documents to
be served; and
(b) require the prosecutor to
serve a copy of each document on the other party or, if there is more than one,
each of the other parties in the case.
(2) The Judicial Greffier shall give notice of
the order to the parties in the case.
26 Defence disclosure
(1) The Judicial Greffier shall give notice, in
the form set out in Schedule 7, of –
(a) an order made under
Article 55(6) or (7) of the Law; and
(b) a requirement imposed
under Article 55(9) of the Law in relation to an order made under Article 55(7)
of the Law.
(2) The notice shall be given to each party to
whom the order or requirement applies, and to the prosecutor.
(3) The notice referred to in paragraph (1)
shall include a warning that if any party departs from the case disclosed by
that party in pursuance of an order made under Article 55 of the Law, or
fails to comply with such an order –
(a) the Bailiff, or any other
party with the leave of the Bailiff, may make such comment as appears to him or
her appropriate and the court or jury, as the case may be, may draw such
inference as appears proper; and
(b) where the court is
satisfied that any such departure or failure by a party constitutes an
unnecessary or improper act or omission on his or her part, and that another
party to the proceedings has incurred costs as a result, the court may make an
order as to the payment of those costs by the party concerned.
PART 4
Miscellaneous pre-trial Procedures
27 Summons for jury service
(1) The Viscount shall summon a person to
attend for jury service using the form set out in Schedule 8.
(2) A summons that is sent by post is deemed to
be served on the second day after the day on which it was posted.
28 Application to the Royal Court
for exemption from jury service
(1) A person making application under Article 65(3)
of the Law (Viscount’s power to exempt from jury service) shall make that
application in writing to the court no later than 7 days after receipt of
the Viscount’s decision under Article 65(1) of the Law.
(2) A determination on the application may be
made by the Bailiff sitting alone, with or without a hearing, and may be made
orally.
29 Issue or withdrawal of
summons or order
(1) The court may issue or withdraw a witness
summons or order with or without a hearing.
(2) A hearing under Rules 29 to 31 shall
be in private unless the court otherwise directs.
30 Application for witness summons
or order
(1) A party who wishes the court to issue a
witness summons or order shall apply as soon as is practicable after becoming
aware of the grounds for doing so using the form set out at Schedule 9.
(2) A party applying for a witness summons or
order shall –
(a) identify the proposed
witness; and
(b) explain –
(i) what evidence the proposed witness can
give or produce,
(ii) why it is likely to be
material evidence, and
(iii) why it would be in the interests
of justice to issue a summons or order as appropriate.
31 Application for a witness
summons to produce confidential information
(1) If a party wishes the court to require a
proposed witness to produce or give in evidence confidential information about
another person, that party shall apply as soon as practicable after becoming
aware of the grounds for doing so using the form set out at Schedule 10.
(2) An application under paragraph (1) may
ask that the court require the proposed witness, in relation to another person –
(a) to produce in evidence a
document or thing; or
(b) to give evidence about
information believed to be held in confidence.
(3) The court shall not issue a witness summons
where this Rule applies unless –
(a) everyone served with the
application has had at least 7 days in which to make representations,
including representations about whether there should be a hearing of the
application before the summons is issued; and
(b) the court is satisfied
that it has been able to take adequate account of the duties and rights,
including rights of confidentiality, of the proposed witness and of any person
to whom the proposed evidence relates.
32 Court’s assessment of
relevance and confidentiality
(1) A person served with an application for a
witness summons requiring the proposed witness to produce in evidence a
document or thing may object to that document or thing’s production if –
(a) it is not likely to be
material evidence; or
(b) even if it is likely to
be material evidence, the duties or rights, including rights of
confidentiality, of the proposed witness or of any person to whom the document
or thing relates, outweigh the reasons for issuing a summons.
(2) An objection under paragraph (1) shall
be made in writing to the court.
(3) The court may require the proposed witness
to make the document or thing available for the objection to be assessed.
