Criminal Procedure And Evidence Act 2011 (Gibraltar)

Criminal Procedure And Evidence Act 2011

Published: 2011-10-06

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Unlimited Searches
Weekly Updates on New Laws
Access to 5,345,848 Global Laws from 110 Countries
View the Original Law Side-by-Side with the Translation

Subscribe Now for only USD$40 per month.

Criminal Procedure and Evidence

2011-24

CRIMINAL PROCEDURE AND EVIDENCE ACT 2011

Principal Act

Act. No. 2011-24 Commencement

ss. 1 & 703 (LN. 2011/186) 6.10.2011

s.690 (LN. 2011/203) 14.10.2011

ss. 2(1), 610-620, 698, Schs. 11 & 12

(LN. 2012/017)

8.3.2012

ss. 415 and 420 to 423 (LN. 2012/091) 28.6.2012

ss 3-84, 86-414, 416-419

424-609, 621- 689, 691-697, 699-702,

Schs 1-10 & 13 (LN. 2012/184)

23.11.2012

Assent 12.8.2011

Amending

enactments

Relevant current

provisions

Commencement

date

Act. 2012-13 ss. 2(1), 170(3), (3)(a) & (4), 225, 226,

241, 244(1) & (4), 245, 246, 247(1)(a)

& (4)(a), 248(5), 249, 251(1), (2)(a) &

(b), (3), (4), (7), (9) & (12), 252(1),

266A, 359-364, 427(1), 433(1),

434(5) & 695(2)

23.11.2012 1

2013-03 s. 199(3) 17.1.2013

LN. 2013/056 ss. 2(1), 258 & 259 4.4.2013

Act. 2013-21 ss. 12(1)(a), (5), 690(5),(6), 690A &

Sch. 14

10.10.2013 2

LN. 2013/142 ss. 85A - 85F 27.10.2013

Act. 2014-15 ss. 612(1)(b), 613(1), (2), (2A), (2B),

(3), (5), (6) & Sch. 11

12.6.2014

LN. 2014/230 ss. 144(4A), (4B), 211(5), (6), 351(3),

352(1), (4), 371(6), (7), 376(1A),

(1B), 480(4), (4A), (5)

1.12.2014

Act. 2015-04 ss. 497 26.2.2015

English sources:

None cited

1 Commencement notice see LN. 2012/186 2 Commencement notice see LN. 2013/136

Criminal Procedure and Evidence

2011-24

Transposing:

Directive 2010/64/EU

Directive 2011/36/EU

EU Legislation/International Agreements involved:

Decision 2002/629/JHA

Criminal Procedure and Evidence

2011-24

ARRANGEMENT OF SECTIONS

Section

PART 1 – PRELIMINARY

1. Title and commencement.

2. Interpretation.

3. Offences under two or more laws.

4. Application of English procedure.

PART 2 – POWER TO STOP AND SEARCH OR ENTER

AND SEARCH

Powers to stop and search

5. Power of police officers to stop and search persons, vehicles

etc.

6. Provisions relating to search under section 5 and other powers.

7. Power to stop and search in anticipation of, or after, violence.

8. Provisions supplementary to section 7.

9. Duty to make records concerning searches.

10. Road checks.

11. Reports of searches and road checks.

Powers to enter and search

12. Power to authorise entry and search of premises.

13. Special provisions as to access.

14. Meaning of “items subject to legal privilege”.

15. Meaning of “excluded material”.

16. Meaning of “personal records”.

17. Meaning of “journalistic material”.

18. Meaning of “special procedure material”.

19. Search warrants: Safeguards.

20. Execution of search warrants.

21. Entry for purpose of arrest, etc.

22. Entry and search after arrest.

PART 3 – POWERS OF SEIZURE, ETC

23. General interpretation of Part.

24. Copies.

General power of seizure, etc

25. General power of seizure, etc.

26. Extension of powers of seizure to computerised information.

Criminal Procedure and Evidence

2011-24

27. Access and copying.

28. Retention.

Additional powers of seizure

29. Additional powers of seizure from premises.

30. Additional powers of seizure from the person.

31. Notice of exercise of power under section 29 or 30.

Return or retention of seized property

32. Examination and return of property seized under section 29 or

30.

33. Obligation to return items subject to legal privilege.

34. Obligation to return excluded and special procedure material.

35. Retention of seized property.

36. Retention of property seized under section 29 or 30.

37. Person to whom seized property is to be returned.

Remedies and safeguards

38. Application to the Magistrates’ Court.

39. Cases in which duty to secure arises.

40.

41.

The duty to secure.

Use of inextricably linked property.

PART 4 – POWERS OF ARREST WITHOUT WARRANT

42. Arrest without warrant: Police officers.

43. Arrest without warrant: Other persons.

44. Repeal of statutory power of arrest without warrant or order.

45. Fingerprinting of certain offenders.

46. Information to be given on arrest.

47. Voluntary attendance at police station, etc.

48. Arrest elsewhere than at a police station.

49. Bail elsewhere than at a police station.

50. Bail under section 49: Notices.

51. Bail under section 49: Supplementary.

52. Failure to answer to bail under section 49.

53. Arrest for further offence.

54. Search upon arrest.

PART 5 – POLICE DETENTION

Police detention – conditions and duration

55. Limitations on police detention.

Criminal Procedure and Evidence

2011-24

56. Designated police stations.

57. Custody officers at police stations.

58. Duties of custody officer before charge.

59. Breach of bail following release under section 58.

60. Release on bail under sections 58 and 59: Further provision.

61. Duties of custody officer after charge.

62. Responsibilities in relation to persons detained.

63. Review of police detention.

64. Use of telephone for review under section 63.

65. Limits on period of detention without charge.

66. Authorisation of continued detention.

67. Warrants of further detention.

68. Extension of warrants of further detention.

69. Detention before charge: Supplementary.

Police detention – miscellaneous

70. Detention after charge.

71. Power of arrest for failure to answer to police bail.

72. Bail after arrest.

73. Conditions of police bail.

74. Re-arrest of persons on bail.

75. Records of detention.

76. Saving for habeas corpus.

PART 6 – QUESTIONING AND TREATMENT OF

PERSONS BY POLICE

Questioning and search of persons

77. Interpretation of Part.

78. Abolition of certain powers of police officers to search persons.

79. Searches of detained persons.

80. Searches and examinations to ascertain identity.

81. Intimate searches.

82. X-rays and ultrasound scans.

83. Right to have someone informed when arrested.

84. Additional rights of children and young persons who are

arrested.

85. Access to legal advice.

Interpretation and translation

85A. Right to interpretation.

85B. Written translation of documents.

85C. Cost of interpretation and translation.

85D. Duty to record.

85E. Unsatisfactory interpretation or translation.

Criminal Procedure and Evidence

2011-24

85F. Non-regression.

Fingerprints, samples, etc]

86. Fingerprinting.

87. Impressions of footwear.

88. Intimate samples.

89. Non-intimate samples.

90. Fingerprints and samples: Speculative searches, etc.

91. Testing for presence of Class A drugs or Class B drugs.

92. Testing for presence of Class A drugs or Class B drugs:

Supplementary.

Retention and destruction of samples, etc

93. Retention of samples and fingerprints, etc. generally.

94. Destruction of samples etc.

95. Destruction of data given voluntarily.

96. Destruction of data relating to persons not convicted.

97. Destruction of data relating to persons under 18 not convicted:

Recordable offences other than qualifying offences.

98. Destruction of data relating to persons under 16 not convicted:

Qualifying offences.

99. Destruction of data relating to persons aged 16 or 17 not

convicted: Qualifying offences.

100. Destruction of data relating to persons under 18 convicted of a

recordable offence other than a qualifying offence.

101. Sections 95 to 100: Supplementary provision.

102. Destruction of fingerprints taken under section 86(12).

103. Retention for purposes of security.

104. Retention with consent.

105. Destruction of copies, and notification of destruction.

106. Use of retained material.

Photographing of suspects, etc

107. Photographing of suspects, etc.

PART 7 – BAIL IN CRIMINAL PROCEEDINGS

108. Interpretation of Part.

Principles for bail decisions

109. Remand in custody or on bail.

110. Right to bail.

111. Reasons for not granting bail.

112. Conditions of bail.

113. Basis for bail decisions.

Criminal Procedure and Evidence

2011-24

114. Record of reasons for bail decisions.

115. Bail when juvenile arrested.

116. Further remand.

117. Reconsideration of decisions on granting of bail.

118. Bail on appeal or case stated.

119. Prosecution appeal against the grant of bail.

120. Bail by the Supreme Court.

121. Extension of power of Supreme Court to grant bail or vary

conditions.

Recognizances and sureties

122. Mode of entering into recognizance.

123. Bail with sureties.

124. Forfeiture of security.

Offences

125. Offence of absconding.

126. Liability to arrest for absconding or breaking conditions of bail.

127. Offence of agreeing to indemnify sureties in criminal

proceedings.

Miscellaneous provisions

128. Calculating terms of imprisonment.

129. Bail in cases of treason, etc.

130. Bail in cases of murder.

131. Warrant of arrest may be endorsed for bail.

PART 8 – MAGISTRATES’ COURT PROCEEDINGS

Sittings of the court

132. Sittings of the court.

Institution of proceedings

133. Manner of instituting proceedings.

134. Issue of summons or warrant for arrest.

135. Service of summons after failure to prove service by post.

136. Proceedings invalid if accused did not know of them.

137. Defect in process.

138. Remaining in force of process.

139. Construction of references to “complaints”.

Offences triable on indictment or summarily

Criminal Procedure and Evidence

2011-24

140. Initial procedure: Defendant to indicate intention as to plea.

141. Intention as to plea: Absence of defendant.

142. Intention as to plea: Adjournment.

143. Initial procedure on information against adult for offence

triable either way.

144. Decision as to allocation.

145. Procedure if summary trial appears more suitable

146. Procedure if summary trial appears more suitable:

Supplementary.

147. Procedure if trial on indictment appears more suitable.

148. Certain offences to be tried summarily if value involved is

small.

149. Power of court, with consent of legally represented defendant,

to proceed in his absence

150. Summary trial of information against juvenile for either-way

offence.

151. Juvenile to indicate intention as to plea in certain cases.

152. Intention as to plea by juvenile: Absence of defendant.

153. Intention as to plea by juvenile: Adjournment.

154. Power to change from summary trial to committal or sending

proceedings.

155. Power to issue summons to defendant in certain circumstances.

156. Effect of dismissal of information.

157. Duty of magistrates in relation to indictable-only offences.

Summary trial

158. Time limitation.

159. Procedure at trial.

160. Adjournment.

161. Non-appearance of prosecutor.

162. Non-appearance of defendant: General provisions.

163. Non-appearance of defendant: Issue of warrant.

164. Non-appearance of both parties.

165. Plea of guilty in absence of defendant.

166. Application of section 165 if accused appears.

Remands by the Magistrates’ Court

167. Remand: General principles.

168. Remand in custody.

169. Remand on bail.

170. Remands in custody for more than 8 days.

171. Further remand.

172. Remand of defendant already in custody.

Recognizances for good behaviour

Criminal Procedure and Evidence

2011-24

173. Binding over.

174. Discharge of recognizance on complaint of surety.

175. Varying or dispensing with requirements as to sureties.

176. Postponement of taking recognizance.

177. Forfeiture of recognizance.

Proceedings against corporations

178. Representatives of corporations.

179. Sending for trial of a corporation.

Miscellaneous provisions

180. Power of the court to re-open cases to rectify mistakes, etc.

181. Functions of the court when a person is brought before it for

appearance before the Supreme Court.

182. Application of fines, etc.

183. Magistrates’ power to summon witnesses, etc.

PART 9 – COMMITTAL OR SENDING FOR TRIAL

Committal for trial to the Supreme Court

184. Proceedings before examining magistrates.

185. Adjournments.

186 Evidence which is admissible.

187. Written statements.

188. Depositions.

189. Statements.

190. Other documents.

191. Proof by production of copy.

192. Committal or discharge.

193. Committal without consideration of evidence.

194. Public notice of outcome.

Sending for trial to the Supreme Court

195. Sending for trial: Adults.

196. Sending for trial: Juveniles.

197. Sending for trial: Supplementary.

198. Relevant offences.

199. Notice of sending and other documents.

Committal or sending for trial: Supplementary

200. Remand on committal or sending.

201. Application for dismissal.

Criminal Procedure and Evidence

2011-24

Taking of depositions

202. Taking of depositions by a magistrate.

203. Use of depositions as evidence.

Reporting restrictions

204. Reporting restrictions: Committal or sending proceedings.

205. Reporting restrictions: Application for dismissal.

206. Offences in connection with reporting.

Miscellaneous procedure provisions

207. Avoidance of delay.

208. Power of Supreme Court to deal with summary offence.

209. Procedure if no main offence remains.

210. Procedure in case of disorderly conduct.

211. Decision on whether summary trial or trial on indictment more

suitable.

212. Procedure if case more suitable for summary trial.

213. Procedure if case more suitable for trial on indictment.

214. Procedure in case of a juvenile.

215. Procedure for deciding whether offences of criminal damage,

etc. are summary offences.

216. Power of Supreme Court to proceed in defendant’s absence.

PART 10 –COMMITTAL FOR SENTENCE

217. Committal for sentence on conviction of serious offence triable

either way.

218. Committal for sentence on indication of guilty plea to offence

triable either way.

219. Power of Supreme Court on committal for sentence under

section 217 or 218.

220. Committal for sentence if offender committed in respect of

another offence.

221. Power of Supreme Court on committal for sentence under

section 220.

222. Supplementary provisions.

PART 11 – CONTROL OF PROSECUTIONS

Control of prosecutions generally

223. Power of Attorney-General to enter nolle prosequi.

224. Power to appoint prosecuting counsel.

225. Conduct of prosecutions in the Magistrates’ Court.

226. Prosecutors subject to directions of Attorney-General.

Criminal Procedure and Evidence

2011-24

227. Consents to prosecutions.

228. Time limits in relation to preliminary stages of criminal

proceedings.

229. Additional time limits for persons under 18.

230. Re-institution of proceedings stayed under section 228 or 229.

231. Discontinuance of proceedings in the Magistrates’ Court.

232. Discontinuance of proceedings after defendant has been sent

for trial.

References to the Court of Appeal

233. Scope of review.

234. Reviews of sentencing: Principles.

235. Reviews of sentencing: Procedure.

236. Reference to Court of Appeal of point of law following

acquittal on indictment.

237. Leave to appeal to Her Majesty in Council.

PART 12 – DISCLOSURE OF MATERIAL

Preliminary

238. Application of Part.

Duty of disclosure

239. Initial duty of prosecutor to disclose.

240. Initial duty to disclose: Further provisions.

241. Deleted

242. Voluntary disclosure by defendant

243. Contents of defence statement.

244. Updated disclosure by defendant.

245. Deleted

246. Deleted

247. Disclosure by defendant: Further provisions.

248. Continuing duty of prosecutor to disclose.

249. Application by defendant for disclosure.

250. Prosecutor’s failure to observe time limits.

251. Faults in disclosure by defendant.

252. Time limit for defence disclosure.

Disclosure: Miscellaneous

253. Public interest: Review for summary trials.

254. Public interest: Review in other cases.

255 Applications: Opportunity to be heard.

256. Confidentiality of disclosed information.

257. Confidentiality: Contravention.

Criminal Procedure and Evidence

2011-24

Human Trafficking Offences: Investigation and

Prosecution.

258. Requirements for investigation or prosecution.

259. Resources for investigation or prosecution.

Protected material: Sexual offences

260 to 264 Not used

Supplementary

265. Rules of court.

266. Other rules as to disclosure.

266A. Notice of alibi.

PART 13 – APPEALS TO THE SUPREME COURT

Right of appeal

267. Right of appeal against conviction or sentence.

268. Right of appeal from the Magistrates’ Court in mental disorder

cases.

269. Appeals in cases concerning juveniles.

Procedure

270. Notice of appeal.

271. Entry of appeal.

272. Duties of Registrar.

273. Abandonment of appeal.

274. Right of appellant to be present.

275. Procedure at hearing.

Powers of the Supreme Court on appeal

276. Powers of Supreme Court on appeal.

277. Determination of appeals.

278. Appeals against special findings or verdicts.

279. Supplementary powers.

280. Enlargement of time.

281. Power to correct omissions or mistakes.

282. Manner of enforcement of decision.

283. Notification to Magistrates’ Court.

Cases stated

Criminal Procedure and Evidence

2011-24

284. Right to apply for statement of case.

285. Case may be sent back for amendment.

286. Determination of question.

287. Enforcement of decisions.

PART 14 – SUPREME COURT PROCEDURE

Manner of trial

288. Trials to be with jury or lay assessors.

Indictments

289. Bills of indictment.

290. Contents of indictments.

291. Joining of charges in same indictment.

292. Objections to and amendment of indictments.

293. Separate trial of counts and postponement of trial.

294. Rules as to indictments.

Pleas

295. Plea of guilty to other offence.

296. Pleas by corporations.

297. Plea of autrefois acquit or autrefois convict.

Attendance of witnesses

298. Issue of witness summons on application to Supreme Court.

299. Power to require advance production.

300. Directions if summons no longer needed.

301. Application to make summons under section 298 ineffective.

302. Issue of witness summons of court’s own motion.

303. Application to make summons under section 302 ineffective.

304. Penalty for disobeying a witness summons or requirement.

305. Further process to ensure attendance of witness.

306. Expenses of witnesses.

Tainted acquittals

307. Acquittals tainted by intimidation, etc.

308. Conditions for making order.

309. Time limits for proceedings.

Miscellaneous provisions

310. Practice and procedure in connection with indictable offences

and appeals.

Criminal Procedure and Evidence

2011-24

311. Process to compel appearance.

PART 15 – RETRIAL FOR SERIOUS OFFENCES

Application for retrial

312. Cases that may be retried.

313. Application to Court of Appeal.

314. Decision by Court of Appeal.

315. New and compelling evidence.

316. Interests of justice.

317. Procedure and evidence on the application.

318. Appeals.

319. Restrictions on publication in the interests of justice.

320. Offences in connection with publication restrictions.

Procedure on a retrial

321. Procedure on a retrial.

322. Evidence on a retrial.

323. Authorisation of investigations.

324. Urgent investigative steps.

325. Arrest and charge.

326. Bail and custody before application.

327. Bail and custody before hearing.

328. Bail and custody during and after hearing.

329. Revocation of bail.

PART 16 – EVIDENCE: GENERAL PRINCIPLES

Principles for admission of evidence

330. Evidence to be on oath.

331. Principles for admission of statements.

332. Exclusion of unfair evidence.

333. Onus of proving exceptions, etc.

Summoning and calling of witnesses

334. General power to examine witnesses, etc.

335. Witnesses in custody.

336. Arrest and punishment of recalcitrant witnesses.

337 Calling of persons charged.

338. Time for taking defendant’s evidence.

Competence and compellability

339. Competence of witnesses to give evidence.

Criminal Procedure and Evidence

2011-24

340. Determining competence of witnesses.

341. Deciding whether witness to be sworn.

342. Reception of unsworn evidence.

343. Abolition of right of defendant to make unsworn statement.

344. Competence of persons charged and their spouses.

345. Defendant’s spouse as a witness.

346. Defendant’s spouse as a witness: Supplementary.

347. Evidence by spouses about property.

348. Limitation of rule against self-incrimination.

Convictions and acquittals

349. Admissibility of evidence of previous conviction.

350. Evidence in Magistrates’ Court.

351. Conviction as evidence of commission of offence.

352. Proof of convictions and acquittal in Gibraltar and in Member

States of the European Union.

353. Proof of convictions elsewhere.

354. Proof by fingerprints.

Admissions and confessions

355. Proof by formal admission.

356. Confessions: General.

357. Confessions may be given in evidence for co-defendant.

358. Confessions by mentally handicapped persons.

Inferences from silence

359. Deleted

360. Deleted

361. Deleted.

362. Deleted

363. Deleted

364. Deleted

Evidence of bad character

365. Interpretation of sections 366 to 379.

366. “Bad character”.

367 Abolition of common law rules.

368. Non-defendant’s bad character.

369. Defendant’s bad character.

370. “Important explanatory evidence”.

371. “Matter in issue between the defendant and the prosecution”.

372. “Matter in issue between the defendant and a co-defendant”.

373. Evidence to correct a false impression.

374. Attack on another person’s character.

375. Stopping the case if evidence contaminated.

Criminal Procedure and Evidence

2011-24

376. Offences committed by defendant when a child.

377. Assumption of truth in assessment of relevance or probative

value.

378. Court’s duty to give reasons for rulings.

379. Rules of court.

Derogatory assertions

380. Orders in respect of certain assertions.

381. Restriction on reporting of assertions.

382. Reporting of assertions: Offences.

Expert evidence

383. Expert reports.

384. Form of evidence and glossaries.

385. Expert evidence: Preparatory work.

386. Advance notice of expert evidence in court.

Proof of non-payment of sum adjudged

387. Proof of non-payment of sum adjudged.

PART 17 – HEARSAY EVIDENCE

388. Interpretation of Part.

389. Admissibility of hearsay evidence.

390. Statements and matters stated.

Principal categories of admissibility

391. Cases where a witness is unavailable.

392. Business and other documents.

393. Preservation of certain common law categories of admissibility.

394. Inconsistent statements.

395. Witness may be discredited by the party producing .

396. Proof of contradictory statements of adverse witness .

397. Other previous statements of witnesses.

Hearsay: Supplementary

398. Additional requirement for admissibility of multiple hearsay.

399. Capability to make statement.

400. Credibility.

401. Stopping the case where evidence is unconvincing.

402. Court’s general discretion to exclude evidence.

403. Representations other than by a person.

404. Rules of court.

Criminal Procedure and Evidence

2011-24

Documents

405. Proof by written statement.

406. Evidence by certificate.

407. Proof of identity of driver of vehicle.

408. Proof of statements in documents.

409. Use of documents to refresh memory.

410. Microfilm copies.

Video recordings

411. Evidence by video recording.

412. Video recordings: Further provisions.

Documentary evidence: Supplementary

413. Documentary evidence: Supplementary.

414. Documents produced as exhibits.

PART 18 – LIVE LINK EVIDENCE, ETC.

415. Interpretation and savings.

Evidence by live link

416. Evidence by live link by person outside Gibraltar

417. Live link evidence in criminal proceedings generally.

418. Effect of, and rescission of, a direction under section 417.

419. Warning to jury.

Live links in certain preliminary and sentencing hearings

420. Introductory.

421. Use of live link at preliminary hearings when defendant is in

custody.

422. Continued use of live link for sentencing hearing following a

preliminary hearing.

423. Use of live link in sentencing hearings.

Miscellaneous

424. Magistrates’ Court may sit at other locations.

425. Rules of court.

426. Offence of perjury.

PART 19 – VULNERABLE WITNESSES

Criminal Procedure and Evidence

2011-24

427. Interpretation of Part.

Special measures: Eligible witnesses

428. Witnesses eligible for assistance on grounds of age or

incapacity.

429. Witnesses eligible for assistance on grounds of fear or distress

about testifying.

430. Special measures available to eligible witnesses.

431. Special measures direction relating to eligible witness.

432. General provisions about directions.

433. Special provisions relating to child witnesses.

434. Extension of section 433 to certain witnesses over 17.

435. Special provisions relating to sexual offences.

Special measures: General

436. Screening witness from defendant.

437. Evidence by live link

438. Evidence given in private.

439. Removal of wigs and gowns.

440. Video recorded evidence in chief.

441. Video recorded cross-examination or re-examination.

442. Examination of witness through intermediary.

443. Aids to communication.

444. Status of evidence given under special measures.

445. Special measures: Warning to jury.

Use of live link and intermediary for evidence of certain

defendants

446. Live link directions.

447. Meaning of “live link”.

448. Examination of defendant through intermediary.

449. Further provision as to directions under section 448.

Protection of witnesses from cross-examination by defendant in

person

450. Complainants in proceedings for sexual offences.

451. Child complainants and other child witnesses.

452. Direction prohibiting defendant from cross-examining

particular witness.

453. Further provisions about directions under section 452.

454. Defence representation for purposes of cross-examination.

455. Cross-examination: Warning to jury.

Protection of complainants in proceedings for sexual offences

Criminal Procedure and Evidence

2011-24

456. Restriction on evidence or questions about complainant’s

sexual history.

457. Interpretation and application of section 456.

458. Procedure on applications under section 456.

Reporting restrictions: General

459. Restrictions on reporting alleged offences involving persons

under 18.

460. Power to restrict reporting of criminal proceedings involving

persons under 18.

461. Power to restrict reports about certain adult witnesses in

criminal proceedings.

462. Restrictions on reporting directions given under this Part.

463. Offences relating to reporting.

464. Defences relating to reporting.

Reporting restrictions: Identity of victims

465. Decisions as to public interest in relation to reporting.

466. Restriction on reporting of identity of victims of sexual

offences.

467. Power to displace section 466.

468. Offences relating to reporting of identity of victims.

Anonymity of witnesses

469. Witness anonymity orders.

470. Applications for orders.

471. Conditions for making order.

472. Relevant considerations.

473. Warning to jury.

474. Discharge or variation of order.

475. Discharge or variation after proceedings.

476. Discharge or variation on appeal.

Miscellaneous provisions

477. Regulations, orders and rules of court.

478. Savings.

PART 20 – SENTENCING: GENERAL PRINCIPLES

Principles for sentencing

479. Purposes of sentencing.

480. Determining the seriousness of an offence.

Criminal Procedure and Evidence

2011-24

481. Reduction in sentences for guilty pleas.

482. Powers to mitigate sentences and deal appropriately with

mentally disordered offenders

483. Mitigation of sentence in the Magistrates’ Court

484. Sentencing guidelines.

485. Duty to give reasons for, and explain effect of, sentence.

Commencement and alteration of sentence

486. Commencement of sentence.

487. Alteration of Supreme Court sentence.

Deferment of sentence

488. Power to defer sentence.

489. Breach of undertakings.

490. Conviction of offence during period of deferment.

491. Deferment of sentence: Supplementary.

Pre-sentence reports

492. Pre-sentence reports and other requirements.

493. Additional requirements in case of mentally disordered

offender.

494. Disclosure of pre-sentence reports.

Deportation

495. Pre-sentence drug testing.

496. Power to recommend deportation.

PART 21 – CUSTODIAL SENTENCES

Duration of sentences

497. Duration of terms of imprisonment.

498. Time in custody pending appeal.

Restrictions on sentences of imprisonment

499. General restrictions on imposing discretionary custodial

sentences.

500. Length of discretionary custodial sentences: General provision.

501. Liability to imprisonment on conviction on indictment.

502. General limit on Magistrates’ Court’s power to impose

imprisonment.

503. Imprisonment of children and young persons.

504. Restriction on imposing custodial sentences on persons not

Criminal Procedure and Evidence

2011-24

legally represented.

Consecutive sentences

505. Consecutive sentences: General.

506. Consecutive sentences: Magistrates’ Court.

Suspended sentences

507. Suspended sentences.

508. Prison sentence partly served and partly suspended.

509. Powers of court on conviction for further offence.

Detention

510. Detention in police cells.

511. Detention for one day.

512. Committal to custody overnight.

Life sentences

513. Recommendation as to minimum term.

514. Aggravating and mitigating factors.

515. Duty to give reasons.

PART 22 – NON-CUSTODIAL SENTENCES

516. Interpretation of Part.

Discharge

517. Absolute and conditional discharge.

518. Commission of further offence by person conditionally

discharged.

519. Effect of discharge.

520. Discharge: Supplementary.

Community sentences

521. Community orders.

522. Youth rehabilitation orders.

523. Unpaid work requirement.

524. Activity requirement.

525. Programme requirement.

526. Prohibited activity requirement.

527. Curfew requirement.

528. Exclusion requirement.

529. Residence requirement.

Criminal Procedure and Evidence

2011-24

530. Mental health treatment requirement.

531. Mental health treatment at place other than as specified in

order.

532. Drug rehabilitation requirement.

533. Drug rehabilitation requirement: Provision for review by court.

534. Periodic review of drug rehabilitation requirement.

535. Alcohol treatment requirement.

536. Intoxicating substance treatment requirement.

537. Supervision requirement.

Further provisions about relevant orders

538. Relevant order made by Supreme Court: Direction in relation to

further proceedings.

539. Relevant orders made on appeal.

540. Duties of responsible officer.

541. Requirement must avoid conflict with religious beliefs, etc.

542. Provision of copies of relevant orders.

543. Duty of offender to keep in touch with responsible officer.

Breach or requirement of community sentence

544. Community order: Duty to give warning.

545. Community order: Breach of order after warning.

546. Youth rehabilitation order: Duty to give warning.

547. Youth rehabilitation order: Breach of order after warning.

548. Issue of summons or warrant by magistrate.

549. Issue of summons or warrant by Supreme Court.

550. Powers of Magistrates’ Court on breach.

551. Powers of Supreme Court on breach.

552. Restriction of powers when treatment required.

Revocation and amendment of relevant orders

553. Revocation of relevant order by Magistrates’ Court.

554. Revocation of relevant order by Supreme Court.

555. Amendment of requirements of a relevant order.

556. Amendment of treatment requirements.

557. Amendment in relation to review of drug rehabilitation

requirement.

558. Extension of unpaid work requirement.

Powers of court following subsequent conviction

559. Powers of Magistrates’ Court following subsequent conviction.

560. Powers when relevant order made by Supreme Court.

561. Powers of Supreme Court following subsequent conviction.

Criminal Procedure and Evidence

2011-24

Supplementary

562. Restrictions on imposing community sentences.

563. No relevant order to be made while appeal pending.

564. Issue of summons or warrant under certain sections.

565. Regulations.

566. Hearing by Magistrates’ Court.

567. Power to provide for court review of relevant orders.

PART 23 – FINES AND RECOGNIZANCES

Imposing of fines

568. Power to order statement as to offender’s financial

circumstances.

569. General power of Supreme Court to impose fines.

570. Standard scale of fines – Schedule 9.

571. Fixing of fines.

572. Remission of fines.

573. Power to allow time, etc.

574. Part payment and defaults of instalments.

Juvenile offenders

575. Limit on fines imposed by Magistrates’ Court in respect of

juveniles.

576. Power to order statement as to financial circumstances of

parent or guardian.

577. Power to order parent or guardian to pay fine, costs or

compensation.

578. Fixing of fine or compensation to be paid by parent or

guardian.

Enforcement of fines and recognizances

579. Imprisonment for non-payment of a fine – Schedule 10.

580. Enforcement of fines imposed and recognizances forfeited by

Supreme Court.

581. Enforcement by distress or committal.

582. Restriction on committal and means inquiry.

583. Defect in distress warrant and irregularity in execution.

584. Release from custody, etc., on payment.

585. Power of court to order search of person and application of

money found.

586. Supervision pending payment.

PART 24 – COSTS, COMPENSATION, RESTITUTION,

FORFEITURE, ETC.

Criminal Procedure and Evidence

2011-24

Costs

587. Amendment of Schedules.

588. Award of costs by Magistrates’ Court.

589. Costs in other matters.

590. Costs of defective or redundant indictments.

591. Award of costs by Supreme Court.

592. Award of costs on appeal.

593. Enforcement of orders.

594. Saving.

Compensation

595. Compensation orders against convicted persons.

596. Amount payable under a compensation order.

597. Compensation orders: Appeals.

598. Review of compensation orders.

599. Effect of compensation order on subsequent award in civil

proceedings.

Restitution

600. Restitution orders.

601. Restitution orders: Appeals.

Return of property

602. Return of property taken from defendant.

603. Title to stolen property.

Forfeiture

604. Powers of forfeiture.

605. Application of proceeds of forfeited property.

606. Disposal of non-pecuniary forfeitures.

Miscellaneous

607. Awards for courage in arrest.

608. Levels of compensation.

609. Power of court to allow time for payment, or payment by

instalments, of costs and compensation.

PART 25 – REHABILITATION OF OFFENDERS

610. Rehabilitated persons and spent convictions.

611. Effect of rehabilitation.

Criminal Procedure and Evidence

2011-24

612. Excluded sentences.

613. Rehabilitation periods for particular sentences.

614. The rehabilitation period applicable to a conviction.

615. Limitations on rehabilitation under this Part.

616. Exceptions to rehabilitation.

617. Exceptions: Supplementary.

618. Defamation actions.

619. Unauthorized disclosure of spent convictions.

620. References to spent convictions in court proceedings.

PART 26 – ANTI-SOCIAL BEHAVIOUR ORDERS

621. Anti-social behaviour orders (ASBOs).

622. Orders on conviction in criminal proceedings (CRASBOs).

623. Supplementary provisions.

624. Appeals against orders.

PART 27 – YOUNG OFFENDERS AND JUVENILES

GENERALLY

Juvenile Courts

625. Constitution and procedure of Juvenile Courts.

626. Charges to be heard in the Juvenile Court.

627. Extension of jurisdiction.

Imprisonment or detention of young offenders

628. Restrictions on reports of proceedings in which juveniles are

concerned.

629. Juveniles who commit murder, etc. to be detained at Her

Majesty’s pleasure.

630. Juveniles who commit certain serious offences to be detained

for specified period.

631. Duty to impose imprisonment for life in certain cases where

offender under 21.

632. Duty to remit young offenders to the Juvenile Court for

sentence.

633. Remitting an offender who attains the age of 18 to the

Magistrates’ Court for sentence.

Reparation orders on young offenders

634. Making of reparation orders.

635. Requirements and provisions of reparation orders.

636. Breach of requirement of reparation order.

637. Revocation and amendment of reparation order.

638. Presence of offender in court, remands, etc.

Criminal Procedure and Evidence

2011-24

639. Reparation orders: Appeals.

Fines on young offenders

640. Application of Part 23.

Binding over of parent or guardian

641. Binding over of parent or guardian.

642. Attendance at court of parent or guardian.

Schedule 13 offences

643. Presumption and determination of age.

644. Power to proceed with case in absence of juvenile.

645. Extension of power to take deposition of juvenile.

646. Admission of deposition of juvenile in evidence.

647. Mode of charging offences and limitation of time.

648. Warrant to search for juvenile suspected of being ill-treated,

etc.

Miscellaneous provisions

649. General considerations when dealing with juveniles.

650. Segregation of juveniles in detention.

651. Prohibition of unnecessary presence of children in court.

652. Power to clear court while juvenile is giving evidence.

653. Evidence of child of tender years.

654. Not used

655. Power to prohibit publication of certain matter in newspapers.

656. Dealing with persons who attain the age of 18.

PART 28 – MENTALLY DISORDERED OFFENDERS

657. Interpretation of Part.

Fitness to be tried

658. Finding of unfitness to be tried.

659. Appeals against finding of unfitness.

660. Finding that the defendant did the act or made the omission

charged against him.

661. Acquittal on ground of mental disorder.

662. Powers to deal with persons not guilty by reason of mental

disorder or unfit to be tried.

663. Resumption of trial if defendant fit to be tried.

Remands to hospital

Criminal Procedure and Evidence

2011-24

664. Remand to hospital for report on defendant’s mental condition.

665. Remand for report.

666. Remand for report: Supplementary.

667. Effect of remand to hospital.

Hospital orders

668. Making of a hospital order.

669. Interim hospital orders.

670. Effect of hospital orders and interim hospital orders.

Transfer to hospital of prisoners, etc.

671. Removal to hospital of persons serving sentences of

imprisonment, etc.

672. Removal to hospital of other prisoners.

673. Prisoners under sentence.

674. Detained persons.

675. Persons remanded by the Magistrates’ Court.

676. Persons detained under the Immigration, Asylum and Refugee

Act.

Supervision orders

677. Power to make supervision orders.

678. Requirements as to medical treatment.

679. Change of place of treatment.

680. Requirement as to residence.

681. Revocation or amendment of a supervision order.

Miscellaneous

682. Periodical reports.

683. Appeals against orders.

684. Evidence by prosecution of mental disorder or diminished

responsibility.

PART 29 – CODES OF PRACTICE

Codes of practice

685. Codes of practice on search, arrest, seizure, etc.

686. Code on recording of interviews.

687. Codes of practice on criminal investigations.

688. Examples of disclosure provisions in a code of practice.

689. Code on police interviews of witnesses notified by defendant.

690. Publication of codes of practice.

Criminal Procedure and Evidence

2011-24

690A. Amendment or revision of codes of practice.

691. Effect and status of codes of practice.

692. Common law rules as to criminal investigations.

PART 30 – MISCELLANEOUS AND TRANSITIONAL

PROVISIONS

693. Police officers performing duties of higher rank.

694. Power of police officer to use reasonable force.

695. Application of Act to other public officers.

696. Rules of court.

697. Regulations.

698. Amendment of Schedules.

699. Repeals and savings.

700. Transitional provisions.

701. Consequential amendments.

702. Service of documents.

SCHEDULES

Schedule 1 Special procedure for access to excluded material

(Sections 13(1), 26(2) and 38(7))

Schedule 2 Preserved powers of arrest (Section 44(2))

Schedule 3 Designated police stations (Sections 2(1) and 56)

Schedule 4 Fingerprinting and samples: attendance at police

station (Section 90(11)

Schedule 5 Trigger offences for testing for drugs (Sections 2(1)

and 91)

Schedule 6 Offences that are only triable summarily (Sections

145(3), 148(1) and (9) and 163(1))

Schedule 7 Qualifying offences for retrial (Section 312)

Schedule 8 Categories of offences that establish a propensity

(Section 371(4))

Schedule 9 Standard scale of fines for offences (Sections 550(1),

570, 575 and 587)

Schedule 10 Maximum periods of imprisonment or detention in

default of payment (Sections 579(3) and 587)

Schedule 11 Table of rehabilitation periods (Section 613)

Criminal Procedure and Evidence

2011-24

Schedule 12 Exceptions to rehabilitation (Sections 616 and

617(1))

Schedule 13 Offences against juveniles with respect to which

special provisions apply (Sections 643 to 648)

Criminal Procedure and Evidence

2011-24

AN ACT TO MAKE FRESH PROVISION IN RELATION TO THE

POWERS AND DUTIES OF THE POLICE, THE TREATMENT OF

PERSONS IN POLICE DETENTION, AND EVIDENCE AND

PROCEDURE IN CRIMINAL CASES; AND FOR CONNECTED

PURPOSES.

PART 1 – PRELIMINARY

Title and commencement.

1.(1) This Act may be cited as the Criminal Procedure and Evidence Act

2011.

(2) This Act comes into operation on the day appointed by the

Government.

(3) Different dates may be appointed under subsection (2) for different

provisions and for different purposes.

Interpretation.

2.(1) In this Act, unless otherwise stated or the context otherwise requires–

“absolute discharge” means an order under section 517(1)(a) discharging

a person absolutely;

“adult” means a person aged 18 years or more;

“appellate court”, in relation to criminal proceedings, means the Court of

Appeal in its criminal jurisdiction or the Supreme Court hearing an

appeal from the Magistrates’ Court;

“appropriate adult”–

(a) in relation to a person under the age of 18, means–

(i) his parent or guardian;

(ii) if he is in the care of the Care Agency - a person

representing that Agency; or

(iii) if a person described in (i) or (ii) is not available - any

responsible person aged 18 or over who is not a police

officer or a person employed by the police;

(b) in relation to a person who is mentally disordered or mentally

vulnerable–

Criminal Procedure and Evidence

2011-24

(i) a relative, guardian or other person responsible for the

person’s care or custody; or

(ii) someone experienced in dealing with mentally

disordered or mentally vulnerable people but who is not

a police officer or person employed by the police;

(iii) failing these, some other responsible adult aged 18 or

over who is not a police officer or person employed by

the police.

“broadcast” means broadcast by wireless telegraphy sounds or visual

images intended for general reception;

“Care Agency” means the agency established by section 3 of the Care

Agency Act 2009;

“caution” means a disposal of a case without a prosecution where the

offender has admitted the offence and is warned that the criminal

conduct will be recorded for possible reference in future criminal

proceedings or relevant security checks;

“child” means a person under the age of 14 years;

“clerk of the Magistrates’ Court” means the person appointed to be the

clerk of the Magistrates’ Court under the provisions of the

Magistrates’ Court Act;

“code of practice” means a code of practice issued by the Minister under

Part 29;

“Collector of Customs” has the same meaning as “Collector” as defined

in section 2 of the Imports and Exports Act, 1986;

“community order” means an order made under section 521;

“community sentence” means a sentence which consists of or includes–

(a) a community order; or

(b) a youth rehabilitation order;

“compensation order” means an order for compensation made under

section 595 or section 577 as the case may be;

Criminal Procedure and Evidence

2011-24

“complainant”, in relation to an offence or alleged offence, means a

person against or in relation to whom the offence was, or is alleged

to have been, committed;

“conditional discharge” or “order for conditional discharge” means an

order under section 517(1)(b) discharging a person with conditions;

“confession” includes any statement wholly or partly adverse to the

person who made it, whether made to a person in authority or not

and whether made in words or otherwise;

“controlled drug” has the meaning given to it in Part 21 of the Crimes

Act 2011;

“copy”, in relation to a document, means anything onto which

information recorded in the document has been copied, by

whatever means and whether directly or indirectly;

“court” means the Magistrates’ Court, the Supreme Court or the criminal

division of the Court of Appeal;

“Criminal Procedure Rules” means the Criminal Procedure Rules 2010

of England and Wales (S.I. 2010 No.60) made by the Criminal

Rules Committee (as amended or replaced from time to time);

“criminal proceedings” means proceedings for an offence consisting of a

trial or other hearing at which evidence falls to be given;

“custodial sentence” means a sentence of imprisonment or detention;

“custody officer” means the officer responsible for making and keeping

the custody record and includes an officer other than a custody

officer who is performing the functions of a custody officer

pursuant to Part 5;

“custody record” means the record of particulars relating to the custody

of a person who is detained at a police station in accordance with

Part 5;

“custody time limit” means a time limit prescribed under section 228

during which a defendant may be kept in custody while awaiting

completion of a stage in the proceedings;

“customs officer” has the same meaning as in section 2 of the Imports

and Exports Act, 1986;

“defendant”, in relation to criminal proceedings, means a person charged

with an offence in those proceedings, whether or not he has been

Criminal Procedure and Evidence

2011-24

convicted; and “co-defendant”, in relation to a defendant, means a

person charged with an offence in the same proceedings;

“designated police station” means a police station listed in Schedule 3

pursuant to section 56;

“disqualification” means a disqualification from an activity imposed as

part of a sentence;

“document” means anything in or on which information of any

description is recorded, and includes an electronic record of data;

“editor”, in relation to a website, means the webmaster or other person

responsible for the content of the website;

“either-way offence” means an offence which, if committed by an adult,

is triable either on indictment or summarily;

“excluded material” has the meaning given it by section 15;

“examination station” has the same meaning as in section 2 of the

Imports and Exports Act, 1986;

“examining magistrate” means a magistrate conducting an examination

to decide whether to commit a person to the Supreme Court for

trial;

“fine” includes any pecuniary penalty or pecuniary forfeiture or

pecuniary compensation payable under a conviction, except that in

section 588 “fine” means a pecuniary penalty;

“guardian” in relation to a juvenile means–

(a) if an order appointing a person as guardian of the juvenile has

been made under Part IV of the Children Act 2009 - that

person;

(b) if no such order has been made - any person who, in the

opinion of the court or police officer having responsibility for

the proceedings in which the juvenile is concerned, has for the

time being charge or control over that juvenile;

“human trafficking offence” means an offence committed under section

191A of the Crimes Act 2011;

“indictable offence” means an offence which if committed by an adult is

triable on indictment, whether or not it is also triable by the

Magistrates’ Court;

Criminal Procedure and Evidence

2011-24

“indictable-only offence" means an offence which is triable only on

indictment;

“items subject to legal privilege” has the meaning given to it by section

14;

“judge” means a judge of the Supreme Court;

“jury”, where the context requires, includes a panel of lay assessors;

“juvenile” means a person aged below 18 years, whether a child or a

young person;

“Juvenile Court” means the Magistrates’ Court when sitting as a Juvenile

Court under the provisions of Part 27;

“legal representative” means a barrister or solicitor or any other person

who is qualified to practice in the courts of Gibraltar, and “legally

represented” is to be construed accordingly. Provided that in

section 14 “legal representative” means any professional legal

advisor;

“Magistrates’ Court” includes the Juvenile Court;

“mental disorder” has the meaning given by section 3(1) of the Mental

Health Act;

“mentally disordered”, in relation to any person, means suffering from a

mental disorder;

“Minister” means the Minister with responsibility for justice;

“normal powers to impose conditions of bail” means the powers to

impose conditions under section 109;

“offence”, in relation to any country or territory outside Gibraltar,

includes an act or omission punishable under the law of that

country or territory, however it is described;

“offence of violence” means–

(a) an offence listed in Schedule 4 to the Crimes Act 2011;

(b) conspiracy to commit any of those offences;

Criminal Procedure and Evidence

2011-24

(d) encouraging or assisting or inciting another to commit any of

those offences;

“offence triable either way” means an offence punishable either on

conviction on indictment or on summary conviction, and includes

an attempt to commit such an offence;

“offensive weapon” means any article–

(a) made or adapted for use for causing injury to persons; or

(b) intended by the person having it with him for such use by him

or by some other person;

“oral evidence” includes evidence which, by reason of any disability,

disorder or other impairment, a person called as a witness gives in

writing or by signs or by way of any device;

“overall time limit” means the maximum period allowed to the

prosecution to complete a stage in the proceedings prescribed under

section 228;

“parent”, in relation to a juvenile, means a person, other than a guardian

or the Care Agency, who has parental responsibility for the

juvenile, as that term is used in the Children Act 2009;

“period of conditional discharge” has the meaning given by section

517(1)(b);

“place” includes any building or part of a building, any vehicle, vessel,

aircraft or hovercraft and any other place whatsoever;

“police force” means the Gibraltar Police Force as constituted by the

Police Act 2006;

“police detention” has the meaning given in subsection (2);

“police officer” means a member of the police force;

“preliminary inquiry” means an investigation of a criminal charge held

by the Magistrates’ Court with a view to the committal of the

defendant for trial before the Supreme Court;

“premises” includes–

(a) any vehicle, vessel, aircraft or hovercraft;

Criminal Procedure and Evidence

2011-24

(b) any stall, tent or moveable structure (including an offshore

installation);

“prescribed” means prescribed by rules of court or by regulations or an

order, as the context requires;

“prison” means any place appointed to be a prison under the Prison Act;

“probation officer” means a person appointed as a probation officer in

the public service of Gibraltar;

“probation order” means an order made under Part X of the Criminal

Procedure Act;

“proceedings” means criminal proceedings;

“programme service” means any service which consists in the sending,

by means of a telecommunication system, of sounds or visual

images or both, either–

(a) for reception at 2 or more places in Gibraltar (whether they are

so sent for simultaneous reception or at different times in

response to requests made by different users of the service); or

(b) for reception at a place in Gibraltar for the purpose of being

presented there to members of the public or to any group of

persons,

and includes a television, sound or digital broadcasting service.

“programme”, in relation to a programme service, includes any item

included in that service; and “television programme” includes a

teletext transmission;

“prohibited article “ has the meaning given it by section 5(7);

“prosecutor” means an individual or body charged with duties to conduct

criminal prosecutions, and includes–

(a) any person who appears to the court to be a person at whose instance the prosecution has been instituted, or under whose

conduct the prosecution is at any time carried on; and

(b) a person acting on behalf of the prosecutor;

“publication”−

Criminal Procedure and Evidence

2011-24

(a) includes any speech, writing, radio or television broadcast or

other communication, in whatever form, that is addressed to

the public at large or any section of the public; but

(b) does not include an indictment or other document prepared for

use in particular legal proceedings;

“publish”, in relation to a report, means to issue it as, or include it in, a

publication;

“recordable offence” means an offence for which a sentence of

imprisonment can be imposed;

“relevant evidence”, in relation to an offence, means anything that would

be admissible in evidence at a trial for the offence;

“relevant programme” means a programme included in a programme

service;

“relevant time” in relation to proceedings means the time when events

giving rise to the charge to which the proceedings relate is alleged

to have occurred;

“relevant time” in relation to detention of a person has the meaning given

by section 65(2);

“reparation order” means an order made under section 634;

“restitution order” means an order made under section 600;

“review officer” means the police officer who has to carry out a review

of the detention of a person in police detention under section 63;

“rules of court” means rules made by the Chief Justice under section 696

or the Criminal Procedure Rules;

“sexual offence” means–

(a) an offence listed in Schedule 3 to the Crimes Act 2011;

(b) conspiracy to commit any of those offences;

(d) encouraging or assisting or inciting another to commit any of

those offences;

“special finding” means a finding under Part 28 (Mentally Disordered Offenders)–

Criminal Procedure and Evidence

2011-24

(a) of unfitness to be tried; or

(b) that the defendant did the act or made the omission charged

against him;

“special procedure material” has the meaning given it by section 18;

“special verdict” means a verdict under Part 28 that a defendant is not

guilty by reason of mental disorder;

“spent conviction” means a conviction that is to be treated as spent for

the purposes of Part 25;

“standard scale” means the standard scale of fines for offences as set out

in Part A of Schedule 9 to this Act;

“statement” means any representation of fact, however made;

“statutory maximum fine” means a fine at the highest level on the

standard scale;

“summary offence” means an offence which if committed by an adult is

not triable on indictment except in conjunction with an indictable

offence;

“Superintendent” means the person appointed under the Prison Act to be

in charge of the prison;

“suspended sentence” means a sentence of the kind provided for in

sections 507 to 509;

“triable either way” in relation to an offence means that the offence may

be tried either summarily or on indictment, as indicated by the

maximum penalty prescribed for the offence;

“trigger offence” means an offence listed in Schedule 5;

“vehicle” includes any motor vehicle, vessel, aircraft or hovercraft;

“verdict of acquittal” does not include a special verdict, and any

reference to acquittal is to be construed accordingly;

“witness”, in relation to any criminal proceedings, means any person

called, or proposed to be called, to give evidence in the

proceedings;

Criminal Procedure and Evidence

2011-24

“young person” means a person who has attained the age of 14 years and

is under the age of 18 years;

“youth rehabilitation order” means an order made under section 522;

(2) A person is in police detention for the purposes of this Act if the

person–

(a) has been taken to a police station after being arrested for an

offence or for any other reason; or

(b) is arrested at a police station after attending voluntarily at the

station or accompanying a police officer to it,

and is detained there or is detained elsewhere in the charge of a police

officer; but–

detention for those purposes.

(3) For the purposes of this Act, a reference to a person being convicted of

an offence under the law of a country or territory outside Gibraltar includes–

(a) a finding by a court exercising jurisdiction under the law of

that country or territory in respect of such an offence

equivalent to a finding that the person is not guilty by reason of

mental disorder; and

(b) a finding by such a court in respect of such an offence

equivalent to a finding that the person is under a disability and

did the act charged against him in respect of the offence.

(4) The question whether an offence is one which is punishable with

imprisonment is to be decided without regard to any enactment prohibiting

or restricting the imprisonment of young offenders or first offenders.

(5) For the purposes of this Act a criminal investigation is an investigation

conducted by police officers with a view to it being ascertained whether–

(a) a person should be charged with an offence; or

(b) a person charged with an offence is guilty of it.

(6) In this Act references to material are to material of all kinds, and in

particular include references to–

(a) information; and

Criminal Procedure and Evidence

2011-24

(b) objects of all descriptions.

(7) In this Act references to recording information are to putting it in a

durable or retrievable form, such as writing or tape.

(8) Section 643(1) and (2) apply as regards the presumption and

determination of the age of a person who appears to the court to be a

juvenile.

Offences under two or more laws.

3. If an act or omission constitutes an offence under 2 or more Acts, or both

under an Act and under any other law, the offender–

(a) may, unless the contrary intention appears, be prosecuted and

punished under either or any of those Acts or under such other

law; but

(b) may not be punished twice for the same offence.

Application of English procedure.

4.(1) Subject to the provisions of this and any other Act, and to any rules

made by the Chief Justice under section 696, criminal jurisdiction, as

regards practice, procedure and powers, is to be exercised in conformity

with the law and practice for the time being observed in England as

follows–

(a) by the Magistrates’ Court - the law and practice of Magistrates’

Courts;

(b) by the Supreme Court in its original jurisdiction and its

criminal appellate jurisdiction - the law and practice in the

Crown Court;

the law and practice in the Divisional Court of Queen’s Bench

upon a case stated;

(d) by the Court of Appeal in its criminal jurisdiction - the law and

practice in the Criminal Division of the Court of Appeal,

so far as is reasonable taking into account the circumstances of Gibraltar.

(2) Without limiting subsection (1), and subject to provisions of this Act

or of rules made under this Act specifying otherwise

Criminal Procedure and Evidence

2011-24

(a) the Criminal Procedure Rules apply in Gibraltar with such

modifications (for example, in nomenclature) as the

circumstances of Gibraltar may require and so far only as the

circumstances of Gibraltar may permit;

(b) criminal practice directions issued by the Chief Justice of

England and Wales may be referred to for guidance as to

criminal practice in Gibraltar.

(3) Without limiting subsection (2)(a) as to modifications, any reference in

the Criminal Procedure Rules to an Act of the United Kingdom Parliament

is, if there is a corresponding Gibraltar Act, to be read as a reference to that

Act.

(4) Without affecting the power to make rules of court under section 696,

the Chief Justice may–

(a) make rules of court supplementing, amending, replacing or

modifying the Criminal Procedure Rules as they apply to

Gibraltar; and

(b) issue criminal practice directions,

and any such rules or directions apply in place of the Criminal Procedure

Rules or practice directions of the Chief Justice of England and Wales

respectively.

PART 2 – POWERS TO STOP AND SEARCH OR ENTER AND

SEARCH

Powers to stop and search

Power of police officers to stop and search persons, vehicles, etc.

5.(1) A police officer may exercise any power conferred by this section–

(a) in any place to which at the time when he proposes to exercise

the power the public or any section of the public has access, on

payment or otherwise, as of right or by virtue of express or

implied permission; or

(b) in any other place to which people have ready access at the

time when he proposes to exercise the power but which is not a

dwelling.

(2) Subject to subsections (3) to (5), a police officer may–

(a) search–

Criminal Procedure and Evidence

2011-24

(i) any person or vehicle;

(ii) anything which is in or on a vehicle,

for stolen or prohibited articles or any article to which

subsection (9) applies; and

(b) detain a person or vehicle for the purpose of such a search.

(3) This section does not give a police officer power to search a person or

vehicle or anything in or on a vehicle unless he has reasonable grounds for

suspecting that he will find stolen or prohibited articles, or any article to

which subsection (9) applies.

(4) If a person is in a garden or yard occupied by and used for the

purposes of a dwelling or on other land so occupied and used, a police

officer may not search him in the exercise of the power conferred by this

section unless the police officer has reasonable grounds for believing that

the person

(a) does not reside in the dwelling; and

(b) is not in the place in question with the express or implied

permission of a person who resides in the dwelling.

(5) If a vehicle is in a garden or yard occupied with and used for the

purposes of a dwelling or on other land so occupied and used, a police

officer may not search the vehicle or anything in or on it in the exercise of

the power conferred by this section unless he has reasonable grounds for

believing–

(a) that the person in charge of the vehicle does not reside in the

dwelling; and

(b) that the vehicle is not in the place in question with the express

or implied permission of a person who resides in the dwelling.

(6) If in the course of such a search a police officer discovers an article

which he has reasonable grounds for suspecting to be a stolen or prohibited

article, or an article to which subsection (9) applies, he may seize it.

(7) For the purposes of this Part, an article is prohibited if it is–

(a) an offensive weapon; or

(b) an article–

Criminal Procedure and Evidence

2011-24

(i) made or adapted for the use in the course of or in

connection with an offence to which this sub-paragraph

applies; or

(ii) intended by the person having it with him for such use

by him or by some other person.

(8) The offences to which subsection (7)(b)(i) applies are–

(a) burglary;

(b) theft;

conveyance without authority);

(d) an offence under section 415 of the Crimes Act 2011 (Fraud);

and

(e) an offence under section 354 of the Crimes Act 2011

(Destroying or damaging property).

(9) This subsection applies to every article in relation to which a person

has committed, or is committing or is going to commit an offence under

section 128 of the Crimes Act 2011 (Having article with blade or point in a

public place).

Provisions relating to search under section 5 and other powers.

6.(1) A police officer who detains a person or vehicle in the exercise of–

(a) the power conferred by section 5; or

(b) any other power

(i) to search a person without first arresting him; or

(ii) to search a vehicle without making an arrest,

need not conduct a search if it appears subsequently to the officer that no search is

required, or that a search is impracticable.

(2) If a police officer contemplates a search, other than a search of an

unattended vehicle, in the exercise of–

(a) the power conferred by section 5; or

(b) any other power–

Criminal Procedure and Evidence

2011-24

(i) to search a person without first arresting him; or

(ii) to search a vehicle without making an arrest,

the officer must, subject to subsection (4), take reasonable steps before he

commences the search to bring to the attention of the appropriate person –

that he is a police officer; and

(d) whether he is in uniform or not - the matters specified in

subsection (3),

and the police officer must not commence the search until he has performed

that duty.

(3) The matters referred to in subsection (2)(d) are–

(a) the police officer’s name;

(b) the object of the proposed search;

(d) the effect of section 9(4) or (5), as appropriate.

(4) A police officer need not bring the effect of section 9(4) or (5) to the

attention of the appropriate person if it appears to the officer that it will not

be practicable to make the record as in section 9(1).

(5) In this section “the appropriate person” means–

(a) if the police officer proposes to search a person - that person;

and

(b) if he proposes to search a vehicle, or anything in or on a

vehicle - the person in charge of the vehicle.

(6) On completing a search of an unattended vehicle or anything in or on

such a vehicle in the exercise of any such power as is mentioned in

subsection (2) a police officer must leave a notice stating–

(a) that he has searched it;

(b) that an application for compensation for any damage caused by

the search may be made to a police station; and

Criminal Procedure and Evidence

2011-24

(7) The police officer must leave the notice inside the vehicle unless it is

not reasonably practicable to do so without damaging the vehicle.

(8) The time for which a person or vehicle may be detained for the

purposes of such a search is such time as is reasonably required to permit a

search to be carried out either at the place where the person or vehicle was

first detained or nearby.

(9) Neither the power conferred by section 5 nor any other power to detain

and search a person without first arresting him, or to detain and search a

vehicle without making an arrest, authorises a police officer–

(a) to require a person to remove any of his clothing in public

other than an outer coat, jacket or gloves; or

(b) if not in uniform, to stop a vehicle.

Power to stop and search in anticipation of, or after, violence.

7.(1) If a police officer of or above the rank of Inspector reasonably

believes that–

(a) incidents involving serious violence may take place in any

locality in Gibraltar; and

(b) it is expedient to give an authorisation under this section to

prevent their occurrence,

the officer may give an authorisation that the powers conferred by this

section are exercisable in that locality for a specified period not exceeding

24 hours.

(2) If a police officer of or above the rank of Inspector reasonably believes

that–

(a) an incident involving serious violence has taken place in any

locality in Gibraltar;

(b) a dangerous instrument or offensive weapon used in the

incident is being carried by a person in that locality; and

the instrument or weapon,

the officer may give an authorisation that the powers conferred by this

section are exercisable in that locality for a specified period not exceeding

24 hours.

Criminal Procedure and Evidence

2011-24

(3) If a police officer of or above the rank of Inspector reasonably believes

that persons are carrying dangerous instruments or offensive weapons in any

locality in Gibraltar without good reason, the officer may give an

authorisation that the powers conferred by this section are exercisable in

that locality for a specified period not exceeding 24 hours.

(4) If it appears to an officer of or above the rank of Chief Inspector

expedient, having regard to offences which have, or are reasonably

suspected to have, been committed in connection with any activity falling

within the authorisation, he may direct that the authorisation continues in

force for a further 24 hours.

(5) If an Inspector gives an authorisation under subsection (1) he must, as

soon as practicable, cause an officer of or above the rank of Chief Inspector

to be informed.

(6) This section confers on any police officer in uniform power–

(a) to stop any pedestrian and search him or anything carried by

him for offensive weapons or dangerous instruments;

(b) to stop any vehicle and search the vehicle, its driver and any

passenger for offensive weapons or dangerous instruments.

reasonably believes that person is wearing wholly or mainly for

the purpose of concealing his identity;

(d) to seize any item which the officer reasonably believes any

person intends to wear wholly or mainly for that purpose.

(7) A police officer may, in the exercise of the powers conferred by

subsection (3), stop any person or vehicle and make any search he thinks fit,

whether or not he has any grounds for suspecting that the person or vehicle

is carrying weapons or articles of that kind.

(8) If in the course of a search under this section a police officer discovers

a dangerous instrument or an article which he has reasonable grounds for

suspecting to be an offensive weapon, he may seize it.

(9) This section applies (with the necessary modifications) to ships,

aircraft and hovercraft as it applies to vehicles.

(10) A person who fails–

(a) to stop, or to stop a vehicle; or

(b) to remove an item worn by him,

Criminal Procedure and Evidence

2011-24

when required to do so by a police officer under this section commits an

offence and is liable on summary conviction to imprisonment for 1 month or

to a fine at level 3 on the standard scale, or both.

Provisions supplementary to section 7.

8.(1) An authorisation or direction under section 7 must–

(a) be in writing signed by the officer giving it; and

(b) specify the grounds on which it is given and the locality in

which and the period during which the powers conferred by

this section are exercisable.

(2) An authorisation under subsection (2) of section 7 need not be given in

writing if it is not practicable to do so but any oral authorisation must state

the matters which would otherwise have to be specified under subsection (1)

of this section and must be recorded in writing as soon as is practicable.

(3) The driver of a vehicle that is stopped by a police officer under this

section is entitled to obtain a written statement that the vehicle was stopped

under the powers conferred by this section, if he applies for such a statement

within 3 months after the day on which the vehicle was stopped.

(4) A person who is searched by a police officer under this section is

entitled to obtain a written statement that he was searched under the powers

conferred by this section, if he applies for such a statement within 3 months

after the day on which he was searched.

(5) In section 7–

“dangerous instrument” means an instrument which has a blade or is

sharply pointed;

“offensive weapon” has the meaning given that term by Part 8 of the

Crimes Act 2011.

(6) For the purposes of section 7, a person carries a dangerous instrument

or an offensive weapon if he has it in his possession.

(7) The powers conferred by section 7 are in addition to and do not

derogate from any power otherwise conferred by this Act.

Duty to make records concerning searches.

9.(1) When a police officer has carried out a search in the exercise of any

such power as is mentioned in section 6(1), other than a search under

Criminal Procedure and Evidence

2011-24

section 12, a record of the search must be made in writing unless it is not

practicable to do so.

(2) If a record of a search is required to be made by subsection (1)–

(a) if the search results in a person being arrested and taken to a

police station, the officer must ensure that the record is made

as part of the person’s custody record;

(b) in any other case, the officer must make the record at the time,

or, if that is not practicable, as soon as practicable after the

completion of the search.

(3) The record of a search of a person or a vehicle must–

(a) state–

(i) the object of the search;

(ii) the grounds for making it;

(iii) the date and time when it was made;

(iv) the place where it was made;

(v) whether anything, and if so what, was found;

(vi) whether any, and if so what, injury to a person or

damage to property appears to the police officer to have

resulted from the search; and

(b) identify the police officer who carried out the search.

(4) If a record of a search of a person has been made under this section,

the person who was searched is entitled to a copy of the record if he asks for

one within 3 months of the search being made.

(5) If–

(a) a record of a search of a vehicle has been made under this

section; and

(b) the owner of the vehicle or the person who was in charge of the

vehicle at the time when it was searched asks for a copy of the

record of the search within 3 months of the search being made,

the person who made the request is entitled to a copy.

Criminal Procedure and Evidence

2011-24

(6) The requirements imposed by this section with regard to records of

searches of vehicles apply also to records of searches of vessels, aircraft and

hovercraft.

Road checks.

10.(1) This section governs the conduct of road checks by police officers

for the purpose of ascertaining whether a vehicle is carrying a person who

(a) has committed an offence other than a road traffic offence;

(b) is a witness to such an offence;

(d) is unlawfully at large.

(2) For the purposes of this section a road check consists of the exercise in

a place of the power to stop traffic conferred by section 53(3) of the Traffic

Act 2005 so as to stop all vehicles, or all vehicles of a particular type,

during the period for which the power is exercised in that place.

(3) Subject to subsection (5), there may only be a road check if a police

officer of the rank of Chief Inspector or above authorises it in writing.

(4) An officer may only authorise a road check under subsection (3)–

(a) for the purpose specified in subsection (1)(a) - if he has

reasonable grounds–

(i) for believing that the offence is an indictable offence;

and

(ii) for suspecting that the person is, or is about to be, in the

place in which vehicles would be stopped if the road

check were authorised;

(b) for the purpose specified in subsection (1)(b) - if he has

reasonable grounds for believing that the offence is an

indictable offence;

reasonable grounds–

(i) for believing that the offence would be an indictable

offence; and

Criminal Procedure and Evidence

2011-24

(ii) for suspecting that the person is, or is about to be, in the

place in which vehicles would be stopped if the road

check were authorised;

(d) for the purpose specified in subsection (1)(d) - if he has

reasonable grounds for suspecting that the person is, or is about

to be, in that place.

(5) An officer below the rank of Chief Inspector may authorise a road

check if it appears to him that it is required as a matter of urgency for one of

the purposes specified in subsection (1).

(6) If an authorisation is given under subsection (5), the officer who gives

it must

(a) make a written record of the time at which he gives it; and

(b) inform an officer of the rank of Chief Inspector or above that it

has been given.

(7) The duties imposed by subsection (6) must be performed as soon as is

practicable after the giving of the authorisation.

(8) An officer to whom a report is made under subsection (6) may, in

writing, authorise the road check to continue.

(9) If the officer to whom the report is made considers that the road check

should not continue, he must record in writing–

(a) the fact that it took place; and

(b) the purpose for which it took place.

(10) An officer giving an authorisation under this section must specify the

place in which vehicles are to be stopped.

(11) An officer giving an authorisation under this section, other than an

authorisation under subsection (5)–

(a) must specify a period, not exceeding 7 days, during which the

road check may continue; and

(b) may direct that the road check is to be

(i) continuous; or

(ii) conducted at specified times,

Criminal Procedure and Evidence

2011-24

during that period.

(12) If it appears to a police officer of the rank of Chief Inspector or above

that a road check ought to continue beyond the period for which it has been

authorised he may, from time to time, in writing specify a further period, not

exceeding 7 days, during which it may continue.

(13) An authorisation under this section must specify–

(a) the name of the officer giving it;

(b) the purpose of the road check; and

(14) The duties to specify the purposes of a road check imposed by

subsections (9) and (13) include duties to specify any relevant indictable

offence.

(15) If a vehicle is stopped in a road check, the person in charge of the

vehicle at the time when it stopped is entitled to obtain a written statement

of the purpose of the road check, if he applies for such a statement within 12

months after the day on which the vehicle was stopped.

(16) Nothing in this section affects the exercise by police officers of any

power to stop vehicles for purposes other than those specified in subsection

(1).

Reports of searches and road checks.

11.(1) The Commissioner of Police must publish an annual report that

contains information for the period to which it relates relating to–

(a) searches under section 5 carried out during that period; and

(b) road checks authorised under section 10 during that period.

(2) The information about searches does not need to include information

about specific searches but must include–

(a) the total numbers of searches in each month during the period

to which the report relates–

(i) for stolen articles;

(ii) for offensive weapons or articles to which section 5(9)

applies; and

(iii) for other prohibited articles; and

Criminal Procedure and Evidence

2011-24

(b) the total number of persons arrested in each such month in

consequence of searches of each of the descriptions specified

in paragraph (a)(i) to (iii).

(3) The information about road checks must include information –

(a) about the reason for authorising each road check; and

(b) about the result of each of them.

Powers to enter and search

Power to authorise entry and search of premises.

12.(1) If, on application made by a police officer, a magistrate is satisfied

that there are reasonable grounds for believing that–

(a) an indictable offence or a Schedule 14 offence has been

committed;

(b) there is material on premises specified in the application which

is likely to be of substantial value (whether by itself or together

with other material) to the investigation of the offence;

(d) it does not consist of or include items subject to legal privilege,

excluded material or special procedure material; and

(e) any of the conditions specified in subsection (3) applies,

the magistrate may issue a warrant authorising a police officer to enter and search

the premises.

(2) A police officer may seize and retain anything for which a search has

been authorised under subsection (1).

(3) The conditions mentioned in subsection (1)(e) are that–

(a) it is not practicable to communicate with any person entitled to

grant entry to the premises;

(b) it is practicable to communicate with a person entitled to grant

entry to the premises but it is not practicable to communicate

with any person entitled to grant access to the evidence;

produced;

Criminal Procedure and Evidence

2011-24

(d) the purpose of a search may be frustrated or seriously

prejudiced unless a police officer arriving at the premises can

secure immediate entry to them.

(4) The power to issue a warrant conferred by this section is in addition to

any such power conferred by any other law.

(5) In this section a Schedule 14 offence means an offence listed in

Schedule 14.

Special provisions as to access.

13.(1) A police officer may obtain access to excluded material or special

procedure material for the purposes of a criminal investigation by making

an application to a judge or magistrate under Schedule 1 and in accordance

with that Schedule.

(2) Any provision of an enactment in force when this Part came into force

under which a search of premises for the purposes of a criminal

investigation could be authorised by the issue of a warrant to a police officer

ceases to have effect so far as it relates to the authorisation of searches for–

(a) items subject to legal privilege;

(b) excluded material; or

other than documents.

Meaning of “items subject to legal privilege”.

14.(1) Subject to subsection (2), in this Part “items subject to legal

privilege” means–

(a) communications between a legal representative and his client

or any person representing his client made in connection with

the giving of legal advice to the client;

(b) communications between a legal representative and his client

or any person representing his client or between such an

adviser or his client or any such representative and any other

person made in connection with or in contemplation of legal

proceedings and for the purposes of such proceedings; and

made–

Criminal Procedure and Evidence

2011-24

(i) in connection with the giving of legal advice; or

(ii) in connection with or in contemplation of legal

proceedings and for the purposes of such proceedings,

when they are in the possession of a person who is entitled to

possession of them.

(2) Items held with the intention of furthering a criminal purpose are not

items subject to legal privilege.

Meaning of “excluded material”.

15.(1) Subject to the following provisions of this section, in this Part

“excluded material” means–

(a) personal records which a person has acquired or created in the

course of any trade, business, profession or other occupation or

for the purposes of any paid or unpaid office and which he

holds in confidence;

(b) human tissue or tissue fluid which has been taken for the

purposes of diagnosis or medical treatment and which a person

holds in confidence;

which consists of–

(i) documents; or

(ii) records other than documents.

(2) A person holds material other than journalistic material in confidence

for the purposes of this section if he holds it subject to–

(a) an express or implied undertaking to hold it in confidence; or

(b) a restriction on disclosure or an obligation of secrecy contained

in any enactment including an enactment that comes into force

after this Part comes into force, unless the later enactment limits

the power in this section.

(3) A person holds journalistic material in confidence for the purposes of

this section if–

(a) he holds it subject to such an undertaking, restriction or

obligation; and

Criminal Procedure and Evidence

2011-24

(b) it has been continuously held (by one or more persons) subject

to such an undertaking, restriction or obligation since it was

first acquired or created for the purposes of journalism.

Meaning of “personal records”.

16. In this Part “personal records” means documentary and other records

concerning an individual (whether living or dead) who can be identified

from them and relating to–

(a) his physical or mental health;

(b) spiritual counselling or assistance given or to be given to him;

purposes of his personal welfare, by any voluntary organisation

or by any individual who–

(i) by reason of his office or occupation has responsibilities

for his personal welfare; or

(ii) by reason of an order of a court has responsibilities for

his supervision.

Meaning of “journalistic material”.

17.(1) Subject to subsection (2), in this Part “journalistic material” means

material acquired or created for the purposes of journalism.

(2) Material is only journalistic material for the purposes of this Part if it

is in the possession of a person who acquired or created it for the purposes

of journalism.

(3) A person who receives material from someone who intends that the

recipient will use it for the purposes of journalism is to be taken to have

acquired it for those purposes.

Meaning of “special procedure material”.

18.(1) In this Part, “special procedure material” means–

(a) material to which subsection (2) applies; and

(b) journalistic material that is not excluded material.

Criminal Procedure and Evidence

2011-24

(2) Subject to the following subsections, this subsection applies to

material, other than items subject to legal privilege and excluded material,

in the possession of a person who–

(a) acquired or created it in the course of any trade, business,

profession or other occupation or for the purpose of any paid or

unpaid office; and

(b) holds it subject–

(i) to an express or implied undertaking to hold it in

confidence; or

(ii) to a restriction or obligation such as is mentioned in

section 15(2)(b).

