2 Hare Court
12 Experts
11 Contributions by 2 Hare Court Experts
PRACTICE NOTES
Disclosure obligations
Where a defendant appears before a magistrates’ court charged with an indictable‑only offence, or an either way offence, and is sent to the Crown Court for trial under s 51(1) of the Crime and Disorder Act 1998 (CDA 1998), the framework for serving the prosecution’s evidence is set by the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005 (CDA (SPE) Regs), SI 2005/902, together with the Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909. For provision of Initial Details of the Prosecution Case (IDPC) disclosure in the magistrates’ court, refer to Practice Note: Disclosure in the magistrates’ court. Be aware that some criminal proceedings are administered via the Crown Court Digital Case System (DCS), Crown Court’s electronic case management platform. In such cases, service and access to prosecution material may occur through the DCS. For further guidance, see
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PRACTICE NOTES
The statutory conditions
This Practice Note sets out the statutory requirements for admitting a statement from a witness who is not available in criminal proceedings in England and Wales, under section 116 of the Criminal Justice Act 2003 (CJA 2003). For wider guidance on the admissibility of hearsay in criminal cases, see Practice Note: Admissibility of hearsay evidence in criminal proceedings. Section 116 CJA 2003 governs the use of hearsay where the maker of the statement is ‘unavailable’ to testify. A statement from such a witness is admissible as evidence of the matters asserted only where all of the following are satisfied:
the material would have been admissible as oral testimony had the witness been able to attend court
the individual who made the statement is identified to the court’s satisfaction
the maker falls within one of the
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PRACTICE NOTES
This Practice Note explains how third-party material can be identified and obtained.
It addresses investigators’ obligations under the Criminal Procedure and Investigations Act 1996 (CPIA 1996) and its Code of Practice to pursue all reasonable lines of enquiry, together with the disclosure responsibilities of Crown servants. It sets out how to seek disclosure directly from a third party and how to apply for a witness summons requiring production of material under the Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909. The CPIA 1996 governs the prosecution’s disclosure in criminal proceedings, imposing primary, secondary and continuing duties in relation to material that could reasonably be considered to weaken the prosecution case or assist the accused. A parallel duty also exists at common law. For further detail, see Practice Note: Obtaining disclosure of unused evidence. Third party material refers to material held by a person,
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PRACTICE NOTES
Chapter 3A (ss 303B–303Z) of Part 5 of the Proceeds of Crime Act 2002 (POCA 2002) sets out summary provisions for the seizure, detention and forfeiture of specified high‑value personal items (often described as the detention and forfeiture of listed assets). For this Practice Note, this is referred to as the recovery of listed assets regime. When it commenced on 16 April 2018, the recovery of listed assets regime represented a notable enlargement of the existing POCA 2002 seizure and forfeiture powers...
Related powers under PACE 1984 and POCA 2002 to seize personal property
Related powers in civil proceedings under POCA 2002, Pt 5
Part 5 of POCA 2002 provides the overarching structure for multiple forms of civil recovery into which the recovery of listed assets regime fits. It includes:
POCA 2002, ss 243–288 (Part 5, Chapter 2), addressing civil recovery of money by the High Court and
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PRACTICE NOTES
Offence of possession of an indecent photograph of a child
Under section 160 of the Criminal Justice Act 1988 (CJA 1988), a person commits an offence by having in their possession any indecent photograph or pseudo-photograph of a child. This is an either way offence.
Indecent
There is no definition of ‘indecent’. The jury must determine indecency by reference to recognised standards of propriety, using an objective test rather than their wholly subjective views alone.
A child
A child means a person who was under 18 at the material time. Expert evidence regarding a child’s age is inadmissible, since the jury are well placed to assess the age of a child for themselves. It is a question of fact for the jury to determine ultimately.
Photograph or pseudo-photograph
The terms photograph and pseudo-photograph bear the same meaning, for these purposes, under section 7 of the Protection of Children Act 1978 (PCA
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PRACTICE NOTES
Duty of disclosure of unused evidence
The quest for a fair trial rooted in equality of arms has generated a disclosure duty owed by the Crown to the defence. In R v H, the House of Lords stated that, for the purposes of article 6(1) of the Convention, criminal proceedings must be adversarial and governed by the principle of equality of arms between prosecution and defence. Those requirements oblige investigating authorities to reveal all material that assists or undermines the defence, whether or not the prosecution intends to rely on it. That said, the right to disclosure is not unqualified, and material that falls to be disclosed may be withheld on public interest immunity (PII) grounds. For further guidance, see Practice Note: Public interest immunity. The prosecutor’s disclosure obligations may be cast broadly. It is not only required to set out the
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PRACTICE NOTES
Private prosecutor’s role as a ‘Minister of Justice’
A private prosecutor, along with anyone running proceedings on their behalf, must act as ‘Ministers of Justice’. Alongside that duty, a private prosecutor can also assume the following positions in a case:
complainant
witness
investigator
disclosure officer
Unavoidably, these overlapping roles can collide, weakening the prosecutor’s ability to act as a true ‘Minister of Justice’. Where one individual or entity holds any mixture of these roles, the tension must be recognised and actively managed so the defendant is not treated unfairly. Both sides should remain alive to this risk.
Partly for this reason, it is not uncommon for challenges to be brought to the issuing of the summons or the continuation of proceedings. See Practice Note: Challenging private prosecutions. Such challenges frequently probe the private prosecutor’s motive and conduct (often examining whether the duty of
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PRACTICE NOTES
Sections 122A–122K of the Sexual Offences Act 2003 (SOA 2003) contain the statutory framework for sexual risk orders (SROs). An SRO is a civil measure intended to safeguard the public across the UK, as well as children or vulnerable adults overseas, from individuals who present a risk of harm. Through SROs, the courts may impose whatever prohibitions are considered necessary to prevent such individuals from causing harm. The Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) makes amendments to the relevant part of the SOA 2003; at the time of writing, certain changes have not yet commenced and are highlighted below where applicable. The principal difference between an SRO and a sexual harm prevention order (SHPO) is that an SRO can be made in relation to someone who has not been convicted of, or cautioned for, an offence listed in SOA 2003,
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PRACTICE NOTES
The unexplained wealth order (UWO)
Unexplained wealth orders (UWOs) are an investigative tool available to enforcement bodies in High Court civil recovery proceedings brought under Part 5 of the Proceeds of Crime Act 2002 (POCA 2002). Introduced on 31 January 2018 with retrospective effect, they apply irrespective of whether the respondent obtained the property before that date. For a detailed discussion of UWOs and the reasons behind their introduction, see News Analysis: Criminal Finances Act 2017—unexplained wealth orders.
A UWO requires a person suspected of involvement in, or association with, serious criminality to justify the source of assets that seem disproportionate to their known income. In short, the order compels the respondent to provide a ‘statement’ outlining the nature and extent of their interest in the property identified in the order, together with an explanation of how it was acquired. Failure to give a
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CHECKLISTS
Checklist
This checklist outlines the key matters that need to be addressed when making an application to admit hearsay evidence within criminal proceedings under the Criminal Justice Act 2003 (CJA 2003), and it should be read in conjunction with the Practice Note: Admissibility of hearsay evidence in criminal proceedings...
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CHECKLISTS
Is the statement one defined by the Criminal Justice Act 2003 (CJA 2003)?...
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