(4) To assist the court in assessing the
objection, the court may invite the assistance of –
(a) the proposed witness or
any representative of the proposed witness; or
(b) a person to whom the
document or thing relates or any representative of that person.
33 Defence case statement
and witness notice
(1) The defence case statement required by
Article 83 of the Law (duty to give defence case statement) and the
witness notice required under Article 85 of the Law (notification of
intention to call defence witness) –
(a) shall be in the form set
out in Schedule 11;
(b) shall be given not later
than 14 days after receiving the documents required to be disclosed by
Article 82(1) of the Law (duty of prosecution to disclose unused
material).
(2) If a defendant submits an amended defence
case statement and witness notice, the amended version of the statement or
notice –
(a) shall also be in the form
set out in that Schedule; and
(b) shall be given not later
than 2 days after the defendant is made aware of –
(i) a material change to a matter set out in a
defence case statement,
(ii) a material change to the
defence relied upon by the defendant, or
(iii) discovery of any
information that should have been included in the witness notice, had the
defendant been aware of it at the time of giving the witness notice.
(3) In paragraph (2)(b) a reference to the
defendant is also a reference to the defendant’s legal representative.
PART 5
Witnesses and evidence
Division 1
Introductory
34 Evidence
(1) Any party to criminal or quasi-criminal
proceedings may apply to the court for an order authorising the Judicial
Greffier or the Viscount to receive on oath or solemn affirmation the evidence,
whether oral, in writing or by audio-visual recording, of any person who is in
Jersey at the time of making the application, whose evidence is required for
the proceedings, and who –
(a) will or may be out of
Jersey at the date of the hearing;
(b) is prevented by sickness
or other infirmity from coming to court; or
(c) it is feared may die
before the hearing.
(2) Unless otherwise directed by the court,
evidence taken in accordance with paragraph (1) is admissible at the
hearing only if the court is satisfied that –
(a) the deponent is dead or
out of Jersey, or is unable from sickness or other infirmity to attend court;
and
(b) the depositions are duly
certified.
(3) The Viscount and the Greffier may
administer oaths or solemn affirmations to witnesses who appear to give
evidence before them.
35 Opening and final
representations
(1) This Rule sets out the order of events at
trial.
(2) The prosecutor may open the case.
(3) The Royal Court may –
(a) invite the defendant to
identify concisely the matters in dispute, if necessary in terms approved by
the court;
(b) if the defendant declines
to do so, direct that the jurors or Jurats be given a copy of the defence case
statement served under Rule 33; and
(c) edit that defence case
statement in order to remove –
(i) reference to any inappropriate matters,
and
(ii) reference to any matters
evidence of which would not be admissible.
(4) The prosecutor may make a final speech.
(5) The defendant may make a final speech.
Division 2
Statements not made in oral evidence
36 Application of Rules
(1) This Division applies to statements.
(2) In this Division, “statement” means a
statement not made in oral evidence that is admissible under Articles 64(1)(d),
65, 66(1)(c) or 67B of the PPCE Law (admissibility of statements not made in
oral evidence).
37 Introducing statements
(1) A party who wishes to introduce a statement
shall serve notice in accordance with this Rule.
(2) The notice shall –
(a) identify the statement;
(b) provide a copy of, or a
link to, that statement and any evidence that the party considers to be
material to the application;
(c) state the provision of
the PPCE Law under which the statement is admissible;
(d) explain the circumstances
that make the statement admissible; and
(e) explain how the party
will prove those circumstances apply, if another party disputes them.
(3) The statement shall be attached to the
notice unless it contains only evidence that has already been served.
(4) A party who wishes to introduce a statement
shall serve the notice as soon as reasonably practicable after the defendant
has pleaded not guilty.
(5) A party may waive any entitlement to notice
under this Rule by informing –
(a) the Judicial Greffier;
and
(b) the party who would
otherwise have been required to serve the notice.