(3) If material is acquired–

(a) by an employee from his employer and in the course of his

employment; or

(b) by a company from an associated undertaking as defined in

Schedule 2 to the Companies (Consolidated Accounts) Act

1999,

it is only special procedure material if it was special procedure material

immediately before the acquisition.

(4) If material is created by an employee in the course of his employment,

it is only special procedure material if it would have been special procedure

material had his employer created it.

(5) If material is created by a company on behalf of an associated

company, it is only special procedure material if it would have been special

procedure material had the associated company created it.

Search warrants: Safeguards.

19.(1) This section and section 20 have effect in relation to the issue to a

police officer under any enactment (including an enactment that comes into

force after this Part comes into force unless the later enactment limits the

power in this section) of a warrant to enter and search premises (a “search

warrant”).

(2) An entry on or search of premises under a search warrant is unlawful

unless it complies with this section and section 20.

(3) A police officer who applies for a search warrant must–

Criminal Procedure and Evidence

2011-24

(a) state–

(i) the ground on which he makes the application; and

(ii) the enactment under which the warrant would be issued;

(b) specify the premises which it is desired to enter and search; and

sought.

(4) An application for a search warrant must be made without notice and

supported by an information in writing.

(5) A police officer applying for a search warrant must answer on oath any

question that the judge or magistrate hearing the application asks him.

(6) A search warrant must–

(a) authorise an entry on one occasion only, unless it specifies that

it authorises multiple entries;

(b) if it specifies that it authorises multiple entries - specify

whether the number of entries authorised is unlimited, or

limited to a specified maximum;

(i) the name of the person who applies for it;

(ii) the date on which it was issued;

(iii) the enactment under which it is issued;

(iv) the premises to be searched; and

(d) identify, as far as practicable, the articles or persons to be

sought.

(7) Two copies must be made of every search warrant and be certified as

such.

Execution of search warrants.

20.(1) A search warrant may–

(a) be executed by any police officer;

Criminal Procedure and Evidence

2011-24

(b) authorise persons to accompany the officer who is executing it.

(2) A person authorised under subsection (1)(b)–

(a) has the same powers as the police officer whom he

accompanies in respect of–

(i) the execution of the warrant; and

(ii) the seizure of anything to which the warrant relates; but

(b) may exercise those powers only in the company, and under the

supervision, of the police officer.

(3) Entry and search under a search warrant must–

(a) be within one month from the date of its issue;

(b) be at a reasonable hour unless it appears to the police officer

executing it that the purpose of a search may be frustrated by

entry at a reasonable hour.

(4) If the occupier of premises which are to be entered and searched is

present at the time when a police officer seeks to execute a search warrant in

respect of them, the officer must–

(a) identify himself to the occupier and, if not in uniform, produce

to the occupier documentary evidence that he is a police

officer;

(b) produce the warrant to the occupier; and

(5) If–

(a) the occupier of the premises is not present at the time when a

police officer seeks to execute a search warrant; but

(b) some other person who appears to the police officer to be in

charge of the premises is present,

subsection (4) has effect as if a reference to the occupier were a reference to

that other person.

(6) If there is no person present who appears to the police officer to be in

charge of the premises, he must leave a copy of the warrant in a prominent

place on the premises.

Criminal Procedure and Evidence

2011-24

(7) A search under a warrant may only be a search to the extent required

for the purpose for which the warrant was issued.

(8) A police officer executing a search warrant must make an endorsement

on it stating whether–

(a) the articles or persons sought were found; and

(b) any articles were seized, other than articles which were sought.

(9) A search warrant which–

(a) has been executed; or

(b) has not been executed within the time authorised for its

execution,

must be returned –

Court;

(d) if it was issued by a judge - to the Registrar.

(10) A warrant which is returned to a court under subsection (9) must be

retained for 12 months from its return by the court officer to whom it was

returned.

(11) If during the period for which a warrant is to be retained the occupier

of the premises to which it relates asks to inspect it, he must be allowed to

do so.

Entry and search without a search warrant

Entry for purpose of arrest, etc.

21.(1) Subject to the following provisions of this section, and without

affecting any other enactment, a police officer may enter and search any

premises for the purpose of–

(a) executing–

(i) a warrant of arrest issued in connection with or arising

out of criminal proceedings; or

(ii) a warrant of commitment issued under section 52 of the

Magistrates' Courts Act;

Criminal Procedure and Evidence

2011-24

(b) arresting a person for an indictable offence;

(i) section 79 of the Crimes Act 2011 (Prohibition of

uniforms in connection with political objects);

(ii) sections 532, 533, 539, 540 or 541 of the Crimes Act

2011 (Offences relating to trespass on property);

(iii) section 53(3) of the Traffic Act 2005 (Failure to stop

when required to do so by police officer in uniform);

(iv) section 62 of the Traffic Act 2005 (Driving, or being in

charge, when under influence of drink or drugs);

(d) arresting any juvenile who has been remanded or detained

under this Act;

(e) recapturing a person who is, or is deemed for any purpose to

be, unlawfully at large while liable to be detained in a prison or

other place of detention;

(f) recapturing a person who is unlawfully at large and whom the

officer is pursuing; or

(g) preventing death or personal injury or serious damage to

property.

(2) Except for the purpose specified in subsection (1)(g), the powers of

entry and search conferred by this section–

(a) are only exercisable if the police officer has reasonable

grounds for believing that the person whom he is seeking is on

the premises; and

(b) are limited, in relation to premises consisting of 2 or more

separate dwellings, to powers to enter and search–

(i) any parts of the premises which the occupiers of any

dwelling comprised in the premises use in common with

the occupiers of any other such dwelling; and

(ii) any such dwelling in which the police officer has

reasonable grounds for believing that the person whom

he is seeking may be.

Criminal Procedure and Evidence

2011-24

(3) The powers of entry and search conferred by this section, if exercised

for the purpose specified in subsection (1)(c)(ii), must be exercised by a

police officer in uniform.

(4) The power of search conferred by this section is only a power to

search to the extent that is reasonably required for the purpose for which the

power of entry is exercised.

(5) Subject to subsection (6), the rules of common law under which a

police officer has power to enter premises without a warrant are hereby

abolished.

(6) Nothing in subsection (5) affects any power of entry to deal with or

prevent a breach of the peace.

Entry and search after arrest.

22.(1) Subject to the following provisions of this section, a police officer

may enter and search any premises occupied or controlled by a person who

is under arrest for an indictable offence, if he has reasonable grounds for

suspecting that there is on the premises evidence, other than items subject to

legal privilege, that relates–

(a) to that offence; or

(b) to some other indictable offence which is connected with or

similar to that offence.

(2) A police officer may seize and retain anything for which he may

search under subsection (1).

(3) The power to search conferred by subsection (1) is only a power to

search to the extent that is reasonably required for the purpose of

discovering evidence of the kind mentioned in that subsection.

(4) Subject to subsection (5), the powers conferred by this section may not

be exercised unless an officer of the rank of Inspector or above has

authorised them in writing.

(5) A police officer may conduct a search under subsection (1)–

(a) before the person is taken to a police station or released on

bail; and

(b) without obtaining an authorisation under subsection (4),

if the presence of the person at a place (other than a police station) is

necessary for the effective investigation of the offence.

Criminal Procedure and Evidence

2011-24

(6) If a police officer conducts a search by virtue of subsection (5), he

must as soon as practicable after making the search inform an officer of the

rank of Inspector or above that he has made it.

(7) An officer who–

(a) authorises a search; or

(b) is informed of a search under subsection (6),

must make a record in writing of–

(a) the grounds for the search; and

(b) the nature of the evidence that was sought.

(8) If the person who was in occupation or control of the premises at the

time of the search is in police detention at the time the record is to be made,

the officer must make the record as part of his custody record.

PART 3 – POWERS OF SEIZURE, ETC.

General interpretation of Part.

23.(1) In this Part–

“return”, in relation to seized property, is to be construed in accordance

with section 37, and cognate expressions are to be construed

accordingly;

“seize”, and cognate expressions, are to be construed in accordance with

section 24(1);

“seized property”, in relation to any exercise of a power of seizure,

means anything seized in exercise of that power.

(2) In this Part, references, in relation to a time when seized property is in

any person’s possession in consequence of a seizure (“the relevant time”), to

something for which the person making the seizure had power to search are

to be construed–

(a) if the seizure was made on the occasion of a search carried out

on the authority of a warrant, as including anything of the

description of things the presence or suspected presence of

which provided grounds for the issue of the warrant;

Criminal Procedure and Evidence

2011-24

(b) if the property was seized in the course of a search on the

occasion of which it would have been lawful for the person

carrying out the search to seize anything which on that

occasion was believed by him to be, or appeared to him to be,

of a particular description, as including–

(i) anything which at the relevant time is believed by the

person in possession of the seized property, or (as the

case may be) appears to him, to be of that description;

and

(ii) anything which is in fact of that description;

occasion of which it would have been lawful for the person

carrying out the search to seize anything which there were on

that occasion reasonable grounds for believing was of a

particular description, as including–

(i) anything which there are at the relevant time reasonable

grounds for believing is of that description; and

(ii) anything which is in fact of that description;

(d) if the property was seized in the course of a search to which

neither paragraph (b) nor paragraph (c) applies, as including

anything which is of a description of things which, on the

occasion of the search, it would have been lawful for the

person carrying it out to seize otherwise than under section 27

and 28.

Copies.

24.(1) Subject to subsection (3)–

(a) in this Part, “seize” includes “take a copy of”, and cognate

expressions are to be construed accordingly;

(b) this Part applies as if any copy taken under any power to which

any provision of this Part applies were the original of that of

which it is a copy; and

powers mentioned in subsection (2) (which are powers to

obtain hard copies etc. of information which is stored in

electronic form) are to be treated as powers of seizure, and

references to seizure and to seized property are to be construed

accordingly.

Criminal Procedure and Evidence

2011-24

(2) The powers mentioned in subsection (1)(c) are any powers conferred

by section 25(4) or section 26.

(3) Subsection (1) does not apply to section 29(6) or 36.

General power of seizure, etc.

General power of seizure, etc.

25.(1) The powers conferred by subsections (2), (3) and (4) are exercisable

by a police officer who is lawfully on any premises.

(2) The police officer may seize anything which is on the premises if he

has reasonable grounds for believing–

(a) that it has been obtained in consequence of the commission of

an offence; and

(b) that it is necessary to seize it in order to prevent it being

concealed, lost, damaged, altered or destroyed.

(3) The police officer may seize anything which is on the premises if he

has reasonable grounds for believing–

(a) that it is evidence in relation to an offence which he is

investigating or any other offence; and

(b) that it is necessary to seize it in order to prevent the evidence

being concealed, lost, altered or destroyed.

(4) The police officer may require any information which is stored in any

electronic form and is accessible from the premises to be produced in a

form

(a) in which it can be taken away and in which it is visible and

legible; or

(b) from which it can readily be produced in a visible and legible

form,

if he has reasonable grounds for believing that–

(i) is evidence in relation to an offence which he is

investigating, or any other offence; or

Criminal Procedure and Evidence

2011-24

(ii) has been obtained in consequence of the commission of

an offence; and

(d) it is necessary to do so in order to prevent it being concealed,

lost, tampered with or destroyed.

(5) The powers of seizure conferred by this section are in addition to any

similar power conferred by any enactment.

(6) No power of seizure conferred on a police officer under any enactment

(including an enactment that comes into force after this Part comes into

force unless the later enactment limits the power in this section) authorises

the seizure of an item which the police officer exercising the power has

reasonable grounds for believing to be subject to legal privilege.

Extension of powers of seizure to computerised information.

26.(1) Every power of seizure conferred by an enactment to which this

section applies on a police officer who has entered premises in the exercise

of a power conferred by an enactment includes a power to require any

information stored in any electronic form and accessible from the premises

to be produced in a form–

(a) in which it can be taken away and in which it is visible and

legible; or

(b) from which it can readily be produced in a visible and legible

form.

(2) This section applies–

(a) to any enactment in force when this Part came into force;

(b) to sections 12 and 22;

(d) to any enactment that comes into force after this Part comes

into force, unless the later enactment limits the power in this

section.

Access and copying.

27.(1) A police officer who seizes anything in the exercise of a power

conferred by any enactment (including an enactment that comes into force

after this Part comes into force, unless the later enactment limits the power

in this section) must, if so requested by a person showing himself–

Criminal Procedure and Evidence

2011-24

(a) to be the occupier of premises on which it was seized; or

(b) to have had custody or control of it immediately before the

seizure,

provide that person with a record of what he seized.

(2) The officer must provide the record within a reasonable time from the

making of the request for it.

(3) Subject to subsection (8), if a request for permission to be granted

access to anything which–

(a) has been seized by a police officer; and

(b) is retained by the police for the purpose of investigating an

offence,

is made to the officer in charge of the investigation by a person who had

custody or control of the thing immediately before it was so seized, or by

someone acting on behalf of such a person, the officer must allow the

person who made the request access to it under the supervision of a police

officer.

(4) Subject to subsection (8), if a request for a photograph or copy of any

such thing is made to the officer in charge of the investigation by a person

who had custody or control of the thing immediately before it was so seized,

or by someone acting on behalf of such a person, the officer must–

(a) allow the person who made the request access to it under the

supervision of a police officer for the purpose of photographing

or copying it; or

(b) photograph or copy it, or cause it to be photographed or copied.

(5) A police officer may also photograph or copy, or have photographed

or copied, anything which he has power to seize, without a request being

made under subsection (4).

(6) If anything is photographed or copied under subsection (4) (b), the

photograph or copy must be supplied to the person who made the request,

within a reasonable time from the making of the request.

(7) There is no duty under this section to grant access to, or to supply a

photograph or copy of, anything if the officer in charge of the investigation

for the purposes of which it was seized has reasonable grounds for believing

that to do so would prejudice

Criminal Procedure and Evidence

2011-24

(a) that investigation;

(b) the investigating of an offence other than the offence for the

purposes of investigating which the thing was seized; or

of–

(i) the investigation of which he is in charge; or

(ii) any such investigation as is mentioned in paragraph (b).

(8) The references to a police officer in subsections (1), (2), (3)(a) and (5)

include a person authorised under section 20(2) to accompany a police

officer executing a warrant.

Retention.

28.(1) Subject to subsection (4), anything which has been seized by a police

officer or taken away by a police officer following a requirement made by

virtue of section 25 or 26 may be retained for as long as is necessary in all

the circumstances.

(2) Without limiting subsection (1)–

(a) anything seized for the purposes of a criminal investigation

may be retained, except as provided by subsection (4) –

(i) for use as evidence at a trial for an offence; or

(ii) for forensic examination or for investigation in

connection with an offence; and

(b) anything may be retained in order to establish its lawful owner,

if there are reasonable grounds for believing that it has been

obtained in consequence of the commission of an offence.

(3) Nothing seized on the ground that it may be used–

(a) to cause physical injury to any person;

(b) to damage property;

(d) to assist in escape from police detention or lawful custody,

may be retained when the person from whom it was seized–

Criminal Procedure and Evidence

2011-24

(i) is no longer in police detention or the custody of a court;

(ii) is in the custody of a court but has been released on bail.

(4) Nothing may be retained for either of the purposes mentioned in

subsection (2)(a) if a photograph or copy would be sufficient for that

purpose.

(5) The reference in subsection (1) to anything seized by a police officer

includes anything seized by a person authorised under section 20(1)(b) to

accompany a police officer executing a warrant.

(6) Nothing in this section affects any power of a court to make an order

under section 76 of the Police Act 2006.

Additional powers of seizure

Additional powers of seizure from premises.

29.(1) If–

(a) a person who is lawfully on any premises finds anything on

those premises that he has reasonable grounds for believing

may be or contain something for which he is authorised to

search on those premises;

(b) a power of seizure to which this section applies, or the power

conferred by subsection (2), would entitle him, if he found it,

to seize whatever it is that he has grounds for believing that

thing to be or to contain; and

be decided, on those premises –

(i) whether what he has found is something that he is

entitled to seize; or

(ii) the extent to which what he has found contains

something that he is entitled to seize,

that person’s powers of seizure include power under this section to seize so

much of what he has found as it is necessary to remove from the premises to

enable that to be decided.

(2) If–

Criminal Procedure and Evidence

2011-24

(a) a person who is lawfully on any premises finds anything on

those premises (“the seizable property”) which he would be

entitled to seize but for its being comprised in something else

that he has (apart from this subsection) no power to seize;

(b) the power under which that person would have power to seize

the seizable property is a power to which this section applies;

and

seizable property to be separated, on those premises, from that

in which it is comprised,

that person’s powers of seizure include power under this section to seize

both the seizable property and that from which it is not reasonably

practicable to separate it.

(3) The factors to be taken into account in considering, for the purposes of

this section, whether or not it is reasonably practicable on particular

premises for something to be decided, or for something to be separated from

something else, are confined to–

(a) how long it would take to carry out the determination or

separation on those premises;

(b) the number of persons that would be required to carry out that

determination or separation on those premises within a

reasonable period;

carried out on those premises) involve damage to property;

(d) the apparatus or equipment that it would be necessary or

appropriate to use for the carrying out of the determination or

separation; and

(e) in the case of separation - whether the separation–

(i) would be likely; or

(ii) if carried out by the only means that are reasonably

practicable on those premises would be likely, to

prejudice the use of some or all of the separated seizable

property for a purpose for which something seized under

the power in question is capable of being used.

Criminal Procedure and Evidence

2011-24

(4) Section 25(6) (powers of seizure not to include anything that a person

has reasonable grounds for believing is legally privileged) does not apply to

the power of seizure conferred by subsection (2).

(5) This section applies to every power of seizure contained in an

enactment in force when this Part comes into force, or coming into force

after this Part comes into force, unless the later enactment limits the power

in this section.

Additional powers of seizure from the person.

30.(1) If–

(a) a person carrying out a lawful search of any person finds

something that he has reasonable grounds for believing may be

or may contain something for which he is authorised to search;

(b) a power of seizure to which this section applies or the power

conferred by subsection (2) would entitle him, if he found it, to

seize whatever it is that he has grounds for believing that thing

to be or to contain; and

be decided, at the time and place of the search –

(i) whether what he has found is something that he is

entitled to seize; or

(ii) the extent to which what he has found contains

something that he is entitled to seize,

that person’s powers of seizure include power under this section to seize so

much of what he has found as it is necessary to remove from that place to

enable that to be decided.

(2) If–

(a) a person carrying out a lawful search of any person finds

something (“the seizable property”) which he would be entitled

to seize but for its being comprised in something else that he

has (apart from this subsection) no power to seize,

(b) the power under which that person would have power to seize

the seizable property is a power to which this section applies,

and

seizable property to be separated, at the time and place of the

search, from that in which it is comprised,

Criminal Procedure and Evidence

2011-24

that person’s powers of seizure include power under this section to seize

both the seizable property and that from which it is not reasonably

practicable to separate it.

(3) The factors to be taken into account in considering, for the purposes of

this section, whether or not it is reasonably practicable, at the time and place

of a search, for something to be decided, or for something to be separated

from something else, are confined to–

(a) how long it would take to carry out the determination or

separation at that time and place;

(b) the number of persons that would be required to carry out that

determination or separation at that time and place within a

reasonable period;

carried out at that time and place) involve damage to property;

(d) the apparatus or equipment that it would be necessary or

appropriate to use for the carrying out of the determination or

separation; and

(e) in the case of separation, whether the separation–

(i) would be likely; or

(ii) if carried out by the only means that are reasonably

practicable at that time and place would be likely, to

prejudice the use of some or all of the separated seizable

property for a purpose for which something seized under

the power in question is capable of being used.

(4) Section 25(6) (powers of seizure not to include anything that a person

has reasonable grounds for believing is legally privileged) does not apply to

the power of seizure conferred by subsection (2).

(5) This section applies to every power of seizure contained in an

enactment in force when this Part comes into force, or coming into force

after this Part comes into force, unless the later enactment limits the power

in this section.

Notice of exercise of power under section 29 or 30.

31.(1) When a person exercises a power of seizure conferred by section 29,

he must (subject to subsections (2) and (3)) give to the occupier of the

premises a written notice–

Criminal Procedure and Evidence

2011-24

(a) specifying what has been seized in reliance on the powers

conferred by that section;

(b) specifying the grounds on which those powers have been

exercised;

(d) specifying the name and address of the person to whom notice

of an application under section 38(2) in respect of any of the

seized property must be given; and

(e) specifying the name and address of the person to whom an

application may be made to be allowed to attend the initial

examination required by any arrangements made for the

purposes of section 32(2).

(2) If it appears to the person exercising on any premises a power of

seizure conferred by section 29 that–

(a) the occupier of the premises is not present on the premises at

the time of the exercise of the power; but

(b) there is some other person present on the premises who is in

charge of the premises,

subsection (1) of this section has effect as if it required the notice under that

subsection to be given to that other person.

(3) If it appears to the person exercising a power of seizure conferred by

section 29 that there is no one present on the premises to whom he may give

a notice for the purposes of complying with subsection (1) of this section, he

must, before leaving the premises, instead of complying with that

subsection, attach a notice such as is mentioned in that subsection in a

prominent place to the premises.

(4) When a person exercises a power of seizure conferred by section 30 he

must give a written notice to the person from whom the seizure is made–

(a) specifying what has been seized in reliance on the powers

conferred by that section;

(b) specifying the grounds on which those powers have been

exercised;

Criminal Procedure and Evidence

2011-24

(d) specifying the name and address of the person to whom notice

of any application under section 38(2) in respect of any of the

seized property must be given; and

(e) specifying the name and address of the person to whom an

application may be made to be allowed to attend the initial

examination required by any arrangements made for the

purposes of section 32(2).

Return or retention of seized property

Examination and return of property seized under sections 29 and 30.

32.(1) This section applies when anything has been seized under a power

conferred by section 29 or 30.

(2) The person for the time being in possession of the seized property in

consequence of the exercise of that power must ensure that arrangements are

in place so that (subject to section 40)–

(a) an initial examination of the property is carried out as soon as

reasonably practicable after the seizure;

(b) the examination is confined to whatever is necessary for

determining how much of the property falls within subsection

(3);

subsection (3) is separated from the rest of the seized property

and is returned as soon as reasonably practicable after the

examination of all the seized property has been completed; and

(d) until the initial examination of all the seized property has been

completed and anything which does not fall within subsection

(3) has been returned, the seized property is kept separate from

anything seized under any other power.

(3) The seized property falls within this subsection only to the extent that

it is–

(a) property for which the person seizing it had power to search

when he made the seizure but is not property the return of

which is required by section 33;

(b) property the retention of which is authorised by section 35; or

Criminal Procedure and Evidence

2011-24

reasonably practicable, following the examination, to separate

from property falling within paragraph (a) or (b).

(4) In determining for the purposes of this section the earliest practicable

time for the carrying out of an initial examination of the seized property,

due regard must be had to the desirability of allowing the person from

whom it was seized, or a person with an interest in that property, an

opportunity of being present or (if he chooses) of being represented at the

examination.

(5) In this section, references to whether or not it is reasonably practicable

to separate part of the seized property from the rest of it are references to

whether or not it is reasonably practicable to do so without prejudicing the

use of the rest of that property, or a part of it, for purposes for which

(disregarding the part to be separated) the use of the whole or of a part of

the rest of the property, if retained, would be lawful.

Obligation to return items subject to legal privilege.

33.(1) If, at any time after a seizure of anything has been made in exercise

of a power of seizure to which this section applies–

(a) it appears to the person who for the time being has possession

of the seized property in consequence of the seizure that the

property–

(i) is an item subject to legal privilege; or

(ii) has such an item comprised in it; and

(b) if the item is comprised in something else which has been

lawfully seized, and is not comprised in property falling within

subsection (2),

the person must ensure that the item is returned as soon as reasonably

practicable after the seizure.

(2) Property in which an item subject to legal privilege is comprised falls

within this subsection if–

(a) the whole or a part of the rest of the property is property falling

within subsection (3) or property the retention of which is

authorised by section 35; and

(b) in all the circumstances, it is not reasonably practicable for that

item to be separated from the rest of that property (or, as the

case may be, from that part of it) without prejudicing the use of

Criminal Procedure and Evidence

2011-24

the rest of that property, or that part of it, for purposes for

which (disregarding that item) its use, if retained, would be

lawful.

(3) Property falls within this subsection to the extent that it is property for

which the person seizing it had power to search when he made the seizure,

but is not property which is required to be returned under this section or

section 34.

(4) This section applies–

(a) to the powers of seizure conferred by sections 29 and 30; and

(b) to any power of seizure (not falling within paragraph (a))

conferred on a police officer by or under any enactment,

including an enactment that comes into force after this Part

comes into force, unless the later enactment limits the power in

this section.

Obligation to return excluded and special procedure material.

34.(1) If, at any time after a seizure of anything has been made in exercise

of a power to which this section applies–

(a) it appears to the person for the time being having possession of

the seized property in consequence of the seizure that the

property–

(i) is excluded material or special procedure material; or

(ii) has any excluded material or any special procedure

material comprised in it;

(b) its retention is not authorised by section 35; and

which has been lawfully seized - it is not comprised in property

falling within subsection (2) or (3),

the person must ensure that the item is returned as soon as reasonably

practicable after the seizure.

(2) Property in which any excluded material or special procedure material

is comprised falls within this subsection if–

(a) the whole or a part of the rest of the property is property for

which the person seizing it had power to search when he made

Criminal Procedure and Evidence

2011-24

the seizure but is not property the return of which is required

by this section or section 33; and

(b) in all the circumstances, it is not reasonably practicable for that

material to be separated from the rest of that property (or, as

the case may be, from that part of it) without prejudicing the

use of the rest of that property, or that part of it, for purposes

for which (disregarding that material) its use, if retained, would

be lawful.

(3) Property in which any excluded material or special procedure material

is comprised falls within this subsection if–

(a) the whole or a part of the rest of the property is property the

retention of which is authorised by section 35; and

(b) in all the circumstances, it is not reasonably practicable for that

material to be separated from the rest of that property (or, as

the case may be, from that part of it) without prejudicing the

use of the rest of that property, or that part of it, for purposes

for which (disregarding that material) its use, if retained, would

be lawful.

(4) This section applies to every power of seizure contained in an

enactment in force when this Part comes into force, or coming into force

after this Part comes into force, unless the later enactment limits the power

in this section.

Retention of seized property.

35.(1) The retention of–

(a) property seized on any premises by a police officer who was

lawfully on the premises;

(b) property seized on any premises by a relevant person who was

on the premises accompanied by a police officer; and

of any person,

is authorised by this section if the property falls within subsection (2) or (3).

(2) Property falls within this subsection to the extent that there are

reasonable grounds for believing that–

(a) it is property obtained in consequence of the commission of an

offence; and

Criminal Procedure and Evidence

2011-24

(b) it is necessary for it to be retained in order to prevent its being

concealed, lost, damaged, altered or destroyed.

(3) Property falls within this subsection to the extent that there are

reasonable grounds for believing that–

(a) it is evidence in relation to any offence; and

(b) it is necessary for it to be retained in order to prevent its being

concealed, lost, altered or destroyed.

(4) Nothing in this section authorises the retention (except pursuant to

section 33(2)) of anything at any time when its return is required by section

33.

(5) Subsection (1)(a) includes property seized on any premises by a person

authorised under section 20(1)(b) to accompany a police officer executing a

warrant.

(6) In subsection (1)(b) the reference to a relevant person’s being on any

premises accompanied by a police officer is a reference only to a person

who was so on the premises under the authority of a warrant under

paragraph 16 of Schedule 10 of the Companies Act authorizing him to

exercise together with a police officer the powers conferred by that

paragraph.

Retention of property seized under section 29 or 30.

36.(1) This section has effect in relation to the following provisions (which

are about the retention of items which have been seized and are referred to

in this section as “the relevant provisions”)–

(a) section 28; and

(b) paragraph 16 of Schedule 10 of the Companies Act.

(2) The relevant provisions apply in relation to any property seized in

exercise of a power conferred by section 29 or 30 as if the property had been

seized under the power of seizure by reference to which the power under

that section was exercised in relation to that property.

(3) Nothing in any of sections 32 to 35 authorises the retention of any

property at any time when its retention would not (other than as provided

for in this Part) be authorised by the relevant provisions.

(4) Nothing in any of the relevant provisions authorises the retention of

anything after an obligation to return it has arisen under this Part.

Criminal Procedure and Evidence

2011-24

Person to whom seized property is to be returned.

37.(1) If–

(a) anything has been seized in exercise of any power of seizure;

and

(b) there is an obligation under this Part for the whole or any part

of the seized property to be returned,

the obligation to return it is (subject to the following provisions of this

section) an obligation to return it to the person from whom it was seized.

(2) If–

(a) any person is obliged under this Part to return anything that has

been seized to the person from whom it was seized; and

(b) the person under that obligation is satisfied that some other

person has a better right to that thing than the person from

whom it was seized,

he must instead return it to that other person or, as the case may be, to the

person appearing to him to have the best right to the thing in question.

(3) If different persons claim to be entitled to the return of anything that is

required to be returned under this Part, the thing may be retained for as long

as is reasonably necessary for the determination, in accordance with

subsection (2), of the person to whom it must be returned.

(4) References in this Part to the person from whom something has been

seized, in relation to a case in which the power of seizure was exercisable by

reason of that thing’s having been found on any premises, are references to

the occupier of the premises at the time of the seizure.

(5) References in this section to the occupier of any premises at the time

of a seizure, in relation to a case in which–

(a) a notice in connection with the entry or search of the premises in question, or with the seizure, was given to a person appearing

in the occupier's absence to be in charge of the premises; and

(b) it is practicable, for the purpose of returning something that has

been seized, to identify that person but not to identify the

occupier of the premises,

are references to that person.

Criminal Procedure and Evidence

2011-24

Remedies and safeguards

Application to the Magistrates’ Court.

38.(1) When anything has been seized in exercise, or purported exercise, of

a relevant power of seizure, any person with a relevant interest in the seized

property may apply to the Magistrates’ Court, on one or more of the

grounds mentioned in subsection (2), for the return of the whole or a part of

the seized property.

(2) The grounds for an application under subsection (1) are that–

(a) there was no power to make the seizure;

(b) the seized property is or contains an item subject to legal

privilege that is not comprised in property falling within

section 33(2);

special procedure material which –

(i) has been seized under a power to which section 34

applies;

(ii) is not comprised in property falling within section 34(2)

or (3); and

(iii) is not property the retention of which is authorised by

section 35;

(d) the seized property is or contains something seized under

section 29 or 30 which does not fall within section 32(3);

(3) Subsections (5) and (6) of section 34 apply for the purposes of

subsection (2)(c) as they apply for the purposes of that section.

(4) Subject to subsection (5), the Magistrates’ Court, on an application

under subsection (1), must–

(a) if satisfied as to any of the matters mentioned in subsection (2)

- order the return of so much of the seized property as is

property in relation to which the court is so satisfied; and

(b) to the extent that it is not so satisfied - dismiss the application.

(5) The Magistrates’ Court, on an application under subsection (1)–

Criminal Procedure and Evidence

2011-24

(a) made by the person for the time being having possession of

anything in consequence of its seizure under a relevant power

of seizure; or

(b) made–

(i) by a person with a relevant interest in anything seized

under section 29 or 30; and

(ii) on the grounds that the requirements of section 32(2)

have not been or are not being complied with,

may give such directions as it thinks fit as to the examination, retention,

separation or return of the whole or any part of the seized property.

(6) On an application under this section, the Magistrates’ Court may

authorise the retention of any property which–

(a) has been seized in exercise, or purported exercise, of a relevant

power of seizure; and

(b) would otherwise fall to be returned,

if it is satisfied that the retention of the property is justified on grounds

stated in subsection (7).

(7) The grounds referred to in subsection (6) are that if the property were

returned it would immediately become appropriate–

(a) to issue, on the application of the person who is in possession

of the property at the time of the application, a warrant under

which it would be lawful to seize the property; or

(b) to make an order under paragraph 4 of Schedule 1 under which

the property would fall to be delivered up or produced to the

person mentioned in paragraph (a).

(8) If any property which has been seized in exercise, or purported

exercise, of a relevant power of seizure has parts (“part A” and “part B”)

comprised in it such that–

(a) it would be inappropriate, if the property were returned, to take

any action such as is mentioned in subsection (7) in relation to

part A;

(b) it would (or would but for the facts mentioned in paragraph (a))

be appropriate, if the property were returned, to take such

action in relation to part B; and

Criminal Procedure and Evidence

2011-24

separate part A from part B without prejudicing the use of part

B for purposes for which it is lawful to use property seized

under the power in question,

the facts mentioned in paragraph (a) must not be taken into account by the

Magistrates’ Court in deciding whether the retention of the property is

justified on grounds falling within subsection (7).

(9) If a person fails to comply with an order or direction made or given by

the Magistrates’ Court in exercise of its jurisdiction under this section–

(a) the court may deal with him as if he had committed a contempt

of the Supreme Court; and

(b) any enactment relating to contempt of the Supreme Court has

effect in relation to the failure as if it were such a contempt.

(10) The relevant powers of seizure for the purposes of this section are–

(a) the powers of seizure conferred by sections 29 and 30;

(b) any power of seizure (not falling within paragraph (a) or (b))

conferred on a police officer by or under any enactment

(including an enactment that comes into force after this Part

comes into force, unless the later enactment limits the power in

this section.)

(11) References in this section to a person with a relevant interest in

seized property are references to–

(a) the person from whom it was seized;

(b) any person with an interest in the property; or

custody or control of the property immediately before the

seizure.

(12) For the purposes of subsection (11)(b), the persons who have an

interest in seized property include, in the case of property which is or

contains an item subject to legal privilege, the person in whose favour that

privilege is conferred.

Cases in which duty to secure arises.

Criminal Procedure and Evidence

2011-24

39.(1) When property has been seized in exercise, or purported exercise, of

any power of seizure conferred by this Part or Part 2, a duty to secure arises

under section 40 in relation to the seized property if–

(a) a person entitled to do so applies under section 38 for the

return of the property;

(b) at least one of the conditions set out in subsections (2) and (3)

is satisfied; and

(2) The first condition is that the application is made on the grounds that

the seized property is or contains an item subject to legal privilege that is

not comprised in property falling within section 33(2).

(3) The second condition is that–

(a) the seized property was seized by a person who had, or

purported to have, power to seize it by virtue only of a power

conferred by this Part or Part 2 (other than section 12(2)); and

(b) the application–

(i) is made on the ground that the seized property is or

contains something which does not fall within section

32(3); and

(ii) states that the seized property is or contains special

procedure material or excluded material.

(4) In relation to property seized by a person who had, or purported to

have, power under this Part or Part 2 to seize it by virtue only of the powers

of seizure conferred by section 61(5) of the Drug Trafficking Offences Act

1995, the second condition is satisfied only if the application states that the

seized property is or contains excluded material.

(5) In this section “relevant person” means–

(a) the person who made the seizure;

(b) the person for the time being having possession, in

consequence of the seizure, of the seized property; or

(4)(d) of section 31 in any notice given under that section with

respect to the seizure.

The duty to secure.

Criminal Procedure and Evidence

2011-24

40.(1) The duty to secure that arises under this section is a duty of the

person for the time being having possession, in consequence of the seizure,

of the seized property to ensure that arrangements are in place so that the

seized property (without being returned) is not, at any time after the giving

of the notice of the application under section 39(1)–

(a) examined;

(b) copied; or

subsection, entitle it to be put,

except with the consent of the applicant or in accordance with the directions

of the Magistrates’ Court.

(2) Subsection (1) does not have effect in relation to any time after the

withdrawal of the application to which the notice relates.

(3) Subsection (9) of section 38 applies in relation to any jurisdiction

conferred on the Magistrates’ Court by this section as it applies in relation

to the jurisdiction conferred by that section.

Use of inextricably linked property.

41.(1) This section applies to property, other than property which is for the

time being required to be secured pursuant to section 40, if–

(a) it has been seized under any power conferred by this Part or

Part 2; and

(b) it is inextricably linked property.

(2) Subject to subsection (3), the person for the time being having

possession, in consequence of the seizure, of the inextricably linked

property must ensure that arrangements are in place so that the seized

property (without being returned) is not at any time, except with the consent

of the person from whom it was seized–

(a) examined;

(b) copied; or

(3) Subsection (2) does not require that arrangements under that

subsection should prevent inextricably linked property from being put to

any use which is necessary for facilitating the use, in any investigation or

Criminal Procedure and Evidence

2011-24

proceedings, of property in which the inextricably linked property is

comprised.

(4) Property is inextricably linked property for the purposes of this section

if it falls within any of subsections (5) to (7).

(5) Property falls within this subsection if–

(a) it has been seized under a power conferred by section 29 or 30;

and

(b) but for subsection (3)(c) of section 32, arrangements under

subsection (2) of that section in relation to the property would

be required to ensure the return of the property as mentioned in

subsection (2)(c) of that section.

(6) Property falls within this subsection if–

(a) it has been seized under a power to which section 33 applies;

and

(b) but for subsection (1)(b) of that section, the person for the time

being having possession of the property would be under a duty

to ensure its return as mentioned in that subsection.

(7) Property falls within this subsection if–

(a) it has been seized under a power of seizure to which section 34

applies; and

(b) but for subsection (1)(c) of that section, the person for the time

being having possession of the property would be under a duty

to ensure its return as mentioned in that subsection.

PART 4 – POWERS OF ARREST WITHOUT WARRANT

Arrest without warrant: Police officers.

42.(1) A police officer may arrest without a warrant anyone–

(a) who is about to commit an offence;

(b) who is in the act of committing an offence;

Criminal Procedure and Evidence

2011-24

(d) whom the officer has reasonable grounds for suspecting to be committing an offence.

(2) If a police officer has reasonable grounds for suspecting that an

offence has been committed, he may arrest without a warrant anyone whom

he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, a police officer may arrest without a

warrant anyone–

(a) who is guilty of the offence;

(b) whom the officer has reasonable grounds for suspecting to be guilty of it.

(4) The power of summary arrest of a person conferred by subsection (1),

(2) or (3) is exercisable only if the police officer has reasonable grounds for

believing that for any of the reasons mentioned in subsection (5) it is

necessary to arrest the person.

(5) The reasons are–

(a) to enable the name of the person to be ascertained (if the police

officer does not know, and cannot readily ascertain, the

person’s name, or has reasonable grounds for doubting whether

a name given by the person as his name is his real name);

(b) correspondingly as regards the person’s address;

(i) causing physical injury to himself or any other person;

(ii) suffering physical injury;

(iii) causing loss of or damage to property;

(iv) committing an offence against public decency (subject to

subsection (6)); or

(v) causing an unlawful obstruction of the highway;

(d) to protect a child or other vulnerable person from the person;

(e) to allow the prompt and effective investigation of the offence

or of the conduct of the person;

Criminal Procedure and Evidence

2011-24

(f) to prevent any prosecution for the offence from being hindered

by the disappearance of the person, whether because the person

is not ordinarily resident in Gibraltar or otherwise.

(6) Subsection (5)(c)(iv) applies only in a situation in which members of

the public going about their normal business cannot reasonably be expected

to avoid the person in question.

Arrest without warrant: Other persons.

43.(1) A person other than a police officer may arrest without a warrant

anyone–

(a) who is in the act of committing an indictable offence;

(b) whom the person has reasonable grounds for suspecting to be

committing an indictable offence.

(2) If an indictable offence has been committed, a person other than a

police officer may arrest without a warrant anyone–

(a) who is guilty of the offence;

(b) whom the person has reasonable grounds for suspecting to be

guilty of it.

(3) The power of summary arrest of a person conferred by subsection (1)

or (2) is exercisable only if–

(a) the person making the arrest has reasonable grounds for

believing that for any of the reasons mentioned in subsection

(4) it is necessary to arrest the person; and

(b) it appears to the person making the arrest that it is not

reasonably practicable for a police officer to make it instead.

(4) The reasons are to prevent the person arrested–

(a) causing physical injury to himself or any other person;

(b) suffering physical injury;

(d) making off before a police officer can assume responsibility for

him.

Criminal Procedure and Evidence

2011-24

(5) This section does not apply in relation to an offence under sections 99

to 104 (Racial or religious hatred offences) of the Crimes Act 2011.

Repeal of statutory power of arrest without warrant or order.

44.(1) Subject to subsection (2), any enactment in force when this Part

comes into force that enables a police officer–

(a) to arrest a person for an offence without a warrant; or

(b) to arrest a person otherwise than for an offence without a

warrant or an order of the court,

ceases to have effect.

(2) Nothing in subsection (1) affects the enactments listed in Schedule 2.

Fingerprinting of certain offenders.

45.(1) If a person has–

(a) been convicted of a recordable offence;

(b) not at any time been in police detention for the offence; and

(i) in the course of the investigation of the offence by the

police; or

(ii) since the conviction,

any police officer may at any time up to one month after the date of the

conviction require him to attend a police station for his fingerprints to be

taken.

(2) Whenever a person convicted of an offence has already had his

fingerprints taken as mentioned in subsection (1)(c), that fact (together with

any time when he has been in police detention for the offence) is to be

disregarded for the purposes of that subsection if–

(a) the fingerprints taken on the previous occasion do not

constitute a complete set of his fingerprints; or

(b) some or all of the fingerprints taken on the previous occasion

are not of sufficient quality to allow satisfactory analysis,

comparison or matching.

Criminal Procedure and Evidence

2011-24

(3) Subsections (1) and (2) apply when a person has been given a caution

in respect of an offence which, at the time of the caution, he has admitted, as

they apply when a person has been convicted of an offence, and references

in this section to a conviction are to be construed accordingly.

(4) A requirement under subsection (1)–

(a) must give the person at least 7 days within which he must

attend a police station; and

(b) may direct him to attend at a specified time of day or between

specified times of day.

(4A) A person who without reasonable excuse fails to comply with a

requirement under subsection (1) commits an offence and is liable on

summary conviction to imprisonment for 12 months or to the statutory

maximum fine or both.

(5) Any police officer may arrest without warrant a person who has failed

to comply with a requirement under subsection (1).

Information to be given on arrest.

46.(1) Subject to subsection (5), when a person is arrested otherwise than

by being informed that he is under arrest, the arrest is not lawful unless the

person arrested is informed that he is under arrest as soon as practicable

after the arrest.

(2) If a person is arrested by a police officer, subsection (1) applies

regardless of whether the fact of the arrest is obvious.

(3) Subject to subsection (5), no arrest is lawful unless the person arrested

is informed of the ground for the arrest at the time of, or as soon as

practicable after, the arrest.

(4) If a person is arrested by a police officer, subsection (3) applies

regardless of whether the ground for the arrest is obvious.

(5) Nothing is this section requires a person to be informed–

(a) that he is under arrest; or

(b) of the ground for the arrest,

if it was not reasonably practicable for him to be so informed by reason of

his having escaped from arrest before the information could be given.

Voluntary attendance at police station, etc.

Criminal Procedure and Evidence

2011-24

47. If for the purpose of assisting with an investigation a person attends

voluntarily at a police station or at any other place where a police officer is

present, or accompanies a police officer to a police station or any such other

place without having been arrested, the person–

(a) is entitled to leave at will unless he is placed under arrest; and

(b) must be informed at once that he is under arrest if a decision is

taken by a police officer to prevent him from leaving at will.

Arrest elsewhere than at a police station.

48.(1) If a person is, at any place other than a police station–

(a) arrested by a police officer for an offence; or

(b) taken into custody by a police officer after being arrested for an

offence by a person other than a police officer,

the person must be taken by a police officer to a police station as soon as

practicable after the arrest.

(2) Subsection (1) has effect subject to section 49 (release on bail) and

subsection (6)(release without bail).

(3) Subject to subsections (4) and (5), the police station to which an

arrested person is taken under subsection (1) must be a designated police

station.

(4) A police officer may take an arrested person to any police station

unless it appears to the officer that it may be necessary to keep the arrested

person in police detention for more than 6 hours, in which case he must,

subject to subsection (5), take the person to a designated police station.

(5) A police officer may take an arrested person to any police station if–

(a) either–

(i) the police officer has arrested the person without the

assistance of another police officer and no other police

officer is available to assist him; or

(ii) the police officer has taken the person into custody from

a person other than a police officer without the assistance

of any other police officer and no other police officer is

available to assist him; and

Criminal Procedure and Evidence

2011-24

(b) it appears to the police officer that he will be unable to take the

arrested person to a designated police station without the

arrested person injuring himself, the police officer or some

other person.

(6) A person arrested by a police officer at a place other than a police

station must be released without bail if, at any time before the person

arrested reaches a police station, a police officer is satisfied that there are no

grounds for keeping him under arrest or releasing him on bail under section

49.

(7) If the first police station to which an arrested person is taken after his

arrest is not a designated police station, he must be taken to a designated

police station not more than 6 hours after his arrival at the first police station

unless he is released previously.

(8) Nothing in subsection (1) or in section 49 prevents a police officer

delaying taking a person to a police station or releasing him on bail if the

presence of the person at a place other than a police station is necessary in

order to carry out investigations that it is reasonable to carry out

immediately.

(9) If there is delay as mentioned in subsection (8), the reasons for the

delay must be recorded when the person first arrives at the police station or

(as the case may be) is released on bail.

(10) This section does not affect the powers of arrest and detention in

sections 58, 59 and 60 of the Immigration, Asylum and Refugee Act.

Bail elsewhere than at police station.

49.(1) A police officer may release on bail a person who is arrested or taken

into custody in the circumstances mentioned in section 48(1).

(2) A person may be released on bail under subsection (1) at any time

before he arrives at a police station.

(3) A person released on bail under subsection (1) must be required to

attend a specified police station.

(4) No other requirement may be imposed on the person as a condition of

bail.

Bail under section 49: Notices.

50.(1) If a police officer grants bail to a person under section 49, he must

give the person a notice in writing before he is released, stating–

Criminal Procedure and Evidence

2011-24

(a) the offence for which he was arrested; and

(b) the ground on which he was arrested.

(2) The notice must–

(a) inform him that he is required to attend a specified police

station; and

(b) specify the time when he is required to attend.

(3) If the notice does not include the information mentioned in subsection

(2), the person must subsequently be given a further notice in writing which

contains that information.

Bail under section 49: Supplementary.

51.(1) A person who has been required to attend a police station is not

required to do so if he is given notice that his attendance is no longer

required.

(2) If a person is required to attend a police station which is not a

designated police station he must be–

(a) released; or

(b) taken to a designated police station,

not more than 6 hours after his arrival.

(3) Nothing in Part 7 (Bail in Criminal Proceedings) applies in relation to

bail under section 49.

(4) Nothing in section 49 or 50 or this section prevents the re-arrest

without a warrant of a person released on bail under section 49 if new

evidence justifying a further arrest has come to light since his release.

Failure to answer to bail under section 49.

52.(1) A police officer may arrest without a warrant a person who–

(a) has been released on bail under section 49 subject to a

requirement to attend a specified police station; but

(b) fails to attend the police station at the specified time.

Criminal Procedure and Evidence

2011-24

(2) A person arrested under subsection (1) must be taken to a police

station (which may be the specified police station or any other police

station) as soon as practicable after the arrest.

(3) For the purposes of–

(a) section 48 (subject to the obligation in subsection (3)); and

(b) section 53,

an arrest under this section is to be treated as an arrest for an offence.

(4) A person who without reasonable excuse fails to comply with a

requirement under section 49 to attend the police station at the time

specified in the requirement commits an offence and is liable on summary

conviction to imprisonment for 12 months or to the statutory maximum fine

or both.

Arrest for further offence.

53. If–

(a) a person–

(i) has been arrested for an offence; and

(ii) is at a police station in consequence of that arrest; and

(b) it appears to a police officer that, if he were released from that

arrest, he would be liable to arrest for some other offence,

he must be arrested for that other offence before being released.

Search upon arrest.

54.(1) If–

(a) a person has been arrested at a place other than a police station;

and

(b) a police officer has reasonable grounds for believing that the

person may present a danger to himself or others,

the police officer may search the person.

(2) If a person has been arrested at a place other than a police station a

police officer may, subject to subsections (3) to (5) –

Criminal Procedure and Evidence

2011-24

(a) search the arrested person for anything which–

(i) the person might use to assist him to escape from lawful

custody; or

(ii) might be evidence relating to an offence; and

(b) if the offence for which the arrested person has been arrested is

an indictable offence - enter and search any premises in which

he was when arrested or immediately before he was arrested

for evidence relating to that offence.

(3) The power to search conferred by subsection (2) is only a power to

search to the extent that it is reasonably required for the purpose of

discovering any thing or any evidence as mentioned in subsection (2)(a).

(4) The powers conferred by this section to search a person–

(a) do not authorise a police officer to require a person to remove

any of his clothing in public other than an outer coat, jacket or

gloves;

(b) do authorise a search of a person’s mouth.

(5) A police officer may not search a person in the exercise of the power

conferred by subsection (2)(a) unless he has reasonable grounds for

believing that the person to be searched may have concealed on him

anything for which a search is permitted under that paragraph.

(6) A police officer may not search premises in the exercise of the power

conferred by subsection (2)(b) unless he has reasonable grounds for

believing that there is evidence for which a search is permitted under that

paragraph on premises.

(7) In so far as the power of search conferred by subsection (2)(b) relates

to premises consisting of 2 or more separated dwellings, it is limited to a

power to search–

(a) a dwelling in which the arrest took place or in which the person

arrested was immediately before his arrest; and

(b) parts of the premises which the occupier of the dwelling uses in

common with the occupiers of any other dwellings comprised

in the premises.

(8) A police officer searching a person in exercise of the power conferred

by subsection (1) may seize and retain anything he finds, if he has

Criminal Procedure and Evidence

2011-24

reasonable grounds for believing that the person searched might use it to

cause physical injury to himself or to any other person.

(9) A police officer searching a person in the exercise of the power

conferred by subsection (2)(a) may seize and retain anything he finds, other

than an item subject to legal privilege, if he has reasonable grounds for

believing–

(a) that the person might use it to assist him to escape from lawful

custody; or

(b) that it is evidence of an offence or has been obtained in

consequence of the commission of an offence.

PART 5 – POLICE DETENTION

Police detention – conditions and duration

Limitations on police detention.

55.(1) A person arrested for an offence must not be kept in police detention

except in accordance with this Part.

(2) Subject to subsection (3), if at any time a custody officer–

(a) becomes aware, in relation to any person in police detention,

that the grounds for the detention of that person have ceased to

apply; and

(b) is not aware of any other grounds on which the continued

detention of that person could be justified under this Part,

the custody officer must, subject to subsection (4), order the person’s

immediate release from custody.

(3) A person in police detention must not be released except on the

authority of a custody officer–

(a) at the police station where the detention was authorised; or

(b) if the detention was authorised at more than one station - at the

station where it was last authorised.

(4) A person who appears to the custody officer to have been unlawfully

at large when he was arrested must not be released under subsection (2).

(5) A person whose release is ordered under subsection (2) must be

released without bail unless it appears to the custody officer that–

Criminal Procedure and Evidence

2011-24

(a) there is need for further investigation of any matter in

connection with which the person was detained at any time

during the period of his detention; or

(b) in respect of any such matter, proceedings may be taken

against him,

in which case he must be released on bail.

(6) For the purposes of this Part, a person arrested under section 65 of the

Traffic Act 2005 is arrested for an offence.

(7) For the purposes of this Part, but subject to section 72(5), a person

who–

(a) returns to a police station to answer to bail granted under

section 49 or this Part; or

(b) is arrested under section 52 or section 71,

is to be treated as arrested for an offence and that offence is the offence in

connection with which he was granted bail.

(8) Subsection (7) does not apply in relation to a person who is granted

bail subject to the duty mentioned in section 73(2)(b) and who either–

(a) attends a police station to answer to such bail; or

(b) is arrested under section 71 for failing to do so.

Designated police stations.

56.(1) The police stations listed in Schedule 3 are the police stations to be

used for the purpose of detaining arrested persons.

(2) In an order made pursuant to section 698 amending Schedule 3 the

Minister may make provision for the modification of the provisions of this

Act in relation to any police station as appears to him to be necessary,

expedient or desirable.

Custody officers at police stations.

57.(1) The Commissioner of Police must appoint one or more police

officers of the rank of sergeant or above as custody officers for each

designated police station.

Criminal Procedure and Evidence

2011-24

(2) The Commissioner of Police may in writing delegate the power of

appointment of custody officers to some other officer of the rank of Chief

Inspector or above.

(3) A police officer of any rank may perform the functions of a custody

officer at a designated police station if a custody officer is not readily

available to perform them.

(4) Subject to subsections (5) and (6) and section 62(2), the functions of a

custody officer in relation to a person must not be performed by an officer

who at the time when the function is to be performed is involved in the

investigation of an offence for which the person is in police detention at the

time.

(5) Subsection (4) does not prevent a custody officer–

(a) performing any function assigned to custody officers–

(i) by this Act; or

(ii) by a code of practice issued under this Act;

(b) carrying out the duty imposed on custody officers by section

64;

suspect; or

(d) doing anything under sections 64 and 65 of the Traffic Act

2005.

(6) When an arrested person is taken to a police station which is not a

designated police station, the functions in relation to him which at a

designated police station would be the functions of a custody officer must

be performed–

(a) if an officer who is not involved in the investigation of an

offence for which the person is in police detention is readily

available - by that officer;

(b) if no such officer is readily available - by the officer who took

the person to the station, or any other officer.

(7) References to a custody officer in this Act include references to a

police officer other than a custody officer who is performing the functions

of a custody officer by virtue of subsection (3) or (6).

Criminal Procedure and Evidence

2011-24

(8) If by virtue of subsection (6) an officer who took an arrested person to

a police station is to perform the functions of a custody officer in relation to

the person, the officer must as soon as practicable inform an officer of the

rank of Inspector or above at a designated police station that he is to do so.

Duties of custody officer before charge.

58.(1) If a person is arrested for an offence–

(a) without a warrant; or

(b) under a warrant not endorsed for bail,

the custody officer at each police station where the person is detained after

his arrest–

evidence to charge the person with the offence for which he

was arrested; and

(d) may detain the person at the police station for the period

necessary to enable him to make that decision.

(2) If the custody officer decides that he does not have such evidence

before him, the person arrested must be released either on bail or without

bail, unless the custody officer has reasonable grounds for believing that his

detention without being charged is necessary–

(a) to secure or preserve evidence relating to an offence for which

he is under arrest; or

(b) to obtain such evidence by questioning him.

(3) If the custody officer has reasonable grounds for believing as

mentioned in subsection (2), he may authorise the person arrested to be kept

in police detention.

(4) If a custody officer authorises a person who has not been charged to be

kept in police detention, he must as soon as practicable make a written

record of the grounds for the detention.

(5) Subject to subsection (6), the written record must be made in the

presence of the person arrested who must at that time be informed by the

custody officer of the grounds for his detention.

(6) Subsection (5) does not apply if the person arrested is, at the time

when the written record is made–

Criminal Procedure and Evidence

2011-24

(a) incapable of understanding what is said to him;

(b) violent or likely to become violent; or

(7) Subject to section 65(5), if the custody officer decides that he has

before him sufficient evidence to charge the person arrested with the offence

for which he was arrested, the person arrested must be–

(a) charged;

(b) released without charge and on bail; or

(8) If–

(a) a person is released under subsection (7)(b); and

(b) at the time of his release a decision whether he should be

prosecuted for the offence for which he was arrested has not

been taken,

the custody officer must so inform him.

(9) Subsection (10) applies if the offence for which the person is arrested

is one in relation to which a sample could be taken under section 90 and the

custody officer–

(a) is required by subsection (2) to release the person arrested and

decides to release him on bail; or

(b) decides under subsection (7)(b) to release the person without

charge on bail.

(10) The detention of a person may be continued to enable a sample to be

taken under section 88, but this subsection does not permit a person to be

detained for more than 24 hours after the relevant time.

(11) If the person arrested is not in a fit state to be dealt with under

subsection (7), he may, notwithstanding section 67(5), be kept in police

detention until he is in a fit state.

(12) The duty imposed on the custody officer under subsection (1) must

be performed as soon as practicable after the person arrested arrives at the

police station or, in the case of a person arrested at the police station, as

soon as practicable after the arrest.

Criminal Procedure and Evidence

2011-24

Breach of bail following release under section 58.

59.(1) This section applies if a person released on bail under section

58(7)(b) or subsection (2)(b)–

(a) is arrested under section 71 in respect of that bail; and

(b) is being detained following that arrest at the police station

mentioned in section 71(2).

(2) The person arrested must be–

(a) charged; or

(b) released without charge, either on bail or without bail.

(3) The decision as to how a person is to be dealt with under subsection

(2) is that of a custody officer.

(4) A person released on bail under subsection (2)(b) must be released on

bail subject to any conditions which applied immediately before his arrest.

Release on bail under sections 58 and 59: Further provision.

60.(1) When a person is released on bail under section 58(2) or (7) or

59(2)(b), a custody officer may appoint a different time, or an additional

time, at which the person is to attend at the police station to answer bail.

(2) The custody officer must give the person notice in writing of the

exercise of the power under subsection (1).

(3) The exercise of the power under subsection (1) does not affect any

other conditions to which bail is subject.

(4) If a person released on bail under section 58(2) or (7) or 59(2)(b)

returns to a police station to answer bail or is otherwise in police detention

at a police station, he may be kept in police detention to enable him to be

dealt with in accordance with section 59 or to enable the power under

subsection (1) to be exercised.

(5) If the person mentioned in subsection (4) is not in a fit state to enable

him to be dealt with as mentioned in that subsection or to enable the power

under subsection (1) to be exercised, he may, notwithstanding section 65(5),

be kept in police detention until he is in a fit state.

(6) If a person is kept in police detention by virtue of subsection (4) or (5),

section 58(1) to (3) and (7) (and section 63(8) so far as it relates to section

Criminal Procedure and Evidence

2011-24

58(1) to (3)) do not apply to the offence in connection with which he was

released on bail under section 58(2) or (7) or 59(2)(b).

Duties of custody officer after charge.

61.(1) If a person arrested for an offence otherwise than under a warrant

endorsed for bail is charged with an offence, the custody officer must order

his release from police detention, either on bail or without bail, unless–

(a) if the person arrested is not a juvenile–

(i) his name or address cannot be ascertained or the custody

officer has reasonable grounds for doubting whether a

name or address given by him as his name or address is

his real name or address;

(ii) the custody officer has reasonable grounds for believing

that the person arrested will fail to appear in court to

answer bail;

(iii) if the person was arrested for a recordable offence - the

custody officer has reasonable grounds for believing that

the detention of the person arrested is necessary to

prevent him from committing an offence;

(iv) if a sample may be taken from the person under section

90 - the custody officer has reasonable grounds for

believing that the detention of the person is necessary to

enable a sample to be taken from him;

(v) if the person was arrested for an offence which is not a

recordable offence - the custody officer has reasonable

grounds for believing that the detention of the person

arrested is necessary to prevent him from causing

physical injury to any other person or from causing loss

or damage to property;

(vi) the custody officer has reasonable grounds for believing

that the detention of the person arrested is necessary to

prevent him from interfering with the administration of

justice or with the investigation of offences or a

particular offence;

(vii) the custody officer has reasonable grounds for believing

that the detention of the person arrested is for his own

protection;

(b) if the arrested person is a juvenile–

Criminal Procedure and Evidence

2011-24

(i) any of the requirements of paragraph (a) is satisfied but,

in the case of paragraph (a)(iv), only if the juvenile has

attained the minimum age; or

(ii) the custody officer has reasonable grounds for believing

that he ought to be detained in his own interests.

(2) If the release of a person arrested is not required by subsection (1), the

custody officer–

(a) may authorise him to be kept in police detention; but

(b) may not authorise him to be kept in police detention by virtue

of subsection (1)(a)(iv) for more than 6 hours after he was

charged with the offence.

(3) The custody officer, in making the decisions required by subsection

(1)(a) or (b) (except (a)(i) and (vii) and (b)(ii)), must have regard to the

same considerations as those which a court is required to have regard to in

making the corresponding decisions.

(4) If a custody officer authorises a person who has been charged to be

kept in police detention he must as soon as practicable make a written

record of the grounds for detention.

(5) Subject to subsection (6), the written record must be made in the

presence of the person charged, who must at that time be informed by the

custody officer of the ground for his detention.

(6) Subsection (5) does not apply if the person charged is, at the time

when the written record is made–

(a) incapable of understanding what is said to him;

(b) violent or likely to become violent; or

(7) If a custody officer authorises an arrested juvenile to be kept in police

detention under subsection (1), the custody officer must ensure that the

juvenile is moved to segregated accommodation in the police station.

(8) In this section, “minimum age” means the age specified in section

91(4).

Responsibilities in relation to persons detained.

Criminal Procedure and Evidence

2011-24

62.(1) Subject to subsections (2) and (4), the custody officer at a police

station must ensure that–

(a) all persons in police detention at that station are treated in

accordance with this Act and any code of practice relating to

the treatment of persons in police detention; and

(b) all matters relating to such persons which are required by this

Act or any such code of practice to be recorded are recorded in

the custody records relating to such persons.

(2) If the custody officer, in accordance with any relevant code of practice,

transfers or permits the transfer of a person in police detention to the

custody–

(a) of a police officer investigating an offence for which that

person is in police detention; or

(b) of an officer who has charge of that person outside the police

station,

the custody officer no longer has the duty imposed on him by subsection

(1)(a), but the officer to whom the transfer is made must ensure that the

person is treated in accordance with this Act and any code of practice

relating to the treatment of persons in police detention .

(3) If the person detained is subsequently returned to the custody of the

custody officer, the officer investigating the offence must report to the

custody officer as to the manner in which this section and any code of

practice have been complied with while that person was in his custody.

(4) If–

(a) an officer of higher rank than the custody officer gives

directions relating to a person in police detention; and

(b) the directions are at variance with–

(i) any decision made or action taken by the custody officer

in the performance of a duty imposed on him by this

Part; or

(ii) any decision or action which would but for the directions

have been made or taken by him in the performance of

such a duty,

Criminal Procedure and Evidence

2011-24

the custody officer must at once refer the matter to an officer of the rank of

Chief Inspector or above who is responsible for the police station for which

the custody officer is acting as custody officer.

Review of police detention.

63.(1) A review of the detention of each person in police detention in

connection with the investigation of an offence must be carried out

periodically–

(a) in the case of a person who has been arrested and charged - by

the custody officer;

(b) in the case of a person who has been arrested but not charged -

by an officer of the rank of Inspector or above who has not

been directly involved in the investigation.

(2) Subject to subsection (4)–

(a) the first review must be not later than 6 hours after the

detention was first authorised;

(b) the second review must be not later than 9 hours after the first;

hours.

(3) A review may be postponed–

(a) if, having regard to the circumstances prevailing at the latest

time specified for it in subsection (2), it is not practicable to

carry out the review at that time;

(b) without limiting paragraph (a), if at that time–

(i) the person in detention is being questioned by a police

officer and the review officer is satisfied that an

interruption of the questioning for the purpose of

carrying out the review would prejudice the investigation

in connection with which he is being questioned; or

(ii) no review officer is readily available.

(4) If a review is postponed under subsection (3) it must be carried out as

soon as practicable after the latest time specified for it in subsection (2).

Criminal Procedure and Evidence

2011-24

(5) If a review is carried out after postponement under subsection (3), the

fact that it was carried out does not affect any requirement of this section as

to the time at which any subsequent review is to be carried out.

(6) The review officer must record the reasons for any postponement of a

review in the custody record.

(7) Subject to subsection (8), if the person whose detention is under

review has not been charged before the time of the review, section 58(1) to

(6) have effect in relation to him, but with the following modifications–

(a) replace references to the person arrested by references to the

person whose detention is under review;

(b) replace references to the custody officer by references to the

review officer;

“(aa) asleep;”.

(8) If a person has been kept in police detention by virtue of section

58(11) or 60(5), section 58(1) to (6) do not have effect in relation to him but

the review officer must decide whether he is yet in a fit state.

(9) If the person whose detention is under review has been charged before

the time of the review, section 61(1) to (7) have effect in relation to him, but

with the following modifications –

(a) replace references to the person arrested or to the person

charged by references to the person whose detention is under

review;

(b) in subsection (6), insert after paragraph (a)

“(aa) asleep;”.

(10) If–

(a) an officer of higher rank than the custody officer gives

directions relating to a person in police detention; and

(b) the directions are at variance with–

(i) any decision made or action taken by the review officer

in the performance of a duty imposed on him by this

Part; or

Criminal Procedure and Evidence

2011-24

(ii) any decision or action which would but for the directions

have been made or taken by him in the performance of

such a duty,

the custody officer must at once refer the matter to an officer of the rank of

Chief Inspector or above who is responsible for the police station for which

the review officer is acting as review officer in connection with the

detention.

(11) Before deciding whether to authorise a person’s continued detention

the review officer must give–

(a) that person (unless he is asleep); or

(b) any legal representative representing him who is available at

the time of the review,

an opportunity to make representations to the review officer about the

detention.

(12) Subject to subsection (13), the person whose detention is under

review or his legal representative may make representations under sub-

section (11) either orally or in writing.

(13) The review officer may refuse to hear oral representations from the

person whose detention is under review if he considers that he is unfit to

make such representations by reason of his condition or behaviour.

Use of telephone for review under section 63.

64.(1) A review under section 63(1)(b) may be carried out by means of a

discussion, conducted by telephone, with one or more persons at the police

station where the arrested person is held.

(2) If a review is carried out under this section by an officer who is not

present at the station where the arrested person is held–

(a) an obligation on that officer to make a record in connection

with the carrying out of the review is an obligation to cause

another officer to make the record;

(b) a requirement for the record to be made in the presence of the

arrested person applies to the making of that record by that

other officer; and

(i) the arrested person; or

Criminal Procedure and Evidence

2011-24

(ii) a legal representative representing him,

to be given an opportunity to make representations (whether in

writing or orally) to that officer,

are requirements for the person or legal representative to be given an

opportunity to make representations in a manner authorised by subsection

(3).

(3) Representations are made in a manner authorised by this subsection if–

(a) where facilities exist for the immediate transmission of written

representations to the officer carrying out the review – they are

made either–

(i) orally by telephone to that officer; or

(ii) in writing to that officer by means of those facilities;

(b) in any other case - they are made orally by telephone to that

officer.

Limits on period of detention without charge.

65.(1) Subject to this section and sections 66 and 67, a person must not be

kept in police detention for more than 24 hours without being charged.

(2) The time from which the period of detention of a person is to be

calculated (in this Part referred to as the “relevant time”) is–

(a) in the case of a person to whom this paragraph applies–

(i) the time at which that person arrives at the relevant

police station; or

(ii) the time 24 hours after the time of that person’s arrest,

whichever is the earlier;

(b) in the case of a person arrested outside Gibraltar–

(i) the time at which that person arrives at the first police

station in Gibraltar; or

(ii) the time 24 hours after the time of that person’s entry

into Gibraltar,

Criminal Procedure and Evidence

2011-24

whichever is the earlier;

(i) attends voluntarily at a police station; or

(ii) accompanies a police officer to a police station without

having been arrested,

and is arrested at the police station - the time of his arrest;

(d) in any other case - the time at which the person arrested arrives

at the first police station to which he is taken after his arrest.

(3) Subsection (2) has effect in relation to a person arrested under section

47 as if every reference in it to his arrest or his being arrested were a

reference to his arrest or his being arrested for the offence for which he was

originally arrested.

(4) When a person who is in police detention is removed to hospital

because he is in need of medical treatment–

(a) any time during which he is being questioned in hospital or on

the way there or back by a police officer for the purpose of

obtaining evidence relating to an offence is included in any

period which falls to be calculated for the purposes of this Part;

but

(b) any other time while he is in hospital or on his way there or

back is not so included.

(5) Subject to subsection (6), a person who at the expiry of 24 hours after

the relevant time is in police detention and has not been charged must be

released at that time either on bail or without bail.

(6) Subsection (5) does not apply to a person whose detention for more

than 24 hours after the relevant time has been authorised or is otherwise

permitted in accordance with section 66 or 67.

(7) A person released under subsection (5) must not be re-arrested without

a warrant for the offence for which he was previously arrested unless new

evidence justifying a further arrest has come to light since his release; but

this subsection does not prevent an arrest under section 71.

Authorisation of continued detention.

Criminal Procedure and Evidence

2011-24

66.(1) If a police officer of the rank of Chief Inspector or above who is

responsible for the police station at which a person is detained is satisfied

that–

(a) the detention of the person without charge is necessary to

secure or preserve evidence relating to an offence for which he

is under arrest or to obtain such evidence by questioning him;

(b) an offence for which he is under arrest is an indictable offence;

and

expeditiously,

the officer may authorise the keeping of that person in police detention for a

period expiring at or before 36 hours after the relevant time.

(2) If an officer such as is mentioned in subsection (1) has authorised the

keeping of a person in police detention for a period expiring less than 36

hours after the relevant time, such an officer may authorise the keeping of

that person in police detention for a further period expiring not more than 36

hours after that time if the conditions specified in subsection (1) are still

satisfied when he gives the authorisation.

(3) An authorisation under subsection (1) must not be given in respect of a

person–

(a) more than 24 hours after the relevant time; or

(b) before the second review of his detention under section 63 has

been carried out.

(4) If an officer authorises the keeping of a person in police detention

under subsection (1), he must–

(a) inform the person of the grounds of his continued detention;

and

(b) record the grounds in the person’s custody record.

(5) Before deciding whether to authorise the keeping of a person in

detention under subsection (1) or (2), an officer must give–

(a) that person; or

(b) any legal representative representing him who is available at

the time when the officer has to decide whether to give the

authorisation,

Criminal Procedure and Evidence

2011-24

an opportunity to make representations to him about the detention.

(6) Subject to subsection (7), the person in detention or his legal

representative may make representations under subsection (5) either orally

or in writing.

(7) The officer who has to decide whether to give the authorisation may

refuse to hear oral representations from the person in detention if he

considers that he is unfit to make such representations by reason of his

condition or behaviour.

(8) If–

(a) an officer authorises the keeping of a person in detention under

subsection (1); and

(b) at the time of the authorisation he has not yet exercised a right

conferred on him by section 83 or 85,

the officer must–

(i) inform the person of that right;

(ii) decide whether he should be permitted to exercise it;

(iii) record the decision in his custody record; and

(iv) if the decision is to refuse to permit the exercise of the

right - also record the grounds for that decision in the

record.

(9) If an officer has authorised the keeping of a person who has not been

charged in detention under subsection (1) or (2), the person must be released

from detention, either on bail or without bail, not later than 36 hours after

the relevant time, unless–

(a) he has been charged with an offence; or

(b) his continued detention is authorised or otherwise permitted in

accordance with section 67.

(10) A person released under subsection (9) must not be re-arrested

without a warrant for the offence for which he was previously arrested

unless new evidence justifying a further arrest has come to light since his

release; but this subsection does not prevent an arrest under section 71.

Warrants of further detention.

Criminal Procedure and Evidence

2011-24

67.(1) If on an application on oath made by a police officer and supported

by an information, the Magistrates’ Court is satisfied that there are

reasonable grounds for believing that the further detention of the person to

whom the application relates is justified, it may issue a warrant of further

detention authorising the keeping of that person in police detention.

(2) A court must not hear an application for a warrant of further detention

unless the person to whom the application relates has been–

(a) provided with a copy of the information; and

(b) brought before the court for the hearing.

(3) The person to whom the application relates is entitled to be legally

represented at the hearing and, if he is not so represented, but wishes to be

so represented–

(a) the court must adjourn the hearing to enable him to obtain

representation;

(b) he may be kept in police detention during the adjournment.

(4) A person’s further detention is only justified for the purposes of this

section or section 68 if–

(a) his detention without charge is necessary–

(i) to secure or preserve evidence relating to an offence for

which he is under arrest; or

(ii) to obtain such evidence by questioning him;

(b) an offence for which he is under arrest is an indictable offence;

and

expeditiously.

(5) Subject to subsection (7), an application for a warrant of further

detention may be made–

(a) at any time before the expiry of 36 hours after the relevant

time; or

(b) if–

Criminal Procedure and Evidence

2011-24

(i) it is not practicable for the Magistrates’ Court to sit at the

expiry of 36 hours after the relevant time; but

(ii) the court will sit during the 6 hours following the end of

that period,

at any time before the expiry of that 6 hours.

(6) If subsection (5)(b) applies–

(a) the person to whom the application relates may be kept in

police detention until the application is heard; and

(b) the custody officer must make a note in that person’s custody

record–

(i) of the fact that he was kept in police detention for more

than 36 hours after the relevant time; and

(ii) of the reason why he was so kept.