38 Opposing the introduction
of a statement
(1) A party objecting to the introduction of a
statement shall –
(a) apply to the court to
determine the objection;
(b) serve the application as
soon as reasonably practicable and in any event not later than 14 days
after the relevant date as set out in paragraph (2).
(2) The relevant date is the later of –
(a) either –
(i) the date of service of the notice to
introduce the statement under Rule 37, or
(ii) if no notice is required
under Rule 37, the date of service of the statement to which the party
objects; and
(b) the date on which the
defendant pleads not guilty.
(3) The application to court shall explain –
(a) which, if any, of the
circumstances set out in the notice under Rule 37(2) that the party
disputes;
(b) why the statement is not
admissible; and
(c) any other objection to
the statement.
(4) The court may determine an application with
or without a hearing, which may be public or private.
|
Note: Under
Article 64 of the PPCE Law, a statement not made in oral evidence is
admissible as evidence of any matter stated if –
(a) a
statutory provision makes it admissible;
(b) a
rule of customary law referred to at Article 64A makes it admissible;
(c) the parties
agree to it being admissible; or
(d) it is
in the interests of justice for it to be admissible.
Under Article
63 of the Law –
(a) a
“statement” means any representation of fact of opinion, by any means, and
includes a representation in pictorial form; and
(b) a
“matter stated” is something stated by someone with the apparent purpose
of –
(i) causing another person to believe it,
or
(ii) causing another person, or a machine, to
act or operate on the basis that the matter is as stated.
The Articles of the PPCE Law listed in this Part set
out the conditions on which statements not made in oral evidence may be
admitted under them.
If notice is not given as this Part requires, then
under Article 67I(4) of the PPCE Law –
(a) the
evidence is not admissible without the court’s permission;
(b) if
the court gives permission, it may draw such inferences as appear proper from
the failure to give notice; and
(c) the
court may take the failure into account in exercising its powers to order
costs.
This Part does not require notice of a statement
that is admissible under any of the following Articles of the PPCE Law –
(a) Article
64(1)(c) (all parties to the proceedings agree to it being admissible);
(b) Article
66 (business and other documents), otherwise than documents sought to be
admitted under Article 66(1)(c);
(c) Article
64A (admissibility of statement under rules of customary law);
(d) Article
67 (inconsistent statements); or
(e) Article
67A (other previous statements of witness).
This Part does not require notice of a statement
that is admissible under an enactment other than the PPCE Law.
|
Division 3
Evidence of bad character
39 Interpretation
Unless the context otherwise requires, words or phrases in this
Division that are defined in Parts 8 or 9A of the PPCE Law have the same
respective meanings as in that Law.
40 Introduction of evidence
of bad character
(1) A party who wishes to introduce evidence of
a person’s bad character, other than a defendant in respect of his or her own
bad character, shall –
(a) in the case of a
defendant’s bad character, give notice in accordance with Rule 41; or
(b) in the case of the bad
character of a person other than a defendant, make an application in accordance
with Rule 42.
(2) The notice or application shall –
(a) state the provision of
the PPCE Law on which the party relies to have the evidence admitted, and
explain why it applies;
(b) set out the facts of the
misconduct on which the party applying to introduce the evidence relies; and
(c) explain how that party
will prove those facts (whether by certificate of conviction, other official
record or other evidence) if another party disputes them, and provide copies of
or access to the materials relied upon.
41 Evidence of defendant’s
bad character
(1) A prosecutor who wishes to introduce
evidence of a defendant’s bad character under Part 9A of the PPCE Law
shall serve the notice not later than 21 days before the trial.
(2) A defendant who wishes to introduce
evidence of a co-defendant’s bad character under Part 9A of the PPCE Law
shall serve the notice –
(a) as soon as reasonably
practicable; and
(b) in any event not later
than 14 days after –
(i) the prosecutor discloses the material on
which the notice is based, or
(ii) the defendant otherwise
becomes aware of the information on which the notice is based.
42 Evidence of a
non-defendant’s bad character
(1) A prosecutor who wishes to introduce
evidence of the bad character of a person other than a defendant under Article 82J
(non-defendant’s bad character) of the PPCE Law shall serve the application not
later than 21 days before the trial.
(2) A party, other than the prosecutor, who
wishes to introduce evidence of the bad character of a person other than a
defendant under Article 82J of the PPCE Law shall serve the application –
(a) as soon as reasonably
practicable; and
(b) in any event not later
than 14 days after –
(i) the prosecutor discloses the material on
which the notice is based, or
(ii) the defendant otherwise
becomes aware of the information on which the notice is based.
43 Objecting to introduction
of evidence of bad character
(1) A party objecting to the introduction of
evidence set out in a notice, or to an application under Rule 42 shall –
(a) apply to the court to
determine the objection; and
(b) serve the application as
soon as reasonably practicable and in any event not later than 14 days
after receipt of the notice served under that Rule.
(2) The application shall explain –
(a) which (if any) of the
facts of the misconduct or disposition towards misconduct set out in the notice
the party disputes;
(b) which (if any) of the
facts of the misconduct or disposition towards misconduct set out in the notice
the party admits;
(c) why the evidence set out
in the notice is not admissible;
(d) why it would be unfair to
admit the evidence; and
(e) any other objection to
the notice.
(3) The court may determine the application
with or without a hearing, which may be in public or private.
|
Note: Under
Article 82C of the PPCE Law, evidence of a person’s bad character means evidence
of a person’s bad character means evidence of, or of a disposition towards,
misconduct on that person’s part, other than evidence that –
(a) has
to do with the alleged facts of the offence; or
(b) is
evidence of misconduct in connection with the investigation or prosecution.
Under Article
82E of the PPCE Law, evidence of the defendant’s bad character is admissible
if –
(a) all
parties to the proceedings agree to the evidence being admissible;
(b) the
evidence is introduced by the defendant, or is given in answer to a question
asked by the defendant in cross-examination which was intended to elicit that
evidence;
(c) it is
important explanatory evidence;
(d) it is
relevant to an important matter in issue between the defendant and the prosecution;
(e) it
has substantial probative value in relation to an important matter in issue
between the defendant and a co-defendant;
(f) it
is evidence to correct a false impression given by the defendant; or
(g) the
defendant has made an attack on another person’s character.
Articles
82E(5) and 82F to 82I of the Law supplement those requirements. The court
shall not admit evidence under (d) or (g) if, on an application by the
defendant, the court concludes that to do so would be unfair.
Under Article
82J of the PPCE Law, evidence of a non-defendant’s bad character is
admissible if –
(a) it is
important explanatory evidence;
(b) it
has substantial probative value in relation to a matter which –
(i) is a matter in issue in the
proceedings; and
(ii) is of substantial importance in the
context of the case as a whole; or
(c) all parties
to the proceedings agree to the evidence being admissible.
The Article explains requirements (a) and (b). Unless
the parties agree to the evidence being admissible, it may not be introduced
without the court’s permission.
The fact that a person was convicted of an offence
may be proved under Article 71 of the PPCE Law (conviction in Jersey).
See also Articles 64A and 66 of the PPCE Law
(admissibility of statements contained in business and other documents).
Under Article 3 of the Criminal
Justice (Evidence and Procedure) (Jersey) Law 1998, a party may admit a matter of fact.
|
Division 4
Expert evidence
44 Application
This Division applies when a party wishes to introduce expert
evidence.
45 Leave of the court to
introduce expert evidence
A party shall not adduce expert evidence at trial without the prior
leave of the court.
46 Expert’s duty to the
court
An expert must –
(a) give opinion which is
objective and unbiased;
(b) give only opinion which
is within the expert’s area or areas of expertise;
(c) comply with directions
made by the court, or immediately inform the court if he or she fails to, or is
unable to, take any step required by a direction;
(d) define, whether in the
expert’s report or, when giving evidence in person, the area or areas of the
expert’s expertise;
(e) when giving evidence in
person, draw the court’s attention to any question to which the answer would be
outside the expert’s area or areas of expertise;
(f) inform all parties and
the court if the expert’s opinion changes from that contained in the expert
report; and
(g) disclose to the party for
whom the expert’s evidence is commissioned anything that should be disclosed
under Rule 48(1)(b).