(7) If–

(a) an application for a warrant of further detention is made after

the expiry of 36 hours after the relevant time; and

(b) it appears to the Magistrates’ Court that it would have been

reasonable for the police to make it before the expiry of that

period,

the court must dismiss the application.

(8) If on an application such as is mentioned in subsection (1) the

Magistrates’ Court is not satisfied that there are reasonable grounds for

believing that the further detention of the person to whom the application

relates is justified, the court must–

(a) refuse the application; or

(b) adjourn the hearing of it until a time not later than 36 hours

after the relevant time.

(9) If the hearing of an application is adjourned under subsection (8)(b),

the person to whom the application relates may be kept in police detention

during the adjournment.

(10) A warrant of further detention issued under subsection (1) must–

Criminal Procedure and Evidence

2011-24

(a) state the time at which it is issued; and

(b) authorise the keeping in police detention of the person to

whom it relates for the period stated in it.

(11) The period stated in a warrant of further detention must be–

(a) a period the Magistrates’ Court thinks fit, having regard to the

evidence before it; but

(b) no longer than 36 hours.

(12) Any information submitted in support of an application under this

section must state–

(a) the nature of the offence for which the person to whom the

application relates has been arrested;

(b) the general nature of the evidence on which the person was

arrested;

police and what further inquiries are proposed by them;

(d) the reasons for believing the continued detention of the person

to be necessary for the purposes of such further inquiries.

(13) If an application under this section is refused, the person to whom the

application relates must forthwith be charged or, subject to subsection (14),

released, either on bail or without bail.

(14) A person need not be released under subsection (13)–

(a) before the expiry of 24 hours after the relevant time; or

(b) before the expiry of any longer period for which his continued

detention is or has been authorised under section 66.

(15) If an application under this section is refused, no further application

may be made under this section in respect of the person to whom the refusal

relates, unless supported by evidence which has come to light since the

refusal.

(16) If a warrant of further detention is issued, the person to whom it

relates must be released from police detention, either on bail or without bail,

upon or before the expiry of the warrant, unless he is charged.

Criminal Procedure and Evidence

2011-24

(17) A person released under subsection (16) must not be re-arrested

without a warrant for the offence for which he was previously arrested

unless new evidence justifying a further arrest has come to light since his

release; but this subsection does not prevent an arrest under section 71.

Extension of warrants of further detention.

68.(1) On an application on oath made by a police officer and supported by

an information, the Magistrates’ Court may extend a warrant of further

detention issued under section 67 if it is satisfied that there are reasonable

grounds for believing that the further detention of the person to whom the

application relates is justified.

(2) The period for which a warrant of further detention may be extended is

such as the court thinks fit, having regard to the evidence before it but must

not–

(a) be longer than 36 hours; or

(b) end later than 96 hours after the relevant time.

(3) If a warrant of further detention has been extended under subsection

(1), or further extended under this subsection, for a period ending before 96

hours after the relevant time, on an application such as is mentioned in that

subsection the Magistrates’ Court may further extend the warrant if it is

satisfied as there mentioned; and subsection (2) applies to such further

extensions as it applies to extensions under subsection (1).

(4) A warrant of further detention must, if extended or further extended

under this section, be endorsed with a note of the period of the extension.

(5) Subsections (2), (3) and (12) of section 67 apply to an application

made under this section as they apply to an application made under that

section.

(6) If an application under this section is refused, the person to whom the

application relates must forthwith be charged or, subject to subsection (7),

released, either on bail or without bail.

(7) A person need not be released under subsection (6) before the expiry

of any period for which a warrant of further detention issued in relation to

him has been extended or further extended on an earlier application made

under this section.

Detention before charge: Supplementary.

Criminal Procedure and Evidence

2011-24

69.(1) In sections 67 and 68 “Magistrates’ Court” means a court consisting

of the stipendiary magistrate or 2 or more magistrates sitting otherwise than

in open court.

(2) Any reference in this Part of this Act to a period of time or a time of

day is to be treated as approximate only.

Police detention - miscellaneous

Detention after charge.

70.(1) If a person–

(a) is charged with an offence; and

(b) after being charged–

(i) is kept in police detention; or

(ii) is in the prison pursuant to arrangements made under

section 61(7),

he must be brought before the Magistrates’ Court as soon as practicable and

in any event within 72 hours of his being charged with the offence.

(2) If the Magistrates’ Court is not due to sit either on the day on which a

person is charged or on the next day, the custody officer for the police

station at which he was charged must inform the clerk of the court that there

is a person to whom subsection (1) applies and the clerk must arrange for

the court to sit within 72 hours of the person being charged.

(3) Nothing in this section requires a person who is in hospital to be

brought before a court if he is not well enough.

Power of arrest for failure to answer to police bail.

71.(1) A police officer may arrest without a warrant any person who,

having been released on bail under this Part subject to a duty to attend at a

police station, fails to attend at that police station at the time appointed for

him to do so.

(2) A person who has been released on bail under section 58 or 59(2)(b)

may be arrested without warrant by a police officer if the police officer has

reasonable grounds for suspecting that the person has broken any of the

conditions of bail.

(3) For the purpose of–

Criminal Procedure and Evidence

2011-24

(a) section 48 (Arrest elsewhere than at a police station); and

(b) section 53 (Arrest for further offence),

an arrest under this section is to be treated as an arrest for an offence.

Bail after arrest.

72.(1) Except as otherwise provided in this Part, and subject to this section–

(a) a release of a person on bail under this Part must be in

accordance with Part 7 (Bail in Criminal Proceedings) as it

applies to bail granted by the Magistrates’ Court;

(b) the powers of the Magistrates’ Court under that Part to impose

conditions of bail are available to a custody officer who

releases a person on bail under this Part.

(2) References in this Part to “bail” are references to bail subject to a

duty–

(a) to appear before the Magistrates’ Court at a time and place that

the custody officer appoints; or

(b) to attend at a police station the custody officer appoints.

(3) If a custody officer grants bail to a person subject to a duty to appear

before the Magistrates’ Court, the officer must appoint for the appearance–

(a) a date which is not later than the first sitting of the court after

the person is charged with the offence; or

(b) if the officer is informed by the clerk of the court that the

appearance cannot be accommodated until a later date - that

later date.

(4) If a custody officer has granted bail to a person subject to a duty to

appear at a police station, the custody officer may give notice in writing to

the person that his attendance at the police station is not required.

(5) If a person who has been granted bail under this Part and has either

attended at a police station in accordance with the grant of bail or been

arrested under section 71 is detained at a police station, any time during

which he was in police detention prior to being granted bail is to be included

as part of any period which fails to be calculated under this Part, and any

time during which he was on bail is not to be so included.

Conditions of police bail.

Criminal Procedure and Evidence

2011-24

73.(1) Part 7 applies to bail granted by a custody officer under this Part,

subject to the following provisions of this section.

(2) If a police officer grants bail to a person no conditions may be

imposed under paragraphs (a) to (d) of section 112(1) unless it appears to

the officer that it is necessary to do so for the purpose of preventing that

person from–

(a) failing to surrender to custody;

(b) committing an offence while on bail; or

of justice, whether in relation to himself or any other person.

(3) If a custody officer has granted bail in relation to criminal proceedings,

he or another custody officer serving at the same police station–

(a) may, at the request of the person to whom it was granted, vary

the conditions of bail; and

(b) in doing so may impose conditions or more onerous conditions.

(4) Subsection (2) applies on any request to a custody officer under

subsection (3) to vary the conditions of bail.

(5) If a custody officer, in relation to any person–

(a) imposes conditions when granting bail in relation to criminal

proceedings; or

(b) varies any conditions of bail or imposes conditions in respect

of bail in relation to criminal proceedings,

the custody officer must, with a view to enabling that person to consider

requesting him or another custody officer, or making an application to the

Magistrates’ Court, to vary the conditions, give reasons for imposing or

varying the conditions.

(6) A custody officer who is by virtue of subsection (5) required to give

reasons for his decision must include a note of those reasons in the custody

record and give a copy of that note to the person in relation to whom the

decision was taken.

Re-arrest of persons on bail.

Criminal Procedure and Evidence

2011-24

74.(1) Nothing in this Part or Part 7 prevents the re-arrest without warrant

of a person released on bail subject to a duty to attend at a police station if

new evidence justifying a further arrest has come to light since his release.

(2) If a person who was released on bail under this Part subject to a duty

to attend at a police station is re-arrested, the provisions of this Part apply to

him as they apply to a person arrested for the first time.

(3) Subsection (2) does not apply to a person–

(a) who is arrested under section 71; or

(b) who has attended a police station in accordance with the grant

of bail (and who accordingly is deemed by section 55(7) to

have been arrested for an offence).

Records of detention.

75.(1) The Commissioner of Police must keep written records showing on

an annual basis–

(a) the number of persons kept in police detention for more than

24 hours and subsequently released without charge;

(b) the number of applications for warrants of further detention

and the results of the applications; and

(i) the period of further detention authorised by it;

(ii) the period which the person named in it spent in police

detention on its authority; and

(iii) whether the person was charged or released without

charge.

(2) Every annual report made by the Commissioner of Police must contain

information about the matters mentioned in subsection (1) in respect of the

period to which the report relates.

Saving for habeas corpus.

76. Nothing in this Part affects any right of a person in police detention to

apply for a writ of habeas corpus or other prerogative remedy.

PART 6 - QUESTIONING AND TREATMENT OF PERSONS BY

POLICE

Criminal Procedure and Evidence

2011-24

Questioning and search of persons

Interpretation of Part.

77.(1) In this Part–

“analysis”, in relation to a skin impression, includes comparison and

matching;

“appropriate consent” means–

(a) in relation to a person who has attained the age of 17 years -

the consent of that person;

(b) in relation to a person who has not attained that age but has

attained the age of 14 years - the consent of that person and his

parent or guardian; and

- the consent of his parent or guardian;

“appropriate criminal intent” means an intent to commit an offence under–

(a) section 506(3) of the Crimes Act 2011; or

(b) section 80 of the Imports and Exports Act 1986;

“Class A drug” and “Class B drug” have the meanings assigned to them

by section 502 of the Crimes Act 2011;

“DNA profile” means any information derived from a DNA sample;

“DNA sample” means any material that has come from a human body

and consists of or includes human cells;

“drug offence search” means an intimate search for a Class A drug or

Class B drug which an officer has authorised by virtue of section

81(1)(b);

“exempt conviction” has the meaning given to it by section 101(2);

“extradition arrest power” means a power of arrest under an enactment

with a view to the extradition of the person arrested, and includes

such powers conferred by the European Arrest Warrant Act 2004;

Criminal Procedure and Evidence

2011-24

“fingerprints”, in relation to any person, means a record (in any form and

produced by any method) of the skin pattern and other physical

characteristics or features of–

(a) any of the person’s fingers; or

(b) either of his palms;

“intimate sample” means–

(a) a sample of blood, semen or any other tissue fluid, urine or

pubic hair;

(b) a dental impression; or

pubic hair) or from a person’s body orifice other than the

mouth;

“intimate search” means a search which consists of the physical

examination of a person’s body orifices other than the mouth;

“non-intimate sample” means–

(a) a sample of hair other than pubic hair;

(b) a sample taken from a nail or from under a nail;

from which a swab taken would be an intimate sample;

(d) saliva; or

(e) a skin impression;

“qualifying offence” means a sexual offence or an offence of violence;

“registered”, in relation to a dentist, medical practitioner or nurse, means

registered under the Medical and Health Act 1997;

“relevant time” has the meaning given to it by section 65(2);

“skin impression”, in relation to any person, means any record (other

than a fingerprint) which is a record (in any form and produced by

any method) of the skin pattern and other physical characteristics

or features of the whole or any part of his foot or of any other part

of his body;

Criminal Procedure and Evidence

2011-24

“speculative search”, in relation to a person’s fingerprints or samples,

means a check against other fingerprints or samples or against

information derived from other samples such as is referred to in

section 90(1);

“sufficient” and “insufficient”, in relation to a sample, means (subject to

subsection (2)) sufficient or insufficient (in point of quantity or

quality) for the purpose of enabling information to be produced by

the means of analysis used or to be used in relation to the sample;

“suitably qualified person” means–

(a) a registered medical practitioner; or

(b) a registered nurse.

(2) References in this Part to a sample’s proving insufficient include

references to cases in which, as a consequence of–

(a) the loss, destruction or contamination of the whole or any part

of the sample;

(b) any damage to the whole or a part of the sample; or

which produced no results or which produced results some or

all of which must be regarded, in the circumstances, as

unreliable,

the sample has become unavailable or insufficient for the purpose of

enabling information, or information of a particular description, to be

obtained by means of analysis of the sample.

Abolition of certain powers of police officers to search persons.

78.(1) Any enactment in force before this Part comes into force ceases to

have effect to the extent that it authorises–

(a) a search by a police officer of a person in police detention at a

police station; or

(b) an intimate search of a person by a police officer.

(2) Any rule of common law which authorises a search such as is

mentioned in subsection (1) is abolished.

Searches of detained person.

Criminal Procedure and Evidence

2011-24

79.(1) The custody officer at a police station must ascertain and record or

cause to be recorded everything which a person has with him when he is–

(a) brought to the station after being arrested elsewhere or after

being committed to custody by an order or sentence of a court;

(b) arrested at the station, or detained there as a person falling

within section 55(7).

(2) In the case of an arrested person, a record under subsection (1) must be

made as part of his custody record.

(3) Subject to subsection (4), a custody officer may seize and retain

anything as mentioned in subsection (1) or cause it to be seized and

retained.

(4) Clothes and personal effects may only be seized if the custody officer–

(a) believes that the person from whom they are seized may use

them–

(i) to cause physical injury to himself or any other person;

(ii) to damage property;

(iii) to interfere with evidence; or

(iv) to assist him to escape; or

(b) has reasonable grounds for believing that they may be evidence

relating to an offence.

(5) If anything is seized, the person from whom it is seized must be told

the reason for the seizure unless he is–

(a) violent or likely to become violent; or

(b) incapable of understanding what is said to him.

(6) Subject to subsection (10), a person may be searched –

(a) if the custody officer considers it necessary to enable the

officer to carry out his duty under subsection (1); and

(b) to the extent the custody officer considers necessary for that

purpose.

Criminal Procedure and Evidence

2011-24

(7) A person who is in custody at a police station or is in police detention

otherwise than at a police station may at any time be searched in order to

ascertain whether he has with him anything which he could use for any of

the purposes specified in subsection (4)(a).

(8) Subject to subsection (9), a police officer may seize and retain, or

cause to be seized and retained, anything found on a search authorised by

this section.

(9) A police officer may only seize clothes and personal effects in the

circumstances specified in subsection (4).

(10) An intimate search may not be conducted under this section.

(11) A search under this section must be carried out only by a police

officer.

(12) The police officer carrying out a search under this section must be of

the same sex as the person searched.

Searches and examinations to ascertain identity.

80.(1) If an officer of the rank of Inspector or above so authorises, a person

who is detained in a police station may be searched or examined, or both–

(a) for the purpose of ascertaining whether he has any mark that

would tend to identify him as a person involved in the

commission of an offence; or

(b) for the purpose of facilitating the ascertainment of his

identity.

(2) An officer may only give an authorisation under subsection (1) for the

purpose mentioned in paragraph (a) of that subsection if–

(a) the appropriate consent to a search or examination that would

reveal whether the mark in question exists has been withheld;

(b) it is not practicable to obtain such consent.

(3) An officer may only give an authorisation under subsection (1) in a

case in which subsection (2) does not apply if–

(a) the person in question has refused to identify himself; or

(b) the officer has reasonable grounds for suspecting that that

person is not who he claims to be.

Criminal Procedure and Evidence

2011-24

(4) An officer may give an authorisation under subsection (1) orally or in

writing but, if he gives it orally, must confirm it in writing as soon as

practicable.

(5) Any identifying mark found on a search or examination under this

section may be photographed–

(a) with the appropriate consent; or

(b) if the appropriate consent is withheld or it is not practicable to

obtain it - without it.

(6) A search or examination carried out, or a photograph taken, under this

section may only be carried out or taken by a police officer.

(7) A person may not under this section carry out a search or examination

of a person of the opposite sex or take a photograph of any part of the body

of a person of the opposite sex.

(8) An intimate search may not be carried out under this section.

(9) A photograph taken under this section–

(a) may be used by, or disclosed to, any person for any purpose

related to the prevention or detection of crime, the

investigation of an offence or the conduct of a prosecution; and

(b) after being so used or disclosed, may be retained but may not

be used or disclosed except for a purpose so related.

(10) In subsection (9)–

(a) the reference to crime includes a reference to any conduct

which–

(i) constitutes one or more criminal offences (whether under

the law of Gibraltar or of a place outside Gibraltar); or

(ii) is, or corresponds to, any conduct which, if it took place

in Gibraltar, would constitute one or more criminal

offences; and

(b) the references to an investigation and to a prosecution include

references, respectively, to any investigation outside Gibraltar

of any crime or suspected crime and to a prosecution brought

in respect of any crime in a place outside Gibraltar.

Criminal Procedure and Evidence

2011-24

(11) In this section–

(a) references to ascertaining a person’s identity include references

to showing that he is not a particular person; and

(b) references to taking a photograph include references to using

any process by means of which a visual image may be

produced, and references to photographing a person are to be

construed accordingly.

(12) In this section “mark” includes features and injuries; and a mark is an

identifying mark for the purposes of this section if its existence in any

person’s case facilitates the ascertainment of his identity or his identification

as a person involved in the commission of an offence.

(13) Nothing in this section applies to a person arrested under an

extradition arrest power.

Intimate searches.

81.(1) Subject to this section, if an officer of the rank of Inspector or above

has reasonable grounds for believing–

(a) that a person who has been arrested and is in police detention

may have concealed on him anything which he–

(i) could use to cause physical injury to himself or others;

and

(ii) might so use while he is in police detention or in the

custody of a court; or

(b) that such a person–

(i) may have a Class A drug or Class B drug concealed on

him; and

(ii) was in possession of it with the appropriate criminal

intent before his arrest,

the officer may authorise an intimate search of that person.

(2) An officer may not authorise an intimate search of a person for

anything unless he has reasonable grounds for believing that it cannot be

found without the person being intimately searched.

Criminal Procedure and Evidence

2011-24

(3) An officer may give an authorisation under subsection (1) orally or in

writing but, if he gives it orally, must confirm it in writing as soon as

practicable.

(4) A drug offence search must not be carried out unless the appropriate

consent has been given in writing.

(5) If it is proposed that a drug offence search be carried out, an

appropriate officer must inform the person to be searched–

(a) of the giving of the authorisation; and

(b) of the grounds for giving the authorisation.

(6) An intimate search which is only a drug offence search must be by

way of examination by a suitably qualified person.

(7) An intimate search other than a drug offence search must be by way of

examination by a suitably qualified person unless an officer of the rank of

Inspector or above considers that this is not practicable, in which case it

must be carried out by a police officer.

(8) A police officer may not carry out an intimate search of a person of the

opposite sex.

(9) An intimate search must not be carried out except–

(a) at a police station;

(b) at a hospital;

(d) at some other place used for medical purposes.

(10) If an intimate search of a person is carried out, the custody record

relating to him must state–

(a) which parts of his body were searched; and

(b) why they were searched.

(11) If the intimate search of a person is a drug offence search, the custody

record relating to the person must also state–

(a) the authorisation by virtue of which the search was carried out;

(b) the grounds for giving the authorisation; and

Criminal Procedure and Evidence

2011-24

(12) The information required to be recorded by subsections (10) and (11)

must be recorded as soon as practicable after the completion of the search.

(13) The custody officer at a police station may seize and retain anything

which is found on an intimate search of a person, or cause any such thing to

be seized and retained–

(a) if the officer believes that the person from whom it is seized

may use it–

(i) to cause physical injury to himself or any other person;

(ii) to damage property;

(iii) to interfere with evidence; or

(iv) to assist him to escape; or

(b) if the officer has reasonable grounds for believing that it may

be evidence relating to an offence.

(14) If anything is seized under this section, the person from whom it is

seized must be told the reason for the seizure unless he is–

(a) violent or likely to become violent; or

(b) incapable of understanding what is said to him.

(15) If the appropriate consent to a drug offence search of any person was

refused without good cause, in any proceedings against that person for an

offence, the court or jury may draw such inferences from the refusal as

appear proper.

(16) Every annual report made by the Commissioner of Police must

contain information about searches under this section which have been

carried out during the period to which it relates, including–

(a) the total number of searches;

(b) the number of searches conducted by way of examination by a

suitably qualified person;

presence of such a person; and

Criminal Procedure and Evidence

2011-24

(d) the result of the searches carried out;

and, as separate items–

(e) the total number of drug offence searches; and

(f) the result of those searches.

X-rays and ultrasound scans.

82.(1) If a police officer of the rank of Inspector or above has reasonable

grounds for believing that a person who has been arrested for an offence and

is in police detention–

(a) may have swallowed a Class A drug or Class B drug; and

(b) was in possession of it with the appropriate criminal intent

before his arrest,

the officer may authorise that an X-ray be taken of the person or an

ultrasound scan be carried out on the person, or both.

(2) An X-ray must not be taken of a person and an ultrasound scan must

not be carried out on him unless the appropriate consent has been given in

writing.

(3) If it is proposed that an X-ray be taken or an ultrasound scan be carried

out, an appropriate officer must inform the person who is to be subject to it–

(a) of the giving of the authorisation for it; and

(b) of the grounds for giving the authorisation.

(4) An X-ray may be taken or an ultrasound scan carried out only by a

suitably qualified person and only at–

(a) a hospital;

(b) a registered medical practitioner’s surgery; or

(5) When an X-ray of a person is taken or an ultrasound scan on a person

is carried out, the custody record of the person must also state–

(a) the authorisation by virtue of which the X-ray was taken or the

ultrasound scan was carried out;

Criminal Procedure and Evidence

2011-24

(b) the grounds for giving the authorisation; and

(6) The information required to be recorded by subsection (5) must be

recorded as soon as practicable after the X-ray has been taken or ultrasound

scan carried out, as the case may be.

(7) If the appropriate consent to an X-ray or ultrasound scan of any person

is refused without good cause, in any proceedings against that person for an

offence, the court or jury may draw such inferences from the refusal as

appear proper.

(8) Every annual report made by the Commissioner of Police must contain

information about X-rays which have been taken and ultrasound scans

which have been carried out under this section during the period to which it

relates, including–

(a) the total number of X-rays;

(b) the total number of ultrasound scans;

(d) the results of the ultrasound scans.

Right to have someone informed when arrested.

83.(1) If a person has been arrested and is being held in custody in a police

station or other premises, he is entitled, if he so requests, to have one named

friend or relative or other person who is known to him or who is likely to

take an interest in his welfare told that he has been arrested and is being

detained there.

(2) Delay in telling a named person under subsection (1) is only permitted

if

(a) the detained person is detained for an indictable offence; and

(b) an officer of the rank of Inspector or above authorises a delay.

(3) Whether or not subsection (2) applies, the detained person must be

permitted to exercise the right conferred by subsection (1) within 36 hours

from the relevant time.

(4) An officer may give an authorisation under subsection (2) orally or in

writing but, if he gives it orally, must confirm it in writing as soon as is

practicable.

Criminal Procedure and Evidence

2011-24

(5) Subject to subsection (6), an officer may only authorise delay in telling

a named person under subsection (1) if he has reasonable grounds for

believing that telling that person of the arrest will–

(a) lead to interference with or harm to evidence connected with

an indictable offence;

(b) lead to interference with or physical injury to other persons;

committed such an offence but not yet arrested for it; or

(d) hinder the recovery of any property obtained as a result of such

an offence.

(6) An officer may also authorise delay in telling a named person if he has

reasonable grounds for believing that–

(a) the indictable offence committed by the detained person is also

a drug trafficking offence, and the recovery of the value of that

person’s proceeds of drug trafficking will be hindered by

telling the named person of the arrest; or

(b) the indictable offence committed by the detained person is one

to which Part IV of the Crime (Money Laundering and

Proceeds) Act 2007 applies and the recovery of the value of the

property constituting the benefit to the detained person of the

criminal conduct will be hindered by telling the named person

of the arrest.

(7) If a delay in telling a named person is authorised–

(a) the detained person must as soon as practicable be told the

reason for the delay; and

(b) the reason must as soon as practicable be noted on his custody

record.

(8) The rights conferred by this section on a person at a police station or

other premises are exercisable whenever he is transferred from one place to

another, and this section applies to each subsequent occasion on which they

are exercisable as it applies to the first such occasion.

(9) If delay in telling a named person has been authorised, there must be

no further delay in permitting the exercise of the right conferred by

subsection (1) once the reason for authorising delay ceases to subsist.

Additional rights of children and young persons who are arrested.

Criminal Procedure and Evidence

2011-24

84.(1) If a juvenile is in police detention, all practicable steps must be taken

to ascertain the identity of a person responsible for his welfare.

(2) If the identity of a person responsible for the welfare of the juvenile

can be ascertained, the person must be informed, unless it is not practicable

to do so

(a) that the juvenile has been arrested;

(b) why he has been arrested; and

(3) If information is to be given under subsection (2), it must be given as

soon as practicable.

(4) For the purposes of this section the persons responsible for the welfare

of a juvenile are–

(a) his parent or guardian; or

(b) any other person who has for the time being assumed

responsibility for his welfare.

(5) If information is to be given to a person responsible for the welfare of

the juvenile in accordance with subsection (2), it must be given to the

person as soon as is reasonably practicable.

(6) The reference to a parent or guardian in subsection (4) is, in the case of

a juvenile in the care of the Care Agency or a similar body, a reference to

the Agency or body.

(7) The rights conferred on a juvenile by subsections (1) to (6) are in

addition to his rights under section 83.

Access to legal advice.

85.(1) A person arrested and held in custody in a police station or other

premises is entitled, if he so requests, to consult a legal representative

privately at any time.

(2) A request under subsection (1), and the time of its making, must when

it is made be recorded in the custody record unless it is made by a person

while he is at a court being charged with an offence.

Interpretation and translation

Criminal Procedure and Evidence

2011-24

Right to interpretation.

85A.(1) A suspected person has a right to interpretation if that person either

does not speak or understand English or otherwise has a speech or hearing

impediment.

(2) It shall be the duty of the Commissioner of Police to ensure that a

person with a right to interpretation is provided with interpretation, without

delay, throughout the investigative process and until such time as the person

is handed into the custody of a court or until the person is no longer a

suspect in the investigation.

(3) The right to interpretation referred to in subsection (1) includes the

right to appropriate assistance to persons with a hearing or speech

impediment.

(4) The Commissioner of Police must ensure that appropriate procedures

are in place to ascertain whether a suspected person has a right to

interpretation under subsection (1).

(5) The Commissioner of Police must ensure that, where necessary for the

purpose of safeguarding the fairness of the investigation, interpretation is

available for communication between the suspected person and his legal

counsel in direct connection with any questioning or hearing during the

investigation.

(6) Where appropriate, communication technology such as

videoconferencing, the telephone or the internet may be used, unless the

physical presence of the interpreter is required in order to safeguard the

fairness of the investigation.

(7) Interpretation provided under this section shall be of a quality

sufficient to safeguard the fairness of the proceedings, in particular by

ensuring that a suspected person has knowledge of the case against him and

is able to exercise his right of defence.

(8) In this section and in sections 85B to 85E a “suspected person” means

a person who is under suspicion of having committed a criminal offence.

(9) For the purposes of subsection (2) where a certain period of time

elapses before interpretation is provided, that shall not constitute an

infringement of the requirement that interpretation be provided without

delay, as long as the period of time is reasonable in the circumstances.

Written translation of documents.

85B.(1) If a suspected person does not understand English, the

Commissioner of Police must, within a reasonable time, provide that person

Criminal Procedure and Evidence

2011-24

with a written translation of any essential document or part of such a

document into a language which that person understands to–

(a) ensure that he is able to exercise the right of defence; and

(b) safeguard the fairness of the investigation.

(2) A written translation need not consist of those parts of a document

which are not relevant for the purposes of enabling the suspected person to

know the case against him.

(3) In subsection (1), “essential document” includes any decision

depriving a person of his liberty and any charge or indictment.

(4) Translation provided under this section shall be of a quality sufficient

to safeguard the fairness of the investigation, in particular by ensuring that

the suspected person has knowledge of the case against him and is able to

exercise the right of defence.

(5) As an exception to the general rules established in subsections (1), (2)

and (3) an oral translation or oral summary of essential documents may be

provided instead of a written translation on condition that such oral

translation or oral summary does not prejudice the fairness of the

investigation.

(6) A suspected person may waive the right to receive translated

documents only if–

(a) the suspected person has received prior legal advice or has

otherwise obtained full knowledge of the consequences of such

a waiver; and

(b) the waiver is unequivocal and given voluntarily.

Cost of interpretation and translation.

85C. Interpretation and translation under sections 85A and 85B shall be

provided at no cost to the suspected person.

Duty to record.

85D. The Commissioner of Police must maintain a record–

(a) where a suspected person has been the subject of questioning

or a hearing with the assistance of an interpreter;

Criminal Procedure and Evidence

2011-24

(b) where the suspected person has exercised the right to waive

the requirement to be provided with a written translation under

section 85B(6); and

documents has been provided under section 85B(5).

Unsatisfactory interpretation or translation.

85E.(1) Where–

(a) the Commissioner of Police has not arranged for interpretation

to be provided to a suspected person as required under section

85A;

(b) the quality of the interpretation provided under section 85A is

not sufficient to safeguard the fairness of the proceedings;

been provided to the suspected person; or

(d) a written translation has been provided under section 85B but

the quality of the translation is not sufficient to safeguard the

fairness of the proceedings,

that person may apply to the Magistrates’ Court for an order.

(2) Upon hearing an application under subsection (1) the Magistrates’

Court may make an order requiring the Commissioner of Police to take such

steps as are necessary for ensuring compliance with Directive 2010/64/EU

of the European Parliament and of the Council of 20 October 2010 on the

right to interpretation and translation in criminal proceedings.

(3) An order under subsection (2) may include ordering that interpretation

be provided by a different interpreter.

Non-regression.

85F. Nothing in sections 85A to 85D shall be construed as limiting or

derogating from any of the rights and procedural safeguards that are ensured

under the European Convention for the Protection of Human Rights and

Fundamental Freedoms, the Charter of Fundamental Rights of the European

Union, other relevant provisions of international law or any law in force in

Gibraltar which provides a higher level of protection.

Fingerprints, samples, etc.

Fingerprinting.

Criminal Procedure and Evidence

2011-24

86.(1) Except as provided by this section, no person’s fingerprints may be

taken without the appropriate consent.

(2) If consent is given when a person is at a police station, it must be in

writing.

(3) The fingerprints of a person detained at a police station may be taken

without the appropriate consent if he–

(a) is detained in consequence of his arrest for a recordable

offence; or

(b) has been charged with an indictable offence or informed that

he will be reported for such an offence; and

investigation of the offence by the police.

(4) If a person detained at a police station has already had his fingerprints

taken in the course of the investigation of the offence by the police, that fact

is to be disregarded for the purposes of subsection (3) if–

(a) the fingerprints taken on a previous occasion do not constitute

a complete set of his fingerprints; or

(b) some or all of the fingerprints taken on a previous occasion are

not of sufficient quality to allow satisfactory analysis,

comparison or matching (whether in the case in question or

generally).

(5) The fingerprints of a person who has answered to bail at a court or

police station may be taken without the appropriate consent at the court or

station if–

(a) the court, or

(b) a police officer of at least the rank of Inspector,

authorises them to be taken.

(6) A court or police officer may only give an authorisation under

subsection (5) if–

(a) the person who has answered to bail has answered to it for a

person whose fingerprints were taken on a previous occasion

and there are reasonable grounds for believing that he is not the

same person; or

Criminal Procedure and Evidence

2011-24

(b) the person who has answered to bail claims to be a different

person from a person whose fingerprints were taken on a

previous occasion.

(7) A police officer may give an authorisation under subsection (5) orally

or in writing but, if he gives it orally, must confirm it in writing as soon as

practicable.

(8) The fingerprints of a person may be taken without the appropriate

consent if he has been arrested for a recordable offence and released and–

(a) in the case of a person who is on bail - he has not had his

fingerprints taken in the course of the investigation of the

offence by the police; or

(b) in any case - he has had his fingerprints taken in the course of

that investigation but subsection (4)(a) or (b) applies.

(9) The fingerprints of a person not detained at a police station may be

taken without the appropriate consent if he has been charged with a

recordable offence or informed that he will be reported for such an offence

and–

(a) he has not had his fingerprints taken in the course of the

investigation of the offence by the police; or

(b) he has had his fingerprints taken in the course of that

investigation but subsection (4)(a) or (b) applies.

(10) Any person’s fingerprints may be taken without the appropriate

consent if–

(a) he has been convicted of an indictable offence; or

(b) he has been given a caution in respect of an indictable offence

which, at the time of the caution, he has admitted,

and if–

convicted or cautioned; or

(d) he has had his fingerprints taken since then but subsection

(4)(a) or (b) applies.

(11) Fingerprints may only be taken as specified in subsection (10) with

the authorisation of an officer of at least the rank of Inspector, who must be

Criminal Procedure and Evidence

2011-24

satisfied that taking the fingerprints is necessary to assist in the prevention

or detection of crime.

(12) A police officer may take a person’s fingerprints without the

appropriate consent if the officer reasonably suspects that the person is

committing or attempting to commit an offence, or has committed or

attempted to commit an offence, and if–

(a) the name of the person is unknown to, and cannot be readily

ascertained by, the officer; or

(b) the officer has reasonable grounds for doubting whether a

name given by the person as his name is his real name.

(13) The taking of fingerprints by virtue of subsection (12) does not count

for any of the purposes of this Act as taking them in the course of the

investigation of an offence by the police.

(14) The fingerprints of a person may be taken without the appropriate

consent if–

(a) under the law in force in a country or territory outside Gibraltar

the person has been convicted of an offence under that law,

whether or not he has been punished for it;

(b) the act constituting the offence would constitute a qualifying

offence (as defined in section 101(6)) if done in Gibraltar,

and if–

occasion under this subsection; or

(d) he has had his fingerprints taken on a previous occasion under

this subsection but subsection (4)(a) or (b) applies.

(15) Fingerprints may only be taken as specified in subsection (14) with

the authorisation of an officer of at least the rank of Inspector, who must be

satisfied that taking the fingerprints is necessary to assist in the prevention

or detection of crime.

(16) If a person’s fingerprints are taken without the appropriate consent

pursuant to this section–

(a) before the fingerprints are taken, he must be informed of–

(i) the reason for taking the fingerprints;

(ii) the power by virtue of which they are taken; and

Criminal Procedure and Evidence

2011-24

(iii) if the authorisation of the court or an officer is required

for the exercise of the power - the fact that the

authorisation has been given; and

(b) those matters must be recorded as soon as practicable after the

fingerprints are taken.

(17) If a person’s fingerprints are taken pursuant to this section at a police

station or elsewhere and whether with or without the appropriate consent–

(a) before the fingerprints are taken, a police officer must inform

the person that they might be the subject of a speculative

search; and

(b) the fact that the person has been informed of this possibility

must be recorded as soon as practicable after the fingerprints

have been taken.

(18) If a person is detained at a police station when his fingerprints are

taken, the matters referred to in subsection (16)(a) and, in a case within

subsection (17), the fact referred to in paragraph (b) of that subsection, must

be recorded on his custody record.

(19) If a person’s fingerprints are taken electronically, they must be taken

only in such manner, and using such devices, as the Minister has by

regulations published in the Gazette approved for the purposes of electronic

fingerprinting.

(20) The power to take the fingerprints of a person detained at a police

station without the appropriate consent may be exercised by any police

officer.

(21) Nothing in this section–

(a) affects any power conferred by section 8 of the Immigration,

Asylum and Refugee Act;

(b) applies to a person arrested under an extradition arrest power.

Impressions of footwear.

87.(1) Except as provided by this section, no impression of a person’s

footwear may be taken without the appropriate consent.

(2) If consent is given when a person is at a police station, it must be in

writing.

Criminal Procedure and Evidence

2011-24

(3) If a person is detained at a police station, an impression of his footwear

may be taken without the appropriate consent if he–

(a) is detained in consequence of his arrest for a recordable

offence; and

(b) has not had an impression taken of his footwear in the course

of the investigation of the offence by the police.

(4) If a person detained at a police station has already had an impression

taken of his footwear in the course of the investigation of the offence by the

police, that fact is to be disregarded for the purposes of that subsection if the

impression of his footwear taken previously is–

(a) incomplete; or

(b) not of sufficient quality to allow satisfactory analysis,

comparison or matching (whether in the case in question or

generally).

(5) If an impression of a person’s footwear is taken at a police station,

whether with or without the appropriate consent–

(a) before it is taken, a police officer must inform the person that it

might be the subject of a speculative search; and

(b) the fact that the person has been informed of this possibility

must be recorded as soon as practicable after the impression

has been taken, and if he is detained at a police station,

included on his custody record.

(6) If under subsection (3), an impression of a person’s footwear is taken

without the appropriate consent–

(a) he must be told the reason before it is taken; and

(b) the reason must be recorded on his custody record as soon as

practicable after the impression is taken.

(7) The power to take an impression of the footwear of a person detained

at a police station without the appropriate consent may be exercised by any

police officer.

(8) Nothing in this section applies to a person arrested under an

extradition arrest power.

Intimate samples.

Criminal Procedure and Evidence

2011-24

88.(1) Subject to section 90 an intimate sample may be taken from a person

in police detention only if–

(a) a police officer of at least the rank of Inspector authorises it to

be taken; and

(b) the appropriate consent is given.

(2) An intimate sample may be taken from a person who is not in police

detention but from whom, in the course of the investigation of an offence, 2

or more non-intimate samples suitable for the same means of analysis have

been taken which have proved insufficient, if–

(a) a police officer of at least the rank of Inspector authorises it to

be taken; and

(b) the appropriate consent is given.

(3) A police officer may only give an authorisation under subsection (1) or

(2) if the officer has reasonable grounds for–

(a) suspecting the involvement of the person from whom the

sample is to be taken in a recordable offence; and

(b) believing that the sample will tend to confirm or disprove the

person’s involvement.

(4) An intimate sample may be taken from a person if–

(a) 2 or more non-intimate samples suitable for the same means of

analysis have been taken from the person under section 89(10)

(persons convicted of offences outside Gibraltar) but have

proved insufficient;

(b) a police officer of at least the rank of Inspector authorises it to

be taken; and

(5) An officer may only give an authorisation under subsection (4) if the

officer is satisfied that taking the sample is necessary to assist in the

prevention or detection of crime.

(6) An officer may give an authorisation under subsection (1), (2) or (4)

orally or in writing but, if he gives it orally, must confirm it in writing as

soon as practicable.

(7) If consent is given, it must be in writing.

Criminal Procedure and Evidence

2011-24

(8) Before an intimate sample is taken from a person, a police officer must

inform him of–

(a) the reason for taking the sample;

(b) the fact that authorisation has been given and the provision of

this section under which it has been given; and

sample may be the subject of a speculative search.

(9) The reason referred to in subsection (8)(a) must include, unless the

sample is taken under subsection (4), a statement of the nature of the

offence in which it is suspected that the person has been involved.

(10) After an intimate sample has been taken from a person, the following

must be recorded as soon as practicable–

(a) the matters referred to in subsection (8)(a) and (b);

(b) if the sample was taken at a police station - the fact that the

person has been informed as specified in subsection (8)(c); and

(11) If an intimate sample is taken from a person at a police station–

(a) before the sample is taken, a police officer must inform the

person that it might be the subject of a speculative search; and

(b) the fact that the person has been informed of this possibility

must be recorded as soon as practicable after the sample has

been taken.

(12) If an intimate sample is taken from a person detained at a police

station, the matters required to be recorded by subsection (10) must be

recorded in his custody record.

(13) In the case of an intimate sample which is a dental impression, the

sample may be taken from a person only by a registered dentist.

(14) In the case of any other form of intimate sample, except in the case of

a sample of urine, the sample may be taken from a person only by–

(a) a registered medical practitioner; or

(b) a registered nurse.

Criminal Procedure and Evidence

2011-24

(15) If a person refuses to submit to the taking of an intimate sample

without good cause, in proceedings against that person for an offence–

(a) the court, in deciding whether–

(i) to commit the person for trial; or

(ii) there is a case to answer; and

(b) the court or jury, in deciding whether the person is guilty of the

offence charged,

may draw such inferences from the refusal as appear proper, and the refusal

may, on the basis of such inferences, be treated as, or as capable of

amounting to, corroboration of any evidence against a person in relation to

which the refusal is material.

(16) Nothing in this section applies to the taking of a specimen for the

purposes of any provisions of Part IV of the Traffic Act 2005.

Non-intimate samples.

89.(1) Except as provided by this section, a non-intimate sample may not

be taken from a person without the appropriate consent.

(2) If consent is given, it must be in writing.

(3) A non-intimate sample may be taken from a person without the

appropriate consent if–

(a) the person is in police detention in consequence of his arrest

for a recordable offence; and

(b) the person–

(i) has not had a non-intimate sample of the same type and

from the same part of the body taken in the course of the

investigation of the offence by the police; or

(ii) has had such a sample taken but it proved insufficient.

(4) A non-intimate sample may be taken from a person without the

appropriate consent if he has been arrested for a recordable offence and

released and–

(a) in the case of a person who is on bail - he has not had a non-

intimate sample of the same type and from the same part of the

Criminal Procedure and Evidence

2011-24

body taken from him in the course of the investigation of the

offence by the police; or

(b) in any case - he has had an non-intimate sample taken from

him in the course of that investigation but–

(i) it was not suitable for the same means of analysis, or

(ii) it proved insufficient.

(5) A non-intimate sample may be taken from a person without the

appropriate consent if–

(a) he is being held in custody by the police on the authority of a

court; and

(b) a police officer of at least the rank of Inspector authorises the

sample to be taken without the appropriate consent.

(6) A police officer may only give an authorisation under subsection (5) if

he has reasonable grounds–

(a) to suspect that the involvement of the person from whom the

sample is to be taken is a recordable offence; and

(b) to believe that the sample will tend to confirm or disprove the

person’s involvement.

(7) A non-intimate sample may be taken from a person (whether or not he

is in police detention or held in custody by the police on the authority of a

court) without the appropriate consent if he has been charged with a

recordable offence or informed that he will be reported for such an offence

and–

(a) he has not had a non-intimate sample taken from him in the

course of the investigation of the offence by the police; or

(b) he has had a non-intimate sample taken from him in the course

of that investigation but–

(i) it was not suitable for the same means of analysis; or

(ii) it proved insufficient; or

of that investigation and–

Criminal Procedure and Evidence

2011-24

(i) the sample has been destroyed pursuant to section 94 or

any other enactment; and

(ii) it is disputed, in relation to any proceedings relating to

the offence, whether a DNA profile relevant to the

proceedings is derived from the sample.

(8) A non-intimate sample may be taken from a person without the

appropriate consent if–

(a) he has been convicted of a recordable offence; or

(b) he has been given a caution in respect of a recordable offence

which, at the time of the caution, he has admitted, and if–

he was convicted or cautioned; or

(d) such a sample has been taken from him since then but–

(i) it was not suitable for the same means of analysis; or

(ii) it proved insufficient.

(9) A non-intimate sample may only be taken as specified in subsection

(8) with the authorisation of an officer of at least the rank of Inspector, who

must be satisfied that taking the sample is necessary to assist in the

prevention or detection of crime.

(10) A non-intimate sample may be taken from a person without the

appropriate consent if–

(a) under the law in force in a country or territory outside Gibraltar

the person has been convicted of an offence under that law

(whether or not he has been punished for it);

(b) the act constituting the offence would constitute a qualifying

offence (as defined in section 101(6)) if done in Gibraltar,

and if–

on a previous occasion under this subsection; or

(d) he has had such a sample taken from him on a previous

occasion under this subsection but–

Criminal Procedure and Evidence

2011-24

(i) the sample was not suitable for the same means of

analysis; or

(ii) it proved insufficient.

(11) A non-intimate sample may only be taken as specified in subsection

(10) with the authorisation of an officer of at least the rank of Inspector,

who must be satisfied that taking the sample is necessary to assist in the

prevention or detection of crime.

(12) A non-intimate sample may also be taken from a person without the

appropriate consent if he is a person in respect of whom a special finding or

verdict is returned under Part 28.

(13) An officer may give an authorisation under this section orally or in

writing but, if he gives it orally, must confirm it in writing as soon as

practicable.

(14) An officer must not give an authorisation under this section for the

taking from any person of a non-intimate sample consisting of a skin

impression if–

(a) a skin impression of the same part of the body has already been

taken from that person in the course of the investigation of the

offence; and

(b) the impression previously taken has not proved insufficient.

(15) If a non-intimate sample is taken from a person without the

appropriate consent pursuant to this section–

(a) before the sample is taken, a police officer must inform him

of–

(i) the reason for taking the sample;

(ii) the power by virtue of which it is taken; and

(iii) in a case where the authorisation of an officer is required

for the exercise of the power - the fact that the

authorisation has been given; and

(b) those matters must be recorded as soon as practicable after the

sample is taken.

(16) The reason referred to in subsection (15)(a)(i) must include, except in

a case where the non-intimate sample is taken under subsection (8) or (10),

Criminal Procedure and Evidence

2011-24

a statement of the nature of the offence in which it is suspected that the

person has been involved.

(17) If a non-intimate sample is taken from a person at a police station,

whether with or without the appropriate consent–

(a) before the sample is taken, a police officer must inform the

person that it might be the subject of a speculative search; and

(b) the fact that the person has been informed of this possibility

must be recorded as soon as practicable after the sample has

been taken.

(18) If a non-intimate sample is taken from a person detained at a police

station, the matters required to be recorded by subsection (15)(b) must be

recorded in his custody record.

(19) The power to take a non-intimate sample from a person without the

appropriate consent may be exercised by any police officer.

(20) If a non-intimate sample consisting of a skin impression is taken

electronically from a person, it must be taken only in such manner, and

using such devices, as the Minister has approved for the purpose of the

electronic taking of such an impression.

(21) Nothing in this section applies to a person arrested under an

extradition arrest power.

Fingerprints and samples: Speculative searches.

90.(1) If a person has been–

(a) arrested on suspicion of being involved in a recordable offence;

(b) charged with such an offence; or

fingerprints, impressions of footwear or samples or the information derived

from samples taken under any power conferred by this Part from the person

may be checked against–

(d) other fingerprints or samples to which the person seeking to

check has access and which are held by or on behalf of a

relevant law-enforcement authority or in connection with or as

a result of an investigation of an offence; and

Criminal Procedure and Evidence

2011-24

(e) information derived from other samples if the information is

contained in records to which the person seeking to check has

access and which are held as mentioned in paragraph (d).

(2) Fingerprints taken by virtue of section 86(10) or (12) may be checked

against other fingerprints to which the person seeking to check has access

and which are held by or on behalf of a relevant law-enforcement authority

or in connection with or as a result of an investigation of an offence.

(3) In subsection (1) and (2) “relevant law-enforcement authority” means–

(a) the Royal Gibraltar Police;

(b) any other public authority in Gibraltar whose functions include

the investigation of crimes or the charging of offenders;

which–

(i) correspond to those of a police force; or

(ii) otherwise consist of or include the investigation of

conduct contrary to the law of that place, or the

apprehension of persons guilty of such conduct;

(d) any person with functions under any international agreement

which consist of or include the investigation of conduct which

is–

(i) unlawful under the law of one or more places;

(ii) prohibited by such an agreement; or

(iii) contrary to international law,

or the apprehension of persons guilty of such conduct.

(4) If–

(a) fingerprints, impressions of footwear or samples have been

taken from any person in connection with the investigation of

an offence but not in circumstances to which subsection (1)

applies; and

(b) the person has given his consent in writing to the use in a

speculative search of the fingerprints, impressions of footwear

or of the samples and of information derived from them,

Criminal Procedure and Evidence

2011-24

the fingerprints, impressions of footwear or, as the case may be, those

samples and that information may be checked against any of the

fingerprints, impressions of footwear, samples or information mentioned in

paragraph (d) or (e) of subsection (1).

(5) A consent given for the purposes of subsection (4) cannot be

withdrawn.

(6) If fingerprints or samples have been taken from any person under

section 86(10) or 89(8) (persons convicted, etc.), the fingerprints or

samples, or information derived from the samples, may be checked against

any of the fingerprints, samples or information mentioned in subsection

(1)(d) or (e) of this section.

(7) If fingerprints or samples have been taken from any person under

section 86(14), 88(4) or 89(10) (offences outside Gibraltar) the fingerprints

or samples, or information derived from the samples, may be checked

against any of the fingerprints, samples or information mentioned in

subsection (1)(d) or (e) of this section.

(8) If a sample of hair other than pubic hair is to be taken, the sample may

be taken either by cutting hairs or by plucking hairs by their roots, so long

as no more are plucked than the person taking the sample reasonably

considers necessary for a sufficient sample.

(9) If there is power to take a sample in relation to any person, the sample

may be taken in a prison.

(10) If–

(a) the power to take a non-intimate sample under section 89(3) is

exercisable in relation to a person detained under Part III of the

Mental Health Act; or

(b) the power to take a non-intimate sample under section 89(4) is

exercisable in relation to any person,

the sample may be taken in the hospital in which the person is detained.

(11) Schedule 4 (Fingerprinting and samples: Attendance at police station)

has effect.

(12) A person who without reasonable excuse fails to comply with a

requirement under Schedule 4 commits an offence and is liable on summary

conviction to imprisonment for 12 months or to the statutory maximum fine

or both.

Criminal Procedure and Evidence

2011-24

(13) Any police officer may arrest without warrant a person who has

failed to comply with a requirement under Schedule 4.

Testing for presence of Class A drugs or Class B drugs.

91.(1) A sample of urine or a non-intimate sample may be taken from a

person in police detention for the purpose of ascertaining whether he has

any Class A drug or Class B drug in his body if–

(a) either the arrest condition or the charge condition is met;

(b) both the age condition and the request condition are met; and

condition, the charge condition or the age condition (as the

case may be).

(2) The arrest condition is that the person concerned has been arrested for

an offence but has not been charged with that offence and either–

(a) the offence is a trigger offence; or

(b) a police officer of at least the rank of Inspector has reasonable

grounds for suspecting that the misuse by that person of a Class

A drug or Class B drug caused or contributed to the offence

and has authorised the sample to be taken.

(3) The charge condition is that the person concerned–

(a) has been charged with a trigger offence; or

(b) has been charged with an offence and a police officer of at least

the rank of Inspector, who has reasonable grounds for

suspecting that the misuse by that person of any Class A drug

or Class B drug caused or contributed to the offence, has

authorised the sample to be taken.

(4) The age condition is–

(a) if the arrest condition is met - that the person concerned has

attained the age of 18;

(b) if the charge condition is met - that he has attained the age of

14.

(5) The request condition is that a police officer has requested the person

concerned to give the sample.

Criminal Procedure and Evidence

2011-24

(6) The notification condition is that–

(a) the Commissioner of Police has been notified by the Minister

that appropriate arrangements have been made for the

particular police station in which the person is in police

detention; and

(b) the notice has not been withdrawn.

(7) For the purposes of subsection (6), appropriate arrangements are

arrangements for the taking of samples under this section from whichever of

the following is specified in the notification–

(a) persons in respect of whom the arrest condition is met;

(b) persons in respect of whom the charge condition is met;

(8) Before requesting the person concerned to give a sample, an officer

must–

(a) warn him that if, when requested to give a sample, he fails to

do so without good cause he may be prosecuted; and

(b) in a case within subsection (2)(b) or (3)(b) - inform him of the

giving of the authorisation and of the grounds in question.

(9) In the case of a person who has not attained the age of 17–

(a) the making of the request under subsection (5);

(b) the giving of the warning and (where applicable) the

information under subsection (8); and

may not take place except in the presence of an appropriate adult.

(10) If a sample is taken under this section from a person in respect of

whom the arrest condition is met, no other sample may be taken from him

under this section during the same continuous period of detention, but–

(a) if the charge condition is also met in respect of him at any time

during that period, the sample must be treated as a sample

taken because the charge condition is met;

Criminal Procedure and Evidence

2011-24

(b) the fact that the sample is to be so treated must be recorded in

the person’s custody record.

(11) Despite subsection (1)(a) (which requires certain conditions to be met

for a sample to be taken from a person), a sample may be taken from a

person under this section if–

(a) he was arrested for an offence (the first offence);

(b) the arrest condition is met but the charge condition is not met;

(but for his arrest for an offence as mentioned in paragraph (d))

be required to be released from police detention;

(d) he continues to be in police detention by virtue of his having

been arrested for an offence that is not a trigger offence; and

(e) the sample is taken no later than 24 hours after his detention by

virtue of his arrest for the first offence began.

(12) A sample must not be taken from a person under this section if he is

detained in a police station unless he has been brought before the custody

officer.

(13) A sample, other than a urine sample, may be taken under this section

only by a registered medical practitioner or a registered nurse.

(14) Information obtained from a sample taken under this section may be

disclosed–

(a) for the purpose of informing any decision about granting bail

in relation to criminal proceedings to the person concerned;

(b) if the person concerned is in police detention or remanded in or

committed to custody by an order of a court, or has been

granted bail, for the purpose of informing any decision about

his supervision;

purpose of informing any decision about the appropriate

sentence to be passed by a court and any decision about his

supervision or release;

(d) for the purpose of ensuring that appropriate advice and

treatment is made available to the person concerned; and

(e) for any other purpose prescribed by law.

Criminal Procedure and Evidence

2011-24

Testing for presence of Class A or Class B drugs: Supplementary.

92.(1) A person who fails without good cause to give any sample which can

lawfully be taken from him under section 91 commits an offence and is

liable on summary conviction to imprisonment for 3 months, or to a fine at

level 4 on the standard scale, or both.

(2) A police officer may give an authorisation under section 91 orally or in

writing but, if he gives it orally, must confirm it in writing as soon as is

practicable.

(3) If a sample is taken under section 91 by virtue of an authorisation, the

authorisation and the grounds for the suspicion must be recorded as soon as

practicable after the sample is taken.

(4) If the sample is taken from a person detained at a police station, the

matters required to be recorded by subsection (3) must be recorded in his

custody record.

(5) Section 88(16) applies for the purposes of section 91 as it does for the

purposes of that section; and section 91 does not limit sections 88 and 89.

Retention and destruction of samples, etc.

Retention of samples and fingerprints, etc. generally.

93.(1) This section applies to the following material–

(a) fingerprints, samples or impressions of footwear–

(i) taken from a person under any power conferred by this

Part; or

(ii) taken in connection with the investigation of an offence

with the consent of the person from whom they were

taken; and

(b) a DNA profile derived from a DNA sample falling within

paragraph (a).

(2) Subject to sections 94 to 102, material to which this section applies

may be retained after it has fulfilled the purpose for which it was taken or

derived.

(3) Nothing in this section, or sections 94 to 106, affects any power

conferred by or under the Immigration, Asylum and Refugee Act to take

Criminal Procedure and Evidence

2011-24

reasonable steps to identify a person detained or to disclose information to

the Government for use for immigration purposes.

Destruction of samples.

94.(1) A DNA sample to which section 93 applies must be destroyed–

(a) as soon as a DNA profile has been derived from the sample; or

(b) if sooner, before the end of the period of 6 months beginning

with the date on which the sample was taken.

(2) Any other sample to which section 93 applies must be destroyed

before the end of the period of 6 months beginning with the date on which it

was taken.

Destruction of data given voluntarily.

95.(1) This section applies to–

(a) fingerprints or impressions of footwear taken in connection

with the investigation of an offence with the consent of the

person from whom they were taken; and

(b) a DNA profile derived from a DNA sample taken in

connection with the investigation of an offence with the

consent of the person from whom the sample was taken.

(2) Material to which this section applies must be destroyed as soon as it

has fulfilled the purpose for which it was taken or derived, unless it is–

(a) material relating to a person who is convicted of the offence;

(b) material relating to a person who has previously been

convicted of a recordable offence, other than a person who has

only one exempt conviction,

(d) material which is not required to be destroyed by virtue of

consent given under section 104.

(3) If material to which this section applies leads to the person to whom

the material relates being arrested for or charged with an offence other than

the offence under investigation–

Criminal Procedure and Evidence

2011-24

(a) the material is not required to be destroyed by virtue of this

section; and

(b) sections 96 to 100 have effect in relation to the material as if

the material was taken (or, in the case of a DNA profile, was

derived from material taken) in connection with the

investigation of the offence in respect of which the person is

arrested or charged.

Destruction of data relating to persons not convicted.

96.(1) This section applies to material falling within subsection (2) relating

to a person who–

(a) has no previous convictions or only one exempt conviction;

(b) is arrested for or charged with a recordable offence; and

(2) Material falls within this subsection if it is–

(a) fingerprints or impressions of footwear taken from the person

in connection with the investigation of the offence; or

(b) a DNA profile derived from a DNA sample so taken.

(3) The material must be destroyed–

(a) in the case of fingerprints or impressions of footwear, before

the end of the period of 6 years beginning with the date on

which the fingerprints or impressions were taken;

(b) in the case of a DNA profile, before the end of the period of 6

years beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile was

derived from more than one DNA sample, the date on which

the first of those samples was taken).

(4) If, before the material is required to be destroyed by virtue of this

section, the person is arrested for or charged with a recordable offence, the

material may be further retained until the end of the period of 6 years

beginning with the date of the arrest or charge.

(5) This section ceases to have effect in relation to the material if the

person is convicted of a recordable offence before the material is required to

be destroyed by virtue of this section.

Criminal Procedure and Evidence

2011-24

Destruction of data relating to persons under 18 not convicted:

Recordable offences other than qualifying offences.

97.(1) This section applies to material falling within subsection (2) relating

to a person who–

(a) has no previous convictions or only one exempt conviction;

(b) is arrested for or charged with a recordable offence other than a

qualifying offence; and

(2) Material falls within this subsection if it is–

(a) fingerprints or impressions of footwear taken from the person

in connection with the investigation of the offence; or

(b) a DNA profile derived from a DNA sample so taken.

(3) The material must be destroyed–

(a) in the case of fingerprints or impressions of footwear, before

the end of the period of 3 years beginning with the date on

which the fingerprints or impressions were taken;

(b) in the case of a DNA profile, before the end of the period of 3

years beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile was

derived from more than one DNA sample, the date on which

the first of those samples was taken).

(4) If, before the material is required to be destroyed by virtue of this

section, the person is arrested for or charged with a recordable offence–

(a) if the person is aged 18 or over at the time of the alleged

offence, the material may be further retained until the end of

the period of 6 years beginning with the date of the arrest or

charge;

(b) if–

(i) the alleged offence is not a qualifying offence; and

(ii) the person is aged under 18 at the time of the alleged

offence,

the material may be further retained until the end of the period of 3 years

beginning with the date of the arrest or charge;

Criminal Procedure and Evidence

2011-24

(i) the alleged offence is a qualifying offence; and

(ii) the person is aged under 16 at the time of the alleged

offence, the material may be further retained until the end of the period of 3 years

beginning with the date of the arrest or charge,

(d) if–

(i) the alleged offence is a qualifying offence; and

(ii) the person is aged 16 or 17 at the time of the alleged

offence,

the material may be further retained until the end of the period of 6 years

beginning with the date of the arrest or charge;

(e) if–

(i) the person is convicted of the offence;

(ii) the offence is not a qualifying offence;

(iii) the person is aged under 18 at the time of the offence;

and

(iv) the person has no previous convictions,

the material may be further retained until the end of the period of 5 years

beginning with the date of the arrest or charge.

(5) This section ceases to have effect in relation to the material if, before

the material is required to be destroyed by virtue of this section, the person–

(a) is convicted of a recordable offence and is aged 18 or over at

the time of the offence;

(b) is convicted of a qualifying offence; or

recordable offence.

Destruction of data relating to persons under 16 not convicted:

Qualifying offences.

Criminal Procedure and Evidence

2011-24

98.(1) This section applies to material falling within subsection (2) relating

to a person who–

(a) has no previous convictions or only one exempt conviction;

(b) is arrested for or charged with a qualifying offence; and

(2) Material falls within this subsection if it is–

(a) fingerprints or impressions of footwear taken from the person

in connection with the investigation of the offence; or

(b) a DNA profile derived from a DNA sample so taken.

(3) The material must be destroyed–

(a) in the case of fingerprints or impressions of footwear, before

the end of the period of 3 years beginning with the date on

which the fingerprints or impressions were taken;

(b) in the case of a DNA profile, before the end of the period of 3

years beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile was

derived from more than one DNA sample, the date on which

the first of those samples was taken).

(4) In cases where, before the material is required to be destroyed by

virtue of this section, the person is arrested for or charged with a recordable

offence–

(a) if the person is aged 18 or over at the time of the alleged

offence, the material may be further retained until the end of

the period of 6 years beginning with the date of the arrest or

charge;

(b) if–

(i) the alleged offence is not a qualifying offence; and

(ii) the person is aged under 18 at the time of the alleged

offence,

the material may be further retained until the end of the period

of 3 years beginning with the date of the arrest or charge;

Criminal Procedure and Evidence

2011-24

(i) the alleged offence is a qualifying offence; and

(ii) the person is aged under 16 at the time of the alleged

offence,

the material may be further retained until the end of the period

of 3 years beginning with the date of the arrest or charge;

(d) if–

(i) he alleged offence is a qualifying offence; and

(ii) the person is aged 16 or 17 at the time of the alleged

offence,

the material may be further retained until the end of the period of 6 years beginning with the date of the arrest or charge;

(e) if–

(i) the person is convicted of the offence;

(ii) the offence is not a qualifying offence;

(iii) the person is aged under 18 at the time of the offence;

and

(iv) the person has no previous convictions,

the material may be further retained until the end of the period of 5 years

beginning with the date of the arrest or charge.

(5) This section ceases to have effect in relation to the material if, before

the material is required to be destroyed by virtue of this section, the person–

(a) is convicted of a recordable offence and is aged 18 or over at

the time of the offence;

(b) is convicted of a qualifying offence; or

recordable offence.

Destruction of data relating to persons aged 16 or 17 not convicted:

Qualifying offences.

99.(1) This section applies to material falling within subsection (2) relating

to a person who–

Criminal Procedure and Evidence

2011-24

(a) has no previous convictions or only one exempt conviction;

(b) is arrested for or charged with a qualifying offence; and

(2) Material falls within this subsection if it is–

(a) fingerprints or impressions of footwear taken from the person

in connection with the investigation of the offence; or

(b) a DNA profile derived from a DNA sample so taken.

(3) The material must be destroyed–

(a) in the case of fingerprints or impressions of footwear - before

the end of the period of 6 years beginning with the date on

which the fingerprints or impressions were taken;

(b) in the case of a DNA profile - before the end of the period of 6

years beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile was

derived from more than one DNA sample, the date on which

the first of those samples was taken).

(4) In cases where, before the material is required to be destroyed by

virtue of this section, the person is arrested for or charged with a recordable

offence–

(a) if the person is aged 18 or over at the time of the alleged

offence, the material may be further retained until the end of

the period of 6 years beginning with the date of the arrest or

charge;

(b) if–

(i) the alleged offence is not a qualifying offence; and

(ii) the person is aged under 18 at the time of the alleged

offence,

the material may be further retained until the end of the period

of 3 years beginning with the date of the arrest or charge;

(i) the alleged offence is a qualifying offence; and

Criminal Procedure and Evidence

2011-24

(ii) the person is aged 16 or 17 at the time of the alleged

offence,

the material may be further retained until the end of the period

of 6 years beginning with the date of the arrest or charge;

(d) if–

(i) the person is convicted of the offence;

(ii) the offence is not a qualifying offence;

(iii) the person is aged under 18 at the time of the offence;

and

(iv) the person has no previous convictions,

the material may be further retained until the end of the period

of 5 years beginning with the date of the arrest or charge.

(5) This section ceases to have effect in relation to the material if, before

the material is required to be destroyed by virtue of this section, the person–

(a) is convicted of a recordable offence and is aged 18 or over at

the time of the offence;

(b) is convicted of a qualifying offence; or

recordable offence.

Destruction of data relating to persons under 18 convicted of a

recordable offence other than a qualifying offence.

100.(1) This section applies to material falling within subsection (2)

relating to a person who–

(a) has no previous convictions;

(b) is convicted of a recordable offence other than a qualifying

offence; and

(2) Material falls within this subsection if it is–

Criminal Procedure and Evidence

2011-24

(a) fingerprints or impressions of footwear taken from the person

in connection with the investigation of the offence; or

(b) a DNA profile derived from a DNA sample so taken.

(3) The material must be destroyed–

(a) in the case of fingerprints or impressions of footwear - before

the end of the period of 5 years beginning with the date on

which the fingerprints or impressions were taken;

(b) in the case of a DNA profile - before the end of the period of 5

years beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile was

derived from more than one DNA sample, the date on which

the first of those samples was taken).

(4) In cases where, before the material is required to be destroyed by

virtue of this section, the person is arrested for or charged with a recordable

offence–

(a) if the person is aged 18 or over at the time of the alleged

offence, the material may be further retained until the end of

the period of 6 years beginning with the date of the arrest or

charge;

(b) if–

(i) the alleged offence is not a qualifying offence; and

(ii) the person is aged under 18 at the time of the alleged

offence,

the material may be further retained until the end of the period of 3 years

beginning with the date of the arrest or charge;

(i) the alleged offence is a qualifying offence; and

(ii) the person is aged under 16 at the time of the alleged

offence,

the material may be further retained until the end of the period of 3 years

beginning with the date of the arrest or charge;

(d) if–

Criminal Procedure and Evidence

2011-24

(i) the alleged offence is a qualifying offence; and

(ii) the person is aged 16 or 17 at the time of the alleged

offence,

the material may be further retained until the end of the period of 6 years

beginning with the date of the arrest or charge.

(5) This section ceases to have effect in relation to the material if the

person is convicted of a further recordable offence before the material is

required to be destroyed by virtue of this section.

Sections 95 to 100: Supplementary provision.

101.(1) Any reference in section 95 to 100 to a person being charged with

an offence includes a reference to a person being informed that he will be

reported for an offence.

(2) For the purposes of those sections–

(a) a person has no previous convictions if the person has not

previously been convicted of a recordable offence; and

(b) if the person has been previously convicted of a recordable

offence, the conviction is exempt if it is in respect of a

recordable offence other than a qualifying offence, committed

when the person is aged under 18.

(3) For the purposes of those sections, a person is to be treated as having

been convicted of an offence if he has been given a caution in respect of the

offence which, at the time of the caution, he has admitted.

(4) If a person is convicted of more than one offence arising out of a

single course of action, those convictions are to be treated as a single

conviction for the purpose of any provision of those sections relating to an

exempt, first or subsequent conviction.

(5) Subject to the completion of any speculative search that the

Commissioner of Police considers necessary or desirable, material falling

within any of sections 95 to 100 must be destroyed immediately if it appears

to him that–

(a) the arrest was unlawful;

(b) the taking of the fingerprints, impressions of footwear or DNA

sample concerned was unlawful;

Criminal Procedure and Evidence

2011-24

(d) other circumstances relating to the arrest or the alleged offence

mean that it is appropriate to destroy the material.

(6) In sections 95 to 100, “qualifying offence” means a sexual offence or

an offence of violence.

Destruction of fingerprints taken under section 86(12).

102. Fingerprints taken from a person by virtue of section 86(12) (taking

fingerprints for the purposes of identification) must be destroyed as soon as

they have fulfilled the purpose for which they were taken.

Retention for purposes of security.

103.(1) Subsection (2) applies if the Commissioner of Police determines

that it is necessary for–

(a) a DNA profile to which section 93 applies; or

(b) fingerprints to which section 93 applies, other than fingerprints

taken under section 86(12),

to be retained for the purposes of the security of Gibraltar.

(2) If this subsection applies–

(a) the material is not required to be destroyed in accordance with

sections 95 to 100; and

(b) section 106(2) does not apply to the material,

for as long as the determination has effect.

(3) A determination under subsection (1) has effect for a maximum of 2

years beginning with the date on which the material would otherwise be

required to be destroyed, but a determination may be renewed.

Retention with consent.

104.(1) If a person consents in writing to the retention of fingerprints,

impressions of footwear or a DNA profile to which section 93 applies, other

than fingerprints taken under section 86(12)–

(a) the material is not required to be destroyed in accordance with

sections 95 to 100; and

(b) section 106(2) does not apply to the material.

Criminal Procedure and Evidence

2011-24

(2) It is immaterial for the purposes of subsection (1) whether the consent

is given at, before or after the time when the entitlement to the destruction

of the material arises.

(3) Consent given under this section can be withdrawn at any time.

Destruction of copies, and notification of destruction.

105.(1) If fingerprints or impressions of footwear are required to be

destroyed by virtue of any of sections 95 to 102, any copies of the

fingerprints or impressions of footwear must also be destroyed.

(2) If a DNA profile is required to be destroyed by virtue of any of those

sections, no copy may be kept except in a form which does not include

information which identifies the person to whom the DNA profile relates.

(3) If a person makes a request to the Commissioner of Police to be

notified when anything relating to the person is destroyed under any of

sections 95 to 102, the Commissioner of Police or a person authorised by

him must within 3 months of the request issue the person with a certificate

recording the destruction.

Use of retained material.

106.(1) Any material to which section 93 applies which is retained after it

has fulfilled the purpose for which it was taken or derived must not be used

except–

(a) in the interests of the security of Gibraltar;

(b) for the purposes of a terrorist investigation;

investigation of an offence or the conduct of a prosecution; or

(d) for purposes related to the identification of a deceased person

or of the person to whom the material relates.

(2) Material which is required to be destroyed by virtue of any of sections

94 to 102 or 105 must not at any time after it is required to be destroyed be

used–

(a) in evidence against the person to whom the material relates; or

(b) for the purposes of the investigation of any offence.

(3) In this section–

Criminal Procedure and Evidence

2011-24

(a) the reference to using material includes a reference to allowing

any check to be made against it and to disclosing it to any

person;

(b) the reference to crime includes a reference to any conduct

which–

(i) constitutes one or more criminal offences (whether under

the law of Gibraltar or of a country or territory outside

Gibraltar); or

(ii) is, or corresponds to, any conduct which, if it all took

place in Gibraltar, would constitute one or more criminal

offences; and

references, respectively, to any investigation outside Gibraltar

of any crime or suspected crime and to a prosecution brought

in respect of any crime in a country or territory outside

Gibraltar.

Photographing of suspects, etc.

Photographing of suspects, etc.

107.(1) A person who is detained at a police station may be photographed–

(a) with the appropriate consent; or

(b) if the appropriate consent is withheld or it is not practicable to

obtain it - without it.

(2) A person falling within subsection (3) may, on the occasion of the

relevant event referred to in subsection (3), be photographed elsewhere than

at a police station–

(a) with the appropriate consent; or

(b) if the appropriate consent is withheld or it is not practicable to

obtain it, without it.

(3) A person falls within this subsection if he has been–

(a) arrested by a police officer for an offence; or

(b) taken into custody by a police officer after being arrested for an

offence by a person other than a police officer.

Criminal Procedure and Evidence

2011-24

(4) A person proposing to take a photograph of any person under this

section–

(a) may for the purpose of doing so, require the removal of any

item or substance worn on or over the whole or part of the head

or face of the person to be photographed; and

(b) if the requirement is not complied with - may remove the item

or substance.

(5) Only a police officer may take a photograph under this section.

(6) A photograph taken under this section–

(a) may be used by, or disclosed to, any person for any purpose

related to–

(i) the prevention or detection of crime;

(ii) the investigation of an offence;

(iii) the conduct of a prosecution; or

(iv) the enforcement of a sentence; and

(b) after being so used or disclosed, may–

(i) be retained; but

(ii) not be used or disclosed except for a purpose so related.

(7) In subsection (6)–

(a) the reference to crime includes a reference to any conduct

which–

(i) constitutes one or more criminal offences under the law

of Gibraltar or of a place outside Gibraltar; or

(ii) is, or corresponds to, any conduct which, if it all took

place in Gibraltar, would constitute one or more criminal

offences;

(b) the references to an investigation and to a prosecution include

references respectively to any investigation outside Gibraltar of

any crime or suspected crime and to a prosecution brought in

respect of any crime in a place outside Gibraltar; and

Criminal Procedure and Evidence

2011-24

when dealing with an offender in respect of his offence.

(8) References in this section to taking a photograph include references to

using any process by means of which a visual image may be produced; and

references to photographing a person are to be construed accordingly.

PART 7 – BAIL IN CRIMINAL PROCEEDINGS

Interpretation of Part.

108.(1) In this Part “bail in criminal proceedings” means–

(a) bail grantable in or in connection with proceedings for an

offence to a person who is accused or convicted of the offence;

(b) bail grantable in connection with an offence to a person who is

under arrest for the offence or for whose arrest for the offence a

warrant (endorsed for bail) is being issued,

whether under an enactment or at common law.

(2) Subsection (1) applies–

(a) whether the offence was committed in Gibraltar or elsewhere;

and

(b) whether it is an offence under the law of Gibraltar, or of some

other country or territory.

(3) In this Part, unless the context otherwise requires–

“conviction” includes–

(a) a finding that a person is not guilty by reason of mental

disorder;

(b) a finding under section 660 or section 664 that the person in

question did the act or made the omission charged; and

the offender on probation or discharging him absolutely or

conditionally,

and “convicted” is to be construed accordingly;

“court” includes a judge of a court or a magistrate;.

Criminal Procedure and Evidence

2011-24

“offence” includes an alleged offence;

“surrender to custody” means, in relation to a person released on bail, surrendering

himself into the custody of the court or of the police officer (according to the

requirements of the grant of bail) at the time and place for the time being

appointed for him to do so;

“vary”, in relation to bail, means imposing further conditions after bail is granted, or

varying or rescinding conditions.

(4) In this Part, references to a defendant being kept in custody or being in

custody include (if the defendant is a juvenile) references to his being kept

or being in the care of the Care Agency pursuant to an enactment.

(5) In reckoning for the purposes of this Part any period of 24 or 48 hours,

Saturdays, Sundays and public holidays are to be excluded.

Principles for bail decisions

Remand in custody or on bail.

109.(1) If a court has power to remand any person, then, subject to any

enactment modifying that power, the court may–

(a) remand him in custody to be brought before the court at the

end of the period of remand or at any earlier time the court may

require; or

(b) remand him on bail by taking from him a recognizance, with or

without sureties, conditioned as provided in subsection (3).

(2) If the Magistrates’ Court has power to commit or send an offender to

the Supreme Court for trial or sentence, the court may instead of committing

him in custody commit him on bail as described in subsection (1)(b).

(3) When the court remands or commits a person under subsection (1) or

(2), it may, instead of taking recognizances in accordance with subsection

(1)(b), fix the amount of the recognizances with a view to their being taken

subsequently in accordance with section 122 and in the meantime commit

him to custody in accordance with subsection (1)(a).

(4) A recognizance on which a person is remanded on bail may be

conditioned–

(a) for his appearance before the court at the end of the period of

remand; or

Criminal Procedure and Evidence

2011-24

(b) for his appearance at every time and place to which during the

course of the proceedings the hearing may be from time to time

adjourned.

(5) If the recognizance is conditioned as provided in subsection (4)(b), the

fixing at any time of the time for the next appearance is deemed to be a

remand, but nothing in this subsection deprives the court of power at any

subsequent hearing to remand a person afresh.

Right to bail.

110.(1) A person to whom this section applies must be granted bail except

as provided in this Part.

(2) This section applies to a person who is accused of an offence when–

(a) he appears or is brought before a court in the course of or in

connection with proceedings for the offence; or

(b) he applies to a court for bail or for a variation of the conditions

of bail in connection with the proceedings.

(3) Subsection (2) does not apply in relation to proceedings on or after a

person’s conviction of the offence or proceedings against a fugitive offender

for the offence.

(4) This section also applies to a person–

(a) who, having been convicted of an offence, appears or is

brought before the Magistrates’ Court to be dealt with under Part 22 for a breach of a community sentence; or

(b) who has been convicted of an offence and whose case is

adjourned by the court for the purpose of enabling inquiries or

a report to be made to assist the court in dealing with him for

the offence.

(5) This section is subject to section 129 (Bail in cases of treason, etc.) and 130 (Bail in cases of murder).

(6) In taking any decisions required by this Part, the considerations to

which the court is to have regard include, so far as relevant, any misuse by

the defendant of controlled drugs.

Reasons for not granting bail.

111.(1) Section 110 does not require the court to remand or commit a

person on bail if he fails to give the court or a person prescribed for the

Criminal Procedure and Evidence

2011-24

purposes of section 122 a proper recognizance and to produce sufficient and

satisfactory sureties if required to do so.

(2) The defendant need not be granted bail if the court is satisfied that

there are substantial grounds for believing that the defendant, if released on

bail (whether subject to conditions or not) would–

(a) fail to surrender to custody;

(b) commit an offence while on bail; or

justice, whether in relation to himself or any other person.

(3) If the defendant is aged 18 or over, and it appears to the court that he

was on bail in criminal proceedings on the date of the offence, he must not

be granted bail unless the court is satisfied that there is no significant risk of

his committing another offence while on bail.

(4) The defendant need not be granted bail if–

(a) it appears to the court that, having been previously granted bail

in criminal proceedings, he has failed to surrender to custody in

accordance with his obligations under the grant of bail; and

(b) the court believes, in view of that failure, that the defendant, if

released on bail (whether subject to conditions or not) would

fail to surrender to custody.

(5) The defendant need not be granted bail if the court is satisfied that the

defendant should be kept in custody for his own protection or, if he is a

juvenile, for his own welfare.

(6) The defendant need not be granted bail if he is in custody pursuant to

the sentence of a court.

(7) The defendant need not be granted bail if the court is satisfied that it

has not been practicable to obtain sufficient information for the purpose of

taking the decisions required by this Part because of lack of time since the

institution of the proceedings against him.

(8) The defendant need not be granted bail if, having been released on bail

in or in connection with the proceedings for the offence, he has been

arrested pursuant to section 126.

(9) If the case is adjourned for inquiries or a report, the defendant need not

be granted bail if it appears to the court that it would be impracticable to

Criminal Procedure and Evidence

2011-24

complete the inquiries or make the report without keeping the defendant in

custody.

(10) Without limiting subsections (2) to (9) of this section, section 110

does not require the court to remand or commit a person on bail if–

(a) he is charged with an offence punishable by imprisonment for

not less than 6 months and it appears to the court that he has

been previously sentenced to imprisonment;

(b) it appears to the court that, having been released on bail on any

occasion, he has failed to comply with the conditions of any

recognizance entered into by him on that occasion;

own protection or, if he is a juvenile, for his own welfare;

(d) it appears to the court that it is necessary to detain him to

establish his identity or address;

(e) it appears to the court that he has no fixed abode or that he is

ordinarily resident outside Gibraltar;

(f) the act or any of the acts constituting the offence with which he

is charged consisted of an assault on or threat of violence to

another person, or of having or possessing a firearm, an

imitation firearm, an explosive or an offensive weapon, or of

indecent conduct with or towards a person under the age of 16

years.

(11) If the Magistrates’ Court refuses bail to any person who has attained

the age of 18 years, the court must–

(a) if he is not legally represented, inform him that he may apply

to the Supreme Court to be admitted to bail;

(b) if he is so represented and his legal representative so requests,

give him a written notice stating the reason for the refusal.

Conditions of bail.

112.(1) A person granted bail may be required to comply, before release on

bail or later, with any requirements that the court considers necessary to

ensure that–

(a) he surrenders to custody;

(b) he does not commit an offence while on bail;

Criminal Procedure and Evidence

2011-24

course of justice whether in relation to himself or any other

person;

(d) he makes himself available for the purpose of enabling

inquiries or a report to be made to assist the court in dealing

with him for the offence.

(2) If a person is remanded or released on bail by a court, the recognizance

may be conditioned to the effect that his passport or other travel document

is to be deposited with the court until the conclusion of the proceedings

against him.

(3) If a court when admitting, or directing the admission of, any person to

bail imposes a condition under subsection (1) or (2), it may not require him

to find sureties in respect of that condition.

(4) No conditions may be imposed under subsection (1) unless it appears

to the court–

(a) that conditions as mentioned in paragraphs (a), (b) and (c) of

that subsection are necessary to prevent the occurrence of any

of the events mentioned in section 111(2); or

(b) that a condition as mentioned in paragraph (d) of that

subsection is necessary for the purpose of enabling inquiries or

a report to be made.

(5) Subsection (1) also applies on any application to the court to vary the

conditions of bail or to impose conditions in respect of bail which has been

granted unconditionally.

(6) If the Magistrates’ Court has granted bail in criminal proceedings that

court or, if that court has committed or sent a person on bail to the Supreme

Court for trial or to be sentenced or otherwise dealt with, that court or the

Supreme Court, may on application–

(a) by or on behalf of the person to whom bail was granted; or

(b) by the prosecutor or a police officer,

vary the conditions of bail or impose conditions in respect of bail which has

been granted unconditionally.

(7) In taking any decisions about conditions of bail required by this Part,

the considerations to which the court is to have regard include, so far as

relevant, any misuse of controlled drugs by the defendant, and for the

Criminal Procedure and Evidence

2011-24

purpose of this section “misuse” has the same meaning as in Part 21 of the

Crimes Act 2011.

Basis for bail decisions.

113.(1) In taking a decision required by section 111 or 112, the court must

have regard to such of the following considerations as appear to it to be

relevant–

(a) the nature and seriousness of the offence or default (and the

probable method of dealing with the defendant for it);

(b) the character, antecedents, associations and community ties of

the defendant;

obligations under previous grants of bail in criminal

proceedings;

(d) except in the case of a defendant whose case is adjourned for

inquiries or a report, the strength of the evidence of his having

committed the offence or having defaulted,

as well as to any others which appear to be relevant.

(2) If the court is considering remanding the defendant in custody for

more than 8 clear days, it must have regard to the total length of time which

the defendant would spend in custody if it were to exercise the power.

(3) If the court decides not to grant the defendant bail–

(a) the court must consider, at each subsequent hearing, whether

he ought to be granted bail;

(b) at the first hearing after that at which the court decided not to

grant the defendant bail he may support an application for bail

with any argument as to fact or law that he desires (whether or

not he has advanced that argument previously);

fact or law which it has heard previously.

Record of reasons for bail decisions.

114.(1) Subject to subsection (2), if–

(a) a court or police officer grants bail in criminal proceedings;

Criminal Procedure and Evidence

2011-24

(b) a court withholds bail in criminal proceedings from a person

pursuant to section 111;

place or a court or officer of a court appoints a different time or

place for a person granted bail in criminal proceedings to

surrender to custody; or

(d) a court or police officer varies any conditions of bail or

imposes conditions in respect of bail in criminal proceedings,

the court, officer or police officer must make a record of the decision in the

manner prescribed by rules of court and containing the particulars so

prescribed and, if requested to do so by the person in relation to whom the

decision was taken, must give him a copy of the record of the decision as

soon as practicable after the record is made.

(2) If bail in criminal proceedings is granted by endorsing a warrant of

arrest for bail, the police officer who releases on bail the person arrested

must make the record required by subsection (1).

(3) If a court grants bail in criminal proceedings to a person to whom

section 111 applies after hearing representations from the prosecutor in

favour of withholding bail, the court must give reasons for granting bail.

(4) A court on giving reasons for a decision pursuant to subsection (3)

must include a note of the reasons in the record of its decision and, if so

requested by the prosecutor, must give the prosecutor a copy of the record

of the decision as soon as practicable after the record is made.

(5) If a court, pursuant to sections 111 and 112–

(a) withholds bail in criminal proceedings;

(b) imposes conditions in granting bail in criminal proceedings; or

of bail in criminal proceedings,

the court must, with a view to enabling the person to consider making an

application in the matter to another court, give reasons for the decision.

(6) A court on giving reasons for a decision as required by subsection (5)

must include a note of the reasons in the record of its decision and must

(subject to subsection (7)) give a copy of the note to the person in relation to

whom the decision was taken.

Criminal Procedure and Evidence

2011-24

(7) The court need not give a copy of the note of the reasons for its

decision to the person in relation to whom the decision was taken if that

person is legally represented unless his legal representative requests the

court to do so.

(8) If the Magistrates’ Court remands a person in custody under any

powers in that behalf after hearing full argument on an application for bail

from him, and–

(a) has not previously heard such argument on an application for

bail from him in those proceedings; or

(b) has previously heard full argument from him on such an

application but is satisfied that there has been a change in his

circumstances or that new considerations have been placed

before the court,

the court must issue a certificate that it heard full argument on his

application for bail before it refused the application, and give a copy to the

person to whom it refuses bail.

(9) If a court issues a certificate under subsection (8) in a case to which

paragraph (b) of that subsection applies, it must state in the certificate the

nature of the change of circumstances or the new considerations which

caused it to hear a further fully argued bail application.

Bail when juvenile charged.

115.(1) If a juvenile is charged before a court with an offence then, if the

court adjourns the trial and remands him, it may remand him on bail on a

recognizance being entered into by him or his parent or guardian (with or

without sureties) for such an amount as will, in the opinion of the court,

secure his attendance upon the hearing of the charge.

(2) The court must release a juvenile on bail unless–

(a) the charge is one of treason, murder, manslaughter, rape or

other grave crime;

(b) it is necessary in his interest to remove him from association

with persons with recorded convictions for serious crime; or

ends of justice, whether by reference to the matters set out in

section 112(1) or otherwise.

(3) If a parent or guardian of a juvenile consents to be surety for the

juvenile for the purposes of this section, the parent or guardian may be

Criminal Procedure and Evidence

2011-24

required to ensure that the juvenile complies with any requirement imposed

on him by virtue of section 112(1) but–

(a) no requirement may be imposed on the parent or guardian of a

juvenile by virtue of this subsection if it appears that the

juvenile will attain the age of 18 before the time to be

appointed for him to surrender to custody; and

(b) the parent or guardian must not be required to ensure

compliance with any requirement to which his consent does not

extend.

Further remand.

116.(1) If a court is satisfied that any person who has been remanded is

unable by reason of illness or accident to appear or be brought before the

court at the expiration of the period for which he was remanded, the court

may, in his absence, remand him for a further period.

(2) The power of the court under subsection (1) to remand a person on bail

for a further period may be exercised by enlarging his recognizance and

those of his sureties, if any, to a later time.

(3) If a person remanded on bail is bound to appear before a court at any

time, and the court has no power to remand him under subsection (1), the

court may in his absence appoint a later time as the time at which he is to

appear and may enlarge the recognizances of any sureties for him to that

time.

Reconsideration of decisions on granting of bail.

117.(1) If the Magistrates’ Court has granted bail in criminal proceedings in

connection with an offence, or proceedings for an offence, to which this

section applies, or if a police officer has granted bail in criminal proceedings

in connection with proceedings for such an offence, the court may, on

application by the prosecutor for the decision to be reconsidered–

(a) vary the conditions of bail;

(b) impose conditions in respect of bail which has been granted

unconditionally; or

(2) The offences to which this section applies are offences triable on

indictment and offences triable either way.

Criminal Procedure and Evidence

2011-24

(3) No application for the reconsideration of a decision under this section

may be made unless it is based on information which was not available to

the court or police officer when the decision was taken.

(4) Whether or not the person to whom the application relates appears

before it, the court must make a decision in accordance with this Part.

(5) If the decision of the court on a reconsideration under this section is to

withhold bail from the person to whom it was originally granted, the court

must–

(a) if that person is before the court - remand him in custody; and

(b) if that person is not before the court - order him to surrender

himself forthwith into the custody of the court.

(6) If a person surrenders himself into the custody of the court in

compliance with an order under subsection (5), the court must remand him

in custody.

(7) A person who has been ordered to surrender to custody under

subsection (5) may be arrested without warrant by a police officer if he fails

without reasonable cause to surrender to custody in accordance with the

order.

(8) A person arrested pursuant to subsection (7) must be brought as soon

as practicable, and in any event within 24 hours after his arrest, before a

magistrate, who must remand him in custody.

(9) If the court, on a reconsideration under this section, refuses to

withhold bail from a person after hearing representations from the

prosecutor in favour of withholding bail, the court must–

(a) give reasons for refusing to withhold bail;

(b) include a note of those reasons in any record of its decision;

and

record to the prosecutor as soon as practicable after it is made.

(10) Notice of an application under this section and of the grounds for it

must be given to the person affected and must include notice of the powers

available to the court under this Part.

(11) Any representations made by the person affected (whether in writing

or orally) must be considered by the court before making its decision.

Criminal Procedure and Evidence

2011-24

Bail on appeal or case stated.

118.(1) If a person has given notice of appeal to the Supreme Court against

the decision of the Magistrates’ Court, or has applied to the Magistrates’

Court to state a case for the opinion of the Supreme Court, then, if he is in

custody, the Magistrates’ Court may release him on his entering into a

recognizance with or without sureties, conditioned–

(a) if he has given notice of appeal - for his appearance at the

hearing of the appeal;

(b) if he has applied for the statement of a case - for his appearance

before the Magistrates’ Court within 10 days after the

judgment of the Supreme Court has been given, unless the

decision in respect of which the case is stated is reversed by

that judgment.

(2) Subsection (1) does not apply to a person who has been committed to

the Supreme Court for sentence, but section 109 applies.

Prosecution appeal against the grant of bail.

119.(1) If the Magistrates’ Court grants bail to a person who is charged

with or convicted of an offence punishable by a term of imprisonment of 5

years or more, the prosecution may appeal to the Supreme Court against the

granting of bail.

(2) Such an appeal may be made only if–

(a) the prosecution made representations that bail should not be

granted; and

(b) the representations were made before it was granted.

(3) In the event of the prosecution wishing to exercise the right of appeal

set out in subsection (1), oral notice of appeal must be given to the

Magistrates’ Court at the conclusion of the proceedings in which such bail

has been granted and before the release from custody of the person

concerned.

(4) Written notice of appeal must thereafter be served on the Magistrates’

Court and the person concerned within 2 hours of the conclusion of the

proceedings.

(5) Upon receipt from the prosecution of oral notice of appeal from its

decision to grant bail, the Magistrates’ Court must remand in custody the

person concerned until the appeal is decided or otherwise disposed of.

Criminal Procedure and Evidence

2011-24

(6) If the prosecution fails, within the period of 2 hours mentioned in

subsection (4), to serve one or both of the notices required by that

subsection, the appeal is deemed to have been disposed of.

(7) The hearing of an appeal under subsection (1) against the decision of

the Magistrates’ Court to grant bail must be commenced within 48 hours

from the date on which oral notice of appeal is given.

(8) At the hearing of an appeal by the prosecution under this section, the

appeal is by way of rehearing and the judge hearing the appeal may remand

the person concerned in custody or may grant bail subject to such

conditions, if any, as the judge thinks fit.

(9) In relation to a juvenile–

(a) the reference in subsection (1) to an offence punishable by a

term of imprisonment is to be read as a reference to an offence

which would be so punishable in the case of an adult; and

(b) the reference in subsection (5) to remand in custody is to be

read subject to the provisions of this Act in respect of the

detention of persons under the age of 18 years.

(10) Rules of court may be made for the purpose of giving effect to this

section.

Bail by the Supreme Court.

120.(1) The Supreme Court may grant bail to any person who–

(a) has been committed in custody for appearance before the

Supreme Court under Part 9 or who has been sent in custody to

the Supreme Court for trial under that Part;

(b) is in custody pursuant to a sentence imposed by the

Magistrates’ Court, and has appealed to the Supreme Court

against his conviction or sentence;

Court;

(d) has been granted a certificate by the Supreme Court under

section 9(1) of the Court of Appeal Act; or

(e) has been remanded in custody by the Magistrates’ Court on

adjourning a case under any provision of this Act.

Criminal Procedure and Evidence

2011-24

(2) A certificate under subsection (1)(d) is a certificate that a case is fit for

appeal on a ground which involves a question of law alone.

(3) The power conferred by subsection (1)(e) does not extend to a case to

which section 658 (Finding of unfitness to be tried) or 660 (Finding that the

defendant did the act or made the omission charged against him) applies.

(4) The power to grant bail under subsection (1)(d) must be exercised

within 28 days from the date of the conviction appealed against, or in the

case of appeal against sentence, from the date on which sentence was passed

or, in the case of an order made or treated as made on conviction, from the

date of the making of the order.

(5) The power under subsection (1)(d) may not be exercised if the

appellant has made an application to the Court of Appeal for bail in respect

of the offence or offences to which the appeal relates.

(6) It is a condition of bail granted in the exercise of the power under

subsection (1)(d) that, unless a notice of appeal has previously been lodged

in accordance with section 11 of the Court of Appeal Act–

(a) such a notice must be so lodged within the period prescribed

under that section; and

(b) not later than 14 days from the end of that period, the appellant

must lodge with the Supreme Court a certificate from the

Registrar that a notice of appeal was given within that period.

(7) If the Supreme Court grants bail to a person in the exercise of the

power under subsection (1)(d), it may direct him to appear–

(a) if notice of appeal is given within the period specified under

section 11 of the Court of Appeal Act - at a time the Court of

Appeal specifies;

(b) if no such notice is given within that period - at a time the

Supreme Court specifies.

(8) If the Supreme Court grants a person bail under subsection (1)(e) it

may direct him to appear at a time and place which the Magistrates’ Court

could have directed and the recognizance of any surety must be conditioned

accordingly.

(9) The Supreme Court may only grant bail to a person under subsection

(1)(e) if the Magistrates’ Court has stated in its reasons for refusing bail that

it heard full argument on his application for bail before it refused the

application.

Criminal Procedure and Evidence

2011-24

(10) A person in custody pursuant to a warrant issued by the Supreme

Court with a view to the person’s appearance before that court must be

brought forthwith before either the Supreme Court or the Magistrates’

Court.

(11) Provision may be made by rules of court with regard to the powers of

the Supreme Court relating to bail, including provision–

(a) allowing the court to direct that a recognizance must not be

entered into or other security given before the Magistrates’

Court or a magistrate by a person of a specified description;

(b) prescribing the manner in which a recognizance is to be

entered into or other security given, and the persons by whom

and the manner in which the recognizance or security may be

enforced;

courts or magistrates, of persons released from custody

pursuant to the powers;

(d) corresponding to section 175 (Varying or dispensing with

requirements as to sureties).

Extension of power of Supreme Court to grant bail or vary conditions.

121.(1) If in connection with any criminal proceedings an inferior court has

power to admit any person to bail, but either refuses to do so, or does so or

offers to do so on terms unacceptable to him, the Supreme Court may–

(a) admit him or direct his admission to bail; or

(b) if he has been admitted to bail - vary any conditions on which

he was so admitted or reduce the amount in which he or any

surety is bound or discharge any of the sureties.

(2) The conditions as to the time and place of appearance of a person

admitted to bail under this section which must be included in a recognizance

entered into by him are the conditions that the inferior court had power to

impose.

(3) In this section “inferior court” means the Magistrates’ Court or the

Juvenile Court or the coroner.

(4) The powers conferred on the Supreme Court by this section do not

affect any other powers of the Supreme Court to admit or direct the

admission of persons to bail.

Criminal Procedure and Evidence

2011-24

Recognizances and sureties

Mode of entering into recognizance.

122(1) If a court admits or directs the admission of a person to bail on his

entering into a recognizance–

(a) the recognizance must be in such reasonable sum as the court

thinks appropriate; and

(b) the court may require the recognizance to be entered into with

or without sureties, or, in lieu of requiring a person to enter

into a recognizance, consent to his giving other security.

(2) If a court has power to take any recognizance, the court may, instead

of taking it, fix the amount in which the principal and his sureties, if any, are

to be bound, and thereafter the recognizance may be taken by any person

prescribed.

(3) If as a condition of the release of any person he is required to enter

into a recognizance with sureties–

(a) the recognizances of the sureties may be taken separately and

either before or after the recognizance of the principal; and

(b) if so taken, the recognizances of the principal and sureties are

as binding as if they had been taken together and at the same

time.

(4) The Supreme Court may, in exercising any power conferred upon it by

this Part to release a person from custody, direct that a recognizance is to be

entered into or other security given before the Magistrates’ Court or a

magistrate.

(5) Nothing in this section enables the Magistrates’ Court to alter the

amount of a recognizance fixed by the Supreme Court.

Bail with sureties.

123.(1) This section applies if a person is granted bail in criminal

proceedings on condition that he provides one or more sureties for the

purpose of securing that he surrenders to custody.

(2) In considering the suitability for that purpose of a proposed surety,

regard may be had (amongst other things) to–

(a) the surety’s financial resources;

Criminal Procedure and Evidence

2011-24

(b) his character and any previous convictions of his; and

or otherwise) to the person for whom he is to be surety.

(3) If a court grants a person bail in criminal proceedings on a condition

referred to in subsection (1) but is unable to release him because no surety

or no suitable surety is available, the court must fix the amount in which the

surety is to be bound and the following subsections apply for the purpose of

enabling the recognizance of the surety to be entered into subsequently.

(4) The recognizance of the surety may be entered into before any of the

following persons–

(a) if the decision was by the Magistrates’ Court - before a

magistrate, the clerk of the court or a police officer who is of

the rank of Inspector or above or is in charge of a police

station;

(b) if the decision was by the Supreme Court or the Court of

Appeal - before any of the persons specified in paragraph (a) or

a person of any other description prescribed by rules of court.

(5) Rules of court may prescribe the manner in which a recognizance is to

be entered into and the persons by whom and the manner in which the

recognizance may be enforced.

(6) If a surety seeks to enter into his recognizance before any person in

accordance with subsection (4) but that person declines to take his

recognizance because he is not satisfied of the surety’s suitability, the surety

may apply to–

(a) the court which fixed the amount of the recognizance in which

the surety was to be bound; or

(b) the Magistrates’ Court,

for that court to take his recognizance and that court must, if satisfied of his

suitability, take his recognizance.

(7) If, pursuant to subsection (4), a recognizance is entered into otherwise

than before the court that fixed the amount of the recognizance, the same

consequences follow as if it had been entered into before that court.

Forfeiture of security.

124.(1) If a defendant or other person has given security pursuant to this

Part and a court is satisfied that the defendant failed to surrender to custody

Criminal Procedure and Evidence

2011-24

then, unless it appears that he had reasonable cause for his failure, the court

may order the forfeiture of the security, or of any lesser amount the court

thinks fit.

(2) An order under subsection (1), unless revoked, takes effect after 21

days.

(3) A court that has ordered the forfeiture of a security under subsection

(1) may, if satisfied on an application made by or on behalf of the person

who gave it that the defendant had reasonable cause for his failure to

surrender to custody, remit the forfeiture or any part of it.

(4) An application under subsection (3) may be made before or after the

order for forfeiture has taken effect, but must not be entertained unless the

court is satisfied that the prosecution was given reasonable notice of the

applicant’s intention to make it.

(5) A security that has been ordered to be forfeited by a court under

subsection (1) must, to the extent of the forfeiture–

(a) if it consists of money - be accounted for and paid in the same

manner as a fine imposed by that court;

(b) if it does not consist of money - be enforced by the

Magistrates’ Court as a civil debt.

(6) If an order is made under subsection (3) after forfeiture of the security

in question has occurred, any money which has been overpaid must be

repaid.

Offences

Offence of absconding.

125.(1) A person granted bail under this Part or Part 5 is under a duty to

surrender to custody in accordance with the provisions of this Part.

(2) A person who–

(a) has been released on bail; and

(b) fails without reasonable cause to surrender to custody,

commits an offence.

(3) A person who

(a) has been released on bail;

Criminal Procedure and Evidence

2011-24

(b) with reasonable cause has failed to surrender to custody; but

the appointed time as is reasonably practicable,

commits an offence.

(4) It is for the defendant to prove that he had reasonable cause for his

failure to surrender to custody or, that having a reasonable cause for failure,

he surrendered to custody as soon as reasonably practicable.

(5) A failure to give to a person granted bail in criminal proceedings a

copy of the record of the decision is not a reasonable cause for that person’s

failure to surrender to custody.

(6) Subject to subsection (7), an offence under subsection (2) or (3)

committed after bail was granted by a court is punishable either on summary

conviction or as if it were a contempt of court.

(7) If the Magistrates’ Court convicts a person of an offence under

subsection (2) or (3), the court, if it considers–

(a) that the circumstances of the offence are such that a higher

penalty should be imposed for the offence than the court has

power to impose; or

(b) if it commits the person for trial to the Supreme Court for

another offence - that it would be appropriate for him to be

dealt with for the offence under subsection (2) or (3) by the

Supreme Court,

may commit him in custody or on bail to the Supreme Court for sentence.

(8) A person who is convicted summarily of an offence under subsection

(2) or (3) is liable–

(a) if not committed to the Supreme Court for sentence - to

imprisonment for 3 months or a fine at level 3 on the standard

scale, or both;

(b) if committed for sentence to the Supreme Court, or dealt with

by the Supreme Court as for a contempt - to imprisonment for

12 months or a fine at level 4 on the standard scale, or both.

(9) In any proceedings for an offence under subsection (2) or (3) a

document purporting–

Criminal Procedure and Evidence

2011-24

(a) to be a copy of the part of the prescribed record which relates

to the time and place appointed for the person specified in the

record to surrender to custody; and

(b) to be duly certified to be a true copy of that part of the record,

is evidence of the time and place appointed for that person to surrender to

custody.

(10) For the purposes of subsection (9)–

(a) “prescribed record” means the record of the decision of the

court, officer or police officer made pursuant to section 114(1);

(b) the copy of the prescribed record is duly certified if it is

certified by the appropriate officer of the court or, as the case

may be, by the police officer who took the decision or a police

officer designated for the purpose by the officer in charge of

the police station from which the person to whom the record

relates was released;

(i) in the case of the Magistrates’ Court - the clerk of the

court;

(ii) in the case of the Supreme Court or the Court of Appeal

– the Registrar.

Liability to arrest for absconding or breaking conditions of bail.

126.(1) If a person who has been released on bail by a court and is under a

duty to surrender into the custody of the court fails to surrender to custody

at the place and time appointed for him to do so, the court may issue a

warrant for his arrest, unless the person is absent in accordance with leave

given to him by an officer of the court.

(2) If a person who has been released on bail by a court absents himself

from the court at any time after he has surrendered into the custody of the

court and before the court is ready to begin or to resume hearing of those

proceedings, the court may issue a warrant for his arrest, unless the person

is absent in accordance with leave given to him by an officer of the court.

(3) A person who has been released on bail by a court and is under a duty

to surrender into custody may be arrested without warrant by a police

officer–

(a) if the police officer has reasonable grounds for believing that

the person is not likely to surrender to custody;

Criminal Procedure and Evidence

2011-24

(b) if the police officer has reasonable grounds for believing that

the person is likely to break any of the conditions of his bail or

has reasonable grounds to suspect that the person has broken

any of those conditions; or

surety notifies the police officer in writing that–

(i) the person is unlikely to surrender to custody; and

(ii) for that reason the surety wishes to be relieved of his

obligations as surety.

(4) A person arrested pursuant to subsection (3) must be brought as soon

as practicable, and in any event within 24 hours after his arrest, before the

Magistrates’ Court or a magistrate.

(5) A court or magistrate before whom a person is brought under

subsection (4)–

(a) if of the opinion that the person–

(i) is not likely to surrender to custody; or

(ii) has broken or is likely to break any conditions of his or

her bail,

may remand the person in custody or commit the person to custody as the

case may require, or may grant the person bail subject to the same or to

different conditions; but

(b) if not of that opinion, must grant the person bail subject to the

same conditions, if any, as were originally imposed.

(6) Nothing in this section affects the liability to arrest of a person who is

released from police detention on bail under Part 5.

Offence of agreeing to indemnify sureties in criminal proceedings.

127.(1) If a person (‘A’) agrees with another person (‘B’) to indemnify B

against any liability which B may incur as a surety to ensure the surrender to

custody of a person granted bail, A and B both commit an offence.

(2) An offence under subsection (1) is committed–

(a) whether the agreement is made before or after B becomes a surety;

Criminal Procedure and Evidence

2011-24

(b) whether or not B becomes a surety; and

or money’s worth.

(3) If the Magistrates’ Court convicts a person for an offence under

subsection (1), the court, if it considers–

(a) that the circumstances of the offence are such that a higher

penalty should be imposed for the offence than the court has

power to impose; or

(b) if it commits the person for trial to the Supreme Court for

another offence - that it would be appropriate for him to be

dealt with for the offence under subsection (1) by the Supreme

Court,

may commit the person in custody or on bail to the Supreme Court for

sentence.

(4) A person who commits an offence under subsection (1) is liable–

(a) on summary conviction, to imprisonment for 3 months or a fine

at level 3 on the standard scale, or both;

(b) on conviction on indictment, or if sentenced by the Supreme

Court on committal for sentence under subsection (3), to

imprisonment for 12 months or a fine at level 4 on the standard

scale, or both.

(5) No proceedings for an offence under subsection (1) may be instituted

except by, or with the consent of, the Attorney-General.

Miscellaneous provisions

Calculating terms of imprisonment.

128. For the purpose of calculating a term of imprisonment–

(a) the time during which a person is admitted to bail under this

Part does not count as part of any term of imprisonment under

his sentence; and

(b) if a person is admitted to bail after a sentence of imprisonment

has been imposed on him, the term is deemed to begin to run or

to be resumed as from the day on which he is received into

prison under the sentence.

Criminal Procedure and Evidence

2011-24

Bail in cases of treason, etc.

129.(1) A person charged with or convicted of treason may not be admitted

to bail except by order of the Chief Justice, and other provisions of this Part

apply in such a case with necessary modifications.

(2) A person who in any proceedings has been charged with or convicted

of an offence listed in subsection (3) in circumstances mentioned in

subsection (4) may be granted bail in those proceedings only if the court or,

as the case may be, the police officer considering the grant of bail is

satisfied that there are exceptional circumstances which justify it.

(3) The offences referred to in subsection (2) are–

(a) attempted murder;

(b) manslaughter;

(d) an offence under section 213 of that Act (assault by

penetration);

(e) an offence under section 216 of that Act (causing a person to

engage in sexual activity without consent), where the activity

caused involved penetration within subsection (4)(a) to (d) of

that section;

(f) an offence under section 217 of that Act (rape of a child under

13);

(g) an offence under section 218 of that Act (assault of a child

under 13 by penetration);

(h) an offence under section 220 of that Act (causing or inciting a

child under 13 to engage in sexual activity), where an activity

involving penetration with subsection (2)(a) to (d) of that

section was caused;

(i) an offence under section 241 of that Act (sexual activity with a

person with a mental disorder impeding choice), where the

touching involved penetration within subsection (3)(a) to (d) of

that section;

(j) an offence under section 242 of that Act (causing or inciting a

person, with a mental disorder impeding choice, to engage in

Criminal Procedure and Evidence

2011-24

sexual activity), where an activity involving penetration within

subsection (3)(a) to (d) of that section was caused;

(k) an attempt to commit an offence within any of paragraphs (c)

to (j).

(4) The circumstances first referred to in subsection (2) are that the person

has been previously convicted by or before a court in Gibraltar, or in a

member State of the European Union, of an offence listed in subsection (3)

and, in the case of a previous conviction of manslaughter, that he was

sentenced to imprisonment or, if he was then a juvenile, to long-term

detention under any relevant enactment.

(5) This section applies whether or not an appeal is pending against

conviction or sentence.

Bail in cases of murder.

130.(1) A person charged with murder must not be granted bail unless the

court is of the opinion that there is no significant risk of the defendant

committing, while on bail, an offence that would, or would be likely to,

cause physical or mental injury to any person other than the defendant.

(2) A person charged with murder may not be granted bail except by order

of a judge.

(3) If a person appears before the Magistrates’ Court charged with

murder–

(a) the court must commit the person to custody to be brought

before a judge; and

(b) the judge must make a decision about bail in respect of the

person as soon as reasonably practicable and, in any event,

within 48 hours of the person appearing before the Magistrates’

Court.

(4) In this section a reference to a person charged with murder includes a

person charged with murder and one or more other offences.

(5) In the case of a person accused of murder the court granting bail must,

unless it considers that satisfactory reports on his mental condition have

already been obtained, impose as conditions of bail–

(a) a requirement that the accused undergoes examination by 2

medical practitioners for the purpose of enabling such reports

to be prepared; and

Criminal Procedure and Evidence

2011-24

(b) a requirement that for that purpose he attends an institution or

place that the court directs and complies with any other

directions given him for that purpose by either of those

practitioners.

(6) Of the medical practitioners referred to in subsection (5), at least one

must be a practitioner with experience in the diagnosis and treatment of

mental disorder (as defined in the Mental Health Act).

Warrant of arrest may be endorsed for bail.

131. Whenever a warrant is issued for the arrest of any person, the court,

magistrate or judge issuing the warrant may (if in all the circumstances it

appears just and reasonable so to do) incorporate in it a direction that the

officer executing the warrant may, instead of bringing the person arrested

before the court, release the person on bail to appear before the court at a

time and place specified in the direction.

PART 8 - MAGISTRATES’ COURT PROCEEDINGS

Sittings of the court

Sittings of the court.

132.(1) The Magistrates’ Court must not–

(a) try summarily an information for an indictable offence or hear

a complaint; or

(b) try an information for an offence that is not indictable or hold

an inquiry into the means of an offender for the purposes of

section 582 or impose imprisonment,

except when sitting in a court house.

(2) Subject to any law to the contrary, if the Magistrates’ Court is required

by this section to sit in a court house, it must sit in open court.

(3) Subject to subsections (4) and (5), the magistrates composing the court

before which any proceedings take place must be present during the whole

of the proceedings.

(4) If during the course of the proceedings any magistrate absents himself,

he must not act further in the proceedings and, if the remaining magistrates

are enough to satisfy the requirements of this Act, the proceedings may

continue before a court composed of those magistrates.

Criminal Procedure and Evidence

2011-24

(5) If the trial of an information is adjourned after the defendant has been

convicted and before he is sentenced or otherwise dealt with–

(a) the court which sentences or deals with him need not be

composed of the same magistrates as that which convicted him;

but

(b) if among the magistrates composing the court which sentences

or deals with an offender there are any who were not sitting

when he was convicted, the court which sentences or deals

with the offender must before doing so make such inquiry into

the facts and circumstances of the case as will enable the

magistrates who were not sitting when the offender was

convicted to be fully acquainted with those facts and

circumstances.

Institution of proceedings

Manner of instituting proceedings.

133.(1) Criminal proceedings before the Magistrates’ Court may be

instituted by–

(a) laying an information before a magistrate; or

(b) bringing before the court a person arrested without a warrant.

(2) Any person who believes from reasonable and probable cause that an

offence has been committed by any person may lay an information of it

before a magistrate.

Issue of summons or warrant for arrest.

134.(1) Upon an information being laid before a magistrate that any person

has, or is suspected of having, committed an offence, the magistrate may, in

any of the events mentioned in subsection (3)–

(a) issue a summons directed to that person requiring him to

appear before the Magistrates’ Court to answer to the

information; or

(b) issue a warrant to arrest that person and bring him before the

Magistrates’ Court.

(2) A magistrate must not issue a warrant of arrest unless the information

is in writing.

(3) A magistrate may issue a summons or warrant under this section–

Criminal Procedure and Evidence

2011-24

(a) if the offence was committed or is suspected to have been

committed in Gibraltar;

(b) if under any law the Magistrates’ Court has jurisdiction to try

the offence although it was committed outside Gibraltar; or

Gibraltar, although it was committed outside Gibraltar.

(4) If the offence charged is an indictable offence, a warrant under this

section may be issued at any time even if a summons has previously been

issued.

(5) No warrant may be issued under this section for the arrest of any

person who has attained the age of 18 years unless–

(a) the offence to which the warrant relates is an indictable offence

or is punishable with imprisonment; or

(b) the person’s address is not sufficiently established for a

summons to be served on him.

(6) If the offence charged is an indictable offence, a warrant under this

section may be issued at any time notwithstanding that a summons has

previously been issued.

(7) A magistrate may issue a summons or warrant under this section upon

an information being laid before him despite any law requiring the

information to be laid before 2 or more magistrates.

Service of summons after failure to prove service by post.

135. If–

(a) any law requires, expressly or by implication, that a summons

in respect of an offence must be issued or served within a

specified period after the commission of the offence; and

(b) service of the summons may be effected by post,

then, if service of the summons is not treated as proved, but it is shown that

a letter containing the summons was posted at a time to enable it to be

delivered in the ordinary course of post within that period–

Criminal Procedure and Evidence

2011-24

(d) that law has effect, in relation to that summons, as if the

specified period ran from the return day of the original

summons.

Proceedings invalid if defendant did not know of them.

136.(1) If a summons has been issued under section 139 and the

Magistrates’ Court has begun to try the information to which it relates, then

if–

(a) the defendant, at any time during or after the trial, makes a

statutory declaration that he did not know of the summons or

the proceedings until a date specified in the declaration, being a

date after the court has begun to try the information; and

(b) within 21 days of that date the declaration is served on the

clerk of the court,

without affecting the validity of the information, the summons and all

subsequent proceedings are void.

(2) For the purposes of subsection (1) a statutory declaration is duly

served on the clerk of the court if it is delivered to him, or left at his office,

or is sent in a registered letter or by the recorded delivery service addressed

to him at his office.

(3) If on the application of the defendant it appears to the Magistrates’

Court (which for this purpose may be composed of a single magistrate) that

it was not reasonable to expect the defendant to serve a statutory declaration

as mentioned in subsection (1) within the period allowed by that

subsection–

(a) the court may accept service of such a declaration by the

defendant after that period has expired; and

(b) a statutory declaration accepted under this subsection is

deemed to have been served as required by that subsection.

(4) If any proceedings have become void by virtue of subsection (1), the

information must not be tried again by any of the same magistrates.

Defect in process.

137.(1) No objection will be allowed to any information or complaint, or to

any summons or warrant to procure the presence of the defendant, for any

defect in it in substance or in form, or for any variance between it and the

evidence adduced on behalf of the prosecutor or complainant at the hearing

of the information or complaint.

Criminal Procedure and Evidence

2011-24

(2) If it appears to the Magistrates’ Court that any variance between a

summons or warrant and the evidence adduced on behalf of the prosecutor

or complainant is such that the defendant has been misled by the variance,

the court must, on the application of the defendant, adjourn the hearing.

Remaining in force of process.

138.(1) A warrant or summons issued by a magistrate does not cease to

have effect by reason of his death or his ceasing to be a magistrate.

(2) A warrant of arrest issued by a magistrate remains in force until it is

executed or withdrawn or it ceases to have effect in accordance with this

Act.

Construction of references to “complaints”.

139. In any law conferring power on the Magistrates’ Court–

(a) to deal with an offence; or

(b) to issue a summons or warrant against a person suspected of an

offence, on the complaint of any person,

references to a complaint are to be read as references to an information.

Offences triable on indictment or summarily

Initial procedure: Defendant to indicate intention as to plea.

140.(1) This section has effect if a person who has attained the age of 18

years appears or is brought before the Magistrates’ Court on an information

charging him with an offence triable either way.

(2) Everything that the court is required to do under the following

provisions of this section must be done with the defendant present in court.

(3) The court must cause the charge to be written down, if this has not

already been done, and to be read to the defendant.

(4) The court must then explain to the defendant in ordinary language that

he may indicate whether (if the offence were to proceed to trial) he would

plead guilty or not guilty, and that if he indicates that he would plead

guilty–

(a) the court must proceed as mentioned in subsection (6); and

Criminal Procedure and Evidence

2011-24

(b) he may be committed for sentence to the Supreme Court under

section 217 if the court is of the opinion as mentioned in

subsection (3) of that section.

(5) The court must then ask the defendant whether (if the offence were to

proceed to trial) he would plead guilty or not guilty.

(6) If the defendant indicates that he would plead guilty the court must

proceed as if–

(a) the proceedings constituted from the beginning the summary

trial of the information; and

(b) section 159 (Procedure at trial) was complied with and he

pleaded guilty under it.

(7) If the defendant indicates that he would plead not guilty, section 143

applies.

(8) If the defendant fails to indicate how he would plead, for the purposes

of this section and section 143(1) he must be taken to indicate that he would

plead not guilty.

(9) Subject to subsection (6), the following do not for any purpose

constitute the taking of a plea–

(a) asking the defendant under this section whether (if the offence

were to proceed to trial) he would plead guilty or not guilty;

(b) an indication by the defendant under this section of how he

would plead.

Intention as to plea: Absence of defendant.

141.(1) This section has effect if–

(a) a person who has attained the age of 18 years appears or is

brought before the Magistrates’ Court on an information

charging him with an offence triable either way;

(b) the defendant is legally represented;

conduct before the court it is not practicable for proceedings

under section 140 to be conducted in his presence; and

(d) the court considers that it should proceed in the absence of the

defendant.

Criminal Procedure and Evidence

2011-24

(2) In such a case–

(a) the court must cause the charge to be written down, if this has

not already been done, and to be read to the defendant’s legal

representative;

(b) the court must ask the defendant’s legal representative whether

(if the offence were to proceed to trial) the defendant would

plead guilty or not guilty;

plead guilty the court must proceed as if the proceedings

constituted from the beginning the summary trial of the

information, and as if section 159 (Procedure at trial) was

complied with and the defendant pleaded guilty under it;

(d) if the legal representative indicates that the defendant would

plead not guilty section 143 applies.

(3) If the defendant’s legal representative fails to indicate how the

defendant would plead, for the purposes of this section and section 143(1)

he is to be taken to indicate that the defendant would plead not guilty.

(4) Subject to subsection (2)(c), the following do not for any purpose

constitute the taking of a plea–

(a) asking a legal representative under this section whether (if the

offence were to proceed to trial) the defendant would plead

guilty or not guilty;

(b) an indication by a legal representative under this section of

how the defendant would plead.

Intention as to plea: Adjournment.

142.(1) The Magistrates’ Court when proceeding under section 140 or 141

may adjourn the proceedings at any time, and on doing so on any occasion

when the defendant is present may remand the defendant, and must remand

him if–

(a) on the occasion on which he first appeared, or was brought,

before the court to answer to the information he was in custody

or, having been released on bail, surrendered to the custody of

the court; or

(b) he has been remanded at any time in the course of proceedings

on the information.

Criminal Procedure and Evidence

2011-24

(2) If the court remands the defendant, the time fixed for the resumption

of proceedings must be that at which he is required to appear or be brought

before the court pursuant to the remand.

Initial procedure on information against adult for offence triable either

way.

143.(1) Sections 144 to 149 have effect if a person who has attained the age

of 18 years appears or is brought before the Magistrates’ Court on an

information charging him with an offence triable either way and–

(a) he indicates under section 140 that (if the offence were to

proceed to trial) he would plead not guilty; or

(b) his legal representative indicates under section 141 that (if the

offence were to proceed to trial) he would plead not guilty.

(2) Without affecting section 162 (Non-appearance of defendant)

everything that the court is required to do under sections 144 to 149 must be

done before any evidence is called and, subject to subsection (3) and section

149, with the defendant present in court.

(3) The court may proceed in the absence of the defendant, in accordance

with such of the provisions of sections 144 to 148 as are applicable in the

circumstances, if the court considers that by reason of his disorderly conduct

before the court it is not practicable for the proceedings to be conducted in

his presence.

(4) Subsections (3) to (5) of section 149, so far as applicable, have effect

in relation to proceedings conducted in the absence of the defendant by

virtue of subsection (3).

(5) The Magistrates’ Court when proceeding under sections 144 to 149

may adjourn the proceedings at any time, and on doing so on any occasion

when the defendant is present may remand the defendant, and must remand

him if–

(a) on the occasion on which he first appeared, or was brought,

before the court to answer to the information he was in custody

or, having been released on bail, surrendered to the custody of

the court; or

(b) he has been remanded at any time in the course of proceedings

on the information.

Criminal Procedure and Evidence

2011-24

(6) If the court remands the defendant, the time fixed for the resumption

of the proceedings must be that at which he is required to appear or be

brought before the court pursuant to the remand.

Decision as to allocation.

144.(1) The court must decide whether the offence appears to be more

suitable for summary trial or for trial on indictment.

(2) Before making a decision under this section, the court–

(a) must give the prosecution an opportunity to inform the court of

the defendant’s previous convictions (if any); and

(b) must give the prosecution and the defendant an opportunity to

make representations as to whether summary trial or trial on

indictment would be more suitable.

(3) In making a decision under this section, the court must consider–

(a) the nature of the case;

(b) whether the circumstances make the offence one of a serious

character;

power to impose for the offence would be adequate;

(d) any representations made by the prosecution or the defendant

under subsection (2)(b); and

(e) any other circumstances which appear to the court to make it

more suitable for the offence to be tried in one way rather than

the other.

(4) If–

(a) the defendant is charged with 2 or more offences; and

(b) it appears to the court that the charges for the offences could be

joined in the same indictment or that the offences arise out of

the same or connected circumstances,

subsection (3)(c) has effect as if references to the sentence which the

Magistrates’ Court would have power to impose for the offence were a

reference to the maximum aggregate sentence which the court would have

power to impose for all of the offences taken together.

Criminal Procedure and Evidence

2011-24

(4A) In this section any reference to a previous conviction is a reference

to–

(a) a previous conviction by a court in Gibraltar; or

(b) a previous conviction outside Gibraltar by a court in a Member

State of the European Union of a relevant offence under the

law of that State.

(4B) For the purposes of subsection (4A)(b) an offence is “relevant” if the

offence would constitute an offence under the law of Gibraltar if it were

done at the time when the allocation decision is made.

(5) If, in respect of the offence, the court receives a notice under section

198(2) (Relevant offences), the preceding provisions of this section and

sections 145, 146 and 147 do not apply, and the court must proceed in

relation to the offence in accordance with section 195 or 196.

Procedure if summary trial appears more suitable.

145.(1) If the court decides under section 144 that the offence appears to be

more suitable for summary trial, the following provisions of this section

apply (unless they are excluded by section 149).

(2) The court must explain to the defendant in ordinary language–

(a) that it appears to the court more suitable for him to be tried

summarily for the offence; and

(b) that he can either consent to be so tried or, if he wishes, be

tried on indictment.

(3) The defendant may then request an indication (“an indication of

sentence”) of whether a custodial sentence or non-custodial sentence would

be more likely to be imposed if he were to be tried summarily for the

offence and to plead guilty.

(4) If the defendant requests an indication of sentence, the court may, but

need not, give such an indication.

(5) If the defendant requests and the court gives an indication of sentence,

the court must ask the defendant whether he wishes, on the basis of the

indication, to reconsider the indication of plea which was given, or is taken

to have been given, under section 140 or 141.

(6) If the defendant indicates that he wishes to reconsider the indication

under section 140 or 141, the court must ask the defendant whether (if the

offence were to proceed to trial) he would plead guilty or not guilty.

Criminal Procedure and Evidence

2011-24

(7) If the defendant indicates that he would plead guilty the court must

proceed as if–

(a) the proceedings constituted from that time the summary trial of

the information; and

(b) section 159(1) was complied with and he pleaded guilty under

it.

(8) Subsection (9) applies if–

(a) the court does not give an indication of sentence (whether

because the defendant does not request one or because the

court does not agree to give one);

(b) the defendant either–

(i) does not indicate, in accordance with subsection (5), that

he wishes; or

(ii) indicates, in accordance with subsection (5), that he does

not wish, to reconsider the indication of plea under

section 140 or 141; or

(6), that he would plead guilty.

(9) The court must ask the defendant whether he consents to be tried

summarily or wishes to be tried on indictment and–

(a) if he consents to be tried summarily, must proceed to the

summary trial of the information; and

(b) if he does not so consent, must proceed in relation to the

offence in accordance with Part 9.

Procedure if summary trial appears more suitable: Supplementary.

146.(1) If the case is dealt with in accordance with section 145(7), a court

may not impose a custodial sentence for the offence unless such a sentence

was indicated in the indication of sentence referred to in section 145.

(2) Except as provided in subsection (1)–

(a) an indication of sentence is not binding on any court; and

Criminal Procedure and Evidence

2011-24

(b) no sentence may be challenged or be the subject of appeal in

any court on the ground that it is not consistent with an

indication of sentence.

(3) If the court gives an indication of sentence under section 145, it must

cause each such indication to be entered in the register.

Procedure if trial on indictment appears more suitable.

147. If the court decides under section 144 that the offence appears to be

more suitable for trial on indictment, the court must tell the defendant that

the court has decided that it is more suitable for him to be tried on

indictment, and must proceed in relation to the offence in accordance with

Part 9.

Certain offences to be tried summarily if value involved is small.

148.(1) If the offence charged by the information is one of those listed in

Schedule 6 (a “relevant offence”), the court must, before proceeding in

accordance with section 144, consider whether, having regard to any

representations made by the prosecutor or the defendant, the value involved

(as defined in subsection (9)) appears to the court to exceed £2,000.

(2) If, when subsection (1) applies, it appears to the court that, for the

offence charged, the value involved does not exceed £2,000, the court must

proceed as if the offence were triable only summarily, and sections 144 to

147 do not apply.

(3) If, when subsection (1) applies, it appears to the court that, for the

offence charged, the value involved exceeds £2,000, the court must proceed

in accordance with section 144 in the ordinary way without further regard to

the provisions of this section.

(4) If, when subsection (1) applies, it is for any reason not clear to the

court whether, for the offence charged, the value involved does or does not

exceed £2,000, subsections (5) and (6) apply.

(5) The court must cause the charge to be written down, if this has not

already been done, and read to the defendant, and must explain to him in

ordinary language–

(a) that he can, if he wishes, consent to be tried summarily for the

offence and that if he consents to be so tried, he will be tried in

that way; and

(b) that if he is tried summarily and is convicted by the court, his

liability to imprisonment or a fine will be limited as provided

in this section.

Criminal Procedure and Evidence

2011-24

(6) After explaining to the defendant as provided by subsection (5) the

court must ask him whether he consents to be tried summarily and–

(a) if he so consents - must proceed in accordance with subsection

(2) as if that subsection applied;

(b) if he does not so consent - must proceed in accordance with

subsection (3) as if that subsection applied.

(7) If a person is convicted by the Magistrates’ Court of a relevant

offence, it is not open to him to appeal to the Supreme Court against the

conviction on the ground that the convicting court’s decision as to the value

involved was mistaken.

(8) If, when subsection (1) applies, the offence charged is one with which

the defendant is charged jointly with a person who has not attained the age

of 18 years, the reference in that subsection to any representations made by

the defendant is to be read as including any representations made by the

person under 18.

(9) In this section “the value involved”, in relation to any relevant offence,

means the value indicated in Schedule 6 and “the material time” means the

time of the alleged offence.

(10) If–

(a) the defendant is charged on the same occasion with 2 or more

relevant offences and it appears to the court that they constitute

or form part of a series of 2 or more offences of the same or a

similar character; or

(b) the offence charged consists of incitement to commit 2 or more

relevant offences,

this section has effect as if any reference in it to the value involved were a

reference to the aggregate of the values involved.

(11) If, pursuant to this section, the Magistrates’ Court proceeds to the

summary trial of an information and the defendant is summarily convicted

of the offence–

(a) the court may not impose a sentence of imprisonment of more

than 3 months or a fine greater than level 4 on the standard

scale, except for an offence under section 409 of the Crimes

Act 2011 (aggravated vehicle-taking);

(b) section 217 does not apply to the offence;

Criminal Procedure and Evidence

2011-24

not include a pecuniary forfeiture or pecuniary compensation.

(12) Section 409(8) of the Crimes Act 2011 (which decides when a

vehicle is recovered) applies for the purposes of this section as it applies for

the purposes of that section.

Power of court, with consent of legally represented defendant, to

proceed in his absence.

149.(1) If–

(a) the defendant is legally represented by a person who in his

absence signifies to the court the defendant’s consent to the

proceedings for determining how he is to be tried for the

offence being conducted in his absence; and

(b) the court is satisfied that there is good reason for proceeding in

the absence of the defendant,

the following provisions of this section apply.

(2) Subject to the following subsections, the court may proceed in the

absence of the defendant in accordance with such of the provisions of

sections 144 to 148 as are applicable in the circumstances.

(3) If, when subsection (1) of section 148 applies, it appears to the court as

mentioned in subsection (4) of that section, subsections (5) and (6) of that

section do not apply and the court–

(a) if the defendant’s consent to be tried summarily has been or is

signified by his legal representative - must proceed in

accordance with subsection (2) of that section as if that

subsection applied; or

(b) if that consent has not been and is not so signified - must

proceed in accordance with subsection (3) of that section as if

that subsection applied.

(4) If the court decides under section 144 that the offence appears to be

more suitable for summary trial, then–

(a) if the defendant’s consent to be tried summarily has been or is

signified by the person representing him, section 145 does not

apply, and the court must proceed to the summary trial of the

information; or

Criminal Procedure and Evidence

2011-24

(b) if that consent has not been and is not so signified, section 147

does not apply and the court must proceed to inquire into the

information as examining magistrates and may adjourn the

proceedings without remanding the defendant.

(5) If the court decides under section 144 that the offence appears to it

more suitable for trial on indictment, section 147 does not apply and the

court must proceed in relation to the offence in accordance with Part 9.

Summary trial of information against juvenile for either-way offence.

150.(1) If a juvenile appears or is brought before the Magistrates’ Court on

an information charging him with an either-way offence he must, subject to

sections 141 and 142, be tried summarily, unless subsection (2) applies.

(2) The Magistrates’ Court may commit a juvenile for trial for an either-

way offence if–

(a) the offence is such as is mentioned in section 630 (detention of

juveniles for specified period) and the court considers that if he

is found guilty of the offence it would be appropriate to

sentence him pursuant to subsection (2) of that section; (b) the juvenile is charged jointly with a person who has attained

the age of 18 years and the court considers it necessary in the

interests of justice to commit or send them both for trial; or (c) he is charged with an indictable-only offence at the same time

(whether jointly with a person who has attained the age of 18

or not) if the charges for both offences could be joined in the

same indictment.

(3) If on trying a person summarily pursuant to subsection (1) the court

finds him guilty, it may impose a fine of an amount not exceeding £1000 or

may exercise the same powers as it could have exercised if he had been

found guilty of an offence for which, but for any provision in Part 21, it

could have sentenced him to imprisonment for a term not exceeding–

(a) the maximum term of imprisonment for the offence on

conviction on indictment; or

(b) 6 months,

whichever is the less.

(4) In relation to a person under the age of 14 subsection (3) has effect as

if for the words “£1000” there were substituted the words “£250”.

Criminal Procedure and Evidence

2011-24

Juvenile to indicate intention as to plea in certain cases.

151.(1) This section applies if–

(a) a juvenile appears or is brought before the Magistrates’ Court

on an information charging him with an offence to which

section 196 applies; and

(b) but for the application of the following provisions of this

section, the court would be required at that stage, by virtue of

Part 9 to decide, in relation to the offence, whether to send the

person to the Supreme Court for trial (or to decide any matter,

the effect of which would be to decide whether he is sent to the

Supreme Court for trial).

(2) If this section applies, the court must, before proceeding to make a

decision as referred to in subsection (1)(b) (the “relevant decision”), follow

the procedure set out in this section.

(3) Everything that the court is required to do under the following

provisions of this section must be done with the defendant in court.

(4) The court must cause the charge to be written down, if this has not

already been done, and to be read to the defendant.

(5) The court must then explain to the defendant in ordinary language that

he may indicate whether (if the offence were to proceed to trial) he would

plead guilty or not guilty, and that if he indicates that he would plead guilty,

the court will proceed as described in subsection (7).

(6) The court must then ask the defendant whether (if the offence were to

proceed to trial) he would plead guilty or not guilty.

(7) If the defendant indicates that he would plead guilty, the court must

proceed as if–

(a) the proceedings constituted from the beginning the summary

trial of the information; and

(b) section 159 (Procedure at trial) was complied with and he

pleaded guilty under it,

and, accordingly, the court must not proceed to make the relevant decision

or to proceed further under Part 9 in relation to the offence.

(8) If the defendant indicates that he would plead not guilty, the court

must proceed to make the relevant decision and this section ceases to apply.

Criminal Procedure and Evidence

2011-24

(9) If the defendant fails to indicate how he would plead, for the purposes

of this section he is to be taken to indicate that he would plead not guilty.

(10) Subject to subsection (7), the following do not for any purpose

constitute the taking of a plea–

(a) asking the defendant under this section whether (if the offence

were to proceed to trial) he would plead guilty or not guilty;

(b) an indication by the defendant under this section of how he

would plead.

Intention as to plea by juvenile: Absence of defendant.

152.(1) This section has effect if–

(a) a juvenile appears or is brought before the Magistrates’ Court

on an information charging him with an offence to which

section 196 applies;

(b) but for the application of the following provisions of this

section, the court would be required at that stage to make one

of the decisions referred to in paragraph (b) of section 151(1)

(“the relevant decision”);

(d) the court considers that by reason of the defendant’s disorderly

conduct before the court it is not practicable for proceedings

under section 151 to be conducted in his presence; and

(e) the court considers that it should proceed in the absence of the

defendant.

(2) In such a case–

(a) the court must cause the charge to be written down, if this has

not already been done, and to be read to the legal

representative;

(b) the court must ask the defendant’s legal representative whether

(if the offence were to proceed to trial) the defendant would

plead guilty or not guilty;

plead guilty the court must proceed as if the proceedings

constituted from the beginning the summary trial of the

information, and as if section 159 (Procedure at trial) was

complied with and the defendant pleaded guilty under it;

Criminal Procedure and Evidence

2011-24

(d) if the legal representative indicates that the defendant would

plead not guilty the court must proceed to make the relevant

decision and this section ceases to apply.

(3) If the defendant’s legal representative fails to indicate how the

defendant would plead, for the purposes of this section he is to be taken to

indicate that the defendant would plead not guilty.

(4) Subject to subsection (2)(c), the following do not constitute the taking

of a plea–

(a) asking a legal representative under this section whether (if the

offence were to proceed to trial) the defendant would plead

guilty or not guilty;

(b) an indication by a legal representative under this section of

how the defendant would plead.

Intention as to plea by juvenile: Adjournment.

153.(1) The Magistrates’ Court when proceeding under section 151 or 152

may adjourn the proceedings at any time, and on doing so on any occasion

when the defendant is present may remand the defendant.

(2) If the court remands the defendant, the time fixed for the resumption

of proceedings must be that at which he is required to appear or be brought

before the court pursuant to the remand.

Power to change from summary trial to committal or sending

proceedings.

154.(1) Subsections (2) to (5) have effect if a person who has attained the

age of 18 years appears or is brought before the Magistrates’ Court on an

information charging him with an offence triable either way.

(2) If the court is required under section 145(9) to proceed to the summary

trial of the information, the prosecution may apply to the court for the

offence to be tried on indictment instead.

(3) An application under subsection (2) must–

(a) be made before the summary trial begins; and

(b) be dealt with by the court before any other application or issue

in relation to the summary trial is dealt with.

Criminal Procedure and Evidence

2011-24

(4) The court may grant an application under subsection (2) but only if it

is satisfied that the sentence which the court would have power to impose

for the offence would be inadequate.

(5) If–

(a) the defendant is charged on the same occasion with 2 or more

offences; and

(b) it appears to the court that they constitute or form part of a

series of 2 or more offences of the same or a similar character,

subsection (4) has effect as if references to the sentence which the court

would have power to impose for the offence were a reference to the

maximum aggregate sentence which the court would have power to impose

for all of the offences taken together.

(6) If the court grants an application under subsection (2), it must proceed

in relation to the offence in accordance with Part 9.

(7) If the court adjourns the hearing under subsection (2) it may (if it

thinks fit) do so without remanding the defendant.

Power to issue summons to defendant in certain circumstances.

155.(1) If, in the circumstances mentioned in section 149(1)(a), the court is

not satisfied that there is good reason for proceeding in the absence of the

defendant, the court may issue a summons directed to the defendant

requiring his presence before the court.

(2) In a case within subsection (1), if the defendant is not present at the

time appointed for the proceedings under section 144 or 148, the court may

issue a warrant for his arrest.

Effect of dismissal of information.

156.(1) If on the summary trial of an information for an offence triable

either way the court dismisses the information, the dismissal has the same

effect as an acquittal on indictment.

(2) If, on the summary trial of an information for an offence that would,

apart from the provisions of this Part, be an indictable-only offence, the

court dismisses the information, the dismissal has the same effect as an

acquittal on indictment, without affecting the right of any party to appeal to

the Supreme Court by way of case stated.

Duty of magistrates in relation to indictable-only offences.

Criminal Procedure and Evidence

2011-24

157. If on the trial of an information for an offence the court becomes

aware that the offence is an indictable-only offence or a relevant offence for

the purposes of Part 9, the court must cease to enquire into the offence as

examining magistrates and must send the case to the Supreme Court for trial

in accordance with Part 9.

Summary trial

Time limitation.

158.(1) Except as otherwise expressly provided by any law, the

Magistrates’ Court must not try an information or hear a complaint on a

criminal matter unless the information was laid, or the complaint made,

within 6 months from the time when the offence was committed or the

matter of complaint arose.

(2) Nothing in–

(a) subsection (1); or

(b) any other provision of an enactment (other than subsection (3)

of this section) which, as regards any offence to which it

applies, would but for this section impose a time-limit on the

power of the Magistrates’ Court to try an information

summarily or impose a limitation on the time for taking

summary proceedings,

applies in relation to any indictable offence.

(3) If, as regards any indictable offence, there is imposed by any

enactment a limitation on the time for taking proceedings on indictment for

that offence, no summary proceedings for that offence may be taken after

the latest time for taking proceedings on indictment.

Procedure at trial.

159.(1) On the summary trial of an information, the court must, if the

defendant appears, state to him the substance of the information and ask him

whether he pleads guilty or not guilty.

(2) The court, after hearing the evidence and the parties, must either

convict the defendant or dismiss the information.

(3) If the defendant pleads guilty, the court may convict him without

hearing evidence.

Adjournment.

Criminal Procedure and Evidence

2011-24

160.(1) The Magistrates’ Court may adjourn a trial–

(a) at any time, whether before or after beginning to try an

information;

(b) despite anything in this Act - when composed of a single

magistrate.

(2) When adjourning a case the court may–

(a) fix the time and place at which the trial is to be resumed; or

(b) unless it remands the defendant, leave the time and place to be

decided later by the court;

but the trial must not be resumed at that time and place unless the court is

satisfied that the parties have had adequate notice of the time and place.

(3) The Magistrates’ Court may, for the purpose of enabling inquiries to

be made or determining the most suitable method of dealing with the case,

exercise its power to adjourn after convicting the defendant and before

sentencing him or otherwise dealing with him.

(4) An adjournment under subsection (3) must not be for more than 3

weeks at a time.

(5) On adjourning the trial of an information the court may remand the

defendant and, if the defendant is an adult, must do so if the offence is

triable either way and–

(a) when the defendant first appeared, or was brought, before the

court to answer to the information he was in custody or, having

been released on bail, surrendered to the custody of the court;

(b) the defendant has been remanded at any time in the course of

proceedings on the information.

(6) If the court remands the defendant, the time fixed for the resumption

of the trial must be that at which he is required to appear or be brought

before the court pursuant to the remand.

(7) A Juvenile Court is not required to adjourn any proceedings for an

offence at any stage by reason only of the fact–

(a) that the court commits the defendant for trial for another

offence; or

Criminal Procedure and Evidence

2011-24

(b) that the defendant is charged with another offence.

Non-appearance of prosecutor.

161.(1) If at the time and place appointed for the trial or adjourned trial of

an information the defendant appears or is brought before the court and the

prosecutor does not appear, the court may–

(a) dismiss the information; or

(b) if evidence has been received on a previous occasion - proceed

in the absence of the prosecutor.

(2) If, instead of dismissing the information or proceeding in the absence

of the prosecutor, the court adjourns the trial, it must not remand the

defendant in custody unless he–

(a) has been brought from custody; or

(b) cannot be remanded on bail by reason of his failure to enter

into a recognizance or to find sureties.

Non-appearance of defendant: General provisions.

162.(1) If at the time and place appointed for the trial or adjourned trial of

an information the prosecutor appears but the defendant does not, the court

may, subject to this section–

(a) if the defendant is a juvenile - proceed in his absence; and

(b) if the defendant is an adult - proceed in his absence unless it

appears to the court to be contrary to the interests of justice to

do so.

(2) The court must not proceed in the absence of the defendant if it

considers that there is an acceptable reason for his failure to appear.

(3) In proceedings to which this subsection applies, the court must not

begin to try the information in the absence of the defendant unless–

(a) it is proved to the satisfaction of the court, on oath or in some

other prescribed manner, that the summons was served on the

defendant within what appears to the court to be a reasonable

time before the trial or adjourned trial; or

(b) the defendant has appeared on a previous occasion to answer to

the information.

Criminal Procedure and Evidence

2011-24

(4) In proceedings to which this subsection applies, the court must not in a

person’s absence–

(a) sentence him to imprisonment or any other form of detention;

(b) order that a suspended sentence passed on him is to take effect;

(5) Subsections (3) and (4) apply to–

(a) proceedings instituted by an information, where a summons

has been issued; and

(b) proceedings instituted by a written charge.

(6) Nothing in this section requires the court to enquire into the reasons

for the defendant’s failure to appear before deciding whether to proceed in

his absence.

(7) The court must–

(a) state in open court its reasons for not proceeding under this

section in the absence of an adult defendant; and

(b) enter the reasons in the register.

Non-appearance of defendant: Issue of warrant.

163.(1) Subject to this section, if the court, instead of proceeding in the

absence of the defendant, adjourns or further adjourns the trial, the court

may issue a warrant for his arrest.

(2) If a summons has been issued, the court must not issue a warrant under

this section unless the condition in either subsection (3) or (4) is fulfilled.

(3) The condition in this subsection is that it is proved to the satisfaction

of the court, on oath or in some other prescribed manner, that the summons

was served on the defendant within what appears to the court to be a

reasonable time before the trial or adjourned trial.

(4) The condition in this subsection is that–

(a) the adjournment now being made is a second or subsequent

adjournment of the trial;

Criminal Procedure and Evidence

2011-24

(b) the defendant was present on the last (or only) occasion when

the trial was adjourned; and

which the adjournment is now being made.

(5) A warrant for the arrest of an adult must not be issued under this

section unless–

(a) the offence to which the warrant relates is a recordable offence;

(b) the court, having convicted the defendant, proposes to impose a

disqualification on him.

(6) A warrant for the arrest of a juvenile must not be issued under this

section unless the court, having convicted the defendant, proposes to impose

a disqualification on him.

(7) This section does not apply to an adjournment on the occasion of the

defendant’s conviction in his absence under section 165 or to an

adjournment required by subsection (3) of that section.

Non-appearance of both parties.

164.(1) If at the time and place appointed for the trial or adjourned trial of

an information neither the prosecutor nor the defendant appears, the court

may–

(a) dismiss the information; or

(b) if evidence has been received on a previous occasion - proceed

in their absence.

(2) This section is subject to section 162.

Plea of guilty in absence of defendant.

165.(1) This section applies if a summons has been issued requiring a

person to appear before the Magistrates’ Court to answer an information as

described in subsection (2) and the clerk of the court is notified by or on

behalf of the prosecutor that–

(a) a notice containing a prescribed statement of the effect of this

section; and

(b) a concise statement in the prescribed form of the facts relating

to the charge that will be placed before the court by or on

Criminal Procedure and Evidence

2011-24

behalf of the prosecutor if the defendant pleads guilty without

appearing before the court,

have been served upon the defendant with the summons.

(2) The information must be for a summary offence that is not an offence

triable also on indictment.

(3) If the clerk of the court receives written notice from the defendant or a

legal representative acting on his behalf that the defendant wishes to plead

guilty without appearing before the court–

(a) the clerk must inform the prosecutor of the receipt of the

notice; and

(b) if at the time and place appointed for the trial or adjourned trial

of the information the defendant does not appear and it is

proved to the satisfaction of the court, on oath or in the

prescribed manner, that the notice and statement of facts

referred to in subsection (1) have been served upon the

defendant with the summons–

(i) the court may proceed to hear and dispose of the case in

the absence of the defendant, whether or not the

prosecutor is also absent, as if both parties had appeared

and the defendant had pleaded guilty; or

(ii) if the court decides not to proceed as in paragraph (i), the

court must adjourn or further adjourn the trial for the

purpose of dealing with the information as if the

notification had not been given.

(4) If at any time before the hearing the clerk of the court receives a

written notice by or on behalf of the defendant that the defendant wishes to

withdraw the notification, the clerk must inform the prosecutor and the court

must deal with the information as if this section were not in force.

(5) Before accepting the plea of guilty and convicting the defendant in his

absence under this section, the court must cause the notification and

statement of facts, including any submission received with the notification

which the defendant wishes to be brought to the attention of the court with a

view to mitigation of sentence, to be read out before the court.

(6) If the court proceeds under this section to hear and dispose of the case

in the absence of the defendant, the court–

(a) must not permit any statement to be made by or on behalf of

the prosecutor with respect to any facts relating to the offence

Criminal Procedure and Evidence

2011-24

charged other than the statement of facts mentioned in

subsection (1) except on a resumption of the trial after an

adjournment under subsection (3); and

(b) must not without adjourning under subsection (3) sentence him

to any term of imprisonment or to any other form of detention,

or order him to be subject to any disqualification.