47 Introduction of agreed
expert evidence
(1) A party who wishes to introduce expert
evidence that is agreed by all parties shall serve that expert evidence as soon
as practicable after the defendant whom it affects pleads not guilty.
(2) A party on whom a summary is served shall,
as soon as practicable (but in any event no later than 14 days after
service of the expert evidence) serve a response stating –
(a) which, if any, of the
expert evidence is agreed; and
(b) where a conclusion is not
agreed, what are the disputed issues concerning that conclusion.
48 Introduction of expert
evidence other than as agreed or unchallenged
(1) A party who wishes to introduce expert
evidence other than under Rule 47 shall –
(a) serve, as soon as is
practicable, an expert report that complies with Rule 49;
(b) serve with the report
notice of anything of which the party is aware that might reasonably be capable
of –
(i) undermining the reliability of the expert’s
opinion, or
(ii) detracting from the
credibility or impartiality of the expert;
(c) if another party so
requests, give that party a copy of, or a reasonable opportunity to inspect –
(i) a record of any examination, measurement,
test or experiment on which the expert’s findings and opinion are based, or
that were carried out in the course of reaching those findings and opinion, and
(ii) anything on which such
examination, measurement, test or experiment was carried out.
(2) Unless the parties agree, other than as
directed by the court, a party shall not –
(a) introduce expert evidence
that does not comply with paragraph (1); or
(b) introduce an expert
report if the expert does not give evidence in person.
49 Expert’s report
(1) An expert’s report shall contain –
(a) details of the expert’s
qualifications, relevant experience and accreditation;
(b) details of any literature
or other information on which the expert has relied in making the report;
(c) statements setting out –
(i) any facts given to the expert that are
material to the opinions expressed in the report,
(ii) which of the facts in
the report are within the expert’s own knowledge,
(iii) that the expert
understands an expert’s duty to the court under Rule 46 and that he or she
has complied and will continue to comply with that duty;
(d) as much information as
the court requires in order to decide if the expert’s opinion is reliable
enough to be admitted as evidence;
(e) a summary of the
conclusions reached by the expert; and
(f) a declaration by the
expert as to the truth of the report.
(2) If an expert has based an opinion or
inference on a representation of fact or opinion made by another person for the
purposes of criminal proceedings, the expert report shall –
(a) identify the person who
made the representation to the expert;
(b) give the qualifications,
relevant experience and accreditation of that person; and
(c) certify that that person
had personal knowledge of the matters stated in that representation.
(3) If there is a range of opinion on the
matters dealt with in the report, the report shall –
(a) summarise the range of
opinion; and
(b) give reasons for the
expert’s own opinion.
50 Expert to be informed of
service of report
A party who serves another party or the court with an expert’s report
shall immediately inform the expert of that fact.
51 Pre-hearing discussion of
expert evidence
(1) If more than one party wishes to introduce
expert evidence, the court may direct the experts –
(a) to discuss the expert
issues in the proceedings; and
(b) to prepare a statement
for the court of the matters on which they agree and disagree, giving their
reasons.
(2) Other than that statement, the content of
the experts’ discussion shall not be referred to without the court’s
permission.
(3) If an expert has not complied with a
direction under this Rule, a party shall not introduce evidence from that
expert without the court’s permission.
52 Single joint expert
(1) If more than one defendant wishes to
introduce expert evidence on an issue at trial, the court may direct that the
evidence is to be given by one expert only.
(2) If the co-defendants cannot agree who
should be the expert, the court may –
(a) select the expert from a
list prepared or identified by the co-defendants; or
(b) direct that the expert be
selected in another way.