(7) Section 160(4) does not apply to an adjournment pursuant to

subsection (3)(b) of this section or to an adjournment when the defendant is

convicted in his absence under subsection (3), but, in relation to such an

adjournment, the notice required by section 160(2) must include notice of

the reason for the adjournment.

(8) This section does not apply to proceedings in the Juvenile Court.

Application of section 165 if defendant appears.

166.(1) If the clerk of the court has received a notification as mentioned in

section 165(3) but the defendant nonetheless appears before the court at the

time and place appointed for the trial or adjourned trial, the court may, if he

consents, proceed under subsection (5) of that section as if he were absent.

(2) If the clerk of the court has not received such a notification and the

defendant appears before the court at that time and place and informs the

court that he desires to plead guilty, the court may, if he consents, proceed

under section 165(5) as if he were absent and the clerk had received such a

notification.

(3) For the purposes of subsections (1) and (2), subsections (5) and (6) of

section 165 apply with the modifications mentioned in subsection (4) or (5),

as the case may be, of this section.

(4) The modifications for the purposes of subsection (1) are that–

(a) before accepting the plea of guilty and convicting the

defendant under subsection (3) of section 165, the court must

give the defendant an opportunity to make an oral submission

with a view to mitigation of sentence; and

(b) if he makes such a submission, subsection (6)(b) of that section

does not apply.

(5) The modifications for the purposes of subsection (2) are that–

(a) subsection (3) of section 165 applies as if any reference to the

notification under subsection (1) of that section were a

Criminal Procedure and Evidence

2011-24

reference to the consent under subsection (2) of this section;

and

(b) before accepting the plea of guilty and convicting the

defendant under subsection (3) of that section, the court must

give the defendant an opportunity to make an oral submission

with a view to mitigation of sentence.

Remands by the Magistrates’ Court

Remand: General principles.

167.(1) If the Magistrates’ Court has power to remand any person, then,

subject to Part 7 and to any other enactment modifying that power, the court

may–

(a) remand him in custody to be brought before the court, subject

to section 168, at the end of the period of remand or at any

earlier time the court requires;

(b) if it is inquiring into or trying an offence alleged to have been

committed by that person or has convicted him of an offence–

(i) remand him on bail in accordance with Part 7, by

directing him to appear as provided in section 169; or

(ii) remand him on bail by taking from him a recognizance

(with or without sureties) conditioned as provided in that

section.

(2) In a case falling within subsection (1)(b)(ii), the court may, instead of

taking recognizances in accordance with that paragraph, fix the amount of

the recognizances with a view to their being taken subsequently.

(3) If–

(a) on adjourning a case under this Part the court proposes to

remand or further remand a person in custody;

(b) he is before the court; and

the court must–

(a) explain the effect of sections 168(1) and (2) to him in ordinary

language; and

Criminal Procedure and Evidence

2011-24

(b) inform him in ordinary language that, despite the procedure for

a remand without his being brought before the court, he will be

brought before the court for the hearing and decision of at

least every fourth application for his remand, and of every

application for his remand if it appears to the court that he has

no legal representative acting for him in the case.

(4) After explaining to the defendant as provided by subsection (3) the

court must ask him whether he consents to the hearing and decision of such

applications in his absence.

(5) If the court fixes the amount of a recognizance with a view to its being

taken subsequently, the court must in the meantime commit the person so

remanded to custody in accordance with subsection (1)(a).

(6) If a person is brought before the court after remand, the court may

further remand him.

(7) The provisions of this Part as to remand are in addition to and do not

derogate from the provisions as to remand in Part 28.

Remand in custody.

168.(1) Subject to subsection (2), if a person has been remanded in custody

and the remand was not a remand under section 170 for a period exceeding

8 clear days, the Magistrates’ Court may further remand him (otherwise

than in the exercise of the power conferred by that section) on an

adjournment under this Part without his being brought before it if it is

satisfied–

(a) that he gave his consent to the hearing and decision in his

absence of any application for his remand on an adjournment

of the case under this Part;

(b) that he has not by virtue of this subsection been remanded

without being brought before the court on more than 2 such

applications immediately preceding the application which the

court is hearing; and

and decided.

(2) The court may not exercise the power conferred by subsection (1) if it

appears to the court, on an application for a further remand being made to it,

that the person to whom the application relates has no legal representative in

the case.

(3) If–

Criminal Procedure and Evidence

2011-24

(a) a person has been remanded in custody on an adjournment of a

case under this Part;

(b) an application is subsequently made for his further remand on

such an adjournment; and

the court must adjourn the case and remand him in custody for the period

for which it stands adjourned.

(4) An adjournment under subsection (3) must be for the shortest period

that appears to the court to make it possible for the defendant to be brought

before it.

(5) If–

(a) on an adjournment of a case under this Part a person has been

remanded in custody without being brought before the court;

and

(b) it subsequently appears to the court that he ought not to have

been remanded in custody in his absence,

the court must require him to be brought before it at the earliest time that

appears to the court to be possible.

Remand on bail.

169.(1) If a person is remanded on bail under section 167(1) the

Magistrates’ Court may direct him to appear, or direct that his recognizance

be conditioned for his appearance–

(a) before the court at the end of the period of remand; or

(b) at every time and place to which during the course of the

proceedings the hearing may be from time to time adjourned.

(2) If the court remands a person on bail conditionally on his providing a

surety during an inquiry into an offence alleged to have been committed by

him, it may direct that the recognizance of the surety be conditioned to

ensure that the person so bailed appears–

(a) at every time to which during the course of the proceedings the

hearing is from time to time adjourned; and

Criminal Procedure and Evidence

2011-24

(b) before the Supreme Court if the person is committed or sent for

trial there.

(3) If a person is directed to appear or a recognizance is conditioned for a

person’s appearance in accordance with subsection (1) or (2), the fixing of

the time for him next to appear is a remand; but nothing in this subsection or

those subsections deprives the court of power at any subsequent hearing to

remand him afresh.

(4) Subject to sections 170 and 171, the Magistrates’ Court must not

remand a person for a period exceeding 8 clear days, except that–

(a) if the court remands him on bail, it may remand him for a

longer period if he and the prosecutor consent;

(b) if the court adjourns a trial under section 160(3) or section 665

(Remand for report), the court may remand him for the period

of the adjournment;

if it falls to the court to try the case summarily but the court is

not at the time constituted so as to be able to proceed with the

trial, the court may remand him until the next occasion on

which it can be so constituted, even if the remand is for a

period exceeding 8 clear days.

(5) If a remand is for a period not exceeding 3 clear days, the court may

commit him to detention at a designated police station, but–

(a) he must only be kept in such detention if there is a need for

him to be so detained for the purposes of inquiries into other

offences;

(b) if kept in such detention, he must be brought back before the

Magistrates’ Court as soon as that need ceases;

duties under section 62 (Responsibilities in relation to persons

detained) relate;

(d) his detention is subject to periodic review at the times set out in

section 63 (Review of police detention).

Remands in custody for more than 8 days.

170.(1) The Magistrates’ Court may remand a defendant in custody for a

period exceeding 8 clear days if–

Criminal Procedure and Evidence

2011-24

(a) it has previously remanded him in custody for the same

offence; and

(b) he is before the court,

but only if, after affording the parties an opportunity to make

representations, the court has set a date on which it expects that it will be

possible for the next stage in the proceedings, other than a hearing relating

to a further remand in custody or on bail, to take place.

(2) A further remand under this section may only be–

(a) for a period ending not later than the date set under subsection

(1); or

(b) for a period of 28 clear days,

whichever is the less.

(3) This section does not affect the right of a defendant to apply for bail

during the period of the remand.

Further remand.

171.(1) If the Magistrates’ Court is satisfied that a person who has been

remanded is unable by reason of illness or accident to appear or be brought

before the court at the expiration of the period for which he was remanded,

section 116(1) and (2) apply.

(2) If a person remanded on bail in criminal proceedings is bound to

appear before the Magistrates’ Court at any time and the court has no power

to remand him under subsection (1), section 116(3) applies.

(3) If the Magistrates’ Court commits a person for trial on bail and the

recognizance of any surety for him has been conditioned in accordance with

section 169(2)(a), the court may, in the absence of the surety, enlarge the

surety’s recognizance so that he is bound to ensure that the person so

committed for trial appears also before the Supreme Court.

Remand of defendant already in custody.

172.(1) If the Magistrates’ Court remands a defendant in custody and he is

already detained under a custodial sentence, the period for which he is

remanded may be up to 28 clear days, subject to subsection (2).

(2) If the Magistrates’ Court is considering remanding a person pursuant

to subsection (1)–

Criminal Procedure and Evidence

2011-24

(a) it must inquire as to the expected date of his release from the

current detention; and

(b) if it appears that it will be before 28 clear days have expired,

the court must not remand the person in custody for more than

8 clear days or (if longer) a period ending with that date.

Recognizances for good behaviour

Binding over.

173.(1) The power of the Magistrates’ Court on the complaint of any

person to order any other person to enter into a recognizance, with or

without sureties, to keep the peace or to be of good behaviour towards the

complainant must be exercised by order on complaint.

(2) If a person ordered by the Magistrates’ Court under subsection (1) to

enter into a recognizance, with or without sureties, to keep the peace or to

be of good behaviour fails to comply with the order, the court may commit

him to custody for up to 6 months or until he sooner complies with the

order.

Discharge of recognizance on complaint of surety.

174.(1) On complaint being made to a magistrate by a surety to a

recognizance to keep the peace or to be of good behaviour entered into

before the Magistrates’ Court that the person bound by the recognizance as

principal has been, or is about to be, guilty of conduct constituting a breach

of the conditions of the recognizance, the magistrate may issue–

(a) a warrant to arrest the principal and bring him before the

Magistrates’ Court; or

(b) a summons requiring the principal to appear before the court.

(2) A magistrate must not issue a warrant under subsection (1) unless the

complaint is in writing and substantiated on oath.

(3) When the principal appears or is brought before the Magistrates’ Court

pursuant to a summons or warrant under subsection (1), the court may,

unless it orders the recognizance to be forfeited, order the recognizance to

be discharged and order the principal to enter into a new recognizance, with

or without sureties, to keep the peace or to be of good behaviour.

Varying or dispensing with requirements as to sureties.

Criminal Procedure and Evidence

2011-24

175.(1) If the Magistrates’ Court has committed a person to custody in

default of finding sureties, the court may, on application by or on behalf of

the person committed, and after hearing fresh evidence–

(a) reduce the amount in which it is proposed that any surety

should be bound; or

(b) dispense with any of the sureties or otherwise deal with the

case as it thinks just.

(2) Subsection (1) does not apply in relation to a person granted bail in

criminal proceedings.

Postponement of taking recognizance.

176.(1) If the Magistrates’ Court has power to take any recognizance, the

court may, instead of taking it, fix the amount in which the principal and his

sureties, if any, are to be bound, after which the recognizance may be taken

by any person prescribed.

(2) This section does not enable the Magistrates’ Court to alter the amount

of a recognizance fixed by the Supreme Court.

Forfeiture of recognizance.

177.(1) If–

(a) a recognizance to keep the peace or to be of good behaviour

has been entered into before the Magistrates’ Court; or

(b) any recognizance is conditioned for the appearance of a person

before the Magistrates’ Court or for his doing any other thing

connected with a proceeding before the Magistrates’ Court;

and

the court may, subject to subsection (2), declare the recognizance to be

forfeited and order the persons bound by it, whether as principal or sureties,

or any of them, to pay the sum in which they are respectively bound.

(2) If a recognizance is conditioned to keep the peace or to be of good

behaviour, the court must not declare it forfeited except by order made on

complaint.

(3) The court which declares the recognizance to be forfeited may, instead

of ordering a person to pay the whole sum in which he is bound–

Criminal Procedure and Evidence

2011-24

(a) order him to pay part only of the sum; or

(b) remit the sum.

(4) Subject to subsection (5), payment of any sum ordered to be paid

under this section, including any costs awarded against the defendant, may

be enforced, and any such sum must be applied, as if it were a fine and as if

the adjudication were a summary conviction.

(5) At any time before–

(a) the issue of a warrant of commitment to enforce payment of the

sum under subsection (4); or

(b) the sale of goods under a warrant of distress to satisfy the sum,

the court may reduce or remit the sum absolutely or on conditions the court

thinks just.

Proceedings against corporations

Representatives of corporations.

178.(1) On the trial by the Magistrates’ Court of an information against a

corporation, a legal representative may on behalf of the corporation enter a

plea of guilty or not guilty.

(2) A notice for the purposes of section 165(3) or (4) may be given on

behalf of the corporation by a director or the secretary of the corporation,

and that subsection applies in relation to a notice so given as it applies to a

notice given by an individual defendant.

(3) A legal representative may on behalf of a corporation–

(a) make before examining magistrates any representations that

could be made by a defendant who is not a corporation;

(b) consent to the corporation being tried summarily;

Magistrates’ Court of an information.

(4) If a legal representative appears, any requirement of this Act that

anything must be done in the presence of the defendant, or be read or said to

the defendant, is to be construed as a requirement that that thing is to be

done in the presence of the representative or read or said to the

representative.

Criminal Procedure and Evidence

2011-24

(5) If a legal representative does not appear, any requirement referred to in

subsection (4) and any requirement that the consent of the defendant must

be obtained for summary trial, does not apply.

(6) If a corporation and an individual who has attained the age of 18 are

jointly charged before the Magistrates’ Court with an offence triable either

way, the court must not try either defendant summarily unless each of them

consents to be so tried.

Committal for trial of a corporation.

179.(1) The Magistrates’ Court may commit a corporation for trial by an

order in writing empowering the prosecutor to prefer a bill of indictment in

respect of the offence named in the order.

(2) An order under subsection (1) does not prohibit the inclusion in the

indictment of counts that under this Act may be included in the indictment

in substitution for or in addition to counts charging the offence named in the

order.

(3) The provisions of this Act relating to committal to the Supreme Court

for sentence do not apply to a corporation.

(4) Subject to the preceding subsections, the provisions of this Act relating

to the inquiry into and trial of indictable offences and the trial by jury of

certain summary offences apply to a corporation as they apply to an adult.

(5) Section 178 as to the powers of and appearance by a legal

representative applies to a legal representative for the purposes of this

section as it applies to a legal representative for the purposes of that section.

(6) This section does not affect the provisions of Part 9 which relate to the

sending for trial of a corporation.

Miscellaneous provisions

Power of the court to re-open cases to rectify mistakes, etc.

180.(1) The Magistrates’ Court may vary or rescind a sentence or other

order imposed or made by it when dealing with an offender if it appears to

the court to be in the interests of justice to do so, including replacing a

sentence or order which for any reason appears to be invalid by another

which the court has power to impose or make.

(2) The power conferred on the Magistrates’ Court by subsection (1) is not

exercisable in relation to any sentence or order imposed or made by it when

dealing with an offender if–

Criminal Procedure and Evidence

2011-24

(a) the Supreme Court has decided an appeal against–

(i) that sentence or order;

(ii) the conviction in respect of which that sentence or order

was imposed or made; or

(iii) any other sentence or order imposed or made by the

Magistrates’ Court when dealing with the offender in

respect of that conviction (including a sentence or order

replaced by that sentence or order); or

(b) the Supreme Court has decided a case stated for the opinion of

that court on any question arising in any proceeding leading to

or resulting from the imposition or making of the sentence or

order.

(3) If a person is convicted by the Magistrates’ Court and it subsequently

appears to the court that it would be in the interests of justice that the case

should be heard again by different magistrates, the court may so direct.

(4) The power conferred on the Magistrates’ Court by subsection (3) is not

exercisable in relation to a conviction if–

(a) the Supreme Court has decided an appeal against–

(i) the conviction; or

(ii) any sentence or order imposed or made by the

Magistrates’ Court when dealing with the offender in

respect of the conviction; or

(b) the Supreme Court has decided a case stated for the opinion of

that court on any question arising in any proceeding leading to

or resulting from the conviction.

(5) If a court gives a direction under subsection (3)–

(a) the conviction and any sentence or other order imposed or

made in consequence of it is of no effect; and

(b) section 160 (Adjournment) applies as if the trial of the person

in question had been adjourned.

(6) If a sentence or order is varied under subsection (1), the sentence or

other order, as so varied, takes effect from the beginning of the day on

which it was originally imposed or made, unless the court otherwise directs.

Criminal Procedure and Evidence

2011-24

Functions of the court when a person is brought before it for

appearance before the Supreme Court.

181. If a person in custody pursuant to a warrant issued by the Supreme

Court with a view to his appearance before the Supreme Court is brought

before the Magistrates’ Court pursuant to section 120–

(a) the Magistrates’ Court must commit him in custody or release

him on bail until he can be brought or appear before the

Supreme Court at the time appointed by the Supreme Court;

(b) if the warrant is endorsed for bail, but the person in custody is

unable to satisfy the conditions endorsed, the Magistrates’

Court may vary those conditions, if satisfied that it is proper to

do so.

Application of fines, etc.

182.(1) The clerk of the Magistrates’ Court must apply moneys received by

him on account of a sum ordered to be paid on a summary conviction as

follows–

(a) in the first place in payment of any costs ordered on the

conviction to be paid to the prosecutor;

(b) in the second place in payment of any damages or

compensation so ordered to be paid to any person;

fees paid by him;

(d) in the fourth place in payment of any court fees payable but not

already paid by the prosecutor.

(2) Subject to any enactment relating to customs or excise, anything other

than money forfeited on a conviction by the Magistrates’ Court, or the

forfeiture of which may be enforced by the Magistrates’ Court, must be sold

or otherwise disposed of in a manner the court directs, and the proceeds

applied as if they were a fine imposed under the enactment on which the

proceedings for the forfeiture are founded.

Magistrates’ power to summon witnesses, etc.

183.(1) If a magistrate is satisfied that–

(a) any person in Gibraltar is likely to be able to give material

evidence, or produce any document or thing likely to be

Criminal Procedure and Evidence

2011-24

material evidence, at the summary trial of an information or

hearing of a complaint by the Magistrates’ Court; and

(b) that person will not voluntarily attend as a witness or will not

voluntarily produce the document or thing,

the magistrate must issue a summons directed to that person requiring him

to attend before the court at the time and place appointed in the summons to

give evidence or to produce the document or thing.

(2) If a magistrate is satisfied by evidence on oath of the matters

mentioned in subsection (1), and also that it is probable that a summons

under that subsection would not procure the attendance of the person in

question, the magistrate may instead of issuing a summons issue a warrant

to arrest that person and bring him before the Magistrates’ Court at a time

specified in the warrant.

(3) A summons may also be issued under subsection (1) if the magistrate

is satisfied that the person in question is outside Gibraltar, but no warrant

may be issued under subsection (2) unless the magistrate is satisfied by

evidence on oath that the person in question is in Gibraltar.

(4) A magistrate may refuse to issue a summons under subsection (1) in

relation to the summary trial of an information if he is not satisfied that an

application for the summons was made by a party to the case as soon as

reasonably practicable after the defendant pleaded not guilty.

(5) In relation to the summary trial of an information, subsection (2) has

effect as if the reference to the matters mentioned in subsection (1) included

a reference to the matter mentioned in subsection (4).

(6) On the failure of any person to attend before the Magistrates’ Court in

answer to a summons under this section, if–

(a) the court is satisfied by evidence on oath that he is likely to be

able to give material evidence or produce any document or

thing likely to be material evidence in the proceedings; and

(b) it is proved on oath, or in some other prescribed manner, that

he has been duly served with the summons, and that a sum

calculated in accordance with rules of court has been paid or

tendered to him for costs and expenses; and

failure,

the court may issue a warrant to arrest him and bring him before the court at

a time and place specified in the warrant.

Criminal Procedure and Evidence

2011-24

(7) If any person attending or brought before the Magistrates’ Court

refuses without just excuse to be sworn or give evidence, or to produce any

document or thing, the court may–

(a) commit him to custody for up to 28 days or until he sooner

gives evidence or produces the document or thing;

(b) impose on him a fine at level 4 on the standard scale; or

paragraph (b).

(8) A fine imposed under subsection (7) is, for the purposes of any

enactment, a sum adjudged to be paid on a conviction.

PART 9 – COMMITTAL OR SENDING FOR TRIAL

Committal for trial to the Supreme Court

Proceedings before examining magistrates.

184.(1) Examining magistrates must sit in open court unless–

(a) an enactment contains an express provision to the contrary;

(b) it appears to them as respects the whole or any part of

committal proceedings that the ends of justice would not be

served by their sitting in open court.

(2) Except as otherwise provided by any enactment, evidence given before

examining magistrates must be given in the presence of the defendant.

(3) Examining magistrates may allow evidence to be tendered before them

in the absence of the defendant if–

(a) they consider that by reason of his disorderly conduct before

them it is not practicable for the evidence to be tendered in his

presence; or

(b) he cannot be present for reasons of health but is legally

represented and has consented to the evidence being tendered

in his absence.

(4) The functions of the Magistrates’ Court under this Part may be

discharged by a single magistrate.

Adjournments.

Criminal Procedure and Evidence

2011-24

185.(1) The Magistrates’ Court may, before beginning to inquire into an

offence as examining magistrates, or at any time during the inquiry, adjourn

the hearing, and if it does so must remand the defendant.

(2) The court must, when adjourning, fix the time and place at which the

hearing is to be resumed, and the time fixed must be that at which the

defendant is required to appear or be brought before the court pursuant to

the remand.

Evidence which is admissible.

186. Evidence is only admissible by the Magistrates’ Court inquiring into

an offence as examining magistrates if it is tendered by or on behalf of the

prosecutor, and consists of–

(a) written statements complying with section 187;

(b) the documents or other exhibits (if any) referred to in such

statements;

(d) the documents or other exhibits (if any) referred to in such

depositions;

(e) statements complying with section 189;

(f) documents falling within section 190.

Written statements.

187.(1) For the purposes of section 186 a written statement complies with

this section if–

(a) the conditions falling within subsection (2) are met; and

(b) such of the conditions falling within subsection (3) as apply are

met.

(2) The conditions falling within this subsection are that–

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect

that it is true to the best of his knowledge and belief and that he

made the statement knowing that, if it were tendered in

evidence, he would be liable to prosecution if he wilfully stated

Criminal Procedure and Evidence

2011-24

in it anything which he knew to be false or did not believe to

be true;

statement is given, by or on behalf of the prosecutor, to each of

the defendants.

(3) The conditions falling within this subsection are that

(a) if the statement is made by a person under 18 years old, it gives

his age;

(b) if it is made by a person who cannot read it, it is read to him

before he signs it and is accompanied by a declaration by the

person who so read the statement to the effect that it was so

read;

to any other party to the proceedings under subsection (2)(c) is

accompanied by a copy of that document or by such

information as may be necessary to enable the party to whom it

is given to inspect that document or a copy of it.

(4) So much of any statement as is admitted in evidence by virtue of this

section must, unless the court commits the defendant for trial by virtue of

section 193 or the court otherwise directs, be read aloud at the hearing; and

if the court so directs an account must be given orally of so much of any

statement as is not read aloud.

(5) Any document or other object referred to as an exhibit and identified

in a statement admitted in evidence by virtue of this section is to be treated

as if it had been produced as an exhibit and identified in court by the maker

of the statement.

Depositions.

188.(1) For the purposes of section 186 a deposition complies with this

section if–

(a) a copy of it is sent to the prosecutor;

(b) the condition falling within subsection (2) is met; and

where it applies.

(2) The condition falling within this subsection is that before the court

begins to inquire into the offence concerned as examining magistrates a

Criminal Procedure and Evidence

2011-24

copy of the deposition is given, by or on behalf of the prosecutor, to each of

the other parties to the proceedings.

(3) The condition falling within this subsection is that, if the deposition

refers to any other document as an exhibit, the copy given to any other party

to the proceedings under subsection (2) is accompanied by a copy of that

document or by such information as may be necessary to enable the party to

whom it is given to inspect that document or a copy of it.

(4) So much of any deposition as is admitted in evidence by virtue of this

section must, unless the court commits the defendant for trial by virtue of

section 193 or the court otherwise directs, be read aloud at the hearing; and

if the court so directs an account must be given orally of so much of any

deposition as is not read aloud.

(5) Any document or other object referred to as an exhibit and identified

in a deposition admitted in evidence by virtue of this section is to be treated

as if it had been produced as an exhibit and identified in court by the person

whose evidence is taken as the deposition.

Statements.

189.(1) For the purposes of section 186 a statement complies with this

section if–

(a) it is admissible in evidence under Part 17; and

(b) before the committal proceedings begin, the prosecutor notifies

the court and the defendant or defendants that he believes the

statement is so admissible.

(2) In a notice under subsection (1)(b) the prosecutor must–

(a) state that his belief is based on information available to him at

the time he makes the notification,

(b) state that he has reasonable grounds for his belief; and

(3) When the court or a defendant is notified as mentioned in subsection

(1)(b) a copy of the statement must be given, by or on behalf of the

prosecutor, to the court and the defendant.

(4) So much of any statement as is in writing and is admitted in evidence

by virtue of this section must, unless the court commits the defendant for

trial by virtue of section 193 or the court otherwise directs, be read aloud at

Criminal Procedure and Evidence

2011-24

the hearing; and if the court so directs an account must be given orally of so

much of any statement as is not read aloud.

Other documents.

190.(1) The following documents fall within this section–

(a) any document which by virtue of any enactment is evidence in

proceedings before the Magistrates’ Court inquiring into an

offence as examining magistrates;

(b) any document which by virtue of any enactment is admissible,

or may be used, or is to be admitted or received, in or as

evidence in such proceedings;

considered in such proceedings;

(d) any document whose production constitutes proof in such

proceedings by virtue of any enactment;

(e) any document by the production of which evidence may be

given in such proceedings by virtue of any enactment.

(2) In subsection (1)–

(a) references to evidence include references to prima facie

evidence;

(b) references to any enactment include references to any

provision of this Act.

(3) So much of any document as is admitted in evidence by virtue of this

section must, unless the court commits the defendant for trial by virtue of

section 193 or the court otherwise directs, be read aloud at the hearing; and

if the court so directs an account must be given orally of so much of any

document as is not read aloud.

Proof by production of copy.

191.(1) If a statement, deposition or document is admissible in evidence by

virtue of section 187, 188, 189, or 190 it may be proved by the production

of–

(a) the statement, deposition or document; or

(b) a copy of it or the material part of it.

Criminal Procedure and Evidence

2011-24

(2) Subsection (1)(b) applies whether or not the statement, deposition or

document is still in existence.

(3) It is immaterial for the purposes of this section how many removes

there are between a copy and the original.

Committal or discharge.

192.(1) Subject to this Act and any other law relating to the summary trial

of indictable offences, if the Magistrates’ Court inquiring into an offence as

examining magistrates is of opinion, on consideration of the evidence, that

there is sufficient evidence to put the defendant upon trial by jury for an

indictable offence, the court must commit him to the Supreme Court for

trial.

(2) If the court inquiring as mentioned in subsection (1) is not of the

opinion mentioned in that subsection, it must, if the defendant is not in

custody for any other cause than the offence under inquiry, discharge him.

(3) The court may commit a defendant for trial–

(a) in custody, by committing him to custody there to be safely

kept until delivered in due course of law; or

(b) subject to Part 7 on bail, by taking from him a recognizance,

with or without sureties, conditioned for his appearance at the

time and place of trial and at every time and place to which the

trial may from time to time be adjourned.

(4) If the court commits a defendant on bail it may, instead of taking

recognizances in accordance with subsection (3)(b)

(a) fix the amount of the recognizances with a view to their being

taken subsequently; and

(b) in the meantime commit the defendant to custody in

accordance with subsection (3)(a).

(5) If the court has committed a person to custody in accordance with

subsection (3)(a) then, if that person is in custody for no other cause, the

court may, at any time before his trial, release him on his entering into a

recognizance as mentioned in subsection (3)(b).

Committal without consideration of evidence.

193.(1) If the Magistrates’ Court inquiring into an offence as examining

magistrates is satisfied that all the evidence tendered by or on behalf of the

prosecutor falls within section 186, it may commit the defendant for trial for

Criminal Procedure and Evidence

2011-24

the offence without consideration of the contents of any statements,

depositions or other documents, and without consideration of any exhibits

which are not documents, unless–

(a) the defendant or one of the defendants has no legal

representative acting for him in the case; or

(b) a legal representative for the defendant or one of the

defendants, as the case may be, has requested the court to

consider a submission that there is insufficient evidence to put

that defendant on trial by jury for the offence.

(2) Section 192(1) does not apply to a committal for trial under this

section.

Public notice of outcome.

194.(1) If the Magistrates’ Court acting as examining magistrates commits

any person for trial or decides to discharge him, the clerk of the court must,

on the day on which the committal proceedings are concluded or the next

day, cause to be displayed in a part of the court house to which the public

have access a notice–

(a) in either case giving that person’s name, address and age, if

known;

(b) if the court so commits him - stating the charge or charges on

which he is committed;

charged and stating that it has so decided.

(2) This section has effect subject to section 204, section 466 (Restriction

on reporting of identity of victims of sexual offences) and section 469

(Witness anonymity orders).

(3) A notice displayed pursuant to subsection (1) must not contain the

name or address of any person under the age of 18 years unless the

examining magistrates have stated that in their opinion he should be

mentioned in it for the purpose of avoiding injustice to him.

(4) The Magistrates’ Court must send a notice (a “notice of committal”) of

the offence or offences for which a person is committed under sections 184

to 193 to the defendant and to the Supreme Court, together with the

depositions or statements, and section 199 applies to such a notice to the

extent practicable.

Sending for trial to the Supreme Court

Criminal Procedure and Evidence

2011-24

Sending for trial: Adults.

195.(1) If an adult appears or is brought before the Magistrates’ Court

charged with an offence to which this section applies (a “relevant offence”),

the court must, subject to section 198(4), send him forthwith to the Supreme

Court for trial–

(a) for that offence; and

(b) for any other offence with which he is charged which fulfils the

requisite conditions.

(2) If an adult who has been sent for trial under subsection (1)

subsequently appears or is brought before the Magistrates’ Court charged

with an offence which fulfils the requisite conditions, the court may send

him forthwith to the Supreme Court for trial for that offence.

(3) If–

(a) the court sends an adult for trial under subsection (1);

(b) another adult appears or is brought before the court on the

same or a subsequent occasion charged jointly with him with

an either-way offence; and

offence,

the court must if it is the same occasion, and may if it is a subsequent

occasion, send the other adult forthwith to the Supreme Court for trial for

the either-way offence.

(4) If a court sends an adult for trial under subsection (3), it must at the

same time send him to the Supreme Court for trial for any other offence

with which he is charged which fulfils the requisite conditions.

Sending for trial: Juveniles.

196.(1) If a juvenile appears or is brought before the Magistrates’ Court

charged with a relevant offence, the court must, subject to section 198(4),

send him forthwith to the Supreme Court for trial for the offence.

(2) If a court sends a juvenile for trial under subsection (1), it may at the

same time send him to the Supreme Court for trial for any other offence

with which he is charged which fulfils the requisite conditions.

(3) If–

Criminal Procedure and Evidence

2011-24

(a) the court sends an adult for trial under section 195 on a

relevant offence; and

(b) a juvenile appears or is brought before the court on the same or

a subsequent occasion charged jointly with the adult with an

indictable offence which appears to the court to be related to

that offence,

the court must, if it considers it necessary in the interests of justice to do so,

send the juvenile to the Supreme Court for trial for the indictable offence.

(4) If a juvenile who has been sent for trial under subsection (1) or (2)

subsequently appears or is brought before the Magistrates’ Court charged

with an offence which fulfils the requisite conditions, the court may send

him forthwith to the Supreme Court for trial for that offence.

(5) Subsections (1) to (4) are subject to section 150 (which provides for

certain cases involving juveniles to be tried summarily).

(6) If–

(a) the court sends a juvenile (‘A’) for trial under subsection (1);

and

(b) an adult appears or is brought before the court on the same or a

subsequent occasion charged jointly with A with an either-way

offence for which A is sent for trial under subsection (2), or an

either-way offence which appears to the court to be related to

that offence,

the court must if it is the same occasion, and may if it is a subsequent

occasion, send the adult forthwith to the Supreme Court for trial for the

either-way offence.

(7) If the court sends an adult for trial under subsection (6), it must at the

same time send him to the Supreme Court for trial for any either-way or

summary offence with which he is charged and which fulfils the requisite

conditions.

Sending for trial: Supplementary.

197.(1) An offence fulfils the requisite conditions if–

(a) it appears to the court to be related to the relevant offence; and

(b) in the case of a summary offence, it is punishable with

imprisonment or involves obligatory or discretionary

disqualification from driving.

Criminal Procedure and Evidence

2011-24

(2) The trial of the information charging any summary offence for which a

person is sent for trial under this section is to be treated as if the court had

adjourned it under section 160 and had not fixed the time and place for its

resumption.

(3) The court must treat as an indictable offence for the purposes of

section 195 or 196 an offence which is mentioned in Schedule 6 unless it is

clear to the court, having regard to any representations made by the

prosecutor or the defendant, that the value involved does not exceed the

relevant sum.

(4) The functions of the Magistrates’ Court under this Part may be

discharged by a single magistrate.

(5) For the purposes of this Part–

(a) references to an adult include references to a corporation;

(b) an either-way offence is related to a relevant offence if the

charge for the either-way offence could be joined in the same

indictment as the charge for the indictable-only offence;

out of circumstances which are the same as or connected with

those giving rise to the relevant offence.

(6) For the purposes of any law relating to the attendance of witnesses–

(a) the Magistrates’ Court is to be treated as examining

magistrates; and

(b) a person indicated in the notice of sending as a proposed

witness is to be treated as a person who has been examined by

the court.

Relevant offences.

198.(1) The offences to which sections 195 and 196 apply are–

(a) indictable-only offences;

(b) complex financial offences;

(2) A complex financial offence is a financial offence (as defined in

Schedule 4 to the Supreme Court Act) which in the opinion of the Attorney-

Criminal Procedure and Evidence

2011-24

General is of such seriousness and complexity that it is appropriate that the

management of the case should without delay be taken over by the Supreme

Court.

(3) A vulnerable child witness offence is one which involves a child who

is alleged–

(a) to be a person against whom the offence was committed; or

(b) to have witnessed the commission of the offence,

being called as a witness at the trial, and in which, in the opinion of the

Attorney-General, for the purpose of avoiding any prejudice to the welfare

of the child, the case should be taken over and proceeded with without delay

by the Supreme Court.

(4) For a case to be sent as a complex fraud or vulnerable child witness

case, before the Magistrates’ Court begins to inquire into the case as

examining magistrates the Attorney-General must gives the court a notice

(in this Part referred to as a “notice of transfer”) certifying the opinion

mentioned in subsection (2) or (3) as the case may be.

(5) The Attorney-General’s decision to give notice of transfer is not

subject to appeal or liable to be questioned in any court.

Notice of sending and other documents.

199.(1) The Magistrates’ Court must send a notice (a “notice of sending”)

of the offence or offences for which a person is sent for trial under section

195 or 196 to the defendant and to the Supreme Court.

(2) The notice of sending must specify for each offence–

(a) the nature of the charge or charges;

(b) the provision of this Part under which the person is so sent; and

court to be related.

(3) Copies of the documents containing the evidence on which the charge

or charges are based must–

(a) be served on the person who is sent for trial; and

(b) be given to the Supreme Court,

Criminal Procedure and Evidence

2011-24

within 70 days of the date on which the person was sent for trial or, in the

case of a person remanded in custody, 50 days after that date.

(4) The judge may at his discretion extend or further extend the period

specified in subsection (3).

(5) There is no requirement for copies of documents to accompany the

copy of the notice of sending if they are referred to, in documents sent with

the notice of sending, as having already been supplied.

(6) The Chief Justice may by rules of court–

(a) require the documents referred to in subsection (3) to be sent to

other persons specified in the rules;

(b) require additional material to be sent with a notice of sending;

extension or further extension of a period under subsection (4);

and

(d) make such further provision in relation to notices of sending as

he considers appropriate.

Committal or sending for trial: Supplementary

Remand on committal or sending.

200.(1) The court may commit or send a person for trial under this Part in

custody, or on bail granted in accordance with Part 7.

(2) The Magistrates’ Court may adjourn any committal or sending

proceedings, and if it does so must remand the defendant in custody or on

bail.

(3) If–

(a) a person’s release on bail under subsection (1) is conditional on

his providing one or more sureties; and

(b) the court fixes the amount in which a surety is to be bound with

a view to his entering into his recognizance subsequently,

the court must in the meantime make an order for his appearance at the

Supreme Court for trial.

(4) If the conditions specified in subsection (5) are satisfied, a court may

exercise the powers conferred by subsection (3) in relation to a person

Criminal Procedure and Evidence

2011-24

charged without his being brought before it in any case in which it would

have power further to remand him on an adjournment.

(5) The conditions mentioned in subsection (5) are that–

(a) the person has given his written consent to the powers

conferred by subsection (3) being exercised without his being

brought before the court; and

(b) the court is satisfied that, when he gave his consent, he knew

that the notice of committal or sending had been issued under

section 194 or section 199 respectively.

(6) If notice of committal or sending is given after a person to whom it

relates has been remanded on bail to appear before the Magistrates’ Court

on an appointed day, the requirement that he so appear ceases on the giving

of the notice, unless the notice states that it is to continue.

(7) If the requirement that a person to whom the notice of committal or

sending relates should appear before the Magistrates’ Court ceases by virtue

of subsection (6), he must appear before the Supreme Court at the time

specified in the notice.

(8) If the notice states that the requirement mentioned in subsection (6) is

to continue and the person to whom the notice relates appears before the

Magistrates’ Court, the court has–

(a) the powers and duties conferred on it under subsection (3); and

(b) power to enlarge, in the surety’s absence, a recognizance

conditioned so that the surety is bound to ensure that the person

charged appears before the Supreme Court.

Application for dismissal.

201.(1) A person who is committed or sent for trial under this Part on any

charge or charges may, at any time–

(a) after he is served with copies of the documents containing the

evidence on which the charge or charges are based; and

(b) before he is arraigned (and whether or not an indictment has

been preferred against him),

apply orally or in writing to the Supreme Court for the charge, or any of the

charges, in the case to be dismissed.

Criminal Procedure and Evidence

2011-24

(2) On an application under subsection (1) a judge must dismiss a charge

(and accordingly quash a count relating to it in any indictment preferred

against the applicant) if it appears to him that the evidence against the

applicant would not be sufficient for a jury properly to convict him.

(3) No oral application may be made under subsection (1) unless the

applicant has given the Supreme Court written notice of his intention to

make the application.

(4) Oral evidence may be given on such an application only with the leave

of the judge or by his order; and the judge must give leave or make an order

only if it appears to him, having regard to any matters stated in the

application for leave, that the interests of justice require him to do so.

(5) If the judge gives leave permitting, or makes an order requiring, a

person to give oral evidence, but the person does not do so, the judge may

disregard any document indicating the evidence that he might have given.

(6) If the charge, or any of the charges, against the applicant is dismissed

–

(a) no further proceedings may be brought on the dismissed charge

or charges except by means of the preferment of a voluntary

bill of indictment; and

(b) unless the applicant is in custody otherwise than on the

dismissed charge or charges, he must be discharged.

(7) If the notice of sending relates to a vulnerable child witness offence,

no leave or order under subsection (4) may be given or made in relation to

oral evidence from a child who is alleged–

(a) to be a person against whom an offence to which the notice of

sending relates was committed; or

(b) to have witnessed the commission of such an offence.

(8) Rules of court may make provision for the purposes of this section

including, but without limiting the power, provision with regard to–

(a) the time or stage in the proceedings at which anything required

to be done is to be done (unless the court grants leave to do it at

some other time or stage);

(b) the contents and form of notices or other documents;

Criminal Procedure and Evidence

2011-24

(d) the persons to be served with notices or other material.

Taking of depositions

Taking of depositions by a magistrate.

202.(1) Subsection (2) applies if a magistrate is satisfied that–

(a) any person in Gibraltar (“the witness”) is likely to be able to

make on behalf of the prosecutor a written statement

containing material evidence, or produce on behalf of the

prosecutor a document or other exhibit likely to be material

evidence, for the purposes of proceedings for an offence for

which a person has been committed or sent for trial under this

Part by the Magistrates’ Court; and

(b) the witness will not voluntarily make the statement or produce

the document or other exhibit.

(2) In such a case the magistrate must issue a summons directed to the

witness requiring him to attend before a magistrate at the time and place

appointed in the summons, and to have his evidence taken as a deposition or

to produce the document or other exhibit.

(3) If a magistrate is satisfied by evidence on oath–

(a) of the matters mentioned in subsection (1); and

(b) that it is probable that a summons under subsection (2) would

not procure the result required by it,

he may instead of issuing a summons issue a warrant to arrest the witness

and to bring him before a magistrate at the time and place specified in the

warrant.

(4) A summons may also be issued under subsection (2) if the magistrate

is satisfied that the witness is outside Gibraltar, but no warrant may be

issued under subsection (3) unless the magistrate is satisfied by evidence on

oath that the witness is in Gibraltar.

(5) If–

(a) the witness fails to attend before a magistrate in answer to a

summons under this section;

(b) the magistrate is satisfied by evidence on oath that the witness

is likely to be able to make a statement or produce a document

or other exhibit as mentioned in subsection (1)(a);

Criminal Procedure and Evidence

2011-24

the witness has been duly served with the summons and that a

reasonable sum has been paid or tendered to him for costs and

expenses; and

(d) it appears to the magistrate that there is no just excuse for the

failure,

the magistrate may issue a warrant to arrest the witness and to bring him

before a magistrate at the time and place specified in the warrant.

(6) If–

(a) a summons is issued under subsection (2) or a warrant is issued

under subsection (3) or (5); and

(b) the summons or warrant is issued with a view to securing that

the witness has his evidence taken as a deposition,

the time appointed in the summons or specified in the warrant must be such

as to enable the evidence to be taken as a deposition before the date

prescribed in section 199(3).

(7) If any person attending or brought before a magistrate pursuant to this

section refuses without just excuse to have his evidence taken as a

deposition, or to produce the document or other exhibit, the magistrate may

do one or both of the following–

(a) commit him to custody until the expiration of a period, not

exceeding one month, specified in the summons or warrant or

until he sooner has his evidence taken as a deposition or

produces the document or other exhibit;

(b) impose on him a fine not exceeding £2,500.

(8) A fine imposed under subsection (7) is deemed, for the purposes of

any enactment, to be a sum adjudged to be paid on a conviction.

(9) If pursuant to this section a person has his evidence taken as a

deposition, the clerk of the Magistrates’ Court must as soon as is reasonably

practicable send a copy of the deposition to the prosecutor and the Supreme

Court.

(10) If pursuant to this section a person produces an exhibit which is a

document, the clerk of the Magistrates’ Court must as soon as is reasonably

practicable send a copy of the document to the prosecutor and the Supreme

Court.

Criminal Procedure and Evidence

2011-24

(11) If pursuant to this section a person produces an exhibit which is not a

document, the clerk of the Magistrates’ Court must as soon as is reasonably

practicable inform the prosecutor and the Supreme Court of that fact and of

the nature of the exhibit.

Use of depositions as evidence.

203.(1) Subject to subsection (3), subsection (2) applies if, pursuant to

section 202, a person has his evidence taken as a deposition.

(2) If this subsection applies the deposition may without further proof be

read as evidence on the trial of the defendant, whether for an offence for

which he was committed or sent for trial under this Part or for any other

offence arising out of the same transaction or set of circumstances.

(3) Subsection (2) does not apply if–

(a) it is proved that the deposition was not signed by the magistrate

by whom it purports to have been signed;

(b) the court of trial at its discretion orders that subsection (2) is

not to apply; or

(4) If a party to the proceedings objects to subsection (2) applying, the

court of trial may order that the objection has no effect, if the court

considers it to be in the interests of justice so to order.

Reporting restrictions

Reporting restrictions: Allocation, committal and sending proceedings.

204.(1) Except as provided by this section, no person may publish in

Gibraltar a written report, or include in a relevant programme broadcast in

Gibraltar a report, of any allocation proceedings, committal proceedings or

sending proceedings in Gibraltar containing any matter that is not permitted

by subsection (8).

(2) The Magistrates’ Court may, with reference to any allocation,

committal or sending proceedings, on an application for the purpose made

by the prosecutor or any of the defendants, order that subsection (1) does

not apply to reports of those proceedings.

(3) If there is only one defendant and he objects to the making of an order

under subsection (2), the court may make the order only if it is satisfied,

Criminal Procedure and Evidence

2011-24

after hearing the representations of the prosecutor and defendant, that it is in

the interests of justice to do so.

(4) If in the case of 2 or more defendants one of them objects to the

making of an order under subsection (2), the court may make the order only

if it is satisfied, after hearing the representations of the prosecutor and all

the defendants, that it is in the interests of justice to do so.

(5) An order under subsection (2) must not be made in respect of reports

of proceedings under subsection (3) or (4), but any decision of the court to

make or not to make such an order may be contained in reports published or

included in a relevant programme before the time authorised by subsection

(6).

(6) It is not unlawful under this section to publish or include in a relevant

programme a report of allocation, committal or sending proceedings

containing matter other than that permitted by subsection (8)–

(a) if the Magistrates’ Court decides not to commit or send the

defendant, or any of the defendants for trial - after it so

decides;

(b) if the court commits or sends the defendant or any of the

defendants for trial - after the conclusion of the trial or, as the

case may be, the trial of the last defendant to be tried.

(7) If at any time during the inquiry the court proceeds to try summarily

the case of one or more of the defendants under Part 8, while committing

the other defendant or one or more of the other defendants for trial, it is not

unlawful under this section to publish or include in a relevant programme,

as part of a report of the summary trial after the court decides so to proceed,

a report, containing matter that is not permitted by subsection (8), of the part

of the committal proceedings that takes place before the decision.

(8) The following matters may be contained in a report of allocation,

committal or sending proceedings published or included in a relevant

programme without an order under subsection (2) before the time authorised

by subsection (6) or (7)–

(a) the identity of the court and the name of the examining

magistrates;

(b) the name, age, home address and occupation of each of the

defendants;

Criminal Procedure and Evidence

2011-24

(d) in the case of a defendant charged with a complex fraud

offence - any relevant business information;

(e) the offence or offences, or a summary of them, with which the

defendant or defendants is or are charged;

(f) the names of legal representatives engaged in the proceedings;

(g) if the court commits or sends the defendant or any of the

defendants for trial - the charge or charges, or a summary of

them, on which he is committed or sent;

(h) any decision of the court on the disposal of the case of any

defendants not committed or sent;

(i) if the proceedings are adjourned - the date and place to which

they are adjourned;

(j) the arrangements as to bail; and

(k) whether the defendant or any defendant was granted legal aid;

(9) The addresses that may be published or included in a relevant

programme under subsection (8) are addresses–

(a) at any relevant time; and

(b) at the time of their publication or inclusion in a relevant

programme.

(10) The following is relevant business information for the purposes of

subsection (8)(d)–

(a) any address used by the defendant for carrying on a business

on his own account;

(b) the name of any business which he was carrying on on his own

account at any relevant time;

time or by which he was engaged at any such time;

(d) the address of any such firm;

(e) the name of any company of which he was a director at any

relevant time or by which he was otherwise engaged at any

such time;

Criminal Procedure and Evidence

2011-24

(f) the address of the registered or principal office of any such

company;

(g) any working address of the defendant in his capacity as a

person engaged by any such company under a contract of

service or a contract for services.

(11) This section is in addition to, and does not derogate from, the

provisions of any other enactment with respect to the publication of reports

of court proceedings.

(12) In this section–

“allocation, committal or sending proceedings” means, in relation to an information

charging an indictable offence–

(a) any proceedings in the Magistrates’ Court at which matters are

considered under–

(i) sections 140 to 157;

(ii) sections 184 to 193; or

(iii) sections 195 or 196; and

(b) any proceedings in the Magistrates’ Court before the court

proceeds to consider any matter mentioned in paragraph (a);

“commit” and “send” mean to commit or send a person for trial in the Supreme Court in

accordance with this Part.

Reporting restrictions: Application for dismissal.

205.(1) Except as provided by this section, it is not lawful–

(a) to publish in Gibraltar a written report of an application under

section 201; or

(b) to include in a relevant programme for reception in Gibraltar a

report of such an application.

(2) An order that subsection (1) does not apply to reports of an application

under section 201 may be made on application to the judge by the

prosecutor or any defendant.

(3) If there is only one defendant and he objects to the making of an order

under subsection (2), the judge may make the order only if he is satisfied,

after hearing the representations of the prosecutor and defendant, that it is in

the interests of justice to do so.

Criminal Procedure and Evidence

2011-24

(4) If in the case of 2 or more defendants one of them objects to the

making of an order under subsection (2), the judge may make the order only

if he is satisfied, after hearing the representations of the prosecutor and all

defendants, that it is in the interests of justice to do so.

(5) It is not unlawful under this section to publish or include in a relevant

programme–

(a) a report of an application under section 201 containing any

matter other than that permitted by subsection (7) if the

application is successful;

(b) a report of an unsuccessful application at the conclusion of the

trial of the person charged, or of the last of the persons charged

to be tried.

(6) If–

(a) 2 or more persons were jointly charged; and

(b) applications under section 201 are made by more than one of

them,

subsection (5)(a) has effect as if for the words “the application is” there

were substituted the words “all the applications are”.

(7) The following matters may be contained in a report published or

included in a relevant programme without an order under subsection (2)–

(a) the identity of the court and the name of the judge;

(b) the names, ages, home addresses and occupations of the

defendant or defendants and witnesses;

defendant or defendants is or are charged;

(d) the names of legal representatives engaged in the proceedings;

(e) if the proceedings are adjourned - the date and place to which

they are adjourned;

(f) the arrangements as to bail;

(g) whether legal aid was granted to the defendant or any of the

defendants;

Criminal Procedure and Evidence

2011-24

(h) the decision on the application.

Offences in connection with reporting.

206.(1) If a report is published or included in a relevant programme in

contravention of section 204 or 205, each of the following commits an

offence–

(a) in the case of a publication of a written report as part of a

newspaper or periodical - any proprietor, editor or publisher of

the newspaper or periodical;

(b) in the case of a publication of a written report otherwise than as

part of a newspaper or periodical - the person who publishes it;

(i) any corporate body which transmits or provides the

programme in which the report is broadcast; and

(ii) any person having functions in relation to the programme

corresponding to those of the editor of a newspaper or

periodical.

(2) A person who commits an offence under this section is liable on

summary conviction to the statutory maximum fine.

(3) Proceedings for an offence under this section may not be instituted

except by or with the consent of the Attorney-General.

(4) This section is in addition to, and does not derogate from, the

provisions of any other enactment with respect to the publication of reports

of court proceedings.

Miscellaneous procedure provisions

Avoidance of delay.

207.(1) If a notice of committal or sending has been given in relation to any

case, the Supreme Court and the Magistrates’ Court, when exercising

functions in relation to the case, must in exercising those functions, have

regard to the desirability of avoiding prejudice to the welfare of any relevant

child witness that may be occasioned by unnecessary delay in bringing the

case to trial.

(2) In this section “relevant child witness” means a child who will be

called as a witness at the trial and who is alleged–

Criminal Procedure and Evidence

2011-24

(a) to be a person against whom an offence to which the notice of

transfer relates was committed; or

(b) to have witnessed the commission of such an offence.

Power of Supreme Court to deal with summary offence.

208.(1) If the Magistrates’ Court commits or sends a person to the Supreme

Court for trial on indictment for an offence triable either way, or a number

of such offences, it may also commit or send him for trial for any summary

offence with which he is charged and which–

(a) is punishable by imprisonment or involves obligatory or

discretionary disqualification from driving; and

(b) arises out of circumstances which appear to the court to be the

same as or connected with those giving rise to the offence, or

one of the offences, triable either way,

whether or not evidence relating to that summary offence appears on the

depositions or written statements in the case.

(2) If the Magistrates’ Court commits a person to the Supreme Court for

trial on indictment for a number of offences triable either way and exercises

the power conferred by subsection (1) in respect of a summary offence, the

Magistrates’ Court must give the Supreme Court and the person who is

committed or sent for trial a notice stating which of the offences triable

either way appears to the court to arise out of circumstances which are the

same as or connected with those giving rise to the summary offence.

(3) This section applies if the Magistrates’ Court has committed or sent a

person for trial for offences which include a summary offence, whether

under subsection (1) or any other power under this Act.

(4) If subsection (3) applies, the trial of the information charging the

summary offence is to be treated as if the Magistrates’ Court had adjourned

it under section 160 and had not fixed the time and place for its resumption.

(5) If the person is convicted on the indictment, the Supreme Court must

consider whether the summary offence is related to the indictable offence

for which he was sent for trial or, as the case may be, any of the indictable

offences for which he was so sent.

(6) If it considers that the summary offence is so related, the court must

state to the person the substance of the offence and ask him whether he

pleads guilty or not guilty.

Criminal Procedure and Evidence

2011-24

(7) If the person pleads guilty, the Supreme Court must convict him, but

may deal with him in respect of the summary offence only in a manner in

which the Magistrates’ Court could have dealt with him.

(8) If he does not plead guilty, the Supreme Court may try him for the

offence, but may deal with him only in a manner in which the Magistrates’

Court could have dealt with him.

(9) If the prosecution inform the court that they would not desire to submit

evidence on the charge relating to the summary offence, the court must

dismiss it.

(10) If the Court of Appeal allows an appeal against conviction of an

indictable offence which is related to a summary offence of which the

appellant was convicted under this section, the court–

(a) must set aside the conviction of the summary offence; and

(b) may direct that no further proceedings in relation to the offence

are to be undertaken,

and the proceedings before the Supreme Court in relation to the offence

must thereafter be disregarded for all purposes, without affecting the right of

the prosecution to commence fresh proceedings.

(11) The Supreme Court or the Court of Appeal, as the case may be, must

inform the clerk of the Magistrates’ Court of the outcome of any

proceedings under this section, and a notice by the Court of Appeal must

include particulars of any direction given under subsection (1)(b) in relation

to the offence.

(12) An offence is related to another offence for the purposes of this

section if it arises out of circumstances which are the same as or connected

with those giving rise to the other offence.

(13) The committal of a person under this section in respect of a summary

offence does not preclude the exercise in relation to the offence of the power

conferred by section 14 of the Crimes Act 2011 (Alternative verdicts), but if

he is tried on indictment for such an offence, the functions of the Supreme

Court under this section in relation to the offence cease.

(14) If the summary offence is one to which section 175(3) of the Crimes

Act 2011 applies (common assault), the Supreme Court may exercise in

relation to the offence the power conferred by that section; but if the person

is tried on indictment for such an offence, the functions of the Supreme

Court under this section in relation to the offence cease.

Procedure if no main offence remains.

Criminal Procedure and Evidence

2011-24

209.(1) Subject to section 210, this section applies if–

(a) a person has been committed or sent for trial under this Part but

has not been arraigned; and

(b) he is charged on an indictment which (following amendment of

the indictment, or as a result of an application under section

201, or for any other reason) includes no main offence.

(2) Everything that the Supreme Court is required to do under the

following provisions of this section must be done with the defendant present

in court.

(3) The court must cause to be read to the defendant each remaining count

of the indictment that charges an offence triable either way.

(4) The court must then explain to the defendant in ordinary language that,

in relation to each of those offences, he may indicate whether (if it were to

proceed to trial) he would plead guilty or not guilty, and that if he indicates

that he would plead guilty the court must proceed as mentioned in

subsection (6).

(5) The court must then ask the defendant whether (if the offence in

question were to proceed to trial) he would plead guilty or not guilty.

(6) If the defendant indicates that he would plead guilty the court must

proceed as if he had been arraigned on the count in question and had

pleaded guilty.

(7) If the defendant indicates that he would plead not guilty, or fails to

indicate how he would plead, the court must decide whether the offence is

more suitable for summary trial or for trial on indictment.

(8) Subject to subsection (6), the following do not for any purpose

constitute the taking of a plea–

(a) asking the defendant under this section whether (if the offence

were to proceed to trial) he would plead guilty or not guilty;

(b) an indication by the defendant under this section of how he

would plead.

(9) In this section, “main offence” means an offence for which the person

has been committed or sent to the Supreme Court for trial under this Part.

Procedure in case of disorderly conduct.

Criminal Procedure and Evidence

2011-24

210.(1) Subject to section 211, this section applies if–

(a) a person has been committed or sent for trial under this Part but

has not been arraigned;

(b) he is charged on an indictment which (following amendment of

the indictment, or as a result of an application under section

201, or for any other reason) includes no main offence, as

defined in section 209(9);

(d) the Supreme Court considers that by reason of his disorderly

conduct before the court it is not practicable for proceedings

under section 209 to be conducted in his presence; and

(e) the court considers that it should proceed in his absence.

(2) In such a case–

(a) the court must cause to be read to the defendant’s legal

representative each remaining count of the indictment that

charges an offence triable either way;

(b) the court must ask the defendant’s legal representative whether

(if the offence in question were to proceed to trial) the

defendant would plead guilty or not guilty;

plead guilty the court must proceed as if the defendant had

been arraigned on the count in question and had pleaded guilty;

(d) if the legal representative indicates that the defendant would

plead not guilty, or fails to indicate how the defendant would

plead, the court must decide whether the offence is more

suitable for summary trial or for trial on indictment.

(3) Subject to subsection (2)(c), the following do not for any purpose

constitute the taking of a plea–

(a) asking a legal representative under this section whether (if the

offence were to proceed to trial) the defendant would plead

guilty or not guilty;

(b) an indication by a legal representative under this section of

how the defendant would plead.

Criminal Procedure and Evidence

2011-24

Decision on whether summary trial or trial on indictment more

suitable.

211.(1) This section applies if the Supreme Court is required by section

209(7) or 210(2)(d) to decide the question whether an offence is more

suitable for summary trial or for trial on indictment.

(2) Before deciding the question, the court must–

(a) give the prosecution an opportunity to inform the court of the

defendant’s previous convictions (if any); and

(b) give the prosecution and the defendant an opportunity to make

representations as to whether summary trial or trial on

indictment would be more suitable.

(3) In deciding the question, the court must consider–

(a) whether the sentence which the Magistrates’ Court would have

power to impose for the offence would be adequate; and

(b) any representations made by the prosecution or the defendant

under subsection (2)(b).

(4) If–

(a) the defendant is charged on the same occasion with 2 or more

offences; and

(b) it appears to the court that they constitute or form part of a

series of 2 or more offences of the same or a similar character,

subsection (3)(a) has effect as if references to the sentence which the

Magistrates’ Court would have power to impose for the offence were a

reference to the maximum aggregate sentence which that court would have

power to impose for all of the offences taken together.

(5) In this section any reference to a previous conviction is a reference

to–

(a) a previous conviction by a court in Gibraltar; or

(b) a previous conviction outside Gibraltar by a court in a Member

State of the European Union of a relevant offence under the

law of that State.

(6) For the purposes of subsection (5)(b) an offence is “relevant” if the

offence would constitute an offence under the law of Gibraltar if it were

Criminal Procedure and Evidence

2011-24

done at the time when the decision required by section 209(7) or 210(2)(d)

is made.

Procedure if case more suitable for summary trial.

212.(1) This section applies (unless excluded by section 214) if the

Supreme Court considers that an offence is more suitable for summary trial.

(2) The court must explain to the defendant in ordinary language that–

(a) it appears to the court more suitable for him to be tried

summarily for the offence; and

(b) he can either consent to be so tried or, if he wishes, be tried on

indictment.

(3) After explaining to the defendant as provided by subsection (2) the

court must ask him whether he wishes to be tried summarily or on

indictment, and–

(a) if he indicates that he wishes to be tried summarily - must

remit him for trial to the Magistrates’ Court;

(b) if he does not give such an indication - must retain its functions

in relation to the offence and proceed accordingly.

Procedure if case more suitable for trial on indictment.

213. If the Supreme Court considers that an offence is more suitable for

trial on indictment, the court must–

(a) tell the defendant that it has decided that it is more suitable for

him to be tried for the offence on indictment; and

(b) retain its functions in relation to the offence and proceed

accordingly.

Procedure in case of a juvenile.

214.(1) This section applies, in place of sections 208 to 212, in the case of a

juvenile who–

(a) has been sent for trial under section 196 but has not been

arraigned; and

(b) is charged on an indictment which (following amendment of

the indictment, or as a result of an application under section

201, or for any other reason) includes no main offence.

Criminal Procedure and Evidence

2011-24

(2) The Supreme Court must remit the juvenile for trial to the Magistrates’

Court.

(3) In this section “main offence” means an offence for which the juvenile

has been sent to the Supreme Court for trial under section 196(1).

Procedure for deciding whether offences of criminal damage, etc. are

summary offences.

215.(1) This section applies if the Supreme Court has to decide, for the

purposes of this Part, whether an offence which is listed in Schedule 6

(offences for which the value involved is relevant to the mode of trial) is a

summary offence.

(2) The court must have regard to any representations made by the

prosecutor or the defendant.

(3) If it appears to the court that the value involved does not exceed the

relevant sum, it must treat the offence as a summary offence.

(4) If it appears to the court that the value involved exceeds the relevant

sum, it must treat the offence as an indictable offence.

(5) If it is not clear to the court whether the value involved does or does

not exceed the relevant sum, the court must ask the defendant whether he

wishes the offence to be treated as a summary offence and–

(a) if the defendant indicates that he wishes the offence to be

treated as a summary offence - the court must so treat it;

(b) if the defendant does not give such an indication - the court

must treat the offence as an indictable offence.

Power of Supreme Court to proceed in defendant’s absence.

216.(1) Subject to this section, the Supreme Court may, on the application

of the Attorney-General, proceed in the absence of the defendant in

accordance with applicable provisions of sections 211 to 215 if–

(a) the defendant is represented by a legal representative who

signifies to the court the defendant’s consent to the proceedings

in question being conducted in his absence; and

(b) the court is satisfied that there is good reason for proceeding in

the absence of the defendant.

Criminal Procedure and Evidence

2011-24

(2) If, pursuant to section 209(7) or 210(2)(d), the court decides that an

offence is more suitable for summary trial, section 213 does not apply and–

(a) if the defendant’s legal representative indicates that the

defendant wishes to be tried summarily, the court must remit

the defendant for trial to the Magistrates’ Court;

(b) if the legal representative does not give such an indication, the

court must retain its functions and proceed accordingly.

(3) If, pursuant to section 209(7) or 210(2)(d), the court decides that an

offence is more suitable for trial on indictment, section 213 applies with the

omission of paragraph (a).

(4) If section 215 applies and it is not clear to the court whether the value

involved does or does not exceed the relevant sum, subsections (5) and (6)

of that section do not apply and–

(a) the court must ask the defendant’s legal representative whether

the defendant wishes the offence to be treated as a summary

offence;

(b) if the legal representative indicates that the defendant wishes

the offence to be treated as a summary offence, the court must

so treat it;

court must treat the offence as an indictable offence.

PART 10 – COMMITTAL FOR SENTENCE

Committal for sentence on conviction of serious offence triable either

way.

217.(1) Subject to subsection (4) this section applies if–

(a) an adult appears or is brought before the Magistrates’ Court on

an information charging him with an offence triable either way;

and

(b) the court convicts him of the offence.

(2) This section does not apply in respect of an offence in relation to

which section 148 (Certain offences to be tried summarily if value involved

is small) applies.

(3) If the court is of the opinion that–

Criminal Procedure and Evidence

2011-24

(a) the offence; or

(b) the combination of the offence and one or more offences

associated with it,

is so serious that the Supreme Court should, in the court’s opinion, have the

power to deal with the offender in any way it could deal with him if he had

been convicted on indictment, the court may commit him in custody or on

bail to the Supreme Court for sentence in accordance with section 219(1).

(4) If the court commits a person under subsection (3), section 220 (which

enables the Magistrates’ Court, if it commits a person under this section in

respect of an offence, also to commit him to the Supreme Court to be dealt

with in respect of certain other offences) applies.

(5) This Part applies in relation to a corporation as if–

(a) the corporation were an individual aged 18 or over; and

(b) the words “in custody or on bail” were omitted wherever they

appear.

Committal for sentence on indication of guilty plea to offence triable

either way.

218.(1) Subject to subsection (2), this section applies if–

(a) an adult appears or is brought before the Magistrates’ Court on

an information charging him with an offence triable either way;

(b) he or his legal representative indicates under section 140 or

141 that he would plead guilty if the offence were to proceed to

trial; and

pleaded guilty under it, the court convicts him of the offence.

(2) This section does not apply to an offence in relation to which this

section is excluded by section 148 (Certain offences to be tried summarily if

value involved is small).

(3) If the court has committed the offender to the Supreme Court for trial

for one or more related offences, that is to say, one or more offences which,

in its opinion, are related to the offence, it may commit him in custody or on

bail to the Supreme Court to be dealt with in respect of the offence in

accordance with section 219(1).

Criminal Procedure and Evidence

2011-24

(4) If the power conferred by subsection (3) is not exercisable but the

court is still to inquire, as examining magistrates, into one or more related

offences–

(a) it must adjourn the proceedings relating to the offence until

after the conclusion of its inquiries; and

(b) if it commits the offender to the Supreme Court for trial for one

or more related offences, it may then exercise that power.

(5) If the power conferred by subsection (3) is not exercisable but the

court is still to decide to, or to decide whether to, send the offender to the

Supreme Court for trial under section 195 or 196 for one or more related

offences–

(a) it must adjourn the proceedings relating to the offence until

after it has made that decision; and

(b) if it sends the offender to the Supreme Court for trial for one or

more related offences, it may then exercise that power.

(6) If the court–

(a) under subsection (3) commits the offender to the Supreme

Court to be dealt with in respect of the offence; and

(b) does not state that, in its opinion, it also has power so to

commit him under section 217(2),

section 220(1) does not apply unless he is convicted before the Supreme

Court of one or more of the related offences.

(7) If section 220(1) does not apply, the Supreme Court may deal with the

offender in respect of the offence in any way in which the Magistrates’

Court could deal with him if it had just convicted him of the offence.

(8) If the court commits a person under subsection (2), section 221, which

enables the Magistrates’ Court, if it commits a person under this section in

respect of an offence, also to commit him to the Supreme Court to be dealt

with in respect of certain other offences, applies.

(9) For the purposes of this section, one offence is related to another if,

were they both to be prosecuted on indictment, the charges for them could

be joined in the same indictment.

(10) In reaching any decision under or taking any step contemplated by

this section–

Criminal Procedure and Evidence

2011-24

(a) neither the Magistrates’ Court nor the Supreme Court is bound

by any indication of sentence given in respect of the offence

under section 145 (Procedure if summary trial appears more

suitable); and

(b) nothing the court does under this section may be challenged or

be the subject of any appeal in any court on the ground that it is

not consistent with an indication of sentence.

Power of Supreme Court on committal for sentence under section 217

or 218.

219.(1) If an offender is committed by the Magistrates’ Court for sentence

under section 217 or 218, the Supreme Court must inquire into the

circumstances of the case and may deal with the offender in any way in

which it could deal with him if he had just been convicted of the offence on

indictment before the court.

(2) In relation to committals under section 218, subsection (1) of this

section has effect subject to section 218(5) and (6).

Committal for sentence if offender committed in respect of another

offence.

220.(1) This section applies if the Magistrates’ Court commits a person in

custody or on bail to the Supreme Court to be sentenced or otherwise dealt

with in respect of an offence.

(2) If this section applies and the relevant offence is an indictable offence,

the Magistrates’ Court may also commit the offender, in custody or on bail

as the case may require, to the Supreme Court to be dealt with in respect of

any other offence in respect of which the Magistrates’ Court has power to

deal with him (being an offence of which he has been convicted by that

court).

(3) If this section applies and the relevant offence is a summary offence,

the Magistrates’ Court may commit the offender, in custody or on bail, to

the Supreme Court to be dealt with in respect of–

(a) any other offence of which the court has convicted him, being

an offence punishable with imprisonment;

(b) any suspended sentence in respect of which the Magistrates’

Court has power to deal with him.

Power of Supreme Court on committal for sentence under section 220.

Criminal Procedure and Evidence

2011-24

221.(1) If under section 220 the Magistrates’ Court commits a person to be

dealt with by the Supreme Court in respect of an offence, the Supreme

Court may, after inquiring into the circumstances of the case, deal with him

in any way in which the Magistrates’ Court could deal with him if it had just

convicted him of the offence.

(2) Subsection (1) does not apply if under section 220 the Magistrates’

Court commits a person to be dealt with by the Supreme Court in respect of

a suspended sentence, but in such a case the powers under section 509

(Power of court on conviction for further offence) are exercisable by the

Supreme Court.

(3) Without affecting subsections (1) and (2), if under section 220 the

Magistrates’ Court commits a person to be dealt with by the Supreme Court,

any duty or power which, apart from this subsection, would fall to be

discharged or exercised by the Magistrates’ Court must not be discharged or

exercised by that court but must instead be discharged or may instead be

exercised by the Supreme Court.

(4) If under section 220 the Magistrates’ Court commits a person to be

dealt with by the Supreme Court in respect of an offence triable only on

indictment, the Supreme Court’s powers under subsection (1) in respect of

the offender are powers to do either or both of the following–

(a) to impose a fine not exceeding £5,000;

(b) to deal with the offender in respect of the offence in any way in

which the Magistrates’ Court could deal with him if it had just

convicted him of an offence punishable with imprisonment for

a term not exceeding 6 months.

Supplementary provisions.

222.(1) If a person is committed to the Supreme Court for sentence

pursuant to section 217, 218 or 220, the Registrar must give notice to the

prosecutor and the Superintendent of the date on which the case will be

dealt with.

(2) Part I of the Legal Aid and Assistance Act applies if an offender is

committed to the Supreme Court for sentence, as if the offender were

committed for trial for an indictable offence, subject to the modifications

that–

(a) in section 3(2)(b) the words “after reading the depositions” are

omitted; and

(b) in section 9, paragraph (a) is omitted and paragraph (b)

amended by inserting immediately after the word “sentence”

Criminal Procedure and Evidence

2011-24

the words “or any order committing him for sentence to the

Supreme Court”.

PART 11 – CONTROL OF PROSECUTIONS

Control of prosecutions generally

Power of Attorney-General to enter nolle prosequi.

223.(1) In any criminal case, at any stage before the verdict or judgment, as

the case may be, the Attorney-General may enter a nolle prosequi, either by

stating in court or by informing the court in writing that the Crown intends

that the proceedings are not to continue.

(2) If the Attorney-General enters a nolle prosequi –

(a) the defendant must be at once discharged in respect of the

charge for which the nolle prosequi is entered;

(b) if the defendant has been committed to prison he must be

released, or if on bail, his recognizances must be discharged;

subsequent proceedings against him on account of the same

facts.

(3) If the defendant is not before the court when a nolle prosequi is

entered, the registrar or clerk of the court must forthwith cause notice in

writing of the entry of the nolle prosequi to be given–

(a) if the defendant is in prison - to the Superintendent;

(b) if the defendant has been committed for trial - to the Supreme

Court;

(4) Upon the entry of a nolle prosequi the court must forthwith cause a

notice of it to be given in writing to any witnesses bound over to prosecute

and give evidence and to their sureties, if any, and also to the defendant and

his sureties if he has been admitted to bail.

(5) Any document purporting to be the fiat, order, sanction, consent or

nolle prosequi of the Attorney-General and to be signed by the Attorney-

General is admissible as prima facie evidence without further proof.

Power to appoint prosecuting counsel.

Criminal Procedure and Evidence

2011-24

224.(1) The Attorney-General may appoint any counsel to be a prosecuting

counsel for the purposes of any case.

(2) A prosecuting counsel may appear and plead without any written

authority before any court in which any case of which he has charge is

under inquiry, trial or appeal.

(3) If any private person instructs counsel to prosecute in any case in any

court, a prosecuting counsel may conduct the prosecution and the counsel so

instructed must act therein under the prosecuting counsel’s directions.

Conduct of prosecutions in the Magistrates’ Court.

225. In any trial or inquiry in the Magistrates’ Court−

(a) if the proceedings have been instituted by a police officer, any

police officer may appear and conduct the prosecution, and

(b) if the proceedings have been instituted by a customs officer,

any customs officer may appear and conduct the prosecution,

whether or not he is the officer who laid the information.

Prosecutors subject to directions of Attorney-General.

226. Every prosecuting counsel and every police or customs officer

conducting a prosecution pursuant to section 225 is subject to the directions

of the Attorney-General.

Consents to prosecutions.

227.(1) A requirement for the consent of any person to a prosecution–

(a) does not prevent the arrest without warrant, or the issue or

execution of a warrant for the arrest, of a person for any

offence, or the remand in custody or on bail of a person

charged with any offence; and

(b) is subject to any enactment concerning the apprehension of

children or young persons.

(2) Any document purporting to be the consent of the Attorney-General

to–

(a) the institution of any criminal proceedings; or

(b) the institution of criminal proceedings in any particular form,

Criminal Procedure and Evidence

2011-24

and to be signed by the Attorney-General is admissible as prima facie

evidence without further proof.

Time limits in relation to preliminary stages of criminal proceedings.

228.(1) The Chief Justice may by rules make provision, with respect to any

specified preliminary stage of proceedings for an offence, as to the

maximum period–

(a) to be allowed to the prosecution to complete that stage (an

‘overall time limit’);

(b) during which the defendant may, while awaiting completion of

that stage, be–

(i) in the custody of the Magistrates’ Court; or

(ii) in the custody of the Supreme Court,

in relation to that offence (a “custody time limit”.)

(2) The rules may, in particular–

(a) be made so as to apply only in relation to proceedings of, or

against persons of, specified classes or descriptions;

(b) make different provision with respect to proceedings of, or

against persons of, different classes or descriptions;

followed in criminal proceedings as the Chief Justice considers

appropriate in consequence of any other provision of the rules;

(d) provide for Part 5 (Police detention) or Part 7 (Bail in Criminal

proceedings) to apply in relation to cases to which custody or

overall time limits apply (subject to specified modifications

which the Chief Justice considers necessary in consequence of

any provision made by the rules); and

(e) make transitional provisions in relation to proceedings

instituted before the commencement of any provision of the

rules.

(3) The court may, at any time before the expiry of a time limit imposed

by the rules, extend, or further extend, that limit if it is satisfied that–

(a) the need for the extension is due to–

Criminal Procedure and Evidence

2011-24

(i) the illness or absence of the defendant, a necessary

witness, a judge or a magistrate;

(ii) a postponement which is occasioned by the court

ordering separate trials in the case of 2 or more

defendants or 2 or more offences; or

(iii) some other good and sufficient cause; and

(b) the prosecution has acted with all due diligence and expedition.

(4) If, in relation to any proceedings for an offence, an overall time limit

has expired before the completion of the stage of the proceedings to which

the limit applies, the court must stay the proceedings.

(5) If–

(a) a person escapes from the custody of a court before the expiry

of a custody time limit which applies in his case; or

(b) a person who has been released on bail in consequence of the

expiry of a custody time limit–

(i) fails to surrender himself into the custody of the court at

the appointed time; or

(ii) is arrested by a police officer on a ground mentioned in

section 126(3) (Liability to arrest for absconding or

breaking conditions of bail),

the rules are, so far as they provide for any custody time limit in relation to

the preliminary stage in question, to be disregarded.

(6) Subsection (7) applies if–

(a) a person escapes from the custody of a court; or

(b) a person who has been released on bail fails to surrender

himself into the custody of the court at the appointed time;

and is accordingly unlawfully at large for any period.

(7) The following periods–

(a) the period for which the person is unlawfully at large; and

(b) such additional period (if any) as the court may direct, having

regard to the disruption of the prosecution occasioned by–

Criminal Procedure and Evidence

2011-24

(i) the person’s escape or failure to surrender; and

(ii) the length of the period mentioned in paragraph (a),

are to be disregarded, so far as the offence in question is concerned, for the

purposes of the overall time limit which applies in his case in relation to the

stage which the proceedings have reached at the time of the escape or, as the

case may be, at the appointed time.

(8) Any period during which proceedings for an offence are adjourned

pending the determination of an appeal under this Act is to be disregarded,

so far as the offence is concerned, for the purposes of the overall time limit

and the custody time limit which applies to the stage which the proceedings

have reached when they are adjourned.

(9) If the Magistrates’ Court decides to extend, or further extend, a

custody or overall time limit, or to give a direction under subsection (7)(b),

the defendant may appeal against the decision to the Supreme Court.

(10) If the Magistrates’ Court refuses to extend, or further extend, a

custody or overall time limit, or to give a direction under subsection (7)(b),

the prosecution may appeal against the refusal to the Supreme Court.

(11) An appeal under subsection (9) or (10) may not be commenced after

the expiry of the limit in question; but if the appeal is commenced before the

expiry of the limit the limit is deemed not to have expired before the

determination or abandonment of the appeal.

(12) If a person is convicted of an offence in any proceedings, the

exercise, in relation to any preliminary stage of those proceedings, of the

power conferred by subsection (3) may not be called into question in any

appeal against that conviction.

(13) In this section, “preliminary stage”, in relation to any proceedings,

does not include any stage after the start of the trial, as defined by

subsection (14);

(14) For the purposes of this section–

(a) proceedings for an offence begin when the defendant is

charged with the offence or, as the case may be, an information

is laid charging him with the offence;

(b) the start of a trial on indictment occurs at the time when a jury

is sworn to consider the issue of guilt or fitness to plead or, if

the court accepts a plea of guilty before the time when a jury is

sworn, when that plea is accepted;

Criminal Procedure and Evidence

2011-24

(i) when the court begins to hear evidence for the

prosecution at the trial or to consider whether to exercise

its power to make a hospital order without convicting the

defendant; or

(ii) if the court accepts a plea of guilty without proceeding as

mentioned above - when that plea is accepted.

(15) For the purposes of the application of any custody time limit in

relation to a person who is in the custody of a court–

(a) all periods during which he is in the custody of the

Magistrates’ Court in respect of the same offence are to be

aggregated and treated as a single continuous period; and

(b) all periods during which he is in the custody of the Supreme

Court in respect of the same offence are to be aggregated and

treated similarly.

Additional time limits for persons under 18.

229.(1) The Chief Justice may by rules make provision–

(a) with respect to a person under the age of 18 at the time of his

arrest in connection with an offence - as to the maximum

period to be allowed for the completion of the stage beginning

with his arrest and ending with the date fixed for his first

appearance in court in connection with the offence (“the initial

stage”);

(b) with respect to a person convicted of an offence who was under

that age at the time of his arrest for the offence or (where he

was not arrested for it) the laying of the information charging

him with it - as to the period within which the stage between

his conviction and his being sentenced for the offence should

be completed.

(2) Subsection (2) of section 228 applies for the purposes of rules under

subsection (1) of this section as if–

(a) the reference in paragraph (d) to custody or overall time limits

were a reference to time limits imposed by the rules; and

Criminal Procedure and Evidence

2011-24

(b) the reference in paragraph (e) to proceedings instituted before

the commencement of any provisions of the rules were a

reference to a stage begun before that commencement.

(3) The Magistrates’ Court may, at any time before the expiry of the time

limit imposed by the rules under subsection (1)(a) (“the initial stage time

limit”), extend, or further extend, that limit; but must not do so unless

satisfied–

(a) that the need for the extension is due to some good and

sufficient cause; and

(b) that the investigation has been conducted, and (where

applicable) the prosecution has acted, with all due diligence

and expedition.

(4) If the initial stage time limit (whether as originally imposed or as

extended or further extended under subsection (3)) expires before the person

arrested is charged with the offence, he must not be charged with it unless

further evidence relating to it is obtained, and–

(a) if he is then under arrest - he must be released;

(b) if he is then on bail under Part 5 - his bail (and any duty or

conditions to which it is subject) must be discharged.

(5) If the initial stage time limit (whether as originally imposed or as

extended or further extended under subsection (3)) expires after the person

arrested is charged with the offence but before the date fixed for his first

appearance in court in connection with it, the court must stay the

proceedings.

(6) If–

(a) a person escapes from arrest; or

(b) a person who has been released on bail under Part 5 fails to

surrender himself at the appointed time,

and is accordingly unlawfully at large for any period, that period is to be

disregarded, so far as the offence in question is concerned, for the purposes

of the initial stage time limit.

(7) Subsections (7) to (9) of section 228 apply for the purposes of this

section, at any time after the person arrested has been charged with the

offence in question, as if any reference (however expressed) to a custody or

overall time limit were a reference to the initial stage time limit.

Criminal Procedure and Evidence

2011-24

(8) If a person is convicted of an offence in any proceedings, the exercise

of the power conferred by subsection (3) is not to be called into question in

any appeal against that conviction.

(9) Any reference in this section (however expressed) to a person being

charged with an offence includes a reference to the laying of an information

charging him with it.

Re-institution of proceedings stayed under section 228 or 229.

230.(1) If proceedings for an offence (“the original proceedings”) are

stayed by a court under section 228(4) or 229(5) and the Attorney-General

so directs, fresh proceedings for the offence may be instituted within a

period of 3 months (or such longer period as the court allows) after the date

on which the original proceedings were stayed by the court.

(2) Fresh proceedings are instituted–

(a) if the original proceedings were stayed by the Supreme Court -

by preferring a bill of indictment;

(b) if the original proceedings were stayed by the Magistrates’

Court - by laying an information (regardless of any limit of

time provided in any other enactment.)

(3) If fresh proceedings are instituted, anything done in relation to the

original proceedings is to be treated as done in relation to the fresh

proceedings if the court so directs or it was done by the prosecutor or the

defendant in compliance or purported compliance with this Act.

(4) If a person is convicted of an offence in fresh proceedings under this

section, the institution of those proceedings may not be called into question

in any appeal against that conviction.

Discontinuance of proceedings in the Magistrates’ Court.

231.(1) If the Attorney-General has the conduct of proceedings for an

offence, this section applies in relation to the preliminary stages of those

proceedings.

(2) In this section, “preliminary stage” in relation to proceedings for an

offence does not include any stage of the proceedings–

(a) after the court has begun to hear evidence for the prosecution at

a summary trial of the offence; or

(b) after the defendant has been sent for trial for the offence.

Criminal Procedure and Evidence

2011-24

(3) If, at any time during the preliminary stages of the proceedings, the

Attorney-General gives notice under this section to the court that he does

not wish the proceedings to continue, they must be discontinued with effect

from the giving of that notice but may be revived by notice given by the

defendant under subsection (7).

(4) If, in the case of a person charged with an offence after being taken

into custody without a warrant, the Attorney-General gives him notice,

before the Magistrates’ Court has been informed of the charge, that the

proceedings against him are discontinued, they must be discontinued with

effect from the giving of that notice.

(5) The Attorney-General must, in any notice given under subsection (3),

give reasons for not wishing the proceedings to continue.

(6) On giving notice under subsection (3) the Attorney-General–

(a) must inform the defendant of the notice and of the defendant’s

right to require the proceedings to be continued; but

(b) need not give the defendant any indication of his reasons for

not wishing the proceedings to continue.

(7) If the Attorney-General has given notice under subsection (3), the

defendant must, if he wishes the proceedings to continue, give notice to that

effect to the court within 21 days; and if notice is so given the proceedings

must continue as if no notice had been given by the Attorney-General under

subsection (3).

(8) The defendant must inform the Attorney-General if he has notified the

court under subsection (7).

(9) The discontinuance of any proceedings by virtue of this section does

not prevent the institution of fresh proceedings in respect of the same

offence.

Discontinuance of proceedings after defendant has been sent for trial.

232.(1) This section applies if–

(a) the Attorney-General has the conduct of proceedings for an

offence; and

(b) the defendant has been committed or sent for trial for the

offence.

(2) If, at any time before the indictment is preferred, the Attorney-General

gives notice under this section to the Supreme Court that he does not wish

Criminal Procedure and Evidence

2011-24

the proceedings to continue, they must be discontinued with effect from the

giving of that notice.

(3) The Attorney-General must, in any notice given under subsection (2),

give reasons for not wishing the proceedings to continue.

(4) On giving notice under subsection (2) the Attorney-General–

(a) must inform the defendant of the notice; but

(b) need not give the defendant any indication of his reasons for

not wishing the proceedings to continue.

(5) The discontinuance of any proceedings by virtue of this section does

not prevent the institution of fresh proceedings in respect of the same

offence.

References to the Court of Appeal

Scope of review.

233.(1) A case to which this section applies may be referred to the Court of

Appeal under section 234.

(2) This section applies to any case in which sentence is passed on a

person by the Supreme Court for an indictable offence (not being a sentence

substituted on an appeal.)

Reviews of sentencing: Principles.

234.(1) If it appears to the Attorney-General–

(a) that the sentencing of a person in a proceeding in the Supreme

Court has been unduly lenient; and

(b) that the case is one to which section 233 applies,

he may, with the leave of the Court of Appeal, refer the case to that court for

it to review the sentencing of that person.

(2) On a reference under subsection (1), the Court of Appeal may–

(a) quash any sentence passed on the person in the proceeding; and

(b) in place of it pass a sentence that the court thinks appropriate

for the case and that the court below had power to pass when

dealing with the person.

Criminal Procedure and Evidence

2011-24

(3) Without limiting subsection (1), the condition specified in paragraph

(a) of that subsection may be satisfied if it appears to the Attorney-General

that the judge who passed sentence–

(a) failed to impose a sentence required by any enactment; or

(b) erred in law as to his powers of sentencing.

(4) For the purposes of this Part, any 2 or more sentences are to be treated

as passed in the same proceeding if they would be so treated for the

purposes of an appeal by the defendant.

(5) A judge must not sit as a member of the Court of Appeal on the

hearing of, or decide any application in proceedings incidental or

preliminary to, a reference under this section of a sentence passed by that

judge.

(6) When the Court of Appeal has concluded the review of a case referred

to it under this section, the Attorney-General or the person to whose

sentencing the reference relates may refer a point of law involved in any

sentence passed on that person in the proceeding to Her Majesty in Council

for Her Majesty’s opinion, and Her Majesty in Council must–

(a) consider the point and give Her Majesty’s opinion on it

accordingly; and

(b) either remit the case to the Court of Appeal to be dealt with or

deal with it Herself.

(7) A reference under subsection (6) can be made only with the leave of

the Court of Appeal or Her Majesty in Council and leave is not to be

granted unless it is certified by the Court of Appeal that the point of law is

of general public importance and it appears to the Court of Appeal or Her

Majesty in Council (as the case may be) that the point is one which ought to

be considered by Her Majesty in Council.

(8) For the purpose of dealing with a case under this section Her Majesty

in Council may exercise any powers of the Court of Appeal.

Reviews of sentencing: Procedure.

235.(1) Notice of an application for leave to refer a case to the Court of

Appeal under section 234 must be given within 28 days from the day on

which the sentence, or the last of the sentences, in the case was passed.

(2) If the Registrar is given notice of a reference or application to the

Court of Appeal under section 234 he must–

Criminal Procedure and Evidence

2011-24

(a) take all necessary steps for obtaining a hearing of the reference

or application; and

(b) obtain and lay before the court in proper form all documents,

exhibits and other things which appear necessary for the proper

determination of the reference or application.

(3) Rules of court may–

(a) enable a person to whose sentencing such a reference or

application relates to obtain from the Registrar any documents

or things, including copies or reproductions of documents,

required for the reference or application; and

(b) authorise the Registrar to make charges for them in accordance

with scales and rates fixed by the rules.

(4) An application–

(a) to the Court of Appeal for leave to refer a case to Her Majesty

in Council under section 234(6) - must be made within 14 days

after the Court of Appeal concludes its review of the case;

(b) to Her Majesty in Council for leave - must be made within 14

days after the Court of Appeal concludes its review or refuses

leave to refer the case to Her Majesty in Council.

(5) The time during which a person whose case has been referred for

review under section 234 is in custody pending its review and pending any

reference to Her Majesty in Council under subsection (6) of that section is

to be reckoned as part of the term of any sentence to which he is for the time

being subject.

(6) Subject to subsections (7) and (8), a person whose sentencing is the

subject of a reference to the Court of Appeal under section 234 is entitled to

be present, if he wishes, on the hearing of the reference, although he may be

in custody.

(7) A person in custody is not entitled to be present–

(a) on an application by the Attorney-General for leave to refer a

case; or

(b) on any proceedings preliminary or incidental to a reference,

unless the Court of Appeal gives him leave to be present.

Criminal Procedure and Evidence

2011-24

(8) The power of the Court of Appeal to pass sentence on a person may be

exercised although he is not present.

(9) A person whose sentencing is the subject of a reference to Her Majesty

in Council under section 234(6) and who is detained pending the hearing of

that reference is not entitled to be present on the hearing of the reference or

of any proceeding preliminary or incidental to it unless Her Majesty in

Council so authorises.

(10) The term of any sentence passed by the Court of Appeal or Her

Majesty in Council under section 234 begins to run from the time when it

would have begun to run if passed in the proceeding in relation to which the

reference was made, unless the Court of Appeal or Her Majesty in Council

otherwise directs.

Reference to Court of Appeal of point of law following acquittal on

indictment.

236.(1) If a person tried on indictment has been acquitted (whether in

respect of the whole or part of the indictment) the Attorney-General may, if

he desires the opinion of the Court of Appeal on a point of law which has

arisen in the case, refer that point to the court, and the court must, in

accordance with this section, consider the point and give its opinion on it.

(2) For the purpose of its consideration of a point referred to it under this

section the Court of Appeal must hear argument–

(a) by, or by counsel on behalf of, the Attorney-General; and

(b) if the acquitted person desires to present any argument to the

court - by counsel on his behalf or, with the leave of the court,

by the acquitted person himself.

(3) If the Court of Appeal has given its opinion on a point referred to it

under this section, the court may, on its own initiative or pursuant to an

application in that behalf, refer the point to Her Majesty in Council if it

appears to the court that the point ought to be considered by Her Majesty.

(4) If a point is referred to Her Majesty in Council under subsection (3),

Her Majesty in Council must consider the point and give Her Majesty’s

opinion on it accordingly.

(5) A reference under this section does not affect the trial in relation to

which the reference is made, or any acquittal in that trial.

(6) The court must ensure that the identity of the respondent to a reference

is not disclosed during the proceedings on the reference unless the

respondent has consented to the use of his name in the proceedings.

Criminal Procedure and Evidence

2011-24

(7) No mention must be made in the reference of the proper name of any

person or place which is likely to lead to the identification of the

respondent.

Leave to appeal to Her Majesty in Council.

237. An application under this Part to the Court of Appeal for leave to

appeal to Her Majesty in Council on any ruling by the Court of Appeal may

be made orally immediately after the court gives its ruling or by notice

served on the Registrar within 14 days of the ruling.

PART 12 – DISCLOSURE OF MATERIAL

Preliminary

Application of Part.

238.(1) This Part applies when–

(a) a person is charged with a summary offence in respect of

which a court proceeds to summary trial and in respect of

which he pleads not guilty;

(b) a person who has attained the age of 18 is charged with an

offence which is triable either way, in respect of which a court

proceeds to summary trial and in respect of which he pleads

not guilty;

offence in respect of which a court proceeds to summary trial

and in respect of which he pleads not guilty;

(d) a person is charged with an indictable offence and is

committed for trial for the offence concerned;

(e) a person is charged with an indictable offence and sent to the

Supreme Court for trial under Part 9;

(f) a count charging a person with a summary offence is included

in an indictment under section 175(2) of the Crimes Act 2011

(Common assault); or

(g) a bill of indictment charging a person with an indictable

offence is preferred by direction of the Court of Appeal, or by

direction or with consent of a judge.

Criminal Procedure and Evidence

2011-24

(2) This Part applies only in relation to alleged offences into which no

criminal investigation has begun before the commencement of this Part.

(3) Subsections (3) to (5) of section 239 and sections 256 and 257 have

effect subject to subsections (2) and (3) of section 266.

Duty of disclosure

Initial duty of prosecutor to disclose.

239.(1) The prosecutor must–

(a) disclose to the defendant any prosecution material which has

not previously been disclosed to the defendant and which

might reasonably be considered capable of undermining the

case for the prosecution against the defendant or of assisting

the case for the defendant; or

(b) give to the defendant a written statement that there is no

material of a description mentioned in paragraph (a).

(2) For the purposes of this section prosecution material is material

which–

(a) is in the prosecutor’s possession, and came into his possession

in connection with the case for the prosecution against the

defendant; or

(b) in compliance with of a code of practice published under Part

29, the prosecutor has inspected in connection with the case for

the prosecution against the defendant.

(3) If material consists of information which has been recorded in any

form, the prosecutor discloses it for the purposes of this section–

(a) by ensuring that a copy is made of it and that the copy is given

to the defendant; or

(b) if in the prosecutor’s opinion that is not practicable or not

desirable - by allowing the defendant to inspect it at a

reasonable time and a reasonable place or by taking steps to

ensure that he is allowed to do so.

(4) A copy may be in such form as the prosecutor thinks fit and need not

be in the same form as that in which the information has already been

recorded.

Criminal Procedure and Evidence

2011-24

(5) If material consists of information which has not been recorded, the

prosecutor discloses it for the purposes of this section by ensuring that it is

recorded in such form as he thinks fit and–

(a) by securing that a copy is made of it and that the copy is given

to the defendant; or

(b) if in the prosecutor’s opinion that is not practicable or not

desirable - by allowing the defendant to inspect it at a

reasonable time and a reasonable place or by taking steps to

ensure that he is allowed to do so.

(6) If material does not consist of information, the prosecutor discloses it

for the purposes of this section by allowing the defendant to inspect it at a

reasonable time and a reasonable place or by taking steps to ensure that he is

allowed to do so.

(7) Material must not be disclosed under this section to the extent that the

court, on an application by the prosecutor, concludes that it is not in the

public interest to disclose it and orders accordingly.

Initial duty to disclose: Further provisions.

240.(1) The prosecutor must act under section 239 as soon as is reasonably

practicable after–

(a) the defendant pleads not guilty (if this Part applies by virtue of

section 238(1)(a), (b) or (c));

(b) the defendant is committed or sent for trial (if this Part applies

by virtue of section 238(1)(d) or (e));

virtue of section 238(1)(f)); or

(d) the bill of indictment is preferred (if this Part applies by virtue

of section 238(1)(g)).

(2) In determining what is reasonably practicable –

(a) the court may take account of the nature or volume of the

material concerned; and

(b) the nature of material may be defined by reference to the

prosecutor’s belief that the question of non-disclosure on

grounds of public interest may arise.

(3) If–

Criminal Procedure and Evidence

2011-24

(a) the prosecutor acts under section 239; and

(b) before so doing he is given a document in compliance with a

provision included in a code of practice about criminal

investigations published under Part 29 by virtue of section

688(3),

the prosecutor must give the document to the defendant at the same time as

the prosecutor acts under section 239.

241. Deleted

Voluntary disclosure by defendant.

242.(1) This section applies if–

(a) this Part applies by virtue of section 238(1); and

(b) the prosecutor complies or purports to comply with section

239.

(2) The defendant–

(a) may give a defence statement to the prosecutor; and

(b) if he does so, must also give such a statement to the court.

(3) If the defendant gives a defence statement under this section he must

give it during the period which, by virtue of section 252, is the relevant

period for this section.

Contents of defence statement.

243.(1) For the purposes of this Part a defence statement is a written

statement–

(a) setting out the nature of the defendant’s defence, including any

particular defences on which he intends to rely;

(b) indicating the matters of fact on which he takes issue with the

prosecution;

with the prosecution;

(d) setting out particulars of the matters of fact on which he

intends to rely for the purposes of his defence; and

Criminal Procedure and Evidence

2011-24

(e) indicating any point of law (including any point as to the

admissibility of evidence or an abuse of process) which he

wishes to take, and any authority on which he intends to rely

for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it,

including–

(a) the name, address and date of birth of any witness the

defendant believes is able to give evidence in support of the

alibi, or as many of those details as are known to the defendant

when the statement is given;

(b) any information in the defendant’s possession which might be

of material assistance in identifying or finding any such

witness in whose case any of the details mentioned in

paragraph (a) are not known to the defendant when the

statement is given.

(3) For the purposes of this section evidence in support of an alibi is

evidence tending to show that by reason of the presence of the defendant at

a particular place or in a particular locality at a particular time he was not, or

was unlikely to have been, at the place where the offence is alleged to have

been committed at the time of its alleged commission.

(4) Rules of court may make provision as to the matters that, by virtue of

subsection (1), are to be included in defence statements.

Updated disclosure by defendant.

244.(1) If the defendant has, before the beginning of the relevant period for

this section, given a defence statement under section 242, he must during

that period give to the court and the prosecutor either–

(a) a defence statement under this section (an “updated defence

statement”); or

(b) a statement of the kind mentioned in subsection (4).

(2) The relevant period for this section is decided under section 252.

(3) An updated defence statement must comply with the requirements

imposed by or under section 243 by reference to the state of affairs at the

time when the statement is given.

Criminal Procedure and Evidence

2011-24

(4) Instead of an updated defence statement, the defendant may give a

written statement stating that he has no changes to make to the defence

statement which was given under section 242.

(5) If there are other defendants in the proceedings and the court so orders,

the defendant must also give either an updated defence statement or a

statement of the kind mentioned in subsection (4), within a period specified

by the court, to every other defendant so specified.

(6) The court may make an order under subsection (5) either on its own

initiative or on the application of any party.

245. Deleted

246. Deleted

Disclosure by defendant: Further provisions.

247.(1) If a defendant’s legal representative purports to give on behalf of

the defendant–

(a) a defence statement under section 242 or 244; or

(b) a statement of the kind mentioned in section 244(4),

the statement is, unless the contrary is proved, deemed to be given with the

authority of the defendant.

(2) The judge in a trial before a judge and jury–

(a) may direct that the jury be given a copy of any defence

statement; and

(b) if he does so, may direct that it be edited so as not to include

references to matters evidence of which would be inadmissible.

(3) A direction under subsection (2)–

(a) may be made either on the judge’s own initiative or on the

application of any party;

(b) may be made only if the judge is of the opinion that seeing a

copy of the defence statement would help the jury to

understand the case or to resolve any issue in the case.

(4) The reference in subsection (2) to a defence statement is a reference–

Criminal Procedure and Evidence

2011-24

(a) if the defendant has given only an initial defence statement

(that is, a defence statement given under section 242) - to that

statement;

(b) if the defendant has given both an initial defence statement and

an updated defence statement (that is, a defence statement

given under section 244) - to the updated defence statement;

a statement of the kind mentioned in section 244(4) - to the

initial defence statement.

Continuing duty of prosecutor to disclose.

248.(1) This section applies

(a) after the prosecutor has complied or purported to comply with

section 239; and

(b) before the defendant is acquitted or convicted or the prosecutor

decides not to proceed with the case.

(2) The prosecutor must keep under review the question whether at any

given time (and, in particular, following the giving of a defence statement)

there is prosecution material which–

(a) might reasonably be considered capable of undermining the

case for the prosecution against the defendant or of assisting

the case for the defendant; and

(b) has not been disclosed to the defendant.

(3) If at any time there is any such material as is mentioned in subsection

(2) the prosecutor must disclose it to the defendant as soon as is reasonably

practicable (or within the period mentioned in subsection (5)(a), if that

applies).

(4) In applying subsection (2) by reference to any given time, the state of

affairs at that time (including the case for the prosecution as it stands at that

time) must be taken into account.

(5) If the defendant has given a defence statement under section 242 or

244–

(a) if as a result of that statement the prosecutor is required by this

section to make any disclosure, or further disclosure, he must

do so as soon as is reasonably practicable after the defendant

gives the statement;

Criminal Procedure and Evidence

2011-24

(b) if the prosecutor considers that he is not so required, he must as

soon as is reasonably practicable after the defendant gives the

statement give the defendant a written statement to that effect.

(6) For the purposes of this section prosecution material is material–

(a) which is in the prosecutor’s possession and came into his

possession in connection with the case for the prosecution

against the defendant; or

(b) which, in compliance with a code of practice issued under Part

29, he has inspected in connection with the case for the

prosecution against the defendant.

(7) Subsections (3) to (5) of section 239 (method by which prosecutor

discloses) apply for the purposes of this section as they apply for the

purposes of that section.

(8) Material must not be disclosed under this section to the extent that the

court, on an application by the prosecutor, concludes it is not in the public

interest to disclose it and orders accordingly.

(9) Material must not be disclosed under this section to the extent that it is

material the disclosure of which is prohibited by any other law.

(10) Section 240(2) applies for the purpose of determining whether action

has been taken as soon as is reasonably practicable.

Application by defendant for disclosure.

249.(1) This section applies if the defendant has given a defence statement

under section 242 or 244 and the prosecutor has complied or purported to

comply with section 248(5) or has failed to comply with it.

(2) If the defendant has at any time reasonable cause to believe that there

is prosecution material which is required by section 248 to be disclosed to

him and has not been, he may apply to the court for an order requiring the

prosecutor to disclose it to him.

(3) For the purposes of this section prosecution material is material–

(a) which is in the prosecutor’s possession and came into his

possession in connection with the case for the prosecution

against the defendant;

Criminal Procedure and Evidence

2011-24

(b) which, in compliance with a code of practice issued under Part

29 he has inspected in connection with the case for the

prosecution against the defendant; or

(4) Material falls within this subsection if, in compliance with a code of

practice issued under Part 29 the prosecutor must, if he asks for the material,

be given a copy of it or be allowed to inspect it in connection with the case

for the prosecution against the defendant.

(5) Material must not be disclosed under this section to the extent that the

court, on an application by the prosecutor, concludes it is not in the public

interest to disclose it and orders accordingly.

(6) Material must not be disclosed under this section to the extent that it is

material the disclosure of which is prohibited by any other law.

Prosecutor’s failure to observe time limits.

250.(1) This section applies if the prosecutor

(a) purports to act under section 239 but fails to act as soon as is

reasonably practicable, as required by section 240(1); or

(b) purports to act under section 248(5) but fails to act as soon as is

reasonably practicable as required by that section.

(2) A failure by the prosecution to act as soon as is reasonably

practicable–

(a) does not on its own constitute grounds for staying the

proceedings for abuse of process; but

(b) does constitute such grounds if it involves such delay by the

prosecutor that the defendant is denied a fair trial.

Faults in disclosure by defendant.

251.(1) This section applies in the case set out in subsection (3).

(2) The things referred to in subsection (3)(b) are where the defendant−

(a) Deleted

(b) Deleted

Criminal Procedure and Evidence

2011-24

statement or a statement of the kind mentioned in subsection

(4) of that section but fails to do so;

(d) gives an updated defence statement or a statement of the kind

mentioned in section 244(4) but does so after the end of the

period which, by virtue of section 252, is the relevant period

for section 244;

(e) sets out inconsistent defences in his defence statement; or

(f) at his trial–

(i) puts forward a defence which was not mentioned in his

defence statement or is different from any defence set

out in that statement;

(ii) relies on a matter which, in breach of the requirements

imposed by or under section 243, was not mentioned in

his defence statement;

(iii) adduces evidence in support of an alibi without having

given particulars of the alibi in his defence statement; or

(iv) calls a witness to give evidence in support of an alibi

without having complied with section 243(2)(a) or (b) as

regards the witness in his defence statement.

(3) Where section 242 applies, the defendant gives an initial defence

statement, and the defendant–

(a) gives the initial defence statement after the end of the period

which, by virtue of section 252, is the relevant period for

section 242; or

(b) does any of the things mentioned in paragraphs (c) to (f) of

subsection (2).

(4) Deleted

(5) If this section applies–

(a) the court or any other party may make such comment as

appears appropriate;

(b) the court or jury may draw such inferences as appear proper in

deciding whether the defendant is guilty of the offence

concerned.

Criminal Procedure and Evidence

2011-24

(6) If–

(a) this section applies by virtue of subsection (2)(f)(ii) (including

that provision as it applies by virtue of subsection (3)(b)); and

(b) the matter which was not mentioned is a point of law

(including any point as to the admissibility of evidence or an

abuse of process) or an authority,

comment by another party under subsection (5)(a) may be made only with

the leave of the court.

(7) Deleted

(8) If the defendant puts forward a defence which is different from any

defence set out in his defence statement, in doing anything under subsection

(5) or in deciding whether to do anything under it the court must have

regard to–

(a) the extent of the differences in the defences; and

(b) whether there is any justification for it.

(9) Deleted

(10) A person must not be convicted of an offence solely on an inference

drawn under subsection (5).

(11) If the defendant has given a statement of the kind mentioned in

section 244(4), then, for the purposes of subsections (2)(f)(ii) and (iv), the

question as to whether there has been a breach of the requirements imposed

by or under section 243 or a failure to comply with section 243(2)(a) or (b)

is to be decided–

(a) by reference to the state of affairs at the time when that

statement was given; and

(b) as if the defence statement was given at the same time as that

statement.

(12) In this section–

(a) “initial defence statement” means a defence statement given

under section 242;

“updated defence statement” means a defence statement given

under section 244;

Criminal Procedure and Evidence

2011-24

(b) a reference simply to a defendant’s “defence statement” is a

reference–

(i) if he has given only an initial defence statement - to that

statement;

(ii) if he has given both an initial and an updated defence

statement - to the updated defence statement;

(iii) if he has given both an initial defence statement and a

statement of the kind mentioned in section 244(4) - to the

initial defence statement;

in accordance with section 243(3) and section 266A.

Time limit for defence disclosure.

252.(1) This section has effect for the purpose of determining the relevant

period for action to be taken by a defendant under any of sections 242 or

244.

(2) Subject to this section, the relevant period is a period beginning with

the day on which the prosecutor complies, or purports to comply, with

section 239 and ending with the expiration of 14 days from that day.

(3) The period referred to in subsection (2) may by order, upon an

application made by the defendant before the expiration of that period, be

extended by the court at its discretion.

(4) An application under subsection (3) must–

(a) state that the defendant believes, on reasonable grounds, that it

is not possible for him to take action as required by any of the

sections mentioned in subsection (1) during the period referred

to in subsection (2);

(b) specify the grounds for so believing; and

period to be extended.

(5) The court must not make an order under subsection (3) unless it is

satisfied that the defendant cannot reasonably give or, as the case may be,

could not reasonably have taken the required action during the period

referred to in subsection (2).

Criminal Procedure and Evidence

2011-24

(6) The court by order may further extend the relevant period on further

application made by the defendant before the expiry of the extended period

and subsections (4) and (5) apply for the purposes of an order under this

subsection as they apply for the purposes of an order under subsection (3).

(7) There is no limit on the number of applications that may be made

under subsection (3) as applied by subsection (6) and on a second or

subsequent application the court has the same powers as on the first

application.

(8) In the application of this section, the relevant period means that period

as extended or further extended by an order of the court under subsection (3)

or (6).

(9) If the relevant period would, apart from this subsection, expire on a

Saturday, Sunday or public holiday, the period is to be treated as expiring

on the next day which is not one of those days.

Disclosure: Miscellaneous

Public interest: Review for summary trials.

253.(1) If this Part applies by virtue of section 238(1), then at any time–

(a) after a court makes an order under section 239(7), 248(8) or

249(5); and

(b) before the defendant is acquitted or convicted or the prosecutor

decides not to proceed with the case concerned,

the defendant may apply to the court for a review of the question whether it

is still not in the public interest to disclose material affected by its order.

(2) In such a case the court must review that question, and if it concludes

that it is in the public interest to disclose material to any extent–

(a) it must so order; and

(b) it must take reasonable steps to inform the prosecutor of its

order.

(3) If the prosecutor is informed of an order made under subsection (2) he

must act accordingly, having regard to the provisions of this Part (unless he

decides not to proceed with the case concerned).

Public interest: Review in other cases.

Criminal Procedure and Evidence

2011-24

254.(1) If this Part applies by virtue of section 238(2), the court must keep

under review the question whether at any given time it is still not in the

public interest to disclose material affected by its order.

(2) The question mentioned in subsection (1) must be kept under review at

all times–

(a) after a court makes an order under section 239(7), 248(8) or

249(5); and

(b) before the defendant is acquitted or convicted or the prosecutor

decides not to proceed with the case concerned.

(3) The court must keep the question mentioned in subsection (1) under

review without the need for an application; but the defendant may apply to

the court for a review of that question.

(4) If the court at any time concludes that it is in the public interest to

disclose material to any extent it must so order, and must take reasonable

steps to inform the prosecutor of its order.

(5) If the prosecutor is informed of an order made under subsection (4) he

must act accordingly having regard to the provisions of this Part (unless he

decides not to proceed with the case concerned).

Applications: Opportunity to be heard.

255. If–

(a) an application is made under section 239(7), 248(8), 249(5),

252(3) or 254(3) in respect of any material;

(b) a person claiming to have an interest in the material applies to

be heard by the court; and

others and whether directly or indirectly) in the prosecutor’s

attention being brought to the material,

the court must not make an order on the application mentioned in paragraph

(a) unless the person applying under paragraph (b) has been given an

opportunity to be heard.

Confidentiality of disclosed information.

256.(1) If the defendant is given or allowed to inspect a document or other

object under this Part, then, subject to subsections (2) to (4), he must not use

or disclose it or any information recorded in it.

Criminal Procedure and Evidence

2011-24

(2) The defendant may use or disclose the object or information–

(a) in connection with the proceedings for whose purposes he was

given the object or allowed to inspect it;

(b) with a view to the taking of further criminal proceedings, such

as by way of appeal, with regard to the matter giving rise to the

proceedings mentioned in paragraph (a); or

paragraph (b).

(3) The defendant may use or disclose–

(a) the object to the extent that it has been displayed to the public

in open court; or

(b) the information to the extent that it has been communicated to

the public in open court;

but the preceding provisions of this subsection do not apply if the object is

displayed or the information is communicated in proceedings to deal with a

contempt of court under section 257.

(4) If–

(a) the defendant applies to the court for an order granting

permission to use or disclose the object or information; and

(b) the court makes such an order,

the defendant may use or disclose the object or information for the purpose

and to the extent specified by the court.

(5) An application under subsection (4) may be made and dealt with at any

time, and in particular after the defendant has been acquitted or convicted or

the prosecutor has decided not to proceed with the case concerned.

(6) If–

(a) an application is made under subsection (4); and

(b) the prosecutor or a person claiming to have an interest in the

object or information applies to be heard by the court,

the court must not make an order granting permission unless the person

applying under paragraph (b) has been given an opportunity to be heard.

Criminal Procedure and Evidence

2011-24

(7) Nothing in this section affects any other restriction or prohibition on

the use or disclosure of an object or information, whether the restriction or

prohibition arises under an enactment (whenever passed) or otherwise.

Confidentiality: Contravention.

257.(1) It is a contempt of court for a person knowingly to use or disclose

an object or information recorded in it if the use or disclosure is in

contravention of section 256.

(2) If a person is guilty of a contempt under this section–

(a) the Magistrates’ Court may commit him to custody for up to 6

months or fine him up to £5,000, or do both;

(b) the Supreme Court may commit him to custody for up to 2

years or fine him, or do both.

(3) If–

(a) a person is guilty of a contempt under this section; and

(b) the object concerned is in his possession,

the court may order that the object be forfeited and dealt with as the court

orders.

(4) The power of the court under subsection (3) includes power to order

the object to be destroyed or given to the prosecutor or placed in his custody

for a specified period.

(5) If–

(a) the court proposes to make an order under subsection (3); and

(b) the person found guilty, or any other person claiming to have

an interest in the object, applies to be heard by the court,

the court must not make the order unless the applicant has been given an

opportunity to be heard.

(6) If–

(a) a person is guilty of a contempt under this section; and

(b) a copy of the object concerned is in his possession,

Criminal Procedure and Evidence

2011-24

the court may order that the copy be forfeited and dealt with as the court

orders.

(7) Subsections (4) and (5) apply for the purposes of subsection (6) as they

apply for the purposes of subsection (3), but as if references to the object

were references to the copy.

(8) An object or information is inadmissible as evidence in civil

proceedings if to adduce it would in the opinion of the court be likely to

constitute a contempt under this section; and “the court” here means the

court before which the civil proceedings are being taken.

(9) The powers of the Magistrates’ Court under this section may be

exercised either on the court’s own initiative or by order on complaint.

Human Trafficking Offences: Investigation and Prosecution.

Requirements for investigation or prosecution.

258.(1) The investigation or prosecution of a human trafficking offence

shall not be dependent on reporting or accusation by a victim wherever the

offence takes place.

(2) Any criminal proceedings may continue even if the victim has

withdrawn his or her statement.

(3) Where the victim (“V”) has committed a criminal act as a direct

consequence of V being subjected to human trafficking, no prosecution or

imposition of penalties shall occur if “V” has been compelled to commit the

criminal act as a direct consequence of being subjected to−

(a) threats or use of force;

(b) coercion;

(e) the abuse of power or of a position of vulnerability; or

(f) the giving or receiving of payments or benefits to achieve the

consent of a person having control over V.

(4) For the purposes of subsection (3)(e) a position of vulnerability

means a situation in which V has no real or acceptable alternative but to

submit to the abuse involved.

Criminal Procedure and Evidence

2011-24

(5) Subsection (3) shall not abrogate or limit the scope of any common

law defences such as duress and necessity.

Resources for investigation or prosecution.

259. The Government shall take the necessary measures to ensure that−

(a) persons, units or services responsible for investigating or

prosecuting trafficking in human beings are trained

accordingly; and

(b) effective investigative tools, such as those which are used in

organised crime or other serious crime cases, are available to

persons, units or services responsible for investigating

trafficking in human beings.

260-264. Not used.

Supplementary

Rules of court.

265.(1) Rules of court may provide for the practice and procedure to be

followed in relation to–

(a) proceedings to deal with a contempt of court under section

257;

(b) an application under any provision of this Part;

(2) The power to make rules of court includes power to make, with regard

to any proceedings before the Magistrates’ Court which relate to an alleged

offence, provision for–

(a) requiring any party to the proceedings to disclose to the other

party or parties any expert evidence which he proposes to

adduce in the proceedings;

(b) prohibiting a party who fails to comply in respect of any

evidence with any requirement imposed by virtue of paragraph

(a) from adducing that evidence without the leave of the court.

(3) Rules made by virtue of subsection (2) may–

(a) specify the kinds of expert evidence to which they apply;

Criminal Procedure and Evidence

2011-24

(b) exempt facts or matters of any description specified in the

rules.

(4) Rules made by virtue of this section may–

(a) include provision requiring persons to be notified of an

application;

(b) make different provision for different cases or classes of case.

Other rules as to disclosure.

266.(1) A duty of disclosure under any provision of this Part does not affect

and is not affected by any duty arising under any other enactment with

regard to material to be provided to or by the defendant or a person

representing him.

(2) If this Part applies as regards things falling to be done after the

commencement of this Part in relation to an alleged offence, the rules of

common law which–

(a) were effective immediately before the commencement of this

Part; and

(b) relate to the disclosure of material by the prosecutor,

do not apply as regards things falling to be done after that time in relation to

the alleged offence.

(3) Subsection (2) does not affect the rules of common law as to whether

disclosure is in the public interest.

Notice of alibi.

266A.(1) On a trial on indictment the defendant shall not without the leave

of the court adduce evidence in support of an alibi unless, before the end of

the prescribed period, he gives notice of particulars of the alibi.

(2) Without prejudice to subsection (1), on any such trial the defendant

shall not, without the leave of the court, call any other person to give such

evidence unless–

(a) the notice under that subsection includes the name and address

of the witness or, if the name or address is not known to the

defendant at the time he gives the notice, any information in

his possession which might be of material assistance in finding

the witness;

Criminal Procedure and Evidence

2011-24

(b) if the name or the address is not included in that notice, the

court is satisfied that the defendant, before giving the notice,

took and thereafter continued to take all reasonable steps to

secure that the name or address would be ascertained;

defendant subsequently discovers the name or address or

receives other information which might be of material

assistance in finding the witness, he forthwith gives notice of

the name, address or other information, as the case may be; and

(d) if the defendant is notified by or on behalf of the prosecutor

that the witness has not been traced by the name or at the

address given, he forthwith gives notice of any such

information which is then in his possession or, on subsequently

receiving any such information, forthwith gives notice of it.

(3) The court shall not refuse leave under this section if it appears to the

court that the defendant was not informed of the requirements of this section

in accordance with any rules made under this Act.

(4) Any evidence tendered to disprove an alibi may, subject to any

directions by the court as to the time it is to be given, be given before or

after evidence is given in support of the alibi.

(5) Any notice purporting to be given under this section on behalf of the

defendant by his solicitor shall, unless the contrary is proved, be deemed to

be given with the authority of the defendant.

(6) A notice under subsection (1) shall either be given in court during,

or at the end of, the proceedings at which he is committed for trial for the

offence concerned or is sent to the Supreme Court for trial under Part 9 or

be given in writing to the prosecutor, and a notice under paragraph (c) or (d)

of subsection (2) shall be given in writing to the prosecutor.

(7) A notice required by this section to be given to the prosecutor may

be given by delivering it to him, or by leaving it at his office, or by sending

it in a registered letter or by the recorded delivery service addressed to him

at his office.

(8) In this section–

“evidence in support of an alibi” means evidence tending to show

that by reason of the presence of the defendant at a particular

place or in a particular area at a particular time he was not, or

was unlikely to have been, at the place where the offence is

alleged to have been committed at the time of its alleged

commission; and

Criminal Procedure and Evidence

2011-24

“the prescribed period” means the period of seven days from the end of

the proceedings mentioned in subsection (6).

(9) In computing the said period a Sunday, Christmas Day, Good

Friday, a day which is a bank or public holiday under section 58 of the

Interpretation and General Clauses Act or a day appointed for public

thanksgiving or mourning shall be disregarded.

(10) The requirements set out in this section are in addition to those set

out in sections 239 to 252.

PART 13 – APPEALS TO THE SUPREME COURT

Right of appeal

Right of appeal against conviction or sentence.

267.(1) A person convicted by the Magistrates’ Court may appeal to the

Supreme Court–

(a) if he pleaded guilty - against his sentence;

(b) if he did not - against the conviction or sentence.

(2) An appeal may be made against a conviction resulting in an absolute

or conditional discharge, even though such a discharge may for certain

purposes not be regarded as a conviction.

(3) In this section “sentence” includes any order made on conviction by

the Magistrates’ Court, not being–

(a) a probation order made before the commencement of this Act;

(b) an order for the payment of costs;

an animal or bird; or

(d) an order made pursuant to any law under which the court has

no discretion as to the making of the order or its terms.

(4) If a person is ordered by the Magistrates’ Court to enter into a

recognizance with or without sureties to keep the peace or to be of good

behaviour, he may appeal to the Supreme Court and in the case of any such

appeal–

Criminal Procedure and Evidence

2011-24

(a) the other party to the proceedings which were the occasion of

the making of the order is the respondent to the appeal;

(b) section 5 of the Legal Aid and Assistance Act (Legal aid for

appellants in certain cases) and, in relation to an appellant in

custody for failure to comply with the order, section 118 (Bail

on appeal) apply, with necessary modifications, as if the appeal

were an appeal against a conviction.

Right of appeal from the Magistrates’ Court in mental disorder cases.

268.(1) A person in whose case a special finding or verdict under Part 28 is

made by the Magistrates’ Court may appeal against the finding or verdict to

the Supreme Court in accordance with section 278.

(2) If on the trial of an information charging a person with an offence the

Magistrates’ Court makes a hospital order or interim hospital order in

respect of him without convicting him–

(a) the person has the same right of appeal against the order as if it

had been made on his conviction; and

(b) on any such appeal the Supreme Court has the same powers as

if the appeal had been against both conviction and sentence.

(3) An appeal by a juvenile with respect to whom any such order has been

made, whether the appeal is against the order or against the finding upon

which the order was made, may be brought by him or by his parent or

guardian on his behalf.

Appeals in cases concerning juveniles.

269.(1) Appeals to the Supreme Court from orders of the Magistrates’

Court

in relation to a juvenile may be brought in the following cases and by the

following persons–

(a) in the case of a sentence of imprisonment or detention - by the

juvenile or his parent or guardian on his behalf;

(b) in the case of a community sentence (youth rehabilitation

order) - by the juvenile or by the probation officer;

the parent or guardian.

(2) Nothing in this section affects any right of appeal to the Supreme

Court conferred by this Act or any other law.

Criminal Procedure and Evidence

2011-24

Procedure

Notice of appeal.

270.(1) An appeal from the Magistrates’ Court to the Supreme Court is

commenced by the appellant giving notice of appeal within 21 days after the

day on which the decision of the Magistrates’ Court was given, to the clerk

of the Magistrates’ Court and to the other party.

(2) For the purpose of subsection (1), the day on which the decision of the

Magistrates’ Court is given is–

(a) if the court has adjourned the trial of an information after

conviction - the day on which the court sentences or otherwise

deals with the offender;

(b) if a court defers sentence - the day to which sentence is

deferred.

(3) A notice of appeal must–

(a) be in writing; and

(b) state the grounds of appeal.

(4) The time for giving notice of appeal may be extended, either before or

after it expires, by direction of the Supreme Court, on an application in

writing to the Registrar, specifying the grounds of the application.

(5) If the Supreme Court extends the time for giving notice of appeal, the

Registrar must give notice of the extension to–

(a) the appellant; and

(b) the clerk of the Magistrates’ Court,

and the appellant must give notice to any other party to the appeal.

(6) The powers of the Supreme Court under subsection (4) may be

exercised by a single judge of the court.

Entry of appeal.

271.(1) On receiving a notice of appeal, the clerk of the Magistrates’ Court

must send the notice to the Registrar, who must–

(a) enter the appeal; and

Criminal Procedure and Evidence

2011-24

(b) give notice of the date, time and place of the hearing to the

appellant, any other party to the appeal and the clerk of the

Magistrates’ Court.

(2) A notice required by this section to be given to any person may be sent

by post in a registered letter addressed to him at his last or usual place of

residence.

Duties of Registrar.

272.(1) The Registrar must–

(a) take all necessary steps for obtaining a hearing under this Part

of any appeals of which notice is given to him; and

(b) obtain and lay before the Supreme Court in proper form all

documents, exhibits, and other things relating to the

proceedings in the court before which the appellant was tried

that appear necessary for the proper determination of the

appeal.

(2) If it appears to the Registrar that any notice of an appeal against a

conviction, purporting to be on a ground of appeal which involves a

question of law alone, does not show any substantial ground of appeal–

(a) the Registrar may refer the appeal to the Supreme Court for

summary determination; and

(b) if the case is so referred, the Supreme Court may, if it

considers that the appeal is frivolous or vexatious, and can be

decided without adjourning the same for a full hearing, dismiss

the appeal summarily, without calling on any persons to attend

the hearing or to appear for the Crown on the appeal, despite

any other provisions of this Part.

(3) Any documents, exhibits, or other things connected with the

proceedings on the trial of any person, who, if convicted, is entitled or may

be authorised to appeal, must be kept in the custody of the Magistrates’

Court in accordance with rules made for the purpose, for the time provided

by the rules, and subject to any power given by the rules for the conditional

release of any such documents, exhibits, or things from that custody.

(4) The Registrar must provide the necessary forms and instructions in

relation to notices of appeal under this Part to any person who demands

them, and to the clerk of the Magistrates’ Court.

(5) The Superintendent must cause–

Criminal Procedure and Evidence

2011-24

(a) those forms and instructions to be placed at the disposal of

prisoners wishing to appeal; and

(b) any such notice given by a prisoner in his custody to be

forwarded on behalf of the prisoner to the Registrar.

Abandonment of appeal.

273.(1) An appellant may abandon an appeal from the Magistrates’ Court

to the Supreme Court by giving notice in writing, not later than the third day

before the day fixed for hearing the appeal, to the clerk of the Magistrates’

Court.

(2) On receiving notice of abandonment of an appeal under subsection (1),

the clerk must give notice of the abandonment to the other party to the

appeal and to the Registrar.

(3) If notice to abandon an appeal has been duly given by the appellant–

(a) the Magistrates’ Court may issue process for enforcing its

decision, subject to anything already suffered or done under it

by the appellant; and

(b) the Magistrates’ Court may, on the application of the other

party to the appeal, order the appellant to pay to that party such

costs as appear to the court to be just and reasonable in respect

of expenses properly incurred by that party in connection with

the appeal before notice of the abandonment was given to that

party.

(4) Costs ordered to be paid under this section are enforceable as a civil

debt.

Right of appellant to be present.

274.(1) An appellant, even if in custody, is entitled to be present, if he

desires it, on the hearing of his appeal, unless the appeal is on some ground

involving a question of law alone, but, in that case and on any proceedings

preliminary or incidental to an appeal, is not entitled to be present, unless

the Supreme Court gives him leave to be present.

(2) The power of the Supreme Court to pass any sentence under this Part

may be exercised even if the appellant is for any reason not present, but

only if he is legally represented.

Procedure at hearing.

Criminal Procedure and Evidence

2011-24

275.(1) An appeal to the Supreme Court from the Magistrates’ Court in any

criminal case is to be decided by the Supreme Court–

(a) upon perusal of a copy, certified as a true copy by the clerk of

the Magistrates’ Court, of the notes made by the clerk of the

proceedings before the Magistrates’ Court or other transcript of

those proceedings; and

(b) upon hearing the parties to the appeal or their legal

representatives.

(2) The parties to the appeal or their legal representatives are to be heard

in the following order–

(a) the appellant or his legal representative first addresses the court

in support of the appeal;

(b) the respondent or his legal representatives then addresses the

court;

reply.

(3) If neither party appears or is represented on an appeal, the appeal must

be dismissed.

Powers of the Supreme Court on appeal

Appeals to the Supreme Court.

276.(1) On an appeal against conviction, or against conviction and

sentence, other than an appeal upon a case stated, the Supreme Court may–

(a) quash the conviction and acquit the appellant;

(b) affirm the conviction;

appellant could have been lawfully convicted if he had been

tried in the first instance upon an indictment for the offence

with which he was charged or of which he could have been

lawfully convicted by the Magistrates’ Court;

(d) in either of the cases mentioned in paragraph (b) and (c), affirm

the sentence passed by the Magistrates’ Court or substitute for

it any other sentence, whether more or less severe and whether

of the same nature or not, which that court would have had

power to pass; or

Criminal Procedure and Evidence

2011-24

(e) order a re-trial of the appellant before the Magistrates’ court.

(2) On an appeal against sentence only, the Supreme Court may–

(a) affirm the sentence; or

(b) substitute any other sentence, whether more or less severe and

whether of the same nature or not, which the Magistrates’

Court would have had power to pass.

(3) On an appeal against any other order, the Supreme Court may affirm,

quash or vary the order, and in any such case the Chief Justice may make

any consequential or incidental order which may appear just and proper.

(4) Subsections (1) to (3) have effect subject to any enactment relating to

any such appeal which expressly limits or restricts the powers of the

Supreme Court on the appeal.

(5) This section applies whether or not the appeal is against the whole of

the decision.

(6) In this section “sentence” includes any order made by a court when

dealing with an offender, including–

(a) a hospital order, interim hospital order or supervision order

under Part 28; and

(b) a recommendation for deportation made when dealing with an

offender.

(7) The fact that an appeal is pending against an interim hospital order

under Part 28 does not affect the power of the Magistrates’ Court to renew

or terminate the order or to deal with the appellant on its termination.

(8) If the Supreme Court quashes an interim hospital order but does not

pass any sentence or make any other order in its place the court may direct

the appellant to be kept in custody or released on bail pending his being

dealt with by the Magistrates’ Court.

(9) If the Supreme Court makes an interim hospital order by virtue of this

section–

(a) the power of renewing or terminating the order and of dealing

with the appellant on its termination is exercisable by the

Magistrates’ Court and not by the Supreme Court; and

Criminal Procedure and Evidence

2011-24

(b) the Magistrates’ Court is to be treated for the purposes of

section 670(2) (absconding offenders) as the court that made

the order.

(10) No magistrate is liable to any costs in respect or by reason of an

appeal under this section.

Determination of appeals.

277.(1) Subject to subsection (2), the Supreme Court, upon the hearing of

an appeal against conviction, must allow the appeal if it thinks that–

(a) the verdict should be set aside on the ground that under all the

circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Magistrates’ Court should be set aside on

the ground of a wrong decision of any question of law; or

the trial,

and in any other case must dismiss the appeal.

(2) The Supreme Court, even if it is of the opinion that the point raised in

the appeal might be decided in favour of the appellant, may dismiss the

appeal if it considers that no miscarriage of justice has actually occurred.

(3) Subject to this Part, the Supreme Court must, if it allows an appeal

against conviction, quash the conviction and direct a judgment and order of

acquittal to be entered.

Appeals against special findings or verdicts.

278.(1) If, apart from this section–

(a) an appeal against a special finding or verdict would fall to be

allowed; and

(b) none of the grounds for allowing it relates to the question of

the mental disorder of the defendant,

the Supreme Court may dismiss the appeal if it is of the opinion that but for

the mental disorder of the defendant the proper verdict would have been that

he was guilty of an offence other than the offence charged.

(2) If an appeal against a special finding or verdict is allowed, then–

Criminal Procedure and Evidence

2011-24

(a) if the ground, or one of the grounds, for allowing the appeal is

that the finding of the court as to the mental disorder of the

appellant ought not to stand and the Supreme Court is of

opinion that the proper verdict would have been that he was

guilty of an offence, whether the offence charged or any other

offence of which the court could have found him guilty, the

Supreme Court–

(i) must substitute for the special finding a verdict of guilty

of that offence; and

(ii) has the like powers of punishing or otherwise dealing

with the appellant and other powers as the court before

which he was tried would have had if the court had come

to the substituted verdict; and

(b) in any other case, the Supreme Court must substitute for the

finding of the court a verdict of acquittal.

(3) If, on an appeal against conviction, the Supreme Court, on the written

or oral evidence of 2 or more medical practitioners, is of the opinion–

(a) that the proper verdict would have been one of not guilty by

reason of mental disorder; or

(b) that the case is not one where there should have been a verdict

of acquittal, but there should have been findings that the

accused was suffering from mental disorder so as not to be

responsible in law for his actions at the time when the act was

done or omission made,

then, if it appears to the court that he did the act or made the omission

charged, but was suffering from mental disorder at the time when he did or

made the same, the court must make a special verdict to the effect that the

defendant was not guilty by reason of mental disorder.

(4) If the court makes a special verdict as in subsection (3), it must also

make such one of the following orders as it considers to be most suitable in

all the circumstances of the case–

(a) a hospital order, interim hospital order or supervision order

pursuant to Part 28;

(b) an order for his absolute discharge.

(5) The term of any sentence passed by the Supreme Court in the exercise

of the powers conferred by subsection (2)(a), unless the court otherwise

Criminal Procedure and Evidence

2011-24

directs, begins to run from the time when it would have begun to run if

passed in the proceedings in the Magistrates’ Court.

Supplementary powers.

279.(1) On an appeal under this Part, the Supreme Court may, if it thinks it

necessary or expedient in the interests of justice–

(a) order the production of any document, exhibit, or other thing

connected with the proceedings, the production of which

appears to it necessary for the determination of the case;

(b) order any witnesses who would have been compellable

witnesses at the trial to attend and be examined before the

court, whether or not they were called at the trial;

in the manner provided by rules of court, before a judge or any

officer of the Supreme Court or any magistrate or other person

appointed by the court for the purpose, and allow the admission

of any depositions so taken as evidence before the court;

(d) receive the evidence, if tendered, of any witness, including the

appellant, who is a competent but not compellable witness,

and, if the appellant makes an application for the purpose, of

the husband or wife of the appellant, in cases where the

evidence of the husband or wife could not have been given at

the trial except on such an application;

(e) if any question arising on the appeal involves prolonged

examination of documents or accounts, or any scientific or

local investigation, which cannot in the opinion of the court

conveniently be conducted before the court - order the

reference of the question, in the manner provided by rules, for

inquiry and report to a special commissioner appointed by the

court, and act upon the report of any such commissioner so far

as the court thinks fit to adopt it;

(f) appoint any person with special expert knowledge to act as

assessor to the court in any case where it appears to the court

that such special knowledge is required for the proper

determination of the case; and

(g) exercise in relation to the proceedings of the court any other

powers which may for the time being be exercised by the

Supreme Court on appeals in civil matters, and issue any

warrants necessary for enforcing the orders or sentences of the

court.

Criminal Procedure and Evidence

2011-24

(2) In no case may any sentence be increased by reason of or in

consideration of any evidence that was not given at the trial.

Enlargement of time.

280. A judge of the Supreme Court may, upon application made in open

court by the appellant and after not less than 2 days’ notice to the other

party, enlarge any period of time prescribed for the doing of any act or the

taking of any proceedings, if in any particular case the judge thinks fit so to

do.

Power to correct omissions or mistakes.

281.(1) The Supreme Court may, in the course of hearing any appeal,

correct any error or mistake in the order or judgment incorporating the

decision which is the subject of the appeal.

(2) Without limiting subsection (1), if on an appeal under this Part–

(a) an objection is made on account of any omission or mistake in

the drawing up of a conviction or order of the Magistrates’

Court; and

(b) it is shown to the satisfaction of a judge of the Supreme Court

sufficient grounds were in proof before the Magistrates’ Court

to have authorised the drawing up of such conviction or order

free from the omission or mistake,

the judge may amend the conviction or order and adjudicate on it as if no

such omission or mistake had occurred.

Manner of enforcement of decision.

282.(1) After the determination by the Supreme Court of an appeal from the

Magistrates’ Court, the decision appealed against as confirmed or varied by

the Supreme Court, or any decision of the Supreme Court substituted for the

decision appealed against, may, without affecting the powers of the

Supreme Court to enforce the decision, be enforced–

(a) by the issue by the Magistrates’ Court of any process that it

could have issued if it had decided the case as the Supreme

Court decided it; and

(b) by any process already issued to enforce the decision appealed

against, to the extent that process permits.

Criminal Procedure and Evidence

2011-24

(2) The decision of the Supreme Court has effect as if it had been made by

the Magistrates’ Court.

Notification to Magistrates’ Court.

283. When an appeal against a conviction, special finding or order of the

Magistrates’ Court has been decided under the provisions of section 276 or

278 (1), the Registrar must forthwith notify that decision to the Magistrates’

Court, and that court must, in relation to the decision, exercise all such

powers as are necessary for the enforcement of the decision and as are

conferred by this Act, or any other law for the enforcement of a conviction,

special finding or order of the Magistrates’ Court.

Cases stated

Right to apply for statement of case.

284.(1) Any person who was a party to any proceedings before the

Magistrates’ Court or is aggrieved by the conviction, order, decision or

other proceeding of the court, may question the proceeding on the ground

that it is wrong in law or is in excess of jurisdiction by applying to the

magistrates composing the court to state a case for the opinion of the

Supreme Court on the question of law or jurisdiction involved.

(2) No application may be made under this section in respect of a decision

which by virtue of any law is final.

(3) An application under subsection (1) must be made within 21 days after

the day on which the decision of the Magistrates’ Court was given.

(4) No writ of certiorari or other writ is required for the removal of any

conviction, order or other decision in relation to which a case is stated for

obtaining the judgment or decision of the Supreme Court on the case.

(5) For the purpose of subsection (3), the day on which the decision of the

Magistrates’ Court is given is–

(a) if the court has adjourned the trial of an information after

conviction - the day on which the court sentences or otherwise

deals with the offender;

(b) if a court defers sentence - the day to which sentence is

deferred.

(6) On the making of an application under this section in respect of a

decision, any right of the applicant to appeal against the decision to the

Supreme Court ceases.

Criminal Procedure and Evidence

2011-24

(7) If the magistrates are of opinion that an application under this section

frivolous–

(a) they may, subject to subsection (8), refuse to state a case; and

(b) if the applicant so requires, must give him a certificate stating

that the application has been refused.

(8) The magistrates must not refuse to state a case if the application is

made by or under the direction of the Attorney-General.

(9) If the magistrates refuse to state a case, the Supreme Court may, on the

application of the person who applied for the case to be stated, make an

order requiring them to state a case.

Case may be sent back for amendment.

285.(1) The Supreme Court may, if it thinks fit, cause any case stated to be

sent back to the magistrates for amendment.

(2) If a case is sent back pursuant to subsection (1), the case must be

amended accordingly, and judgment is to be delivered only after it has been

amended.

Determination of question.

286.(1) The Supreme Court must hear and decide the question or questions

of law arising on any case stated, and thereupon–

(a) reverse, affirm or amend the decision in respect of which the

case has been stated;

(b) remit the matter to the Magistrates’ Court, with the opinion of

the Supreme Court on the case; or

Court thinks fit.

(2) No magistrate is liable to any costs in respect or by reason of an appeal

by way of case stated.

Enforcement of decisions.

287. Any conviction, order, decision or other proceeding of the

Magistrates’ Court varied by the Supreme Court on an appeal by case

stated, and any judgment or order of the Supreme Court on such an appeal,

may be enforced as if it were a decision of the Magistrates’ Court.

Criminal Procedure and Evidence

2011-24

PART 14 – SUPREME COURT PROCEDURE

Manner of trial

Trials to be with jury or lay assessors.

288.(1) Subject to the following subsections, every criminal case before the

court is to be tried with a jury in the manner provided by Part III of the

Supreme Court Act.

(2) A trial on an indictment for a serious or complex financial offence may

be conducted by a judge, assisted by 2 lay assessors, or by the judge alone,

in accordance with and in the manner prescribed by Part IIIA of the

Supreme Court Act..

(3) If a defendant arraigned on an indictment or inquisition pleads not

guilty and the prosecutor proposes to offer no evidence against him, the

court may, if it thinks fit, order that a verdict of not guilty be recorded

without the defendant being given in charge to a jury, and the verdict has

the same effect as if the defendant had been tried and acquitted on the

verdict of a jury.

Indictments

Bills of indictment.

289.(1) Subject to this section, a bill of indictment charging any person

with an indictable offence may be preferred by any person before the

Supreme Court, and it thereupon becomes an indictment and must be

proceeded with accordingly

(2) Subject to the following subsections, no bill of indictment charging

any person with an indictable offence may be preferred unless–

(a) the person charged has been committed or sent for trial for the

offence under Part 9; or

(b) the bill is preferred by the direction of the Court of Appeal or

by the direction or with the consent of a judge of the Supreme

Court.

(3) If the person charged has been committed or sent for trial, the bill of

indictment against him may include, either in substitution for or in addition

to counts charging the offence which the person was committed or sent, any

counts founded on facts or evidence disclosed to the Magistrates’ Court

inquiring into that offence as examining magistrates, being counts which

may lawfully be joined in the same indictment.

Criminal Procedure and Evidence

2011-24

(4) In a case to which subsection (2)(a) applies, the bill of indictment may

include, either in substitution for or in addition to any count charging an

offence specified in the notice of committal or notice of sending, any counts

founded on material that accompanied the copy of that notice which,

pursuant to Part 9, was given to the person charged, being counts which

may lawfully be joined in the same indictment.

(5) In a case to which subsection (2)(b) applies, the bill of indictment may

include, either in substitution for or in addition to any count charging an

offence specified in the notice under Part 9, any counts founded on material

which, pursuant to rules made under that Part, was served on the person

charged, being counts which may be lawfully joined in the same indictment.

(6) If a bill of indictment has been preferred otherwise than in accordance

with subsections (2) to (5), the indictment is liable to be quashed, except

that–

(a) if the bill contains several counts, and those subsections have

been complied with as respects one or more of them, only

those counts that were wrongly included are to be quashed

under this subsection; and

(b) if a person who has been committed for trial is convicted on

any indictment or any count of an indictment, that indictment

or count must not be quashed under this subsection in any

proceedings on appeal, unless application was made at the trial

that it should be so quashed.

(7) If a bill of indictment is preferred in accordance with subsections (1)

and (2), no objection to the indictment may be taken after the

commencement of the trial by reason of any failure to observe any rules

under section 294.

(8) For the purposes of subsection (7), the trial commences at the time

when a jury is sworn to consider the issue of guilt or whether the accused

did the act or made the omission charged, or, if the court accepts a plea of

guilty before the time when a jury is sworn, when that plea is accepted.

(9) Nothing in this section affects any enactment restricting the right to

prosecute in particular classes of case.

Contents of indictments.

290.(1) Every indictment must contain, and is sufficient if it contains, a

statement of the specific offence or offences with which the defendant is

charged, together with any particulars needed to give reasonable

information as to the nature of the charge.

Criminal Procedure and Evidence

2011-24

(2) Despite any rule of law or practice, an indictment is, subject to the

provisions of this Part, not open to objection in respect of its form or

contents if it is framed in accordance with rules made under section 294.

Joining of charges in same indictment.

291.(1) Subject to any rules made under section 294, charges for more than

one offence may be joined in the same indictment.

(2) A count charging a person with a summary offence to which this

section applies may be included in an indictment if the charge–

(a) is founded on the same facts or evidence as a count charging an

indictable offence; or

(b) is part of a series of offences of the same or similar character as

an indictable offence which is also charged,

but only if (in either case) the facts or evidence relating to the offence were

disclosed to the Magistrates’ Court inquiring into the offence as examining

magistrates or are disclosed by material which has been served on the

person charged.

(3) If a count charging an offence to which subsection (2) applies is

included in an indictment, the offence must be tried in the same manner as if

it were an indictable offence, but the Supreme Court may only deal with the

offender in respect of it in a manner in which the Magistrates’ Court could

have dealt with him.

(4) The summary offences to which this section applies are–

(a) an offence under section 40 of the Traffic Act 2005 (Driving a

motor vehicle while disqualified);

(b) an offence of criminal damage, etc. which is triable summarily

by virtue of section 148; and

or involves obligatory or discretionary disqualification from

driving.

Objections to and amendment of indictments.

292.(1) An objection to an indictment for any formal defect on its face must

be taken immediately after the indictment has been read over to the

defendant and not later.

Criminal Procedure and Evidence

2011-24

(2) If, before trial, or at any stage of a trial, it appears to the court that the

indictment is defective, the court–

(a) must make such order for the amendment of the indictment as

the court thinks necessary to meet the circumstances of the

case, unless, having regard to the merits of the case, the

required amendments cannot be made without injustice; and

(b) may make such order as to the payment of any costs incurred

owing to the necessity for amendment as the court thinks fit.

(3) If an indictment is amended under this section, a note of the order for

amendment must be endorsed on it.

Separate trial of counts and postponement of trial.

293.(1) If, before trial, or at any stage of a trial, the court is of opinion–

(a) that a defendant may be prejudiced or embarrassed in his

defence by reason of being charged with more than one offence

in the same indictment; or

(b) that for any other reason it is desirable to direct that the person

should be tried separately for any one or more offences

charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

(2) If, before trial, or at any stage of a trial, the court is of opinion that the

postponement of the trial of a defendant is expedient as a consequence of

the exercise of any power of the court under this Part to amend an

indictment or to order a separate trial of a count, the court must make such

order as to the postponement of the trial as appears necessary.

(3) If an order of the court is made under this section for a separate trial or

for the postponement of a trial–

(a) if the order is made during a trial - the court may order that the

jury are to be discharged from giving a verdict on the count or

counts the trial of which is postponed or on the indictment, as

the case may be;

(b) the procedure on the separate trial of a count is the same in all

respects as if the count had been found in a separate

indictment, and the procedure on the postponed trial is the

same in all respects, if the jury has been discharged, as if the

trial had not commenced; and

Criminal Procedure and Evidence

2011-24

the defendant to bail, and as to the enlargement of

recognizances and otherwise as the court thinks fit.

(4) Any power of the court under this section is in addition to and does not

derogate from any other power of the court for the same or similar purposes.

Rules as to indictments.

294. Rules of court may make provision regulating indictments and any

matter connected with them, and in particular as to–

(a) how and when bills of indictment are to be preferred; and

(b) how application is to be made for the consent of a judge to the

preferment of a bill of indictment.

Pleas

Plea of guilty to other offence.

295. If a person is arraigned on an indictment for any offence, and can

lawfully be convicted on that indictment of some other offence not charged

in the indictment, he may plead not guilty of the offence charged in the

indictment, but guilty of that other offence.

Pleas by corporations.

296.(1) A corporation may, on arraignment before the Supreme Court, enter

in writing by its representative a plea of guilty or not guilty, and if either the

corporation does not appear by a representative or, though it does so appear,

fails to enter any plea, the court must order a plea of not guilty to be entered

and the trial must proceed as though the corporation had duly entered a plea

of not guilty.

(2) In this section “representative”, in relation to a corporation, means a

person duly appointed by the corporation to represent it for the purpose of

doing any act or thing which the representative of a corporation is by this

section authorised to do, but a person so appointed is not, by virtue only of

being so appointed, qualified to act on behalf of the corporation before any

court for any other purpose.

(3) A representative for the purposes of this section need not be appointed

under the seal of the corporation, and a statement in writing purporting to be

signed by a managing director of the corporation, or by any person (by

whatever name called) having, or being one of the persons having, the

management of the affairs of the corporation, to the effect that the person

named in the statement has been appointed as the representative of the

Criminal Procedure and Evidence

2011-24

corporation for the purposes of this section, is admissible without further

proof as prima facie evidence that that person has been so appointed.