(3) If the court directs that a single joint
expert is to be used, each of the co-defendants may give instructions to the
expert.
(4) A co-defendant who gives instruction to the
expert shall, at the same time, send a copy of the instructions to the other
co-defendant or co-defendants.
(5) The court may –
(a) give directions as to the
payment of the expert’s fees or expenses;
(b) give directions as to any
examination, measurement, test or experiment that the expert wishes to carry
out; or
(c) before the expert is
instructed, limit the amount that can be paid by way of fees and expenses to
the expert.
(6) Unless the court directs otherwise, the
instructing co-defendants are jointly and severally liable for the expert’s
fees and expenses.
Division 5
Special measures
53 Application for special
measures for a witness
(1) A party who wishes to apply under paragraph
Article 101(1)(b) of the Law shall do so as soon as reasonably practicable
after the party has become aware of the need for special measures.
(2) If an application is made in writing, it
shall be made in the form set out at Schedule 12.
(3) A party who objects to an application under
Article 101(1)(b) of the Law shall apply to the court to determine the
objection as soon as is reasonably practicable, and in any case not later than
14 days after the application under Article 101(1)(b) of the Law.
(4) The court may determine an application
under Article 101(1)(b) of the Law, or an objection under paragraph (3),
with or without a hearing.
54 Application for special
measures for a defendant who is an eligible witness
(1) If the defendant applies to the court under
Article 101(4) of the Law (power of the court to order special measures),
the application shall be made in the form set out at Schedule 12, as soon
as is reasonably practicable after the defendant has pleaded not guilty.
(2) A party who objects to an application under
Article 101(4) of the Law shall apply to the court to determine the
objection as soon as is reasonably practicable, and in any case not later than
14 days after the application under Article 101(4) of the Law.
(3) The court may determine an application
under Article 101(4) of the Law, or an objection under paragraph (2),
with or without a hearing.
55 Application to vary or
discharge a special measures order
(1) A party who wishes the court to vary or
discharge a special measures order shall apply in writing as soon as reasonably
practicable after becoming aware of the grounds for doing so.
(2) The applicant shall –
(a) explain what material
circumstances have changed since the order was given or last varied; and
(b) explain why the order
should be varied or discharged.
(3) The court may determine an application
under this Rule with or without a hearing.
56 Application containing
information withheld from another party
(1) If a party applying for a special measures
order wishes to withhold information contained in that application from another
party, the party applying for a special measures order shall apply to the
court.
(2) The application to the court shall –
(a) identify the information;
(b) explain why the applicant
thinks the information should be withheld from the other party.
(3) The applicant shall notify the party from
whom it is desired that the information is withheld that an application under
paragraph (1) has been made.
(4) The court may determine the application
with or without a hearing, and any hearing may be held wholly or partly in the
absence of the party from whom the information has been withheld.
(5) The court may direct the applicant to serve
on the other party any part of the application which has been withheld.
57 Representations in
response to application for special measures direction
(1) This Rule applies where a party wishes to make
representations about –
(a) an application for a
special measures order;
(b) an application for the
variation or discharge of a special measures order; or
(c) an order, variation or
discharge that the court proposes on its own initiative.
(2) A party who wishes to make such
representations shall serve the representations not later than 7 days
after –
(a) service of the
application; or
(b) notice of the order,
variation or discharge, whichever is applicable.
(3) If the party wishes to withhold from another
party any information contained in the representations, that party shall –
(a) mark that information to
show that, unless the court directs, it is only for the court; and
(b) explain why the
information has been withheld.
(4) Representations against a special measures
order shall explain –
(a) why the witness is not
eligible for assistance;
(b) if the witness is
eligible for assistance, why –
(i) no special measure would be likely to
improve the quality of the witness’ evidence,
(ii) the proposed measure or
measures would not be likely to maximise the quality of the witness’ evidence,
or
(iii) the proposed measure or
measures might inhibit the effective testing of the evidence; and
(c) if the admission of video
recorded evidence is proposed, why it would not be in the interests of justice
for the recording, or any part of it, to be admitted as evidence.