Plea of autrefois acquit or autrefois convict.

297. If a defendant pleads autrefois acquit or autrefois convict it is for the

judge, without the presence of a jury, to decide the issue.

Attendance of witnesses

Issue of witness summons on application to Supreme Court.

298.(1) This section applies if the Supreme Court is satisfied that–

(a) a person is likely to be able to give evidence likely to be

material evidence, or produce any document or thing likely to

be material evidence, for the purpose of any criminal

proceedings before the Supreme Court, and

(b) the person will not voluntarily attend as a witness or will not

voluntarily produce the document or thing.

(2) In such a case the Supreme Court must, subject to the following

provisions of this section, issue a summons (a witness summons) directed to

the person concerned and requiring him to–

(a) attend before the Supreme Court at the time and place stated in

the summons; and

(b) give the evidence or produce the document or thing.

(3) A witness summons may only be issued under this section on an

application; and the Supreme Court may refuse to issue the summons if any

requirement relating to the application is not fulfilled.

(4) If a person has been committed or sent for trial under Part 9, for any

offence to which the proceedings concerned relate, an application must be

made as soon as is reasonably practicable after the committal or sending.

(5) If the proceedings concerned relate to an offence in relation to which a

bill of indictment has been preferred under the authority of section

289(2)(b) (bill preferred by direction of Court of Appeal, or by direction or

with consent of judge) an application must be made as soon as is reasonably

practicable after the bill was preferred.

(6) An application must be made in accordance with any relevant rules of

court.

Criminal Procedure and Evidence

2011-24

(7) Rules of court may specify the cases which–

(a) require an application to be made by a party to the case;

(b) require the service of notice of an application on the person to

whom the witness summons is proposed to be directed;

statement containing a declaration of truth containing such

matters as the rules may stipulate.

(8) Rules of court may make provision for enabling the person to whom

the witness summons is proposed to be directed to be present or represented

at the hearing of the application for the witness summons.

(9) The rules may in particular require an affidavit or a statement

containing a declaration of truth to –

(a) set out any charge on which the proceedings concerned are

based;

(b) specify any stipulated evidence, document or thing in such a

way as to enable the directed person to identify it;

to be able to give any stipulated evidence or produce any

stipulated document or thing;

(d) specify grounds for believing that any stipulated evidence is

likely to be material evidence;

(e) specify grounds for believing that any stipulated document or

thing is likely to be material evidence.

(10) In subsection (9)–

(a) references to any stipulated evidence, document or thing are to

any evidence, document or thing whose giving or production is

proposed to be required by the witness summons;

(b) references to the directed person are to the person to whom the

witness summons is proposed to be directed.

Power to require advance production.

299. A witness summons which is issued under section 298 and which

requires a person to produce a document or thing as mentioned in subsection

(2) of that section may also require him to produce the document or thing–

Criminal Procedure and Evidence

2011-24

(a) at a place stated in the summons; and

(b) at a time which is so stated and precedes that stated under that

subsection,

for inspection by the person applying for the summons.

Directions if summons no longer needed.

300.(1) If

(a) a document or thing is produced pursuant to a requirement

imposed by a witness summons under section 299;

(b) the person applying for the summons concludes that a

requirement imposed by the summons under section 298(2) is

no longer needed; and

that the summons is to be of no further effect,

the court may direct accordingly.

(2) An application under this section must be made in accordance with

relevant rules of court.

(3) Rules of court may, in cases the rules specify, require the effect of a

direction under this section to be notified to the person to whom the

summons is directed.

Application to make summons under section 298 ineffective.

301.(1) If a witness summons issued under section 298 is directed to a

person who–

(a) applies to the Supreme Court;

(b) satisfies the court that he was not served with notice of the

application to issue the summons and that he was neither

present nor represented at the hearing of the application; and

material evidence or, as the case may be, produce any

document or thing likely to be material evidence,

the court may direct that the summons is of no effect.

Criminal Procedure and Evidence

2011-24

(2) For the purposes of subsection (1) it is immaterial whether or not rules

of court–

(a) require the person to be served with notice of the application to

issue the summons;

(b) enable the person to be present or represented at the hearing of

the application.

(3) In subsection (1)(b) “served” means–

(a) if the rules require the person to be served with notice of the

application to issue the summons - served in accordance with

the rules;

(b) in any other case - served in a way that appears reasonable to

the court to which the application is made.

(4) The Supreme Court may refuse to make a direction under this section

if any requirement relating to the application under this section is not

fulfilled.

(5) An application under this section must be made in accordance with

relevant rules of court.

(6) Rules of court may specify the cases which–

(a) require the service of notice of an application under this section

on the person on whose application the witness summons was

issued;

(b) require that if–

(i) a person applying under this section can produce a

particular document or thing; but

(ii) he seeks to satisfy the court that the document or thing is

not likely to be material evidence,

he must arrange for the document or thing to be available at the

hearing of the application.

(7) If a direction is made under this section that a witness summons is of

no effect, the person on whose application the summons was issued may be

ordered to pay the whole or any part of the costs of the application under

this section.

Criminal Procedure and Evidence

2011-24

(8) Any costs payable under an order made under subsection (7) must be

taxed by the Registrar, and payment of those costs is enforceable in the

same manner as an order for payment of costs made by the Supreme Court

in a civil case or as a sum adjudged summarily to be paid as a civil debt.

Issue of witness summons of court’s own motion.

302. For the purpose of any criminal proceedings before it, the Supreme

Court may on its own initiative issue a witness summons directed to a

person and requiring him to–

(a) attend before the court at the time and place stated in the

summons; and

(b) give evidence, or produce any document or thing specified in

the summons.

Application to make summons under section 302 ineffective.

303.(1) If a witness summons issued under section 302 is directed to a

person who–

(a) applies to the Supreme Court; and

(b) satisfies the court that he cannot give any evidence likely to be

material evidence or, as the case may be, produce any

document or thing likely to be material evidence,

the court may direct that the summons is of no effect.

(2) The Supreme Court may refuse to make a direction under this section

if any requirement relating to the application under this section is not

fulfilled.

(3) An application under this section must be made in accordance with

relevant rules of court.

(4) Rules of court may specify the cases which–

(a) require the service of notice of an application under this section

on the person on whose application the witness summons was

issued;

(b) require that if–

(i) a person applying under this section can produce a

particular document or thing; but

Criminal Procedure and Evidence

2011-24

(ii) he seeks to satisfy the court that the document or thing is

not likely to be material evidence,

he must arrange for the document or thing to be available at the

hearing of the application.

Penalty for disobeying a witness summons or requirement.

304.(1) A person who without just excuse disobeys a witness summons

requiring him to attend before the Supreme Court commits contempt of

court and may be punished summarily as if his contempt had been

committed in the face of the court.

(2) A person who without just excuse disobeys a requirement made by the

Supreme Court under section 299 commits contempt of court and may be

punished summarily as if his contempt had been committed in the face of

the court.

(3) No person is by reason of any disobedience mentioned in subsection

(1) or (2) liable to imprisonment for a period exceeding 3 months.

Further process to ensure attendance of witness.

305.(1) If a judge of the Supreme Court is satisfied by evidence on oath that

a witness in respect of whom a witness summons is in force is unlikely to

comply with the summons, the judge may, subject to subsection (2), issue a

warrant to arrest the witness and bring him before the court before which he

is required to attend.

(2) A warrant may not be issued under subsection (1) unless the judge is

satisfied by evidence as mentioned in that subsection that the witness is

likely to be able to give material evidence or to produce any document or

thing that will be material evidence in the proceedings.

(3) If a witness who is required to attend before the Supreme Court by

virtue of a witness summons fails to attend in compliance with the

summons–

(a) the court may serve on him a notice requiring him to attend the

court at a specified time; and

(b) if–

(i) there are reasonable grounds for believing that he has

failed to attend without just excuse; or

(ii) he has failed to comply with the notice,

Criminal Procedure and Evidence

2011-24

the court may issue a warrant to arrest him and bring him before the court.

(3) A witness brought before the Supreme Court pursuant to a warrant

under this section may be remanded in custody or on bail (with or without

sureties) until a time the court appoints for receiving his evidence or dealing

with him under section 304.

(4) If a witness attends the Supreme Court pursuant to a notice under this

section the court may direct that the notice has effect as if it required him to

attend at any later time appointed by the court for receiving his evidence or

dealing with him under section 304.

Expenses of witnesses.

306.(1) Every person who attends any criminal trial of the Supreme Court

as a witness for the prosecution or for the defence, in response to a witness

summons, is entitled at the conclusion of the case, whether he has been

examined or not, to be paid for his attendance and expenses in accordance

with a scale established by rules of court.

(2) The court may, if it thinks fit, disallow the payment to a witness of any

sum that would otherwise be payable under subsection (1).

(3) If the court certifies that in its opinion any witness examined for the

defence, not being a witness mentioned in subsection (1)–

(a) has given material evidence; and

(b) has given his evidence in a truthful and satisfactory manner,

it may order that the witness is to be paid allowances and expenses as if he

had attended in response to a witness summons, and the account of such a

witness is to be taxed and paid accordingly.

(4) No claim made by a witness for payment of a sum under subsection

(3) is to be entertained unless the claim is made within one month after the

last day of the criminal trial in respect of which it is made.

(5) Payment of any allowances or expenses under this section is to be

made out of funds appropriated by the Parliament under the relevant

Appropriation Act.

Tainted acquittals

Acquittals tainted by intimidation, etc.

307.(1) This section applies if–

Criminal Procedure and Evidence

2011-24

(a) a person has been acquitted of an offence; and

(b) a person has been convicted of an administration of justice

offence involving interference with or intimidation of a juror or

a witness (or potential witness) in any proceedings which led to

the acquittal.

(2) If it appears to the court before which the person was convicted as

mentioned in subsection (1)(b) that–

(a) there is a real possibility that, but for the interference or

intimidation, the acquitted person would not have been

acquitted; and

(b) it would not, for lapse of time or for any other reason, be

contrary to the interests of justice to take proceedings against

the acquitted person for the offence of which he was acquitted,

the court must certify that it so appears.

(3) If a court certifies under subsection (2), an application may be made to

the Court of Appeal for an order quashing the acquittal, and the court must

make the order if (but must not do so unless) the four conditions in section

308 are satisfied.

(4) If an order is made under subsection (3) proceedings may be taken

against the acquitted person for the offence of which he was acquitted.

(5) For the purposes of this section the following offences are

administration of justice offences–

(a) the offence of perverting the course of justice;

(b) the offence under section 478 of the Crimes Act 2011

(Intimidation etc. of witnesses, jurors and others);

suborning or inciting another person to commit an offence

under section 457 of the Crimes Act 2011(Perjury in judicial

proceedings).

(6) This section applies in relation to acquittals in respect of offences

alleged to be committed on or after the commencement of this Part.

Conditions for making order.

Criminal Procedure and Evidence

2011-24

308.(1) The first condition is that it appears to the Court of Appeal likely

that, but for the interference or intimidation, the acquitted person would not

have been acquitted.

(2) The second condition is that it does not appear to the court that,

because of lapse of time or for any other reason, it would be contrary to the

interests of justice to take proceedings against the acquitted person for the

offence of which he was acquitted.

(3) The third condition is that it appears to the court that the acquitted

person has been given a reasonable opportunity to make written

representations to the court.

(4) The fourth condition is that it appears to the court that the conviction

for the administration of justice offence will stand.

(5) In applying subsection (4) the court must–

(a) take into account all the information before it; but

(b) ignore the possibility of new factors coming to light.

(6) Accordingly, the fourth condition has the effect that the court must not

make an order under section 307(3) if (for instance) it appears to the court

that any time allowed for giving notice of appeal has not expired or that an

appeal is pending.

Time limits for proceedings.

309.(1) If–

(a) an order is made under section 307(3) quashing an acquittal;

(b) by virtue of section 307(4) it is proposed to take proceedings

against the acquitted person for the offence of which he was

acquitted; and

that the proceedings must be commenced before a specified

period calculated by reference to the commission of the

offence,

in relation to the proceedings the enactment has effect as if the period were

instead one calculated by reference to the time the order is made under

section 307(3).

(2) Subsection (1)(c) applies however the enactment is expressed.

Criminal Procedure and Evidence

2011-24

Miscellaneous provisions

Practice and procedure in connection with indictable offences and

appeals.

310.(1) All enactments and rules of law relating to procedure in connection

with indictable offences continue to have effect in relation to proceedings in

the Supreme Court unless repealed or varied by this Act.

(2) Without limiting subsection (1), that subsection applies in particular

to–

(a) the practice by which, on any one indictment, the taking of

pleas, the trial by jury and the pronouncement of judgment may

respectively be by or before different judges;

(b) the release, after respite of judgment, of a convicted person on

recognizance to come up for judgment if called on, but

meanwhile to be of good behaviour;

recognizance;

(d) the manner of execution of any sentence on conviction, or the

manner in which any other judgment or order given in

connection with trial on indictment may be enforced; and

(e) the customary practice and procedure with respect to appeals to

the Supreme Court, and in particular any practice as to the

extent to which an appeal is by way of rehearing of the case.

Process to compel appearance.

311.(1) Any direction to appear and any condition of a recognizance to

appear before the Supreme Court, and any summons or order to appear

before that court, may be so framed as to require appearance at such time

and place as may be directed by the Supreme Court, and if a time or place is

specified in the direction, condition, summons or order, it may be varied by

any subsequent direction of that court.

(2) If an indictment has been signed although the person charged has not

been committed for trial, the Supreme Court may issue a summons requiring

that person to appear before it, or may issue a warrant for his arrest.

(3) The Supreme Court, on issuing a warrant for the arrest of any person,

may endorse the warrant for bail, in which case–

Criminal Procedure and Evidence

2011-24

(a) the person arrested under the warrant must, unless the Supreme

Court otherwise directs, be taken to a police station; and

(b) the officer in charge of the station must release him from

custody if he, and any sureties required by the endorsement and

approved by the officer, enter into recognizances of an amount

specified in the endorsement.

(4) A person in custody pursuant to a warrant issued by the Supreme

Court with a view to his appearance before that court must be brought

forthwith before either the Supreme Court or the Magistrates’ Court.

PART 15 - RETRIAL FOR SERIOUS OFFENCES

Application for retrial

Cases that may be retried.

312.(1) This Part applies if a person has been acquitted of a qualifying

offence in proceedings–

(a) on indictment in Gibraltar;

(b) on appeal against a conviction, verdict or finding in

proceedings on indictment in Gibraltar; or

(2) A person acquitted of an offence in proceedings mentioned in

subsection (1) is treated for the purposes of that subsection as also acquitted

of any qualifying offence of which he could have been convicted in the

proceedings because of the first-mentioned offence being charged in the

indictment, except an offence–

(a) of which he has been convicted;

(b) of which he has been found not guilty by reason of mental

disorder; or

that he did the act or made the omission charged against him.

(3) References in subsections (1) and (2) to a qualifying offence do not

include references to an offence which, at the time of the acquittal, was the

subject of an order under section 314(1) or (3).

(4) This Part also applies if a person has been acquitted, in criminal

proceedings elsewhere than in Gibraltar, of an offence under the law of the

Criminal Procedure and Evidence

2011-24

place where the proceedings were held, if the commission of the offence as

alleged would have amounted to or included the commission (in Gibraltar or

elsewhere) of a qualifying offence.

(5) Conduct punishable under the law in force elsewhere than in Gibraltar

is an offence under that law for the purposes of subsection (4), however it is

described in that law.

(6) This Part applies whether the acquittal was before or after the

commencement of this Part.

(7) In this Part–

(a) references to acquittal are to acquittal in circumstances within subsection (1)

or (4);

(b) “qualifying offence” means an offence listed in Schedule 7;

Application to Court of Appeal.

313.(1) The Attorney-General may apply to the Court of Appeal for an

order–

(a) quashing a person’s acquittal in proceedings within section

312(1); and

(b) ordering him to be retried for the qualifying offence.

(2) The Attorney-General may apply to the Court of Appeal, in the case of

a person acquitted elsewhere than in Gibraltar, for–

(a) a decision whether the acquittal is a bar to the person being

tried in Gibraltar for the qualifying offence; and

(b) if it is, an order that the acquittal is not to be a bar.

(3) The Attorney-General may make an application only if satisfied that–

(a) there is evidence as respects which the requirements of section

315 appear to be met;

(b) it is in the public interest for the application to be made; and

inconsistent with the obligations of Gibraltar under Article 82

of the Treaty on the Functioning of the European Union

relating to the principle of ne bis in idem.

Criminal Procedure and Evidence

2011-24

(4) Not more than one application may be made under subsection (1) or

(2) in relation to an acquittal.

Decision by Court of Appeal.

314.(1) On an application under section 313(1), the Court of Appeal–

(a) if satisfied that the requirements of sections 315 and 316 are

met, must make the order applied for;

(b) otherwise, must dismiss the application.

(2) Subsections (3) and (4) apply to an application under section 313(2).

(3) If the Court of Appeal decides that the acquittal is a bar to the person

being tried for the qualifying offence, the court–

(a) if satisfied that the requirements of sections 315 and 316 are

met, must make the order applied for;

(b) otherwise, must make a declaration to the effect that the

acquittal is a bar to the person being tried for the offence.

(4) If the Court of Appeal decides that the acquittal is not a bar to the

person being tried for the qualifying offence, it must make a declaration to

that effect.

New and compelling evidence.

315.(1) The requirements of this section are met if there is new and

compelling evidence against the acquitted person in relation to the

qualifying offence.

(2) Evidence is new if it was not adduced in the proceedings in which the

person was acquitted (nor, if those were appeal proceedings, in earlier

proceedings to which the appeal related).

(3) Evidence is compelling if–

(a) it is reliable;

(b) it is substantial; and

probative of the case against the acquitted person.

Criminal Procedure and Evidence

2011-24

(4) The outstanding issues are the issues in dispute in the proceedings in

which the person was acquitted and, if those were appeal proceedings, any

other issues remaining in dispute from earlier proceedings to which the

appeal related.

(5) For the purposes of this section, it is irrelevant whether any evidence

would have been admissible in earlier proceedings against the acquitted

person.

Interests of justice.

316.(1) The requirements of this section are met if in all the circumstances

it is in the interests of justice for the court to make the order under section

314.

(2) That question is to be decided having regard in particular to–

(a) whether existing circumstances make a fair trial unlikely;

(b) for the purposes of that question and otherwise, the length of

time since the qualifying offence was allegedly committed;

adduced in the earlier proceedings against the acquitted person

but for a failure by a police officer or by the prosecutor to act

with due diligence or expedition;

(d) whether, since those proceedings or, if later, since the

commencement of this Part, any police officer or prosecutor

has failed to act with due diligence or expedition.

(3) In subsection (2) references to a police officer or prosecutor include

references to a person charged with corresponding duties under the law in

force elsewhere than in Gibraltar.

Procedure and evidence on the application.

317.(1) If the Attorney-General wishes to make an application under

section 313(1) or (2), he must give notice of the application to the Court of

Appeal.

(2) Within 2 days beginning with the day on which any such notice is

given, notice of the application must be served by the Attorney-General on

the person to whom the application relates, charging him with the offence to

which it relates or, if he has been charged with it in accordance with section

325(4), stating that he has been so charged.

Criminal Procedure and Evidence

2011-24

(3) Subsection (2) applies whether the person to whom the application

relates is in Gibraltar or elsewhere, but the Court of Appeal may, on

application by the Attorney-General, extend the time for service under that

subsection if it considers it necessary to do so because of that person’s

absence from Gibraltar.

(4) The Court of Appeal must consider the application at a hearing.

(5) The person to whom the application relates–

(a) is entitled to be present at the hearing, although he may be in

custody, unless he is in custody elsewhere than in Gibraltar;

and

(b) is entitled to be represented at the hearing, whether he is

present or not.

(6) For the purposes of the application, the Court of Appeal may, if it

thinks it necessary or expedient in the interests of justice–

(a) order the production of any document, exhibit or other thing,

the production of which appears to the court to be necessary for

the determination of the application; and

(b) order any witness who would be a compellable witness in

criminal proceedings pursuant to an order or declaration made

on the application to attend for examination and be examined

before the court.

(7) The Court of Appeal may at one hearing consider more than one

application (whether or not relating to the same person), but only if the

offences concerned could be tried on the same indictment.

Appeals.

318.(1) An appeal lies to Her Majesty in Council, at the instance of the

acquitted person or the Attorney-General, from any decision of the Court of

Appeal on an application under section 313(1) or (2).

(2) An appeal under subsection (1) can be made only with the leave of the

Court of Appeal or Her Majesty in Council.

(3) An application under this Part to the Court of Appeal for leave to

appeal to Her Majesty in Council may be made orally immediately after the

court gives its ruling or by notice served on the Registrar within 14 days of

the ruling.

Criminal Procedure and Evidence

2011-24

(4) For the purpose of dealing with a case under this section Her Majesty

in Council may exercise any powers of the Court of Appeal.

Restrictions on publication in the interests of justice.

319.(1) If it appears to the Court of Appeal that the inclusion of any matter

in a publication or relevant programme would give rise to a substantial risk

of prejudice to the administration of justice in a retrial, the court may order

that the matter is not to be included in any publication or relevant

programme while the order has effect.

(2) In subsection (1) “retrial” means the trial of an acquitted person for a

qualifying offence pursuant to any order made or that may be made under

section 314.

(3) The court may make an order under this section only if it appears to it

necessary in the interests of justice to do so.

(4) An order under this section may apply to a matter which has been

included in a publication published or relevant programme broadcast before

the order takes effect, but such an order–

(a) applies only to the later inclusion of the matter in a publication

or programme (whether directly or by inclusion of the earlier

publication or programme); and

(b) does not otherwise affect the earlier publication.

(5) After notice of an application has been given under section 317(1)

relating to the acquitted person and the qualifying offence, the court may

make an order under this section either–

(a) on its own initiative; or

(b) on the application of the Attorney-General.

(6) Before such notice has been given, an order under this section–

(a) may be made only on the application of the Attorney-General;

and

(b) may not be made unless, since the acquittal concerned, an

investigation of the commission by the acquitted person of the

qualifying offence has been commenced by the police.

(7) The court may at any time, on its own initiative or on an application

made by the Attorney-General or the acquitted person, vary or revoke an

order under this section.

Criminal Procedure and Evidence

2011-24

(8) Any order made under this section before notice of an application has

been given under section 317(1) relating to the acquitted person and the

qualifying offence must specify the time when it ceases to have effect.

(9) An order under this section which is made or has effect after such

notice has been given ceases to have effect, unless it specifies an earlier

time–

(a) when there is no longer any step that could be taken which

would lead to the acquitted person being tried pursuant to an

order made on the application; or

(b) if he is tried pursuant to such an order, at the conclusion of the

trial.

(10) Nothing in this section affects any prohibition or restriction by virtue

of any other enactment on the inclusion of any matter in a publication or

relevant programme or any power, under an enactment or otherwise, to

impose such a prohibition or restriction.

Offences in connection with publication restrictions.

320.(1) This section applies if–

(a) an order under section 319 is made; and

(b) while the order has effect, any matter is included in a

publication in contravention of the order.

(2) If the publication is a newspaper or periodical, any proprietor, editor or

publisher of the newspaper or periodical commits an offence.

(3) If the publication is a relevant programme, any person having

functions in relation to the programme corresponding to those of an editor

of a newspaper commits an offence.

(4) In the case of any other publication, any person publishing it commits

an offence.

(5) If an offence under this section committed by a corporate body is

proved–

(a) to have been committed with the consent or connivance of; or

(b) to be attributable to any neglect on the part of,

Criminal Procedure and Evidence

2011-24

an officer, the officer as well as the corporate body commits the offence and

is liable to be proceeded against and punished accordingly.

(6) In subsection (5), “officer” means a director, manager, secretary or

other similar officer of the body, or a person purporting to act in any such

capacity.

(7) If the affairs of a corporate body are managed by its members,

“director” in subsection (6) means a member of that body.

(8) A person who commits an offence under this section is liable on

summary conviction to a fine at level 5 on the standard scale.

(9) Proceedings for an offence under this section may not be instituted

except by or with the consent of the Attorney-General.

Procedure on a retrial

Procedure on a retrial.

321.(1) If a person–

(a) is tried pursuant to an order under section 314(1); or

(b) is tried on indictment pursuant to an order under section

314(3),

the trial must be on an indictment preferred by direction of the Court of

Appeal.

(2) After the end of 2 months after the date of the order, the person may

not be arraigned on an indictment preferred pursuant to such a direction

unless the Court of Appeal gives leave.

(3) The Court of Appeal must not give leave unless satisfied that–

(a) the prosecutor has acted with due expedition; and

(b) there is a good and sufficient cause for trial despite the lapse of

time since the order under section 314.

(4) If the person may not be arraigned without leave, he may apply to the

Court of Appeal to set aside the order and–

(a) for any direction required for restoring an earlier judgment and

verdict of acquittal of the qualifying offence; or

Criminal Procedure and Evidence

2011-24

(b) in the case of a person acquitted elsewhere than in Gibraltar,

for a declaration to the effect that the acquittal is a bar to his

being tried for the qualifying offence.

(5) An indictment under subsection (1) may relate to more than one

offence, or more than one person, and may relate to an offence which, or a

person who, is not the subject of an order or declaration under section 314.

Evidence on a retrial.

322.(1) Evidence given at a trial pursuant to an order under section 314(1)

or (3) must be given orally if it was given orally at the original trial, unless–

(a) all the parties to the trial agree otherwise;

(b) section 391 applies; or

mentioned in subsection (2) of that section, and section

389(1)(d) applies.

(2) At a retrial pursuant to an order under section 314(1), written

depositions read as evidence at the original trial are not admissible in

evidence.

(3) A transcript of the record of the evidence given by any witness at the

original trial may, with the leave of the judge, be read as evidence–

(a) by agreement between the prosecution and the defence; or

(b) if the judge is satisfied that the witness is dead or unfit to give

evidence or to attend for that purpose, or that all reasonable

efforts to find him or to secure his attendance have been made

without success,

and in either case may be so read without further proof, if verified in

accordance with relevant rules of court.

Authorisation of investigations.

323.(1) This section applies to the investigation of the commission of a

qualifying offence by a person–

(a) acquitted in proceedings within section 312(1) of the

qualifying offence; or

(b) acquitted elsewhere than in Gibraltar of an offence the

commission of which as alleged would have amounted to or

Criminal Procedure and Evidence

2011-24

included the commission (in Gibraltar or elsewhere) of the

qualifying offence.

(2) Subject to section 324, a police officer may not do anything within

subsection (3) for the purposes of such an investigation unless the Attorney-

General has–

(a) certified that in his opinion the acquittal would not be a bar to

the trial of the acquitted person in Gibraltar for the qualifying

offence; or

(b) given his written consent to the investigation (whether before

or after the start of the investigation).

(3) The police officer may not, either with or without the consent of the

acquitted person–

(a) arrest or question him;

(b) search him or premises owned or occupied by him;

vehicle;

(d) seize anything in his possession; or

(e) take his fingerprints or take a sample from him.

(4) The Attorney-General may only give his consent on a written

application, and such an application may be made only by a police officer of

the rank of Chief Inspector or above.

(5) A police officer may make an application under subsection (4) only if

–

(a) he is satisfied that new evidence has been obtained which

would be relevant to an application under section 313(1) or (2)

in respect of the qualifying offence to which the investigation

relates; or

(b) he has reasonable grounds for believing that such new evidence

is likely to be obtained as a result of the investigation.

(6) The Attorney-General may not give his consent unless satisfied that–

(a) there is, or there is likely as a result of the investigation to be,

sufficient new evidence to warrant the conduct of the

investigation; and

Criminal Procedure and Evidence

2011-24

(b) it is in the public interest for the investigation to proceed.

Urgent investigative steps.

324.(1) Section 323 does not prevent a police officer from taking any action

for the purposes of an investigation if–

(a) the action is necessary as a matter of urgency to prevent the

investigation being substantially and irrevocably prejudiced;

(b) the requirements of subsection (2) are met; and

(i) the action is authorised under subsection (3); or

(ii) the requirements of subsection (5) are met.

(2) The requirements of this subsection are met if –

(a) there has been no undue delay in applying for consent under

section 323(2);

(b) that consent has not been refused; and

reasonably practicable to obtain that consent before taking the

action.

(3) A police officer of the rank of Chief Inspector or above may authorise

the action if–

(a) he is satisfied that new evidence has been obtained which

would be relevant to an application under section 313(1) or (2)

in respect of the qualifying offence to which the investigation

relates; or

(b) he has reasonable grounds for believing that such new evidence

is likely to be obtained as a result of the investigation.

(4) An authorisation under subsection (3) must–

(a) if reasonably practicable, be given in writing;

(b) otherwise, be recorded in writing by the officer giving it as

soon as is reasonably practicable.

Criminal Procedure and Evidence

2011-24

(5) The requirements of this subsection are met if–

(a) there has been no undue delay in applying for authorisation

under subsection (3);

(b) that authorisation has not been refused; and

reasonably practicable to obtain that authorisation before

taking the action.

(6) If the requirements of subsection (5) are met, the action is nevertheless

to be treated as having been unlawful unless, as soon as reasonably

practicable after the action is taken, a police officer of the rank of Chief

Inspector or above certifies in writing that he is satisfied that, when the

action was taken–

(a) new evidence had been obtained which would be relevant to an

application under section 313(1) or (2) in respect of the

qualifying offence to which the investigation relates; or

(b) the officer who took the action had reasonable grounds for

believing that such new evidence was likely to be obtained as a

result of the investigation.

Arrest and charge.

325.(1) If section 323 applies to the investigation of the commission of an

offence by any person and no certification has been given under subsection

(2) of that section–

(a) a magistrate may issue a warrant to arrest the person for that

offence only if satisfied by written information that new

evidence has been obtained which would be relevant to an

application under section 313(1) or (2) in respect of the

commission by that person of that offence; and

(b) the person may not be arrested for that offence except under a

warrant so issued.

(2) Subsection (1) does not affect section 327(3)(b) or 329(3), or any other

power to arrest a person, or to issue a warrant for the arrest of a person,

otherwise than for an offence.

(3) Part 5 (Police Detention) applies as follows if a person–

(a) is arrested for an offence under a warrant issued in accordance

with subsection (1)(a); or

Criminal Procedure and Evidence

2011-24

(b) having been so arrested, is subsequently treated under section

55(7) (Limitations on police detention) as arrested for that

offence.

(4) For the purposes of that Part there is sufficient evidence to charge the

person with the offence for which he has been arrested if, and only if, a

police officer of the rank of Chief Inspector or above (who has not been

directly involved in the investigation) is of the opinion that the evidence

available or known to him is sufficient for the case to be referred to a

prosecutor to consider whether consent should be sought for an application

in respect of that person under section 313.

(5) For the purposes of that Part it is the duty of the custody officer at each

police station where the person is detained to make available or known to an

officer at that police station of the rank of Chief Inspector or above any

evidence which it appears to him may be relevant to an application under

section 313(1) or (2) in respect of the offence for which the person has been

arrested, and to do so as soon as practicable–

(a) after the evidence becomes available or known to him; or

(b) if later, after he forms that view.

(6) Section 58 (Duties of custody officer before charge) (including any

provision of that section as applied by section 63(7)) (Review of police

detention) has effect subject to the following modifications–

(a) in subsection (1)–

(i) for “decide whether the officer has before him”

substitute “request an officer of the rank of Chief

Inspector or above (who has not been directly involved

in the investigation) to decide, in accordance with

section 325(4), whether there is”;

(ii) for “him to do so” substitute “that decision to be made”;

(b) in subsection (2)–

(i) for the words from “custody officer decides” to “before

him” substitute “officer who is making a decision

decides that there is not such sufficient evidence”;

(ii) omit “custody” from the second place where it occurs;

Criminal Procedure and Evidence

2011-24

(i) omit “custody”;

(ii) after “may” insert “direct the custody officer to”.

(d) in subsection (7) for the words from “the custody officer” to

the end of that subsection substitute “an officer of the rank of

Chief Inspector or above (who has not been directly involved

in the investigation) decides, in accordance with section

325(4), that there is sufficient evidence to charge the person

arrested with the offence for which he was arrested, the person

arrested must be charged.”;

(e) subsection (8) does not apply;

(f) after subsection (12) insert–

“(13) The officer who is requested by the custody officer to

make a decision under subsection (1) must make it as

soon as practicable after the request is made.”.

(7) Section 63 (Review of police detention) has effect as if in subsections

(7) and (8) of that section after “(6)” there were inserted “and (12)”.

(8) Section 66 (Authorisation of continued detention) has effect as if in

subsection (1) of that section for the words from “who” to “detained” there

were substituted “(who has not been directly involved in the investigation)”.

Bail and custody before application.

326.(1) In relation to a person charged in accordance with section 325(4)–

(a) section 61 (Duties of custody officer after charge) (including

any provision of that section as applied by section 63(9)) has

effect as if, in subsection (1), for “either on bail or without

bail” there were substituted “on bail”,

(b) section 72(2) (Bail after arrest) does not apply and references

in section 61 to bail are references to bail subject to a duty to

appear before the Supreme Court at a time the custody officer

appoints, not being later than 24 hours after the person is

released.

(2) If such a person is, after being charged kept in police detention, he

must be brought before the Supreme Court as soon as practicable and, in

any event, not more than 24 hours after he is charged.

(3) If a person appears or is brought before the Supreme Court in

accordance with subsection (1) or (2), the court may either–

Criminal Procedure and Evidence

2011-24

(a) grant bail for the person to appear, if notice of an application is

served on him under section 317(2), before the Court of Appeal

at the hearing of that application; or

(b) remand the person in custody to be brought before the Supreme

Court under section 327(2).

(4) If the Supreme Court grants bail under subsection (3), it may revoke

bail and remand the person in custody as referred to in subsection (3)(b).

(5) In subsection (6) the “relevant period”, in relation to a person granted

bail or remanded in custody under subsection (3), means–

(a) the period of 42 days beginning with the day on which he is

granted bail or remanded in custody under that subsection; or

(b) that period as extended or further extended under subsection

(7).

(6) If at the end of the relevant period no notice of an application under

section 313(1) or (2) in relation to the person has been given under section

317(1), the person–

(a) if on bail subject to a duty to appear as mentioned in subsection

(3)(a), ceases to be subject to that duty and to any conditions of

that bail; and

(b) if in custody on remand under subsection (3)(b) or (4), must be

released immediately without bail.

(7) The Supreme Court may, on the application of the prosecutor, extend

or further extend the period mentioned in subsection (5)(a) until a specified

date, but only if satisfied that–

(a) the need for the extension is due to some good and sufficient

cause; and

(b) the prosecutor has acted with all due diligence and expedition.

Bail and custody before hearing.

327.(1) This section applies if notice of an application is given under

section 317(1).

(2) If the person to whom the application relates is in custody under

section 326(3)(b) or (4), he must be brought before the Supreme Court as

Criminal Procedure and Evidence

2011-24

soon as practicable and, in any event, within 48 hours after the notice is

given.

(3) If that person is not in custody under section 326(3)(b) or (4), the

Supreme Court may, on application by the prosecutor–

(a) issue a summons requiring the person to appear before the

Court of Appeal at the hearing of the application; or

(b) issue a warrant for the person’s arrest,

and a warrant under paragraph (b) may be issued at any time even though a

summons has previously been issued.

(4) If a summons is issued under subsection (3)(a), the time and place at

which the person must appear may be specified either–

(a) in the summons; or

(b) in a subsequent direction of the Supreme Court.

(5) The time or place specified may be varied from time to time by a

direction of the Supreme Court.

(6) A person arrested under a warrant under subsection (3)(b) must be

brought before the Supreme Court as soon as practicable and in any event

within 48 hours after his arrest.

(7) If a person is brought before the Supreme Court under subsection (2)

or (6) the court must either–

(a) remand him in custody to be brought before the Court of

Appeal at the hearing of the application; or

(b) grant bail for him to appear before the Court of Appeal at the

hearing.

(8) If bail is granted under subsection (7)(b), the Supreme Court may

revoke the bail and remand the person in custody as referred to in

subsection (7)(a).

Bail and custody during and after hearing.

328.(1) The Court of Appeal may, at any adjournment of the hearing of an

application under section 313(1) or (2)–

(a) remand the person to whom the application relates on bail; or

Criminal Procedure and Evidence

2011-24

(b) remand him in custody.

(2) At a hearing at which the Court of Appeal–

(a) makes an order under section 314;

(b) makes a declaration under subsection (4) of that section; or

subsection (3) of that section, if it also gives the prosecutor

leave to appeal against its decision or the prosecutor gives

notice that he intends to apply for such leave,

the court may make such order as it sees fit for the custody or bail of the

acquitted person pending trial pursuant to the order or declaration, or

pending determination of the appeal.

(3) For the purpose of subsection (2), the determination of an appeal is

pending–

(a) until any application for leave to appeal is disposed of, or the

time within which it must be made expires;

(b) if leave to appeal is granted, until the appeal is disposed of.

(4) Section 111 applies in relation to the grant of bail under this section as

if in subsection (2) the reference to the court included a reference to the

Court of Appeal.

(5) The court may at any time, as it sees fit–

(a) revoke bail granted under this section and remand the person in

custody; or

(b) vary an order under subsection (2).

Revocation of bail.

329.(1) If–

(a) a court revokes a person’s bail under this Part; and

(b) that person is not before the court when his bail is revoked,

the court must order him to surrender himself forthwith to the custody of the

court.

Criminal Procedure and Evidence

2011-24

(2) If a person surrenders himself into the custody of the court in

compliance with an order under subsection (1), the court must remand him

in custody.

(3) A person who has been ordered to surrender to custody under

subsection (1) may be arrested without a warrant by an officer if he fails

without reasonable cause to surrender to custody in accordance with the

order.

(4) A person arrested under subsection (3) must be brought as soon as

practicable, and, in any event, not more than 24 hours after he is arrested,

before the court and the court must remand him in custody.

PART 16 – EVIDENCE: GENERAL PRINCIPLES

Principles for admission of evidence

Evidence to be on oath.

330.(1) Subject to the provisions of any enactment or rule of law

authorising the reception of unsworn evidence, evidence given before a

court in criminal proceedings must be given on oath.

(2) In this section, “oath” includes an affirmation or declaration in the case

of persons by law allowed to affirm or declare instead of swearing.

Principles for admission of statements.

331.(1) If, having regard to all the circumstances–

(a) the Supreme Court–

(i) on a trial on indictment;

(ii) on an appeal from the Magistrates’ Court; or

(b) the Magistrates’ Court on a trial of an information,

is of the opinion that in the interests of justice a statement in a document,

although admissible by virtue of Part 17, ought not to be admitted, it may

refuse to admit the statement.

(2) Without limiting subsection (1), the court, in deciding whether a

statement should be admitted, must have regard to–

(a) the nature and source of the document containing the statement

and whether or not, having regard to its nature and source and

Criminal Procedure and Evidence

2011-24

to any other circumstances that appear to the court to be

relevant, it is likely that the document is authentic;

(b) the extent to which the statement appears to supply evidence

which would otherwise not be readily available;

issue which is likely to have to be decided in the proceedings;

and

(d) any risk, having regard in particular to whether it is likely to be

possible to controvert the statement if the person making it

does not attend to give oral evidence in the proceedings, that its

admission or exclusion will result in unfairness to the

defendant or, if there is more than one, to any of them.

(3) Nothing in this Part affects–

(a) any power of a court to exclude evidence (whether by

preventing questions from being put or otherwise) at its

discretion;

(b) any power of a court to exclude at its discretion a statement

otherwise admissible by virtue of this Part;

giving oral evidence in court which is admissible otherwise

than by virtue of this Part.

Exclusion of unfair evidence.

332.(1) In any proceedings the court may refuse to allow evidence on

which the prosecution proposes to rely to be given if it appears to the court

that, having regard to all the circumstances, including the circumstances in

which the evidence was obtained, the admission of the evidence would have

such an adverse effect on the fairness of the proceedings that the court ought

not to admit it.

(2) Nothing in this section affects any rule of law requiring a court to

exclude evidence.

(3) This section does not apply to proceedings before the Magistrates’

Court inquiring into an offence as examining magistrates.

Onus of proving exceptions, etc.

333. If the defendant to an information or complaint relies for his defence

on any exception, exemption, proviso, excuse or qualification, whether or

Criminal Procedure and Evidence

2011-24

not it accompanies the description of the offence or matter of complaint in

the enactment creating the offence or on which the complaint is founded, the

burden of proving the exception, exemption, proviso, excuse or qualification

is on him, even if the information or complaint contains an allegation

negativing the exception, exemption, proviso, excuse or qualification.

Summoning and calling of witnesses

General power to examine witnesses, etc.

334.(1) A court may, at any stage of any criminal proceedings–

(a) examine any person in attendance whether or not summoned as

a witness; and

(b) recall and re-examine any person already examined.

(2) The court must examine or recall and re-examine any witness if his

evidence appears to it essential to the just decision of the case

(3) The prosecutor or the counsel for the prosecution and the defendant or

his legal representative have the right to cross-examine any person

examined by the court pursuant to subsection (1), and the court must

adjourn the case for such time as it thinks necessary to enable such cross-

examination to be adequately prepared if, in its opinion, either party may be

prejudiced by the examining of any such person as a witness.

Witnesses in custody.

335.(1) Without affecting any other power to summon witnesses conferred

upon it by this Act or any other law, a court that wishes to examine as a

witness in any criminal proceedings before it a person who is in prison, may

issue an order to the Superintendent requiring him to bring the prisoner in

proper custody, at a time to be named in the order, before the court for

examination.

(2) The Superintendent, on receipt of an order under subsection (1), must–

(a) act in accordance with it; and

(b) provide for the safe custody of the prisoner during his absence

from the prison for such purpose.

Arrest and punishment of recalcitrant witnesses.

336.(1) Without affecting any other powers conferred upon the Supreme

Court by this Act or any other law, the Supreme Court may, if any person

summoned to attend as a witness before it in any criminal proceedings fails

Criminal Procedure and Evidence

2011-24

to attend as required by the summons, issue a warrant to arrest him and

bring him before the Supreme Court at the time specified in the warrant.

(2) If any person attending or brought before the Magistrates’ Court

refuses without just excuse to be sworn or give evidence, or to produce any

document or thing, the court may–

(a) commit him to custody for up to 28 days or until he sooner

gives evidence or produces the document or thing;

(b) impose on him a fine at level 4 on the standard scale; or

paragraph (b).

(3) If such a person, upon being brought before the Supreme Court at or

before the expiration of the period specified in the warrant, again refuses to

do what is required of him, the court may, if it sees fit, commit him to

custody for a further period of up to 28 days and so again, from time to

time, until the person consents to do what is required of him.

(4) Without affecting any other powers conferred upon the Supreme Court

by this Act or any other law, a person who, without just excuse–

(a) fails to attend before the Supreme Court as required by any

summons; or

(b) having attended the Supreme Court, departs without obtaining

the permission of the Supreme Court or fails to attend after

adjournment of the Supreme Court after being ordered so to

attend,

is liable by order of the Supreme Court to a fine at level 3 on the standard

scale.

Calling of person charged.

337.(1) Every person charged in criminal proceedings who is called as a

witness in the proceedings must, unless otherwise ordered by the court, give

his evidence from the witness box or other place from which the other

witnesses give their evidence.

(2) The failure of any person charged with an offence to give evidence

must not be made the subject of any comment by the prosecution.

Time for taking defendant’s evidence.

338.(1) If at the trial of any person for an offence–

Criminal Procedure and Evidence

2011-24

(a) the defence intends to call 2 or more witnesses to the facts of

the case; and

(b) those witnesses include the defendant,

the defendant must, subject to section 360, be called before the other

witnesses unless the court in its discretion otherwise directs.

(2) If the only witness to the facts of the case called by the defence is the

person charged, he must be called as a witness immediately after the close

of the evidence for the prosecution.

Competence and compellability

Competence of witnesses to give evidence.

339.(1) Subject to subsections (2) and (3), at every stage in criminal

proceedings all persons are (whatever their age) competent to give evidence.

(2) A person is not competent to give evidence in criminal proceedings if

it appears to the court that he is not a person who is able to–

(a) understand questions put to him as a witness; and

(b) give answers to them which can be understood.

(3) A person charged in criminal proceedings is not competent to give

evidence in the proceedings for the prosecution (whether he is the only

person, or is one of 2 or more persons, charged in the proceedings).

(4) In subsection (3) the reference to a person charged in criminal

proceedings does not include a person who is not, or is no longer, liable to

be convicted of any offence in the proceedings (whether as a result of

pleading guilty or for any other reason).

Determining competence of witnesses.

340.(1) Any question whether a witness in criminal proceedings is

competent to give evidence in the proceedings, whether raised by–

(a) a party to the proceedings; or

(b) the court on its own initiative,

is to be decided by the court in accordance with this section.

Criminal Procedure and Evidence

2011-24

(2) It is for the party calling the witness to satisfy the court that, on a

balance of probabilities, the witness is competent to give evidence in the

proceedings.

(3) In determining the question mentioned in subsection (1) the court must

treat the witness as having the benefit of any directions under section 431 of

this Act (Special measures direction relating to eligible witness) which the

court has given, or proposes to give, in relation to the witness.

(4) Any proceedings held for the determination of the question must take

place in the absence of the jury (if there is one).

(5) Expert evidence may be received on the question.

(6) Any questioning of the witness (if the court considers that necessary)

must be conducted by the court in the presence of the parties.

Deciding whether witness to be sworn.

341.(1) Any question whether a witness in criminal proceedings may be

sworn for the purpose of giving evidence on oath, whether raised by–

(a) a party to the proceedings; or

(b) the court on its own initiative,

is to be decided by the court in accordance with this section.

(2) The witness may not be sworn for that purpose unless–

(a) he has attained the age of 14; and

(b) he has a sufficient appreciation of the solemnity of the

occasion and of the particular responsibility to tell the truth

which is involved in taking an oath.

(3) A witness who is able to give intelligible testimony is presumed to

have a sufficient appreciation of those matters if no evidence tending to

show the contrary is adduced (by any party).

(4) If any such evidence is adduced, it is for the party seeking to have the

witness sworn to satisfy the court that, on a balance of probabilities, the

witness has attained the age of 14 and has a sufficient appreciation of the

matters mentioned in subsection (2)(b).

(5) Any proceedings held for deciding the question mentioned in

subsection (1) must take place in the absence of the jury (if there is one).

Criminal Procedure and Evidence

2011-24

(6) Expert evidence may be received on the question.

(7) Any questioning of the witness (if the court considers that necessary)

must be conducted by the court in the presence of the parties.

(8) For the purposes of this section a person is able to give intelligible

testimony if he is able to–

(a) understand questions put to him as a witness; and

(b) give answers to them which can be understood.

Reception of unsworn evidence.

342.(1) Subsections (2) and (3) apply to a person (of any age) who–

(a) is competent to give evidence in criminal proceedings; but

(b) (by virtue of section 341(2)) is not permitted to be sworn for

the purpose of giving evidence on oath in such proceedings.

(2) The evidence in criminal proceedings of a person to whom this

subsection applies is to be given unsworn.

(3) A deposition of unsworn evidence given by a person to whom this

subsection applies may be taken for the purposes of criminal proceedings as

if that evidence had been given on oath.

(4) A court in criminal proceedings must receive in evidence any evidence

given unsworn pursuant to subsection (2) or (3).

(5) If a person (“the witness”) who is competent to give evidence in

criminal proceedings gives evidence in such proceedings unsworn, no

conviction, verdict or finding in those proceedings is to be taken to be

unsafe for the purposes of an appeal against conviction by reason only that

it appears to the Court of Appeal that the witness was a person falling within

section 341(2) (and should accordingly have given his evidence on oath).

Abolition of right of defendant to make unsworn statement.

343.(1) Subject to subsections (2) and (3), in any criminal proceedings the

defendant is not entitled to make a statement without being sworn, and

accordingly, if he gives evidence, he must do so (subject to sections 339 and

340) on oath and be liable to cross-examination.

(2) This section does not affect the right of the defendant, if not legally

represented, to address the court or jury otherwise than on oath on any

Criminal Procedure and Evidence

2011-24

matter on which, if he were so represented, a legal representative could

address the court or jury on his behalf.

(3) Nothing in subsection (1) prevents the defendant making a statement

without being sworn if–

(a) it is one which he is required by law to make personally; or

(b) he makes it by way of mitigation before the court passes

sentence upon him.

(4) Nothing in this section applies–

(a) to a trial; or

(b) to proceedings before magistrates sitting as examining

magistrates,

which began before the commencement of this section.

Competence of persons charged and their spouses.

344.(1) Subject to this section, a person charged with an offence, and the

spouse of the person so charged, is a competent witness for the defence at

every stage of the proceedings, whether the person so charged is charged

solely or jointly with any other person.

(2) A person charged in criminal proceedings may not be called as a

witness in the proceedings except upon his own application.

(3) The spouse of the person charged may not, except as provided in this

Part, be called as a witness pursuant to this Part except upon the application

of the person so charged.

(4) Nothing in this Part makes a spouse compellable to disclose any

communication made to him or her by the other spouse during the marriage.

(5) A person charged in criminal proceedings who is called as a witness in

the proceedings may be asked any question in cross-examination even

though it would tend to incriminate him as to any offence with which he is

charged in the proceedings.

Defendant’s spouse as a witness.

345.(1) In any proceedings the spouse of a person charged in the

proceedings is, subject to subsection (4), compellable to give evidence on

behalf of that person.

Criminal Procedure and Evidence

2011-24

(2) In any proceedings the spouse of a person charged in the proceedings

is, subject to subsection (3), compellable to give evidence–

(a) on behalf of any other person charged in the proceedings, but

only in respect of any specified offence with which that other

person is charged;

(b) for the prosecution, but only in respect of any specified offence

with which any person is charged in the proceedings.

(3) In relation to the spouse of a person charged in any proceedings, an

offence is a specified offence for the purposes of subsection (2) if–

(a) it involves an assault on, or injury or a threat of injury to, the

spouse or a person who was at the material time under the age

of 16; or

(b) it is a sexual offence (as defined in section 2) alleged to have

been committed in respect of a person who was at the material

time under that age.

(4) No person who is charged in any proceedings is compellable by virtue

of subsection (1) or (2) to give evidence in the proceedings.

(5) References in this section to a person charged in any proceedings do

not include a person who is not, or is no longer, liable to be convicted of any

offence in the proceedings (whether as a result of pleading guilty or for any

other reason).

Defendant’s spouse as a witness: Supplementary.

346.(1) In any proceedings a person who has been, but is no longer,

married to the defendant is compellable to give evidence as if that person

and the defendant had never been married.

(2) If in any proceedings the age of any person at any time is material for

the purposes of section 345, his age at the material time is for the purposes

of that provision deemed to be or to have been that which appears to the

court to be or to have been his age at that time.

(3) The failure of the spouse of a person charged in any proceedings to

give evidence in the proceedings must not be made the subject of any

comment by the prosecution.

Evidence by spouses about property.

347.(1) If a person (‘A’) is charged in proceedings not brought by A’s

spouse with having committed any offence with reference to A’s spouse or

Criminal Procedure and Evidence

2011-24

to property belonging to A’s spouse, A’s spouse is competent to give

evidence at every stage of the proceedings, either for the defence or for the

prosecution, and whether the defendant is charged solely or jointly with any

other person.

(2) Subsection (1) is subject to the following rules–

(a) the spouse is not compellable either to give evidence or, in

giving evidence, to disclose any communication made to the

spouse during the marriage by the defendant; and

(b) the failure of the spouse to give evidence must not be made the

subject of any comment by the prosecution.

Limitation of rule against self-incrimination.

348.(1) A person is not to be excused from–

(a) answering any question put to that person in proceedings for

the recovery or administration of any property, for the

execution of any trust or for an account of any property or

dealings with property; or

(b) complying with any order made in any such proceedings,

on the ground that do so may incriminate that person or the spouse of that

person of an offence of dishonesty or criminal damage.

(2) No statement or admission made by a person in answering a question

put or complying with an order made pursuant to subsection (1) is, in

proceedings for an offence of dishonesty or criminal damage, admissible in

evidence against that person or (unless they married after the making of the

statement or admission) against the spouse of that person.

Convictions and acquittals

Admissibility of evidence of previous conviction.

349. Subject to the provisions of this Act and of any other law relating to

the admission of evidence of previous convictions, on the trial of any person

before any court, evidence of any previous conviction for any offence may

not be admitted in evidence before a verdict or finding of guilty has been

returned.

Evidence in Magistrates’ Court.

350. If–

Criminal Procedure and Evidence

2011-24

(a) a person is convicted of a summary offence by the Magistrates’

Court, other than a Juvenile Court;

(b) it is proved to the satisfaction of the court that not less than 7

days previously a notice was served on the offender in the

prescribed form and manner specifying an alleged previous

conviction of the offender of a summary offence proposed to

be brought to the notice of the court in the event of his

conviction of the offence charged; and

the court may take account of any such previous conviction so specified as

if the defendant had appeared and admitted it.

Conviction as evidence of commission of offence.

351.(1) In any proceedings, the fact that a person other than the defendant

has been convicted of an offence by or before any court in Gibraltar, or by a

court martial in or outside Gibraltar, is admissible in evidence for the

purpose of proving that that person committed that offence, if evidence of

his having done so is admissible.

(2) In any proceedings in which by virtue of this section a person other

than the defendant is proved to have been convicted of an offence by or

before any court in Gibraltar, or by a court martial in or outside Gibraltar,

that person is to be taken to have committed that offence unless the contrary

is proved.

(3) In any proceedings when evidence is admissible of the fact that the

defendant has committed an offence, if the defendant is proved to have been

convicted of the offence by or before any court in Gibraltar or in a Member

State of the European Union outside Gibraltar, or by a court martial in or

outside Gibraltar, he is to be taken to have committed that offence unless the

contrary is proved.

(4) Nothing in this section affects–

(a) the admissibility in evidence of any conviction which would be

admissible apart from this section; or

(b) the operation of any enactment by which a conviction or a

finding of fact in any proceedings is for the purposes of any

other proceedings made conclusive evidence of any fact.

(5) If evidence that a person has been convicted of an offence is

admissible by virtue of this section, then, without affecting the reception of

Criminal Procedure and Evidence

2011-24

any other admissible evidence for the purpose of identifying the facts on

which the conviction was based–

(a) the contents of any document which is admissible as evidence

of the conviction; and

(b) the contents of the information, complaint, indictment or

charge-sheet on which the person in question was convicted,

are admissible in evidence for that purpose.

(6) For the purposes of this section–

(a) a conviction leading to a conditional or absolute discharge or to

a community sentence (or, before the commencement of this

Act, to a probation order under the repealed Act) is a

conviction; but

(b) a conviction that no longer subsists is not a conviction.

(7) If in any proceedings the contents of any document are admissible in

evidence by virtue of subsection (1), a copy of that document, or of the

material part of it, purporting to be certified or otherwise authenticated by or

on behalf of the court or authority that has custody of that document is

admissible in evidence and is to be taken to be a true copy of that document

or part unless the contrary is shown.

Proof of convictions and acquittal in Gibraltar and in Member States of

the European Union.

352.(1) If in any proceedings the fact that a person has been convicted or

acquitted of an offence in Gibraltar or in a Member State of the European

Union outside Gibraltar, or by a court martial in or outside Gibraltar, is

admissible in evidence, it may be proved by producing a certificate of

conviction or, as the case may be, of acquittal relating to that offence, and

proving that the person named in the certificate as having been convicted or

acquitted of the offence is the person whose conviction or acquittal of the

offence is to be proved.

(2) For the purposes of this section a certificate of conviction or of

acquittal–

(a) as regards a conviction or acquittal on indictment – must be a

certificate, signed by the proper officer of the court where the

conviction or acquittal took place, giving the substance and

effect (omitting the formal parts) of the indictment and of the

conviction or acquittal; and

Criminal Procedure and Evidence

2011-24

(b) as regards a conviction or acquittal on a summary trial – must

be a copy of the conviction or of the dismissal of the

information, signed by the proper officer of the court where the

conviction or acquittal took place or by the proper officer of

the court, if any, to which a memorandum of the conviction or

acquittal was sent.

(3) A document purporting to be a duly signed certificate of conviction or

acquittal under this section is to be taken to be such a certificate unless the

contrary is proved.

(4) In subsection (2) “proper officer” means–

(a) in relation to the Magistrates’ Court - the clerk of the court;

and

b) in relation to any other court in Gibraltar- the clerk of the court,

his deputy or any other person having custody of the court

record;

Union outside Gibraltar, a person who would be the proper

officer of that court if it were in Gibraltar.

(5) The method of proving a conviction or acquittal authorised by this

section is in addition to and not to the exclusion of any other authorised

manner of proving a conviction or acquittal.

Proof of convictions elsewhere.

353.(1) If in any proceedings the fact that a person (‘A’) has been convicted

or acquitted of an offence outside Gibraltar, other than at a court martial, is

admissible in evidence, it may be proved by the production of a certificate

purporting to be given under the hand of a police officer in the country

where the conviction was obtained, containing–

(a) a copy of the sentence or order;

(b) the fingerprints, or photographs of the fingerprints, of the

person so convicted; and

those of A.

(2) Such a certificate is prima facie evidence of all facts set out in it

without proof that the officer purporting to sign it did in fact sign it and was

empowered to do so.

Criminal Procedure and Evidence

2011-24

(3) This section does not affect the operation of section 11 of the UK

Evidence Act 1851 relating to the admissibility of documents.

Proof by fingerprints.

354.(1) A previous conviction may be proved against any person in any

proceedings, by the production of such evidence of the conviction as is

mentioned in this section, and by showing that his fingerprints and those of

the person convicted are the fingerprints of the same person.

(2) A certificate purporting to be signed by or on behalf of the

Commissioner of Police containing particulars relating to a conviction

extracted from the criminal records kept by him, and certifying that the

copies of the fingerprints exhibited to the certificate are copies of the

fingerprints appearing in the records to have been taken from the person

convicted on the occasion of the conviction, is evidence of the conviction

and that the copies of the fingerprints exhibited to the certificate are copies

of the fingerprints of the person convicted.

(3) A certificate purporting to be signed by or on behalf of the

Commissioner of Police, certifying that the fingerprints exhibited to it were

taken from any person while in lawful custody, is evidence that the

fingerprints exhibited to the certificate are the fingerprints of that person.

(4) A certificate purporting to be signed by or on behalf of the

Commissioner of Police and certifying that the fingerprints, copies of which

are certified by or on behalf of the Commissioner to be copies of the

fingerprints of a person previously convicted and the fingerprints certified

by or on behalf of the Commissioner under subsection (3), or otherwise

shown to be the fingerprints of the person against whom the previous

conviction is sought to be proved are the fingerprints of the same person, is

evidence of the matters so certified.

(5) The method of proving a previous conviction authorised by this

section is in addition to and not to the exclusion of any other authorised

method of proving such conviction.

Admissions and confessions

Proof by formal admission.

355.(1) Subject to this section, any fact of which oral evidence may be

given in any proceedings may be admitted for the purpose of those

proceedings by or on behalf of the prosecutor or defendant, and the

admission by any party of any such fact under this section is, as against that

party, conclusive evidence in those proceedings of the fact admitted.

(2) An admission under this section–

Criminal Procedure and Evidence

2011-24

(a) may be made before or at the proceedings;

(b) if made otherwise than in court, must be in writing;

by the person making it and, if so made by a corporate body, to

be signed by a director or manager, or the secretary or clerk, or

some other similar officer of the body;

(d) if made on behalf of a defendant who is an individual, must be

made by his legal representative;

(e) if made at any stage before the trial by a defendant who is an

individual, must be approved by his legal representative,

whether at the time it was made or subsequently, before or at

the proceedings in question.

(3) An admission under this section for the purpose of proceedings

relating to any matter is to be treated as an admission for the purpose of any

subsequent criminal proceedings relating to that matter, including any

appeal or retrial.

(4) An admission under this section may with the leave of the court be

withdrawn in the proceedings for the purpose of which it is made or any

subsequent criminal proceedings relating to the same matter.

Confessions: General.

356.(1) In any proceedings a confession made by a defendant may be given

in evidence against him in so far as it is relevant to any matter in issue in the

proceedings and is not excluded by the court pursuant to this section.

(2) If, in any proceedings in which the prosecution proposes to give in

evidence a confession made by a defendant, it is represented to the court

that the confession was or may have been obtained–

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in

the circumstances existing at the time, to render unreliable any

confession which might be made by the defendant in

consequence of that thing,

the court must not allow the confession to be given in evidence against the

defendant (notwithstanding that it may be true) unless the prosecution

proves to the court beyond reasonable doubt that the confession was not

obtained as described in paragraph (a) or (b).

Criminal Procedure and Evidence

2011-24

(3) In any proceedings in which the prosecution proposes to give in

evidence a confession made by a defendant, the court may on its own

initiative require the prosecution, as a condition of allowing it to do so, to

prove that the confession was not obtained as mentioned in subsection (2).

(4) The fact that a confession is wholly or partly excluded pursuant to this

section does not affect the admissibility in evidence–

(a) of any facts discovered as a result of the confession; or

(b) if the confession is relevant as showing that the defendant

speaks, writes or expresses himself in a particular way - of so

much of the confession as is necessary to show that he does so.

(5) Evidence that a fact to which this subsection applies was discovered as

a result of a statement made by a defendant is not admissible unless

evidence of how it was discovered is given by him or on his behalf.

(6) Subsection (5) applies to any fact discovered as a result of a confession

which is–

(a) wholly excluded pursuant to this section; or

(b) partly so excluded, if the fact is discovered as a result of the

excluded part of the confession.

(7) In this section “oppression” includes torture, inhuman or degrading

treatment and the use or threat of violence (whether or not amounting to

torture).

(8) Nothing in this Part affects the admissibility of a confession made by

an accused person.

Confessions may be given in evidence for co-defendant.

357.(1) In any proceedings a confession made by a defendant may be given

in evidence for another person charged in the same proceedings (a co-

defendant) insofar as it is relevant to any matter in issue in the proceedings

and is not excluded by the court pursuant to this section.

(2) If, in any proceedings where a co-defendant proposes to give in

evidence a confession made by a defendant, it is represented to the court

that the confession was or may have been obtained–

(a) by oppression of the person who made it; or

Criminal Procedure and Evidence

2011-24

(b) in consequence of anything said or done which was likely, in

the circumstances existing at the time, to render unreliable any

confession which might be made by him in consequence of it,

the court must not allow the confession to be given in evidence for the co-

defendant except insofar as it is proved to the court on the balance of

probabilities that the confession (even if it might be true) was not so

obtained.

(3) Before allowing a confession made by a defendant to be given in

evidence for a co-defendant in any proceedings, the court may on its own

initiative require the fact that the confession was not obtained as mentioned

in subsection (2) to be proved in the proceedings on the balance of

probabilities.

(4) The fact that a confession is wholly or partly excluded pursuant to this

section does not affect the admissibility in evidence–

(a) of any facts discovered as a result of the confession; or

(b) if the confession is relevant as showing that the defendant

speaks, writes or expresses himself in a particular way - of so

much of the confession as is necessary to show that he does so.

(5) Evidence that a fact to which this subsection applies was discovered as

a result of a statement made by a defendant is not admissible unless

evidence of how it was discovered is given by him or on his behalf.

(6) Subsection (5) applies to–

(a) any fact discovered as a result of a confession which is wholly

excluded pursuant to this section; and

(b) any fact discovered as a result of a confession which is partly

so excluded, if the fact is discovered as a result of the excluded

part of the confession.

(7) In this section “oppression” includes torture, inhuman or degrading

treatment, and the use or threat of violence (whether or not amounting to

torture).

Confessions by mentally handicapped persons.

358.(1) Without affecting the general duty of the court at a trial on

indictment with a jury to direct the jury on any matter on which it appears to

the court appropriate to do so, if in such a trial–

Criminal Procedure and Evidence

2011-24

(a) the case against the defendant depends wholly or substantially

on a confession by him; and

(b) the court is satisfied that–

(i) the defendant is mentally handicapped; and

(ii) the confession was not made in the presence of an

independent person,

the court must–

convicting the defendant in reliance on the confession; and

(d) explain that the need arises because of the circumstances

mentioned in paragraphs (a) and (b).

(2) If in a summary trial or a trial without a jury of a person for an offence

it appears to the court that a warning under subsection (1) would be required

if the trial were on indictment with a jury, the court must treat the case as

one in which there is a special need for caution before convicting the

defendant on his confession.

(3) In this section–

“independent person” does not include a police officer or a person

employed for or engaged on police purposes;

“mentally handicapped”, in relation to a person, means that he is in a

state of arrested or incomplete development of mind which

includes significant impairment of intelligence and social

functioning;

“police purposes” includes the purposes of civilians employed by the

police and police cadets undergoing training with a view to

becoming members of the police force.

Inferences from silence

359. Deleted

360. Deleted

361. Deleted

362. Deleted

Criminal Procedure and Evidence

2011-24

363. Deleted

364. Deleted

Evidence of bad character

Interpretation of sections 366 to 379.

365.(1) In sections 366 to 379–

“bad character” is to be read in accordance with section 366;

“important matter” means a matter of substantial importance in the context of the case

as a whole;

“misconduct” means the commission of an offence or other reprehensible behaviour;

“probative value”, and “relevant” (in relation to an item of evidence), are to be read in

accordance with section 377;

“prosecution evidence” means evidence which is to be (or has been) adduced by the

prosecution, or which a witness is to be invited to give (or has given) in cross- examination by the prosecution.

(2) If a defendant is charged with 2 or more offences in the same criminal

proceedings, sections 366 to 379 (except section 369(3)) have effect as if

each offence were charged in separate proceedings; and references to the

offence with which the defendant is charged are to be read accordingly.

(3) Nothing in sections 366 to 379 affects the exclusion of evidence–

(a) under the rule in section 395 against a party impeaching the

credit of his own witness by general evidence of bad character;

(b) under section 456 (Restriction on evidence or questions about

complainant’s sexual history); or

bad character.

“Bad character”.

366. References in sections 367 to 379 to evidence of a person’s “bad

character” are to evidence of, or of a disposition towards, misconduct on his

part, other than evidence which–

(a) has to do with the alleged facts of the offence with which the

defendant is charged; or

Criminal Procedure and Evidence

2011-24

(b) is evidence of misconduct in connection with the investigation

or prosecution of that offence.

Abolition of common law rules.

367.(1) The common law rules governing the admissibility of evidence of

bad character in criminal proceedings are abolished.

(2) Subsection (1) is subject to section 393(1) in so far as it preserves the

rule under which in criminal proceedings a person’s reputation is admissible

for the purposes of proving his bad character.

Non-defendant’s bad character.

368.(1) In criminal proceedings evidence of the bad character of a person

other than the defendant is admissible if and only 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 proceeding; and

(ii) is of substantial importance in the context of the case as

a whole; or

admissible.

(2) For the purposes of subsection (1)(a) evidence is important

explanatory evidence if–

(a) without it, the court or jury would find it impossible or difficult

properly to understand other evidence in the case; and

(b) its value for understanding the case as a whole is substantial.

(3) In assessing the probative value of evidence for the purposes of

subsection (1)(b) the court must have regard to the following factors (and to

any others it considers relevant)–

(a) the nature and number of the events, or other things, to which

the evidence relates;

(b) when those events or things are alleged to have happened or

existed;

Criminal Procedure and Evidence

2011-24

(i) the evidence is evidence of a person’s misconduct; and

(ii) it is suggested that the evidence has probative value by

reason of similarity between that misconduct and other

alleged misconduct,

the nature and extent of the similarities and the dissimilarities between

each of the alleged instances of misconduct;

(d) if–

(i) the evidence is evidence of a person’s misconduct;

(ii) it is suggested that that person is also responsible for the

misconduct charged; and

(iii) the identity of the person responsible for the misconduct

charged is disputed,

the extent to which the evidence shows or tends to show that the same

person was responsible each time.

(4) Except where subsection (1)(c) applies, evidence of the bad character

of a person other than the defendant must not be given without leave of the

court.

Defendant’s bad character.

369.(1) In criminal proceedings evidence of the defendant’s bad character

is admissible if, but only if–

(a) all parties to the proceedings agree to the evidence being

admissible;

(b) the evidence is adduced by the defendant himself or is given in

answer to a question asked by him in cross-examination and

intended to elicit it;

(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;

Criminal Procedure and Evidence

2011-24

(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.

(2) Sections 370 to 374 contain provisions supplementing subsection (1).

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on

an application by the defendant to exclude it, it appears to the court that the

admission of the evidence would have such an adverse effect on the fairness

of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court

must have regard, in particular, to the length of time between the matters to

which that evidence relates and the matters which form the subject of the

offence charged.

“Important explanatory evidence”.

370. For the purposes of section 369(1)(c) evidence is important

explanatory evidence if–

(a) without it, the court or jury would find it impossible or difficult

properly to understand other evidence in the case; and

(b) its value for understanding the case as a whole is substantial.

“Matter in issue between the defendant and the prosecution”.

371.(1) For the purposes of section 369(1)(d) the matters in issue between

the defendant and the prosecution include–

(a) the question whether the defendant has a propensity to commit

offences of the kind with which he is charged, except where his

having such a propensity makes it no more likely that he is

guilty of the offence;

(b) the question whether the defendant has a propensity to be

untruthful, except where it is not suggested that the defendant’s

case is untruthful in any respect.

(2) If subsection (1)(a) applies, a defendant’s propensity to commit

offences of the kind with which he is charged may (without affecting any

other way of doing so) be established by evidence that he has been

convicted of–

Criminal Procedure and Evidence

2011-24

(a) an offence of the same description as the one with which he is

charged; or

(b) an offence of the same category as the one with which he is

charged.

(3) Subsection (2) does not apply in the case of a particular defendant if

the court is satisfied, by reason of the length of time since the conviction or

for any other reason, that it would be unjust for it to apply in his case.

(4) For the purposes of subsection (2)–

(a) 2 offences are of the same description as each other if the

statement of the offence in an indictment would, in each case,

be in the same terms;

(b) 2 offences are of the same category as each other if they belong

to the same category of offences as set out in Schedule 8.

(5) Only prosecution evidence is admissible under section 369(1)(d).

(6) Where–

(a) a defendant has been convicted of an offence outside Gibraltar

under the law of a Member State of the European Union (“the

previous offence”), and

(b) the previous offence would constitute an offence under the law

of Gibraltar (“the corresponding offence”) if it were done in

Gibraltar at the time of the trial for the offence with which the

defendant is now charged (“the current offence”),

subsection (7) applies for the purpose of determining if the previous offence

and the current offence are of the same description or category.

(7) For the purposes of subsection (2)–

(a) the previous offence is of the same description as the current

offence if the corresponding offence is of that same

description, as set out in subsection (4)(a);

(b) the previous offence is of the same category as the current

offence if the current offence and the corresponding offence

belong to the same category of offences as set out in Schedule

“Matter in issue between the defendant and a co-defendant”.

Criminal Procedure and Evidence

2011-24

372.(1) Evidence which is relevant to the question whether the defendant

has a propensity to be untruthful is admissible on that basis under section

369(1)(e) only if the nature or conduct of his defence is such as to

undermine the co-defendant’s defence.

(2) Only evidence–

(a) which is to be (or has been) adduced by the co-defendant; or

(b) which a witness is to be invited to give (or has given) in cross-

examination by the co-defendant,

is admissible under section 369(1)(e).

Evidence to correct a false impression.

373.(1) For the purposes of section 369(1)(f)–

(a) the defendant gives a false impression if he is responsible for

the making of an express or implied assertion which is apt to

give the court or jury a false or misleading impression about

the defendant;

(b) evidence to correct such an impression is evidence which has

probative value in correcting it.

(2) A defendant is treated as being responsible for the making of an

assertion if–

(a) the assertion is made by the defendant in the proceedings

(whether or not in evidence given by him);

(b) the assertion was made by the defendant–

(i) on being questioned under caution, before charge, about

the offence with which he is charged; or

(ii) on being charged with the offence or officially informed

he might be prosecuted for it,

and evidence of the assertion is given in the proceedings;

(d) the assertion is made by any witness in cross-examination in

response to a question asked by the defendant that is intended

to elicit it, or is likely to do so; or

Criminal Procedure and Evidence

2011-24

(e) the assertion was made by any person out of court, and the

defendant adduces evidence of it in the proceedings.

(3) A defendant who would otherwise be treated as responsible for the

making of an assertion is not to be so treated if, or to the extent that, he

withdraws it or disassociates himself from it.

(4) If it appears to the court that a defendant, by means of his conduct

(other than the giving of evidence) in the proceedings, is seeking to give the

court or jury an impression about himself that is false or misleading, the

court may if it appears just to do so treat the defendant as being responsible

for the making of an assertion which is apt to give that impression.