(5) Representations against the variation or
discharge of a special measures order shall explain why the direction should
not be varied or discharged.
(6) The court may determine an application
under this Rule with or without a hearing.
PART 6
Costs and sentencing
58 Costs incurred by act or
omission
In determining the amount of costs to be awarded under Article 108
(provisions as to costs incurred because of act or omission) of the Law, the
court shall take into consideration –
(a) the rates and amounts of
payments for the provision of legal aid contained in any Legal Aid Guidelines
published by the Chief Minister under the Access to Justice (Jersey)
Law 2019; or
(b) any written statement
provided by a prosecutor, giving an estimate of the prosecutor’s legal costs.
59 Taking offences into consideration
(1) Subject to paragraph (3), when the
court sentences any person in respect of an offence and the conditions in
paragraph (2) are satisfied, the court may take one or more other offences
committed by that person into consideration.
(2) The conditions are –
(a) the defendant has
admitted one or more other charges and requested that they be taken into
consideration;
(b) the offences to which the
other charges relate are of a similar nature to the offence for which sentence
is being imposed and are otherwise within the jurisdiction of the court; and
(c) the Attorney General does
not object.
(3) An offence is not to be taken into
consideration if –
(a) the court considers that
it is in the public interest for the offence to be charged and tried separately;
(b) the offence to be taken
into consideration is likely to attract a greater sentence than the offence
being sentenced;
(c) the defendant would avoid
a prohibition, ancillary order or similar consequence that it would have been
desirable to impose on conviction;
(d) the offence to be taken
into consideration constitutes a breach of an earlier sentence; or
(e) the offence to be taken
into consideration is not founded on the same facts of evidence, nor part of a
series of offences of the same or similar character.
60 Sentence where offence
taken into consideration
(1) Where the court takes one or more offences
into consideration, it may impose in respect of the charged offence a greater
sentence than it would have imposed had it not taken any offence into
consideration.
(2) Despite paragraph (1) –
(a) if the maximum sentence
is fixed by law, the court may not exceed that maximum sentence; and
(b) the Youth Court, the
Magistrate’s Court or the Inferior Number of the Royal Court may not exceed the
maximum of its sentencing jurisdiction.
61 Status of offences to be
taken into consideration
An offence does not, by reason of its having been taken into
consideration, become an offence in respect of which a person may make a plea
of autrefois convict, but no proceedings for an offence that a court has taken into
consideration may be instituted without the leave of the Attorney General.
62 Computation of custodial
sentences
(1) Subject to paragraph (3), the length
of a custodial sentence imposed on an offender by the court is reduced by any
period during which the offender was in custody, if any of the conditions in
paragraph (2) are met.
(2) The conditions are that the offender was in
custody by order of the court made in connection with –
(a) proceedings relating to
that sentence;
(b) proceedings relating to
the offence for which the sentence was passed; or
(c) any proceedings from
which the proceedings in (a) or (b) arose.
(3) A period is to be disregarded for the
purposes of paragraph (1) if that period ended before the making of, in
respect of the offender –
(a) an order under Article 2
of the Loi (1937) sur l’atténuation des
peines et sur la mise en liberté surveillée;
(b) a community service order
under the Criminal Justice (Community
Service Orders) (Jersey) Law 2001; or
(c) a suspension order made
under the Criminal Justice (Suspension
of Prison Sentences) (Jersey) Law 2003.
(4) A reference in any enactment to the length
of a custodial sentence, unless the context otherwise requires, is to be
construed as a reference to the sentence pronounced by the court and not the
sentence as reduced by this Rule.
63 Fines and forfeitures
(1) It shall be the duty of the Viscount to
collect all fines, penalties and other monetary orders imposed by the court and
to dispose of all forfeitures ordered by the court.
(2) An order imposing a fine, penalty or other
monetary order on a person authorises the Viscount to distrain on the movables
of that person and to apply them, or the proceeds from their sale (at a public
auction or a valuation), towards satisfying the fine, penalty or other monetary
order and the costs incurred by the Viscount.
(3) A sale of the distrained movables may take
place without the leave of the court if the Viscount is satisfied that the
person is aware of the making of the distraint.
(4) If the Viscount is not satisfied that the
person is aware of the making of the distraint –
(a) the leave of the court
shall be obtained for the sale of the distrained movables; and
(b) unless the court directs
otherwise or the person requests otherwise, the sale shall not take place
before the expiration of 15 days after the day on which the court grants
leave for the sale.
(5) The Viscount shall, in respect of any
proposed sale of the distrained movables, ensure that –
(a) notice of the name and
address of the person and of the proposed sale of the distrained movables is
published in the Jersey Gazette not less than 10 days before the date
fixed for the sale; and
(b) notice of the place and date
fixed for the sale, and of all particulars relating to it, is published in the
Jersey Gazette not less than 2 days before that date.
(6) If the information referred to in paragraph 5(b)
is not published at the same time as the information referred to in paragraph 5(a),
the name and address of the person shall be included as part of the notice
referred to in paragraph 5(b).
PART 7
ENFORCEMENT OF BRITISH ISLANDS FORFEITURE
ORDERS UNDER THE TERRORISM (JERSEY) LAW 2002
64 Interpretation of Part 7
In this Part –
“Terrorism Law” means the Terrorism (Jersey) Law 2002;
“order” means English, Scottish, Northern Irish or Islands order (as
the case may be) within the meaning of paragraph 9 of Schedule 3;
“Schedule 3” means Schedule 3 to the Terrorism Law.
65 Application for
registration
(1) An application by a person or body seeking
registration in the Royal Court of an order shall be made on behalf of that
person or body by the Attorney General on an ex
parte application to the Bailiff in chambers.
(2) An application under paragraph (1)
shall be supported by an affidavit made by or on behalf of the person or body
seeking registration –
(a) exhibiting the order to
which the application relates or a copy of it which satisfies the requirements
of paragraph 10(9) of Schedule 3; and
(b) that, to the best of the
deponent’s ability, gives particulars of such money or other property in
respect of which the order is made as is in Jersey and identifies any person
holding such money or other property.
(3) Unless the Bailiff otherwise directs, an
affidavit for the purposes of this Rule may contain statements of information
or belief with the sources and grounds thereof.
66 Notice of registration
(1) The Act of the Royal Court directing that
an order be registered in the Royal Court is to provide for notice to be given
to the persons affected by the registration of the order.
(2) Unless the Bailiff otherwise directs,
service of notice under paragraph (1) out of the jurisdiction –
(a) is permissible without
leave; and
(b) shall be effected by
registered post.
67 Application to vary or
set aside registration
(1) An application to vary or set aside the
registration of an order may be made to the Royal Court by representation
supported by affidavit.
(2) If an application under paragraph (1)
is non-contentious it may be made to the Bailiff alone in chambers.
(3) This Rule does not apply to a variation or
cancellation under Rule 68.
68 Variation and
cancellation of a registration
If effect has been given (whether in Jersey or elsewhere) to an
order, or if the order has been varied or discharged by the court by which it
was made, the person or body who sought registration shall notify the Attorney
General who shall inform the Bailiff and –
(a) if effect has been given
in respect of all the money or other property to which the order applies, or if
the order has been discharged by the court by which it was made, cancel the
registration of the order; or
(b) if effect has been given
in respect of only part of the money or other property, or if the order has
been varied by the court by which it was made, vary the registration of the
order accordingly.
PART 8
Final
69 Citation and commencement
These Rules may be cited as the Criminal Procedure (Jersey) Rules
2021 and come into force on 1st October 2021.
M. JOWITT Q.C.
J. GOLLOP
M. CUTLAND
R.J. MACRAE
B. SHAW
Criminal Procedure Rules
Committee