(5) In subsection (4) “conduct” includes appearance or dress.

(6) Evidence is admissible under section 369(1)(f) only if it goes no

further than is necessary to correct the false impression.

(7) Only prosecution evidence is admissible under section 369(1)(f).

Attack on another person’s character.

374.(1) For the purposes of section 369(1)(g) a defendant makes an attack

on another person’s character if–

(a) he adduces evidence attacking the other person’s character;

(b) he (or any legal representative appointed under section 454(4)

to cross-examine a witness in his interests) asks questions in

cross-examination that are intended to elicit such evidence, or

are likely to do so; or

by the defendant–

(i) on being questioned under caution, before charge, about

the offence with which he is charged; or

(ii) on being charged with the offence or officially informed

that he might be prosecuted for it.

(2) In subsection (1) “evidence attacking the other person’s character”

means evidence to the effect that the other person–

(a) has committed an offence (whether a different offence from the

one with which the defendant is charged or the same one); or

(b) has behaved, or is disposed to behave, in a reprehensible way;

Criminal Procedure and Evidence

2011-24

and “imputation about the other person” means an assertion to that effect.

(3) Only prosecution evidence is admissible under section 369(1)(g).

Stopping the case if evidence contaminated.

375.(1) If on a defendant’s trial before a judge and jury for an offence–

(a) evidence of his bad character has been admitted under any of

paragraphs (c) to (g) of section 369(1); and

(b) the court is satisfied at any time after the close of the case for

the prosecution that–

(i) the evidence is contaminated; and

(ii) the contamination is such that, considering the

importance of the evidence to the case against the

defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or,

if it considers that there ought to be a retrial, discharge the jury.

(2) If–

(a) a jury is directed under subsection (1) to acquit a defendant of

an offence; and

(b) the circumstances are such that, apart from this subsection, the

defendant could if acquitted of that offence be found guilty of

another offence,

the defendant may not be found guilty of that other offence if the court is

satisfied as mentioned in subsection (1)(b) in respect of it.

(3) If–

(a) a jury is required to decide under section 660 whether a person

charged on an indictment with an offence did the act or made

the omission charged;

(b) evidence of the person’s bad character has been admitted under

any of paragraphs (c) to (g) of section 369(1); and

the prosecution that–

Criminal Procedure and Evidence

2011-24

(i) the evidence is contaminated; and

(ii) the contamination is such that, considering the

importance of the evidence to the case against the

person, a finding that he did the act or made the omission

would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or,

if it considers that there ought to be a rehearing, discharge the jury.

(4) This section does not prejudice any other power a court may have to

direct a jury to acquit a person of an offence or to discharge a jury.

(5) For the purposes of this section a person’s evidence is contaminated

if–

(a) as a result of an agreement or understanding between the

person and one or more others; or

(b) as a result of the person being aware of anything alleged by

one or more others whose evidence may be, or has been, given

in the proceedings,

the evidence is false or misleading in any respect, or is different from what

it would otherwise have been.

Offences committed by defendant when a child.

376.(1) In proceedings for an offence committed or alleged to have been

committed by the defendant when aged 21 or over, evidence of his

conviction for an offence when under the age of 14 is not admissible

unless–

(a) both of the offences are triable only on indictment; and

(b) the court is satisfied that the interests of justice require the

evidence to be admissible.

(1A) Subsection (1B) applies where–

(a) the defendant has been convicted of an offence outside

Gibraltar under the law of a Member State of the European

Union (“the previous offence”), and

(b) the previous offence would constitute an offence under the law

of Gibraltar (“the corresponding offence”) if it were done in

Gibraltar at the time of the trial for the offence with which the

defendant is now charged (“the current offence”).

Criminal Procedure and Evidence

2011-24

(1B) For the purposes of subsection (1)(a) the previous offence is to be

regarded as triable only on indictment if the corresponding offence is so

triable.

(2) Subsection (1) applies in addition to section 369.

Assumption of truth in assessment of relevance or probative value.

377.(1) Subject to subsection (2), a reference in any of sections 365 to 379

to the relevance or probative value of evidence is a reference to its relevance

or probative value on the assumption that it is true.

(2) In assessing the relevance or probative value of an item of evidence for

any purpose of sections 365 to 379, a court need not assume that the

evidence is true if it appears, on the basis of any material before the court

(including any evidence it decides to hear on the matter) that no court or

jury could reasonably find it to be true.

Court’s duty to give reasons for rulings.

378.(1) If the court makes a relevant ruling–

(a) it must state in open court (but in the absence of the jury, if

there is one) its reasons for the ruling;

(b) if it is the Magistrates’ Court - it must cause the ruling and the

reasons for it to be entered in the register of the court’s

proceedings.

(2) In this section “relevant ruling” means–

(a) a ruling on whether an item of evidence is evidence of a

person’s bad character;

(b) a ruling on whether an item of such evidence is admissible

under section 368 or 369 (including a ruling on an application

under section 369(3));

Rules of court.

379.(1) Further provision for the purposes of sections 365 to 378 may be

made by rules of court, and if made, must include a provision requiring a

prosecutor who proposes–

(a) to adduce evidence of a defendant’s bad character; or

Criminal Procedure and Evidence

2011-24

(b) to cross-examine a witness with a view to eliciting such

evidence,

to serve on the defendant such notice, and such particulars of or relating to

the evidence, as are prescribed.

(2) The rules may provide that the court or the defendant may, in

prescribed circumstances, dispense with a requirement imposed by virtue of

subsection (1).

(3) In considering the exercise of its powers with respect to costs, the

court may take into account any failure by a party to comply with a

requirement imposed by virtue of subsection (1) and not dispensed with by

virtue of subsection (2).

(4) The rules may–

(a) limit the application of any provision of the rules to prescribed

circumstances;

(b) subject any provision of the rules to prescribed exceptions;

(5) Nothing in this section limits any enactment conferring power to make

rules of court; and no particular provision of this section limits any general

provision of it.

Derogatory assertions

Orders in respect of certain assertions.

380.(1) This section applies where a person has been convicted of an

offence and a speech in mitigation is made by him or on his behalf before–

(a) a court deciding what sentence should be passed on him in

respect of the offence; or

(b) the Magistrates’ Court deciding whether he should be

committed to the Supreme Court for sentence.

(2) This section also applies where a sentence has been passed on a person

in respect of an offence and a submission relating to the sentence is made by

him or on his behalf before–

(a) a court hearing an appeal against or reviewing the sentence; or

Criminal Procedure and Evidence

2011-24

(b) a court deciding whether to grant leave to appeal against the

sentence.

(3) If it appears to the court that there is a real possibility that an order

under subsection (8) will be made in relation to the assertion, the court may

make an order under subsection (7) in relation to the assertion.

(4) If there are substantial grounds for believing–

(a) that an assertion forming part of the speech or submission is

derogatory to a person’s character (for instance, because it

suggests that his conduct is or has been criminal, immoral or

improper); and

(b) that the assertion is false or that the facts asserted are irrelevant

to the sentence,

the court may make an order under subsection (8) in relation to the

assertion.

(5) An order under subsection (7) or (8) must not be made in relation to an

assertion if it appears to the court that the assertion was previously made–

(a) at the trial at which the person was convicted of the offence; or

(b) during any other proceedings relating to the offence.

(6) Sections 381 and 382 have effect if a court makes an order under

subsection (7) or (8).

(7) An order under this subsection–

(a) may be made at any time before the court has made a decision

with regard to sentencing;

(b) may be revoked at any time by the court;

makes a decision with regard to sentencing.

(8) An order under this subsection–

(a) may be made after the court has made a decision with regard to

sentencing, but only if it is made as soon as is reasonably

practicable after the making of the decision;

(b) may be revoked at any time by the court;

Criminal Procedure and Evidence

2011-24

(d) may be made whether or not an order has been made under

subsection (7) with regard to the case concerned.

(9) For the purposes of subsections (7) and (8) the court makes a decision

with regard to sentencing–

(a) when it decides what sentence should be passed (if this section

applies by virtue of subsection (1)(a));

(b) when it decides whether the person should be committed to the

Supreme Court for sentence (if this section applies by virtue of

subsection (1)(b));

applies by virtue of subsection (2)(a));

(d) when it decides whether to grant leave to appeal (if this section

applies by virtue of subsection (2)(b)).

Restriction on reporting of assertions.

381.(1) If a court makes an order under section 380(7) or (8) in relation to

any assertion, at any time when the order has effect the assertion must not–

(a) be published in Gibraltar in a publication available to the

public (other than an indictment or other document prepared

for use in particular legal proceedings); or

(b) be included in a relevant programme for reception in Gibraltar.

(2) For the purposes of this section an assertion is published or included in

a programme if the material published or included–

(a) names the person about whom the assertion is made or, without

naming him, contains enough to make it likely that members of

the public will identify him as the person about whom it is

made; and

(b) reproduces the actual wording of the matter asserted or

contains its substance.

Reporting of assertions: Offences.

382.(1) If an assertion is published or included in a relevant programme in

contravention of section 381, each of the following commits an offence–

Criminal Procedure and Evidence

2011-24

(a) in the case of publication in a newspaper or periodical - any

proprietor, editor or publisher of the newspaper or periodical;

(b) in the case of publication in any other form - the person who

publishes the assertion;

any person corporate engaged in providing the service in which

the programme is included and any person who has functions

in relation to the programme corresponding to those of an

editor of a newspaper.

(2) A person who commits an offence under this section is liable on

summary conviction to a fine at level 5 on the standard scale.

(3) If a person is charged with an offence under this section it is a defence

to prove that at the time of the alleged offence–

(a) he was not aware, and neither suspected nor had reason to

suspect, that an order under section 380(7) or (8) had effect at

that time; or

(b) he was not aware, and neither suspected nor had reason to

suspect, that the publication or programme in question was of,

or (as the case may be) included, the assertion in question.

(4) Section 18 of the Crimes Act 2011 (Liability of corporate bodies)

applies to an offence under this section.

(5) Subsection (2) of section 381 applies for the purposes of this section as

it applies for the purposes of that section.

Expert evidence

Expert reports.

383.(1) Subject to the following sections, an expert report is admissible as

evidence in criminal proceedings, whether or not the person making it

attends to give oral evidence in those proceedings.

(2) If the person making the report does not give oral evidence, the report

is only admissible with the leave of the court.

(3) In deciding whether to give leave the court must have regard to–

(a) the contents of the report;

Criminal Procedure and Evidence

2011-24

(b) the reasons why it is proposed that the person making the

report should not give oral evidence;

possible to controvert statements in the report if the person

making it does not attend to give oral evidence in the

proceedings, that its admission or exclusion will result in

unfairness to the defendant or, if there is more than one, to any

of them; and

(d) any other circumstances that appear to the court to be relevant.

(4) An expert report, when admitted, is evidence of any fact or opinion of

which the person making it could have given oral evidence.

(5) In proceedings before the Magistrates’ Court inquiring into an offence

as examining magistrates, this section has effect with the omission of–

(a) in subsection (1) the words “whether or not the person making

it attends to give oral evidence in those proceedings”; and

(b) subsections (2) to (4).

(6) In this section, “expert report” means a written report by a person

dealing wholly or mainly with matters on which he is (or would if living be)

qualified to give expert evidence.

Form of evidence and glossaries.

384.(1) For the purpose of helping the members of a jury to understand

complicated issues of fact or technical terms in any proceedings, the court

may, subject to rules of court, provide, or give leave for one of the parties to

provide to the jury–

(a) evidence in any form, even if there exists admissible material

from which the evidence to be given in that form would be

derived; and

(b) one or more glossaries for specified purposes.

(2) Rules of court may provide for the circumstances in which, and the

manner in which, provision as described in subsection (1) may be made.

Expert evidence: Preparatory work.

385.(1) This section applies if–

Criminal Procedure and Evidence

2011-24

(a) a statement has been prepared for the purposes of criminal

proceedings;

(b) the person who prepared the statement had or may reasonably

be supposed to have had personal knowledge of the matters

stated;

another person (“the expert”) will in evidence given in the

proceedings orally, or under section 405 (Proof by written

statement), base an opinion or inference on the statement; and

(d) the notice gives the name of the person who prepared the

statement and the nature of the matters stated.

(2) In evidence given in the proceedings the expert may base an opinion or

inference on the statement.

(3) If evidence based on the statement is given under subsection (2) the

statement is to be treated as evidence of what it states.

(4) This section does not apply if the court, on an application by a party to

the proceedings, orders that it is not in the interests of justice that it should

apply.

(5) The matters to be considered by the court in deciding whether to make

an order under subsection (4) include–

(a) the expense of calling as a witness the person who prepared the

statement;

(b) whether relevant evidence could be given by that person which

could not be given by the expert;

the matters stated well enough to give oral evidence of them.

(6) Subsections (1) to (5) apply to a statement prepared for the purposes of

a criminal investigation as they apply to a statement prepared for the

purposes of criminal proceedings, and in such a case references to the

proceedings are to criminal proceedings arising from the investigation.

Advance notice of expert evidence in court.

386.(1) Rules of court may–

Criminal Procedure and Evidence

2011-24

(a) require any party to proceedings before any court to disclose to

the other party or parties any expert evidence which he

proposes to adduce in the proceedings; and

(b) prohibit a party who fails to comply in respect of any evidence

with any requirements imposed by virtue of paragraph (a) from

adducing that evidence without the leave of the court.

(2) Rules of court made pursuant to subsection (1) may–

(a) specify the kinds of expert evidence to which they apply; and

(b) exempt facts or matters of any description specified in the

rules.

(3) Until rules of court are made under this section, notice of an intention

to adduce expert evidence must be given in accordance with the Criminal

Procedure Rules.

Proof of non-payment of sum adjudged

Proof of non-payment of sum adjudged.

387. If a court has ordered one person to pay to another any sum of money,

and proceedings are taken before that or any other court to enforce payment

of that sum, then–

(a) if the person to whom the sum is ordered to be paid is the

Registrar or the clerk of the Magistrates’ Court - a certificate

purporting to be signed by the Registrar or clerk that the sum

has not been paid to him; and

(b) in any other case - a document purporting to be a statutory

declaration by the person to whom the sum is ordered to be

paid that the sum has not been paid to him,

is admissible as evidence that the sum has not been paid to him, unless the

court requires the Registrar or clerk or other person to be called as a

witness.

PART 17 – HEARSAY AND DOCUMENTARY EVIDENCE

Interpretation of Part.

388.(1) In this Part–

“oral evidence” includes evidence which, by reason of any disability,

disorder or other impairment, a person called as a witness gives in

writing or by signs or by way of any device;

Criminal Procedure and Evidence

2011-24

“video recording” means any recording, on any medium, from which a

moving image may by any means be produced, and includes the

accompanying sound-track.

(2) If a defendant is charged with 2 or more offences in the same criminal

proceedings, this Part has effect as if each offence were charged in separate

proceedings.

Hearsay: Main provisions

Admissibility of hearsay evidence.

389.(1) In criminal proceedings a statement not made in oral evidence in

the proceedings is admissible as evidence of any matter stated if, but only

if–

(a) any provision of this Part or any other statutory provision

makes it admissible;

(b) any rule of law preserved by section 393 makes it admissible;

(d) the court is satisfied that it is in the interests of justice for it to

be admissible.

(2) In deciding whether a statement not made in oral evidence should be

admitted under subsection (1)(d), the court must have regard to the

following factors (and to any others it considers relevant)–

(a) how much probative value the statement has (assuming it to be

true) in relation to a matter in issue in the proceedings, or how

valuable it is for the understanding of other evidence in the

case;

(b) what other evidence has been, or can be, given on the matter or

evidence mentioned in paragraph (a);

(a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement

appears to be;

Criminal Procedure and Evidence

2011-24

(g) whether oral evidence of the matter stated can be given and, if

not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice

the party facing it.

(3) Nothing in this Part affects the exclusion of evidence of a statement on

grounds other than the fact that it is a statement not made in oral evidence in

the proceedings.

Statements and matters stated.

390.(1) In this Part references to a statement or to a matter stated are to be

read as follows.

(2) A statement is any representation of fact or opinion made by a person

by whatever means; and it includes a representation made in a sketch,

photofit or other pictorial form.

(3) A matter stated is one to which this Part applies if (and only if) the

purpose, or one of the purposes, of the person making the statement appears

to the court to have been–

(a) to cause another person to believe the matter; or

(b) to cause another person to act or a machine to operate on the

basis that the matter is as stated.

Principal categories of admissibility

Cases where a witness is unavailable.

391.(1) In criminal proceedings a statement not made in oral evidence in

the proceedings is admissible as evidence of any matter stated if–

(a) oral evidence given in the proceedings by the person who made

the statement would be admissible as evidence of that matter;

(b) the person who made the statement (the relevant person) is

identified to the court’s satisfaction; and

satisfied.

(2) The conditions are that–

Criminal Procedure and Evidence

2011-24

(a) the relevant person is dead;

(b) the relevant person is unfit to be a witness because of his

bodily or mental condition;

practicable to ensure his attendance;

(d) the relevant person cannot be found although such steps as it is

reasonably practicable to take to find him have been taken;

(e) through fear or because he is kept out of the way the relevant

person does not give (or does not continue to give) oral

evidence in the proceedings, either at all or in connection with

the subject matter of the statement, and the court gives leave

for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) “fear” is to be widely construed

and (for example) includes fear of the death or injury of another person or of

financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers

that the statement ought to be admitted in the interests of justice, having

regard to–

(a) the statement’s contents;

(b) any risk that its admission or exclusion will result in unfairness

to any party to the proceedings (and in particular to how

difficult it will be to challenge the statement if the relevant

person does not give oral evidence);

(Special measures direction relating to eligible witness) could

be made in relation to the relevant person; and

(d) any other relevant circumstances.

(5) A condition set out in any paragraph of subsection (2) which is in fact

satisfied is to be treated as not satisfied if it is shown that the circumstances

described in that paragraph are caused–

(a) by the person in support of whose case it is sought to give the

statement in evidence; or

(b) by a person acting on his behalf,

Criminal Procedure and Evidence

2011-24

in order to prevent the relevant person giving oral evidence in the

proceedings (whether at all or in connection with the subject matter of the

statement).

(6) The requirements of subsection (2)(c) or (e) are not to be regarded as

satisfied if the failure to ensure the attendance of the person who made the

statement or the failure of that person to give oral evidence as the case may

be is principally due to the fact that the person making the statement is

directly or indirectly subject to superior instructions to the effect that he

should not attend before the Court in Gibraltar or give oral evidence before

it by virtue of that superior authority’s non-recognition of Her Majesty’s

courts in Gibraltar or any other political reason.

(7) A certificate in writing signed by the Chief Secretary as to any fact

referred to in subsection (6) is conclusive as to the facts certified.

Business and other documents.

392.(1) In criminal proceedings a statement contained in a document is

admissible as evidence of any matter stated if –

(a) oral evidence given in the proceedings would be admissible as

evidence of that matter; and

(b) the requirements of subsection (2) are satisfied.

(2) The requirements of this subsection are satisfied if–

(a) the document or the part containing the statement was created

or received by a person in the course of a trade, business,

profession or other occupation, or as the holder of a paid or

unpaid office;

(b) the person who supplied the information contained in the

statement (the relevant person) had or may reasonably be

supposed to have had personal knowledge of the matters dealt

with; and

supplied from the relevant person to the person mentioned in

paragraph (a) received the information in the course of a trade,

business, profession or other occupation, or as the holder of a

paid or unpaid office.

(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may

be the same person.

Criminal Procedure and Evidence

2011-24

(4) A statement is not admissible under this section if the court makes a

direction to that effect under subsection (5).

(5) The court may make a direction under this subsection if satisfied that

the statement’s reliability as evidence for the purpose for which it is

tendered is doubtful in view of–

(a) its contents;

(b) the source of the information contained in it;

information was supplied or received; or

(d) the way in which or the circumstances in which the document

concerned was created or received.

Preservation of certain common law categories of admissibility.

393.(1) The following rules of law are preserved so far as they allow the

court to treat such evidence as proving the matter concerned–

A. Public information, etc.

Any rule of law under which in criminal proceedings–

(a) published works dealing with matters of a public nature (such

as histories, scientific works, dictionaries and maps) are

admissible as evidence of facts of a public nature stated in

them;

(b) public documents (such as public registers, and returns made

under public authority with respect to matters of public

interest) are admissible as evidence of facts stated in them;

grants, pardons and commissions) are admissible as evidence

of facts stated in them; or

(d) evidence relating to a person’s age or date or place of birth

may be given by a person without personal knowledge of the

matter.

B. Reputation as to character

Any rule of law under which in criminal proceedings evidence of a person’s

reputation is admissible for the purpose of proving his good or bad

Criminal Procedure and Evidence

2011-24

character, so far as it allows the court to treat such evidence as proving the

matter concerned.

C. Reputation or family tradition

Any rule of law under which in criminal proceedings evidence of reputation

or family tradition is admissible for the purpose of proving or disproving–

(a) pedigree or the existence of a marriage;

(b) the existence of any public or general right; or

so far as it allows the court to treat such evidence as proving or disproving

the matter concerned.

D. Res gestae

Any rule of law under which in criminal proceedings a statement is

admissible as evidence of any matter stated if–

(a) the statement was made by a person so emotionally

overpowered by an event that the possibility of concoction or

distortion can be disregarded;

(b) the statement accompanied an act which can be properly

evaluated as evidence only if considered in conjunction with

the statement; or

(such as intention or emotion).

E. Confessions, etc.

Any rule of law relating to the admissibility of confessions or mixed

statements in criminal proceedings.

F. Admissions by agents, etc.

Any rule of law under which in criminal proceedings–

(a) an admission made by an agent of a defendant is admissible

against the defendant as evidence of any matter stated; or

(b) a statement made by a person to whom a defendant refers a

person for information is admissible against the defendant as

evidence of any matter stated.

Criminal Procedure and Evidence

2011-24

G. Common enterprise

Any rule of law under which in criminal proceedings a statement made by a

party to a common enterprise is admissible against another party to the

enterprise as evidence of any matter stated.

H. Expert evidence

Any rule of law under which in criminal proceedings an expert witness may

draw on the body of expertise relevant to his field.

(2) With the exception of the rules preserved by this section, the common

law rules governing the admissibility of hearsay evidence in criminal

proceedings are abolished.

Inconsistent statements.

394.(1) If in criminal proceedings a person gives oral evidence and–

(a) he admits making a previous inconsistent statement; or

(b) a previous inconsistent statement made by him is proved by

virtue of section 395 and 396,

the statement is admissible as evidence of any matter stated of which oral

evidence by him would be admissible.

(2) If in criminal proceedings evidence of an inconsistent statement by any

person is given under section 400(2)(c) the statement is admissible as

evidence of any matter stated in it of which oral evidence by that person

would be admissible.

Witness may be discredited by the party producing.

395.(1) A party producing a witness–

(a) may not impeach his credit by general evidence of bad

character; but

(b) may, if the witness in the opinion of the judge proves adverse,

contradict him by other evidence, or, by leave of the judge,

prove that he has made at other times a statement inconsistent

with his present testimony.

(2) Before proof can be given as in subsection (1)(b), the circumstances of

the supposed statement, sufficient to designate the particular occasion, must

Criminal Procedure and Evidence

2011-24

be mentioned to the witness, and he must be asked whether or not he has

made such statement.

Proof of contradictory statements of adverse witness.

396.(1) If a witness, upon cross-examination as to a former statement made

by him relative to the subject matter of the indictment or proceeding, and

inconsistent with his present testimony, does not distinctly admit that he has

made such statement, proof may be given that he did in fact make it.

(2) Before such proof can be given the circumstances of the supposed

statement, sufficient to designate the particular occasion, must be mentioned

to the witness, and he must be asked whether or not he has made such

statement.

(3) A witness may be cross-examined as to previous statements made by

him in writing, or reduced into writing, relative to the subject matter of the

indictment or proceeding, without such writing being shown to him.

(4) If it is intended to contradict such witness by the writing, his attention

must, before such contradictory proof can be given, be called to those parts

of the writing which are to be used for the purpose of so contradicting him.

(5) The judge, at any time during the trial, may require the production of

the writing for his inspection, and may thereupon make such use of it for the

purposes of the trial as he thinks fit.

Other previous statements of witnesses.

397.(1) This section applies when a person (the witness) is called to give

evidence in criminal proceedings.

(2) If a previous statement by the witness is admitted as evidence to rebut

a suggestion that his oral evidence has been fabricated, that statement is

admissible as evidence of any matter stated of which oral evidence by the

witness would be admissible.

(3) A statement made by the witness in a document–

(a) which is used by him to refresh his memory while giving

evidence;

(b) on which he is cross-examined; and

proceedings,

Criminal Procedure and Evidence

2011-24

is admissible as evidence of any matter stated of which oral evidence by

him would be admissible.

(4) A previous statement by the witness is admissible as evidence of any

matter stated of which oral evidence by him would be admissible, if–

(a) any of the following three conditions is satisfied; and

(b) while giving evidence the witness indicates that to the best of

his belief he made the statement, and that to the best of his

belief it states the truth.

(5) The first condition is that the statement identifies or describes a

person, object or place.

(6) The second condition is that the statement was made by the witness

when the matters stated were fresh in his memory but he does not remember

them, and cannot reasonably be expected to remember them, well enough to

give oral evidence of them in the proceedings.

(7) The third condition is that–

(a) the witness claims to be a person against whom an offence has

been committed;

(b) the offence is one to which the proceedings relate;

(whether to a person in authority or not) about conduct which

would, if proved, constitute the offence or part of the offence;

(d) the complaint was not made as a result of a threat or a promise;

and

(e) before the statement is adduced the witness gives oral evidence

in connection with its subject matter.

(8) For the purposes of subsection (7) the fact that the complaint was

elicited (for example, by a leading question) is irrelevant unless a threat or a

promise was involved.

Hearsay: Supplementary

Additional requirement for admissibility of multiple hearsay.

398.(1) A hearsay statement is not admissible to prove the fact that an

earlier hearsay statement was made unless–

Criminal Procedure and Evidence

2011-24

(a) either of the statements is admissible under section 392, 394 or

397;

(b) all parties to the proceedings so agree; or

taking into account how reliable the statements appear to be, is

so high that the interests of justice require the later statement to

be admissible for that purpose.

(2) In this section “hearsay statement” means a statement, not made in oral

evidence, that is relied on as evidence of a matter stated in it.

Capability to make statement.

399.(1) Nothing in section 391, 394 or 397 makes a statement admissible as

evidence if it was made by a person who did not have the required

capability at the time when he made the statement.

(2) Nothing in section 392 makes a statement admissible as evidence if

any person who, in order for the requirements of section 392(2) to be

satisfied, must at any time have supplied or received the information

concerned or created or received the document or part concerned–

(a) did not have the required capability at that time; or

(b) cannot be identified but cannot reasonably be assumed to have

had the required capability at that time.

(3) For the purposes of this section a person has the required capability if

he is capable of–

(a) understanding questions put to him about the matters stated;

and

(b) giving answers to such questions which can be understood.

(4) Where by reason of this section there is an issue as to whether a person

had the required capability when he made a statement–

(a) proceedings held for deciding the issue must take place in the

absence of the jury (if there is one);

(b) in determining the issue the court may receive expert evidence

and evidence from any person to whom the statement in

question was made;

Criminal Procedure and Evidence

2011-24

adduce the statement, and the standard of proof is the balance

of probabilities.

Credibility.

400.(1) This section applies if in criminal proceedings–

(a) a statement not made in oral evidence in the proceedings is

admitted as evidence of a matter stated; and

(b) the maker of the statement does not give oral evidence in

connection with the subject matter of the statement.

(2) In such a case–

(a) any evidence which (if he had given such evidence) would

have been admissible as relevant to his credibility as a witness

is so admissible in the proceedings;

(b) evidence may with the court’s leave be given of any matter

which (if he had given such evidence) could have been put to

him in cross-examination as relevant to his credibility as a

witness but of which evidence could not have been adduced by

the cross-examining party;

other statement inconsistent with the statement admitted as

evidence is admissible for the purpose of showing that he

contradicted himself.

(3) If as a result of evidence admitted under this section an allegation is

made against the maker of a statement, the court may permit a party to lead

additional evidence of such description as the court may specify for the

purposes of denying or answering the allegation.

(4) In the case of a statement in a document which is admitted as evidence

under section 391 each person who, in order for the statement to be

admissible, must have supplied or received the information concerned or

created or received the document or part concerned is to be treated as the

maker of the statement for the purposes of subsections (1) to (3) of this

section.

Stopping the case where evidence is unconvincing.

401.(1) If on a defendant’s trial before a judge and jury for an offence the

court is satisfied at any time after the close of the case for the prosecution

that–

Criminal Procedure and Evidence

2011-24

(a) the case against the defendant is based wholly or partly on a

statement not made in oral evidence in the proceedings; and

(b) the evidence provided by the statement is so unconvincing that,

considering its importance to the case against the defendant,

his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or,

if it considers that there ought to be a retrial, discharge the jury.

(2) If–

(a) a jury is directed under subsection (1) to acquit a defendant of

an offence; and

(b) the circumstances are such that, apart from this subsection, the

defendant could if acquitted of that offence be convicted of

another offence,

the defendant may not be convicted of that other offence if the court is

satisfied as mentioned in subsection (1) in respect of it.

(3) If–

(a) a jury is required to decide under section 660 whether a person

charged on an indictment with an offence did the act or made

the omission charged; and

(b) the court is satisfied as mentioned in subsection (1) at any time

after the close of the case for the prosecution that–

(i) the case against the defendant is based wholly or partly

on a statement not made in oral evidence in the

proceedings; and

(ii) the evidence provided by the statement is so

unconvincing that, considering its importance to the case

against the person, a finding that he did the act or made

the omission would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or,

if it considers that there ought to be a rehearing, discharge the jury.

(4) This section does not prejudice any other power a court may have to

direct a jury to acquit a person of an offence or to discharge a jury.

Court’s general discretion to exclude evidence.

Criminal Procedure and Evidence

2011-24

402.(1) In criminal proceedings the court may refuse to admit a statement

as evidence of a matter stated if–

(a) the statement was made otherwise than in oral evidence in the

proceedings; and

(b) the court is satisfied that the case for excluding the statement,

taking account of the danger that to admit it would result in

undue waste of time, substantially outweighs the case for

admitting it, taking account of the value of the evidence.

(2) Nothing in this Part affects–

(a) any power of a court to exclude evidence under section

332(Exclusion of unfair evidence); or

(b) any other power of a court to exclude evidence at its discretion

(whether by preventing questions from being put or otherwise).

Representations other than by a person.

403.(1) If a representation of any fact–

(a) is made otherwise than by a person; but

(b) depends for its accuracy on information supplied (directly or

indirectly) by a person,

the representation is not admissible in criminal proceedings as evidence of

the fact unless it is proved that the information was accurate.

(2) Subsection (1) does not affect the operation of the presumption that a

mechanical device has been properly set or calibrated.

Rules of court.

404.(1) Rules of court may make such provision as appears to the Chief

Justice to be necessary or expedient for the purposes of this Part.

(2) The rules may–

(a) make provision about the procedure to be followed and other

conditions to be fulfilled by a party proposing to tender a

statement in evidence under any provision of this Part;

Criminal Procedure and Evidence

2011-24

(b) require a party proposing to tender the evidence to serve on

each party to the proceedings such notice, and such particulars

of or relating to the evidence, as are prescribed;

agreement of the parties if–

(i) a notice has been served in accordance with provision

made under paragraph (b); and

(ii) no counter-notice in the prescribed form objecting to the

admission of the evidence has been served by a party.

(3) If a party proposing to tender evidence fails to comply with a

prescribed requirement applicable to it–

(a) the evidence is not admissible except with the court’s leave;

(b) if leave is given the court or jury may draw such inferences

from the failure as appear proper.

(4) In considering whether or how to exercise any of its powers under

subsection (3) the court must have regard to whether there is any

justification for the failure to comply with the requirement.

(5) A person is not to be convicted of an offence solely on an inference

drawn under subsection (3)(b).

(6) Rules under this section may–

(a) limit the application of any provision of the rules to prescribed

circumstances;

(b) subject any provision of the rules to prescribed exceptions;

(7) Nothing in this section limits any enactment conferring power to make

rules of court; and no particular provision of this section prejudices any

general provision of it.

Documents

Proof by written statement.

405.(1) In any criminal proceedings, a written statement by any person is, if

such of the conditions mentioned in subsection (2) as are applicable are

Criminal Procedure and Evidence

2011-24

satisfied, admissible as evidence to the same extent as oral evidence to the

same effect by that person.

(2) The conditions are–

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect

that it is true to the best of his knowledge and belief and that he

made the statement knowing that, if it were tendered in

evidence, he would be liable to prosecution if he wilfully stated

in it anything which he knew to be false or did not believe to

be true;

evidence, a copy of the statement is served, by or on behalf of

the party proposing to tender it, on each of the other parties to

the proceedings; and

(d) none of the other parties or their legal representatives, within 7

days after the service of the copy of the statement, serves a

notice on the party so proposing objecting to the statement

being tendered in evidence under this section.

(3) The conditions mentioned in paragraphs (c) and (d) of subsection (2)

do not apply if the parties agree before or during the hearing that the

statement may be tendered in evidence.

(4) The following provisions also have effect in relation to any written

statement tendered in evidence under this section, that is to say–

(a) if the statement is made by a person under the age of 18, it

must give his age;

(b) if it is made by a person who cannot read it, it must be read to

him before he signs it and be accompanied by a declaration by

the person who read the statement to the effect that it was so

read; and

on any other party to the proceedings under subsection (2)(c)

must be accompanied by a copy of that document or by any

information necessary to enable the party on whom it is served

to inspect the document or a copy of it.

(5) Even if a written statement made by a person is admissible as evidence

by virtue of this section–

Criminal Procedure and Evidence

2011-24

(a) the party by whom or on whose behalf a copy of the statement

was served may call the person to give evidence; and

(b) the court may, on its own initiative or on the application of any

party to the proceedings, require the person to attend before the

court and give evidence.

(6) An application under subsection (5)(b) to a court other than the

Magistrates’ Court may be made before the hearing, and on any such

application the powers of the court are exercisable by any person entitled to

sit as a judge of the court.

(7) If a statement is admitted in evidence by virtue of this section–

(a) the statement must, unless the court otherwise directs, be read

aloud at the hearing;

(b) if the court so directs, an account must be given orally of any

of the statement that is not read aloud.

(8) Any document or object referred to as an exhibit and identified in a

written statement tendered in evidence under this section must be treated as

if it had been produced as an exhibit and identified in court by the maker of

the statement.

(9) A document required by this section to be served on any person may

be served–

(a) by delivering it to him or to his legal representative;

(b) by addressing it to him and leaving it at his usual or last known

place of abode or place of business or by addressing it to his

legal representative and leaving it at his office;

service addressed to him at his usual or last known place of

abode or place of business or addressed to his legal

representative at his office; or

(d) in the case of a corporate body, by delivering it to the secretary

or clerk of the body at its registered or principal office or

sending it in a registered letter or by the recorded delivery

service addressed to the secretary or clerk of that body at that

office.

Evidence by certificate.

Criminal Procedure and Evidence

2011-24

406.(1) In any proceedings, a certificate purporting to be signed by a police

officer and certifying that–

(a) a plan or drawing exhibited thereto is a plan or drawing made

by him of the place or object specified in the certificate; and

(b) the plan or drawing is correctly drawn to a scale so specified,

is evidence of the relative position of the things shown on the plan or

drawing.

(2) In any proceedings for an offence under the Traffic Act 2005, or any

other law relating to the use of vehicles on roads, a certificate purporting to

be signed by a police officer and certifying that a person specified in the

certificate stated to the police officer–

(a) that a particular motor vehicle was being driven by, or

belonged to, that person on a particular occasion;

(b) that a particular motor vehicle belonged, on a particular

occasion, to a firm in which that person also stated that he was

at the time of the statement a partner; or

occasion, to a corporation of which that person also stated that

he was at the time of the statement a director, officer or

employee,

is admissible as evidence for the purpose of determining by whom the

vehicle was being driven, or to whom it belonged, as the case may be, on

that occasion.

(3) In any proceedings for an offence under sections 29 to 35 of the Post

Office Act a statutory declaration by any person–

(a) that he dispatched or received or failed to receive any goods or

postal packet, or that any goods or postal packet when

dispatched or received by him were in a particular state or

condition; or

(b) that a vessel, vehicle or aircraft was at any time employed by

or under the Post Office for, or engaged in, the transmission of

postal packets under contract,

is admissible as evidence of the facts stated in the declaration.

(4) Nothing in this section makes a certificate or statutory declaration

admissible as evidence in proceedings for an offence except in a case where

Criminal Procedure and Evidence

2011-24

and to the extent to which oral evidence to the same effect would have been

admissible in those proceedings.

(5) Nothing in this section makes a certificate or statutory declaration

admissible as evidence in proceedings for any offence–

(a) unless a copy of it has, not less than 7 days before the hearing

or trial, been served on the person charged with the offence; or

(b) if that person, not later than 3 days before the hearing or trial,

or within any further time the court in special circumstances

allows, serves notice on the prosecutor requiring the attendance

at the trial of the person who signed the certificate or the

person by whom the declaration was made, as the case may be.

Proof of identity of driver of vehicle.

407. If on the summary trial of an information for an offence in the case of

which section 96 of the Traffic Act 2005 gives power to require information

as to the identity of the driver of a vehicle–

(a) it is proved to the satisfaction of the court that a requirement

under section 96 to give information as to the identity of the

driver of the particular vehicle on the particular occasion to

which the information relates has been served on the defendant

by post; and

(b) a statement in writing is produced to the court purporting to be

signed by the defendant that the defendant was the driver of

that vehicle on that occasion,

the court may accept that statement as evidence that the defendant was the

driver of that vehicle on that occasion.

Proof of statements in documents.

408.(1) If a statement contained in a document is admissible as evidence in

criminal proceedings, it may be proved–

(a) by the production of the document; or

(b) (whether or not the document is still in existence) by the

production of a copy of the document, or of the material part of

it,

authenticated in such manner as the court may approve.

Criminal Procedure and Evidence

2011-24

(2) It is immaterial for the purposes of this section how many removes

there are between a copy and the original.

Use of documents to refresh memory.

409.(1) A person giving oral evidence in criminal proceedings about any

matter may, at any stage in the course of doing so, refresh his memory of it

from a document made or verified by him at an earlier time if–

(a) he states in his oral evidence that the document records his

recollection of the matter at that earlier time; and

(b) his recollection of the matter is likely to have been

significantly better at that time than it is at the time of his oral

evidence.

(2) If–

(a) a person giving oral evidence in criminal proceedings about

any matter has previously given an oral account, of which a

sound recording was made, and he states in that evidence that

the account represented his recollection of the matter at that

time;

(b) his recollection of the matter is likely to have been

significantly better at the time of the previous account than it is

at the time of his oral evidence; and

he may, at any stage in the course of giving his evidence, refresh his

memory of the matter from that transcript.

Microfilm copies.

410.(1) In any proceedings, the contents of a document may (whether or

not the document is still in existence) be proved by the production of an

enlargement of a microfilm copy of that document or of the material part of

it, authenticated in such manner as the court may approve.

(2) If the proceedings concerned are proceedings before the Magistrates’

Court inquiring into an offence as examining magistrates subsection (1) has

effect with the omission of the words “authenticated in such manner as the

court may approve”.

Video recordings

Evidence by video recording.

Criminal Procedure and Evidence

2011-24

411.(1) This section applies if–

(a) a person is called as a witness in proceedings for an offence

triable only on indictment, or for a prescribed offence triable

either way;

(b) the person claims to have witnessed (whether visually or in any

other way)–

(i) events alleged by the prosecution to include conduct

constituting the offence or part of the offence; or

(ii) events closely connected with such events;

(whether in response to questions asked or otherwise);

(d) the account was given at a time when those events were fresh

in the person’s memory (or would have been, assuming the

truth of the claim mentioned in paragraph (b));

(e) a video recording was made of the account;

(f) the court has made a direction that the recording should be

admitted as evidence in chief of the witness, and the direction

has not been rescinded; and

(g) the recording is played in the proceedings in accordance with

the direction.

(2) If, or to the extent that, the witness in his oral evidence in the

proceedings asserts the truth of the statements made by him in the recorded

account, they are to be treated as if made by him in that evidence.

(3) A direction under subsection (1)(f)–

(a) may not be made in relation to a recorded account given by the

defendant;

(b) may be made only if it appears to the court that–

(i) the witness’s recollection of the events in question is

likely to have been significantly better when he gave the

recorded account than it will be when he gives oral

evidence in the proceedings; and

Criminal Procedure and Evidence

2011-24

(ii) it is in the interests of justice for the recording to be

admitted, having regard in particular to the matters

mentioned in subsection (4).

(4) Those matters are–

(a) the interval between the time of the events in question and the

time when the recorded account was made;

(b) any other factors that might affect the reliability of what the

witness said in that account;

(d) any views of the witness as to whether his evidence in chief

should be given orally or by means of the recording.

(5) For the purposes of subsection (2) it does not matter if the statements

in the recorded account were not made on oath.

(6) In this section “prescribed” means of a description specified in an

order made by the Minister.

Video recordings: Further provisions.

412.(1) The reference in subsection (1)(f) of section 411 to the admission of

a recording includes a reference to the admission of part of the recording;

and references in that section and this one to the video recording or to the

witness’s recorded account are, where appropriate, to be read accordingly.

(2) In considering whether any part of a recording should be admitted

under section 411, the court must consider–

(a) whether admitting that part would carry a risk of prejudice to

the defendant; and

(b) if so, whether the interests of justice nevertheless require it to

be admitted in view of the desirability of showing the whole, or

substantially the whole, of the recorded interview.

(3) A court may not make a direction under section 411(1)(f) in relation to

any proceedings unless–

(a) the Minister has notified the court that arrangements can be

made for implementing directions under that section; and

(b) the notice has not been withdrawn.

Criminal Procedure and Evidence

2011-24

(4) Nothing in section 411 affects the admissibility of any video recording

which would be admissible apart from that section.

Documentary evidence: Supplementary

Documentary evidence: Supplementary.

413.(1) This Part is in addition to and does not displace the provisions of

the Evidence Act or any other written law governing the reception of

evidence in Gibraltar so far as those provisions are relevant to criminal

proceedings.

(2) A statement in a document is not capable of corroborating evidence

given by the person making it.

(3) In estimating the weight, if any, to be attached to such a statement

regard must be had to all the circumstances from which any inference can

reasonably be drawn as to its accuracy or otherwise.

Documents produced as exhibits.

414. If on a trial before a judge and jury for an offence–

(a) a statement made in a document is admitted in evidence under

section 394 or 397; and

(b) the document or a copy of it is produced as an exhibit,

the exhibit must not accompany the jury when they retire to consider their verdict unless–

(d) all the parties to the proceedings agree that it should

accompany the jury.

PART 18 – LIVE LINK EVIDENCE, ETC.

Interpretation and savings.

415.(1) In this Part “live link” means an arrangement by which a person

(when not in the place where the hearing is being held) is able–

(a) to see and hear a person there; and

(b) to be seen and heard by the persons mentioned in subsection

(2),

Criminal Procedure and Evidence

2011-24

and for this purpose any impairment of eyesight or hearing is to be

disregarded.

(2) The persons are–

(a) the judge, magistrate or other person presiding;

(b) any other judge or magistrate taking part in the proceedings;

(d) the defendant or defendants and the prosecutor;

(e) legal representatives appearing for the defence or prosecution

and persons assisting them;

(f) the jury or lay assessors, if any; and

(g) any interpreter appointed to assist a defendant, while

performing that role.

(3) Nothing in this Part affects any power of a court–

(a) to make an order, give directions or give leave of any

description in relation to any witness (including the defendant

or defendants);

(b) to exclude evidence at its discretion (whether by preventing

questions being put or otherwise);

section 437 (Evidence by live link) or 446 (Live link direction).

Evidence by live link

Evidence by live link by persons outside Gibraltar.

416.(1) A person other than the defendant may, with the leave of the court,

give evidence through a live television link in proceedings to which

subsection (2) applies, if the person is outside Gibraltar.

(2) This subsection applies to–

(a) trials on indictment, appeals to the Court of Appeal and

hearings of references under Part 11; and

Criminal Procedure and Evidence

2011-24

(b) proceedings in Juvenile Courts, appeals to the Supreme Court

arising out of such proceedings and hearings of references

under Part 11 so arising.

Evidence by live link by persons generally.

417.(1) A witness (other than the defendant) may, if the court so directs,

give evidence through a live link in the following criminal proceedings–

(a) a summary trial;

(b) an appeal to the Supreme Court arising out of such a trial;

(d) an appeal in a criminal matter to the Court of Appeal;

(e) the hearing of a reference under Part 11; and

(f) a hearing before the Magistrates’ Court or the Supreme Court

after the defendant has entered a plea of guilty.

(2) A direction may be given under this section–

(a) on an application by a party to the proceedings; or

(b) on the court’s own initiative,

but may not be given unless the court is satisfied–

administration of justice for the person concerned to give

evidence in the proceedings through a live link; and

(d) that suitable facilities for receiving evidence through a live link

are available in the place in which it appears to the court that

the proceedings will take place.

(3) In deciding whether to give a direction under this section the court

must consider all the circumstances of the case, including, but not limited

to–

(a) the availability of the witness;

(b) the need for the witness to attend in person;

Criminal Procedure and Evidence

2011-24

(d) the views of the witness;

(e) the suitability of the facilities at the place where the witness

would give evidence through a live link; and

(f) whether a direction might tend to inhibit any party to the

proceedings from effectively testing the witness’s evidence.

(4) The court must state in open court its reasons for granting or refusing

an application for a direction under this section and, if it is the Magistrates’

Court, must cause them to be entered in the register of its proceedings.

Effect of, and rescission of, a direction under section 417.

418.(1) If the court gives a direction under section 417 for a person to give

evidence through a live link in particular proceedings, the person concerned

may not give evidence in those proceedings after the direction is given

except through a live link, subject to the following provisions of this

section.

(2) The court may rescind a direction under section 417 if it appears to the

court to be in the interests of justice to do so.

(3) If the court rescinds a direction, the person concerned may no longer

give evidence in the proceedings through a live link, but this does not

prevent the court from giving a further direction under section 417 in

relation to him.

(4) A direction under section 417 may be rescinded under subsection (2)–

(a) on an application by a party to the proceedings; or

(b) on the court’s own initiative,

but no application may be made under paragraph (a) unless there has been a

material change of circumstances since the direction was given.

(5) The court must state in open court its reasons for–

(a) rescinding a direction under section 417; or

(b) refusing an application to rescind such a direction,

and, if it is the Magistrates’ Court, must cause the reasons to be entered in

the register of its proceedings.

Warning to jury.

Criminal Procedure and Evidence

2011-24

419. If, by virtue of section 416 or 417, evidence has been given through a

live link in criminal proceedings before the Supreme Court, the judge must

give the jury (if there is one) such direction as he thinks necessary to ensure

that the jury gives the same weight to the evidence as if it had been given by

the witness in the courtroom or other place where the proceedings are held.

Live links in certain preliminary and sentencing hearings

Introductory.

420.(1) Sections 421 to 423–

(a) apply to preliminary hearings and sentencing hearings in the

course of proceedings for an offence; and

(b) enable the court in the circumstances provided for in sections

421 and 423 to direct the use of a live link for securing the

defendant’s attendance at a hearing to which those sections

apply.

(2) The defendant is to be treated as present in court when, by virtue of a

live link direction under any of those sections, he attends a hearing through

a live link.

(3) In sections 421 to 423–

“custody” includes police detention;

“preliminary hearing” means any stage in the proceedings at which the

presence of the detained person is required by the court before the

commencement of the trial;

“sentencing hearing” means any hearing following conviction which is

held for the purpose of–

(a) proceedings relating to the giving or rescinding of a direction

under section 423;

(b) proceedings in the Magistrates’ Court relating to committal to

the Supreme Court for sentencing; or

deal with him in respect of the offence.

Use of live link at preliminary hearings when defendant is in custody.

421.(1) This section applies in relation to a preliminary hearing in the

Magistrates’ Court or the Supreme Court.

Criminal Procedure and Evidence

2011-24

(2) If it appears to the court before which the preliminary hearing is to

take place that the defendant is likely to be held in custody during the

hearing, the court may give a live link direction under this section in relation

to the attendance of the defendant at the hearing.

(3) A live link direction under this section is a direction requiring the

defendant, if he is being held in custody during the hearing, to attend it

through a live link from the place at which he is being held.

(4) If a hearing takes place in relation to the giving or rescinding of such a

direction, the court may require or permit a person attending the hearing to

do so through a live link.

(5) The court must not give or rescind such a direction (whether at a

hearing or otherwise) unless the parties to the proceedings have been given

the opportunity to make representations.

(6) If in a case where it has power to do so the Magistrates’ Court decides

not to give a live link direction under this section, it must–

(a) state in open court its reasons for not doing so; and

(b) cause those reasons to be entered in the register of its

proceedings.

(7) The following functions of the Magistrates’ Court under this section

may be discharged by a single magistrate–

(a) giving a live link direction under this section;

(b) rescinding a live link direction before a preliminary hearing

begins; and

about a matter within paragraph (a) or (b).

Continued use of live link for sentencing hearing following a

preliminary hearing.

422 .(1) Subsection (2) applies if–

(a) a live link direction under section 421 is in force;

(b) the defendant is attending a preliminary hearing through a live

link by virtue of the direction;

Criminal Procedure and Evidence

2011-24

hearing (whether by virtue of a guilty plea or an indication of

an intention to plead guilty); and

(d) the court proposes to continue the hearing as a sentencing

hearing in relation to the offence.

(2) The defendant may continue to attend through the live link by virtue of

the direction if–

(a) the hearing is continued as a sentencing hearing in relation to

the offence; and

(b) the court is satisfied that the defendant continuing to attend

through the live link is not contrary to the interests of justice.

(3) The defendant may not give oral evidence through the live link during

a continued hearing under subsection (2) unless the court is satisfied that it

is not contrary to the interests of justice for him to give it in that way.

Use of live link in sentencing hearings.

423.(1) This section applies if the defendant is convicted of the offence.

(2) If it appears to the court by or before which the defendant is convicted

that it is likely that he will be held in custody during any sentencing hearing

for the offence, the court may give a live link direction under this section in

relation to that hearing.

(3) A live link direction under this section is a direction requiring the

defendant, if he is being held in custody during the hearing, to attend it

through a live link from the place at which he is being held.

(4) Such a direction may be given–

(a) by the court on its own initiative or on an application by a

party; and

(b) in relation to all subsequent sentencing hearings before the

court or to the hearing or hearings specified or described in the

direction.

(5) The court may not give such a direction unless the court is satisfied

that it is not contrary to the interests of justice to give the direction.

(6) The court may–

Criminal Procedure and Evidence

2011-24

(a) rescind such a direction at any time before or during a hearing to

which it relates if it appears to the court to be in the interests of

justice to do so, without affecting the court’s power to give a

further live link direction in relation to the offender;

(b) exercise this power on its own initiative or on an application by

a party.

(7) The defendant may not give oral evidence while attending a hearing

through a live link by virtue of this section unless the court is satisfied that it

is not contrary to the interests of justice for him to give it in that way.

(8) The court must–

(a) state in open court its reasons for refusing an application for, or

for the rescission of, a live link direction under this section;

and

(b) if it is the Magistrates’ Court, cause those reasons to be entered

in the register of its proceedings.

Miscellaneous

Magistrates’ Court may sit at other locations.

424. If–

(a) the Magistrates’ Court proposes to hear evidence by live link

by virtue of any provision of this Part; and

(b) suitable facilities for receiving such evidence are not available

at the place at which the court usually sits,

the court may sit for the purposes of the whole or any part of the

proceedings at any place at which such facilities are available.

Rules of court.

425.(1) Rules of court may make such provision as appears to the Chief

Justice to be necessary or expedient for the purposes of this Part.

(2) The rules may in particular make provision–

(a) as to the procedure to be followed in connection with

applications under section 416 or 417; and

(b) as to the arrangements or safeguards to be put in place in

connection with the operation of live links.

Criminal Procedure and Evidence

2011-24

(3) The provision which may be made by virtue of subsection (2)(a)

includes provision–

(a) for uncontested applications to be decided by the court without

a hearing;

(b) for preventing the renewal of an unsuccessful application under

section 416 unless there has been a material change of

circumstances;

to be treated in connection with an application under section

416 or 417, and in particular as to its being disclosed to, or

withheld from, a party to the proceedings.

(4) This section does not limit any enactment conferring power to make

criminal procedure rules.

Offence of perjury.

426. A statement made on oath by a witness and given in evidence through

a live link by virtue of this Part is to be treated for the purposes of Part 18 of

the Crimes Act 2011 (Perjury and false statements) as having been made in

the proceedings in which it is given in evidence.

PART 19 – VULNERABLE WITNESSES

Interpretation of Part.

427.(1) In this Part, unless the context otherwise requires−

“child witness” has the meaning given to it by section 433(1);

“eligible witness” means a witness eligible for assistance by virtue of

section 428 or 429;

“picture” includes a likeness however produced;

“relevant recording”, in relation to a witness or a complainant, is a video

recording of an interview of the witness or complainant made with

a view to its admission as evidence in chief of the witness or

complainant;

“relevant time” in relation to a direction under this Part means–

(a) the time when the direction was given; or

Criminal Procedure and Evidence

2011-24

(b) if a previous application has been made for a direction, the

time when the application (or last application) was made;

“special measures direction” means a direction given under section 431;

“video recording” means any recording, on any medium, from which a

moving image may by any means be produced, and includes the

accompanying sound-track;

“witness”, in relation to any criminal proceedings, means any person

called, or proposed to be called, to give evidence in the

proceedings;

“witness anonymity order” has the meaning given by section 469.

(2) In this Part–

(a) references to the quality of a witness’s evidence are to its

quality in terms of completeness, coherence and accuracy; and

for this purpose “coherence” refers to a witness’s ability in

giving evidence to give answers which address the questions

put to the witness and can be understood both individually and

collectively;

(b) references to the special measures available in relation to a

witness are to be construed in accordance with section 430;

heard by, another person are to be read as not applying to the

extent that either of them is unable to see or hear by reason of

any impairment of eyesight or hearing;

(d) a reference to cross-examination includes a reference to further

cross-examination;

(e) a reference to an offence includes a reference to attempting or

conspiring to commit, or aiding, abetting, counselling,

procuring or inciting the commission of, that offence;

(f) in proceedings in which there is more than one defendant, a

reference to the defendant includes a reference to all or any of

the defendants, as the court determines.

(3) For the purposes of this Part–

(a) the age of a person is to be taken to be that which it appears to

the court to be after considering any available evidence;

Criminal Procedure and Evidence

2011-24

(b) if it is alleged that an offence to which this Part applies has

been committed, the fact that any person has consented to an

act which, on a prosecution for that offence, would fall to be

proved by the prosecution, does not prevent that person from

being regarded as a person against whom the alleged offence

was committed;

another to commit an offence has been committed, the person

against whom the substantive offence is alleged to have been

intended to be committed is to be regarded as the person

against whom the conspiracy or incitement is alleged to have

been committed;

(d) if a person is accused of an offence under any of sections 221

to 227 (Child sex offences) or any of sections 236 to 240

(Familial sex offences) of the Crimes Act 2011, the other party

to the act in question is to be taken to be a person against

whom the offence was committed even though he consented to

that act;

(e) a person is accused of an offence if–

(i) an information is laid alleging that he has committed the

offence;

(ii) he appears before a court charged with the offence;

(iii) a court before which he is appearing sends him to the

Supreme Court for trial on a new charge alleging the

offence; or

(iv) part of an indictment charging him with the offence is

preferred before the Supreme Court.

Special measures: Eligible witnesses

Witnesses eligible for assistance on grounds of age or incapacity.

428.(1) A witness in criminal proceedings (other than the defendant) is

eligible for assistance by virtue of this section if–

(a) the witness is under the age of 18 at the time of the hearing; or

(b) the court considers that the quality of evidence given by the

witness is likely to be diminished by reason of any

circumstances falling within subsection (2).

Criminal Procedure and Evidence

2011-24

(2) The circumstances falling within this subsection are–

(a) that the witness–

(i) suffers from mental disorder; or

(ii) otherwise has a significant impairment of intelligence

and social functioning;

(b) that the witness has a physical disability or is suffering from a

physical disorder.

(3) In subsection (1)(a) “the time of the hearing”, in relation to a witness,

means the time when it falls to the court to make a determination for the

purposes of section 431 in relation to the witness.

(4) In determining whether a witness falls within subsection (1)(b) the

court must consider any views expressed by the witness.

Witnesses eligible for assistance on grounds of fear or distress about

testifying.

429.(1) For the purposes of this Part, a witness in criminal proceedings

(other than the defendant) is eligible for assistance by virtue of this

subsection if the court is satisfied that the quality of evidence given by the

witness is likely to be diminished by reason of fear or distress on the part of

the witness in connection with testifying in the proceedings.

(2) In determining whether a witness falls within subsection (1) the court

must take into account, in particular–

(a) the nature and alleged circumstances of the offence to which

the proceedings relate;

(b) the age of the witness;

relevant, namely–

(i) the social and cultural background and ethnic origins of

the witness;

(ii) the domestic and employment circumstances of the

witness; and

(iii) any religious beliefs or political opinions of the witness;

(d) any behaviour towards the witness on the part of–

Criminal Procedure and Evidence

2011-24

(i) the defendant;

(ii) members of the family or associates of the defendant; or

(iii) any other person who is likely to be a defendant or a

witness in the proceedings.

(3) In determining that question the court must in addition consider any

views expressed by the witness.

(4) If the complainant in respect of a sexual offence is a witness in

proceedings relating to that offence (or to that offence and any other

offences), the witness is eligible for assistance in relation to those

proceedings by virtue of this subsection unless the witness has informed the

court of the witness’s wish not to be so eligible by virtue of this subsection.

Special measures available to eligible witnesses.

430.(1) For the purposes of this Part–

(a) the provision which may be made by a special measures

direction by virtue of each of sections 436 to 443 is a special

measure available in relation to a witness eligible for assistance

by virtue of section 428; and

(b) (subject to subsection (3)) the provision which may be made by

such a direction by virtue of each of sections 436 to 441 is a

special measure available in relation to a witness eligible for

assistance by virtue of section 429.

(2) The Minister, in consultation with the Chief Justice, may by notice

published in the Gazette specify the arrangements that can be made

available in specified courts for the purposes of this Part.

(3) A court must not make a special measures direction pursuant to

subsection (1)(a) or (b) in relation to a witness in any proceedings unless the

Minister has by a notice under subsection (2) indicated that relevant

arrangements can be made available in the court where the proceedings will

take place.

(4) In subsection (3) “relevant arrangements” means arrangements for

implementing the measure in question which cover the witness and the

proceedings in question.

(5) The Minister may by order add any new measure to the special

measures which, in accordance with subsection (1)(a) or (b), are available in

Criminal Procedure and Evidence

2011-24

relation to a witness eligible for assistance by virtue of section 428 or (as the

case may be) section 429.

Special measures direction relating to eligible witness.

431.(1) This section applies when in any criminal proceedings–

(a) a party to the proceedings makes an application for the court to

give a direction under this section in relation to a witness in the

proceedings other than the defendant; or

(b) the court on its own initiative raises the issue whether such a

direction should be given.

(2) If the court determines that the witness is eligible for assistance by

virtue of section 428 or 429, the court must–

(a) determine whether any of the special measures available in

relation to the witness (or any combination of them) would, in

its opinion, be likely to improve the quality of evidence given

by the witness; and

(b) if so–

(i) determine which of those measures (or combination of

them) would, in its opinion, be likely to maximise so far

as practicable the quality of such evidence; and

(ii) give a direction under this section providing for the

measure or measures so determined to apply to evidence

given by the witness.

(3) In determining for the purposes of this Part whether any special

measure or measures would or would not be likely to improve, or to

maximise so far as practicable, the quality of evidence given by the witness,

the court must consider all the circumstances of the case, including in

particular–

(a) any views expressed by the witness; and

(b) whether the measure or measures might tend to inhibit such

evidence being effectively tested by a party to the proceedings.

(4) A special measures direction must specify particulars of the provision

made by the direction in respect of each special measure which is to apply

to the witness’s evidence.

General provisions about directions.

Criminal Procedure and Evidence

2011-24

432.(1) Subject to subsection (2) and section 433(8), a special measures

direction has binding effect from the time it is made until the proceedings

for the purposes of which it is made are either determined or abandoned, in

relation to the defendant or (if there is more than one) in relation to each of

the defendants.

(2) The court may discharge or vary (or further vary) a special measures

direction if it appears to the court to be in the interests of justice to do so,

and may do so either–

(a) on an application made by a party to the proceedings, if there

has been a material change of circumstances since the relevant

time; or

(b) on its own initiative.

(3) Nothing in section 437(2) and (3), 440(4) to (7) or 441(4) to (6) affects

the power of the court to vary or discharge a special measures direction

under subsection (2).

(4) The court must state in open court its reasons for–

(a) giving or varying;

(b) refusing an application for, or for the variation or discharge of;

a special measures direction and, if it is the Magistrates’ Court, must cause

the reasons to be entered in the register of its proceedings.

(5) Rules of court may make provision for–

(a) uncontested applications to be determined by the court without

a hearing;

(b) preventing the renewal of an unsuccessful application for a

special measures direction unless there has been a material

change of circumstances;

for, or for varying or discharging, such a direction;

(d) the manner in which confidential or sensitive information is to

be treated in connection with such an application and in

Criminal Procedure and Evidence

2011-24

particular as to its being disclosed to, or withheld from, a party

to the proceedings.

Special provisions relating to child witnesses.

433.(1) For the purposes of this section–

(a) a witness in criminal proceedings is a “child witness” if he is

under the age of 18 (whether or not he is an eligible witness by

reason of any other provision of section 428 or 429);

(b) a child witness is “in need of special protection” if the offence

(or any of the offences) to which the proceedings relate is a

sexual offence or an offence of violence.

(2) If the court, in making a determination for the purposes of section

431(2), determines that a witness in criminal proceedings is a child witness,

the court must–

(a) first have regard to subsections (3) to (7) of this section; and

(b) then have regard to section 431(2).

(3) For the purposes of section 431(2), as it then applies to the witness,

any special measures required to be applied in relation to him by virtue of

this section are to be treated as if they were measures determined by the

court, pursuant to section 431(2)(a) and (b)(i), to be ones that (whether on

their own or with any other special measures) would be likely to maximise,

so far as practicable, the quality of his evidence.

(4) The primary rule in the case of a child witness is that the court must

give a special measures direction in relation to the witness which–

(a) provides for any relevant recording to be admitted under

section 440 (Video recorded evidence in chief); and

(b) provides for any evidence given by the witness in the

proceedings which is not given by means of a video recording

(whether in chief or otherwise) to be given by means of a live

link in accordance with section 437.

(5) The primary rule is subject to the following limitations–

(a) the requirement in subsection (4)(a) or (b) is subject to the

availability (within the meaning of section 430(2)) of the

special measure in question in relation to the witness;

Criminal Procedure and Evidence

2011-24

(b) the requirement in subsection (4)(a) is subject to section

440(2);

not apply or should apply only in part, the rule does not apply

to the extent that the court is satisfied that not complying with

the rule would not diminish the quality of the witness’s

evidence; and.

(d) except in relation to a child witness in need of special

protection, the rule does not apply to the extent that the court is

satisfied that compliance with it would not be likely to

maximise the quality of the witness’s evidence so far as

practicable.

(6) If as a consequence of all or part of the primary rule being disapplied

under subsection (5)(c) a witness’s evidence or any part of it would fall to

be given as testimony in court, the court must give a special measures

direction making such provision as is described in section 436 for the

evidence or that part of it.

(7) The requirement in subsection (6) is subject to the following

limitations–

(a) if the witness informs the court of his wish that the requirement

in subsection (6) should not apply, the requirement does not

apply to the extent that the court is satisfied that not complying

with it would not diminish the quality of the witness’s

evidence; and

(b) the requirement does not apply to the extent that the court is

satisfied that making such a provision would not be likely to

maximise the quality of the witness’s evidence so far as

practicable (whether because the application to that evidence of

one or more other special measures available in relation to the

witness would have that result or for any other reason).

(8) Not used.

(9) In making a decision under subsection (5)(c) or (7)(a), the court must

take into account the following factors (and any others it considers

relevant)–

(a) the age and maturity of the witness;

(b) the ability of the witness to understand the consequences of

giving evidence otherwise than in accordance with the

Criminal Procedure and Evidence

2011-24

requirements in subsection (4) or (as the case may be)

subsection (6);

(d) the witness’s social and cultural background and ethnic origins;

(e) the nature and alleged circumstances of the offence to which

the proceedings relate.

(10) If a special measures direction is given in relation to a child witness

who is an eligible witness by reason only of section 428(1)(a), then–

(a) subject to subsection (11); and

(b) unless the witness has already begun to give evidence in the

proceedings,

the direction ceases to have effect when the witness attains the age of 18.

(11) If a special measures direction is given in relation to a child witness

who is an eligible witness by reason only of section 428(1)(a) and−

(a) the direction provides for–

(i) any relevant recording to be admitted under section 440

as evidence in chief of the witness; or

(ii) the special measure available under section 441 to apply

in relation to the witness; and

(b) (if the direction provides for that special measure to so apply)

the witness is still under the age of 18 when the video

recording is made for the purposes of section 441,

then, so far as it provides as mentioned in paragraph (a)(i) or (ii), the

direction continues to have effect in accordance with section 431(1) even

though the witness subsequently attains that age.

Extension of section 433 to certain witnesses.

434.(1) For the purposes of this section, a witness in criminal proceedings

(other than the defendant) is a “qualifying witness” if he–

(a) is not an eligible witness at the time of the hearing (as defined

in section 428(3)); but

(b) was under the age of 18 when a relevant recording was made.

Criminal Procedure and Evidence

2011-24

(2) Subsections (2) to (4) and (9) of section 433, so far as relating to the

giving of a direction complying with the requirement contained in section

433(4)(a), apply to a qualifying witness in respect of the relevant recording

as they apply to a child witness (within the meaning of that section).

(3) Subsection (5) of section 433 applies (so far as it relates to the giving

of such a direction) to a qualifying witness in need of special protection as it

applies to a child witness in need of special protection (within the meaning

of that section).

(4) Subsections (6) and (7) of section 433 apply to a qualifying witness in

need of special protection by virtue of subsection (1)(b) of this section as

they apply to a child witness as mentioned in subsection (6) of that section.

(5) For the purposes of this section a qualifying witness is “in need of

special protection” if the offence (or any of the offences) to which the

proceedings relate is a sexual offence or an offence of violence.

Special provisions relating to sexual offences.

435.(1) This section applies if in criminal proceedings in the Supreme

Court relating to a sexual offence (or to a sexual offence and other offences)

the complainant in respect of that offence is a witness in the proceedings.

(2) This section does not apply if the complainant is under 18 (whether or

not the complainant is an eligible witness by reason of any other provision

of section 428 or 429).

(3) If a party to the proceedings makes an application under section

431(1)(a) for a special measures direction in relation to the complainant, the

party may request that the direction provide for any relevant recording to be

admitted under section 440 (video recorded evidence in chief).

(4) Subsection (5) applies if–

(a) a party to the proceedings makes a request under subsection (3)

with respect to the complainant; and

(b) the court determines for the purposes of section 431(2) that the

complainant is eligible for assistance by virtue of section

428(1)(b) or 429.

(5) The court must–

(a) first have regard to subsections (6) and (7); and

(b) then have regard to section 431(2);

Criminal Procedure and Evidence

2011-24

and for the purposes of section 431(2), as it then applies to the complainant,

any special measure required to be applied in relation to the complainant by

virtue of this section is to be treated as if it were a measure determined by

the court, pursuant to section 431(2)(a) and (b)(i), to be one that (whether on

its own or with any other special measures) would be likely to maximise, so

far as practicable, the quality of the complainant’s evidence.

(6) The court must give a special measures direction in relation to the

complainant that provides for any relevant recording to be admitted under

section 440.

(7) The requirement in subsection (6)–

(a) has effect subject to section 440(2);

(b) does not apply to the extent that the court is satisfied that

compliance with it would not be likely to maximise the quality

of the complainant’s evidence so far as practicable (whether

because the application to that evidence of one or more other

special measures available in relation to the complainant would

have that result or for any other reason).

Special measures: General

Screening witness from defendant.

436.(1) Subject to subsection (2), a special measures direction may provide

for the witness, while giving testimony or being sworn in court, to be

prevented by means of a screen or other arrangement from seeing the

defendant.

(2) The screen or other arrangement provided under subsection (1) must

not prevent the witness from being able to see, and to be seen by−

(a) the judge, magistrate or magistrates and the jury (if there is

one);

(b) legal representatives acting in the proceedings; and

(3) If 2 or more legal representatives are acting for a party to the

proceedings, subsection (2)(b) is satisfied in relation to those representatives

if the witness is able at all material times to see and be seen by at least one

of them.

Evidence by live link.

Criminal Procedure and Evidence

2011-24

437.(1) A special measures direction may provide for the witness to give

evidence by means of a live link.

(2) Such a direction may also provide for a specified person to accompany

the witness while the witness is giving evidence by live link.

(3) In determining who may accompany the witness, the court must have

regard to the wishes of the witness.

(4) If a direction provides for the witness to give evidence by means of a

live link, the witness may not give evidence in any other way without the

permission of the court.

(5) The court may give permission for the purposes of subsection (4) if it

appears to the court to be in the interests of justice to do so, and may do so

either–

(a) on an application by a party to the proceedings, if there has

been a material change of circumstances since the relevant

time; or

(b) on its own initiative.

(6) In this section, “live link” means a live television link or other

arrangement whereby a witness, while absent from the courtroom or other

place where the proceedings are being held, is able to see and hear a person

there and to be seen and heard by the persons specified in section 436(2)(a)

to (c).

Evidence given in private.

438.(1) A special measures direction may provide for the exclusion from

the court, during the giving of the witness’s evidence, of persons of any

description specified in the direction.

(2) The persons who may be excluded under subsection (1) do not

include–

(a) the defendant;

(b) legal representatives acting in the proceedings;

the witness.

Criminal Procedure and Evidence

2011-24

(3) If a special measures direction provides for representatives of news

gathering or reporting organisations to be excluded, it must be expressed in

relation to a named person who–

(a) is a representative of the organisation; and

(b) has been nominated for the purpose by the organisations,

unless it appears to the court that no such nomination has been made.

(4) A special measures direction may only provide for the exclusion of

persons under this section if–

(a) the proceedings relate to a sexual offence; or

(b) it appears to the court that there are reasonable grounds for

believing that any person other than the defendant has sought,

or will seek, to intimidate the witness in connection with

testifying in the proceedings.

(5) Any proceedings from which persons are excluded under this section

(whether or not those persons include representatives of news gathering or

reporting organisations) are, despite the exclusion, to be taken to be held in

public for the purposes of any privilege or exemption from liability

available in respect of fair, accurate and contemporaneous reports of legal

proceedings held in public.

Removal of wigs and gowns.

439. A special measures direction may provide for the wearing of wigs or

gowns to be dispensed with during the giving of the witness’s evidence.

Video recorded evidence in chief.

440.(1) Subject to subsection (2), a special measures direction may provide

for a video recording of an interview of the witness to be admitted as

evidence in chief of the witness.

(2) A special measures direction may not provide for a video recording, or

a part of such a recording, to be admitted under this section if the court is of

the opinion, having regard to all the circumstances, that in the interests of

justice the recording, or that part of it, should not be so admitted.

(3) In considering for the purposes of subsection (2) whether any part of a

recording should not be admitted under this section, the court must consider

whether any prejudice to the defendant which might result from that part

being so admitted is outweighed by the desirability of showing the whole, or

substantially the whole, of the recorded interview.

Criminal Procedure and Evidence

2011-24

(4) If a special measures direction provides for a recording to be admitted

under this section, the court may nevertheless subsequently direct that it is

not to be so admitted if–

(a) it appears to the court that–

(i) the witness will not be available for cross-examination;

and

(ii) the parties to the proceedings have not agreed that there

is no need for the witness to be so available; or

(b) any rules of court requiring disclosure of the circumstances in

which the recording was made have not been complied with to

the satisfaction of the court.

(5) If a recording is admitted under this section–

(a) the witness must be called by the party tendering it in evidence,

unless–

(i) a special measures direction provides for the witness’s

evidence on cross-examination to be given otherwise

than by testimony in court; or

(ii) the parties to the proceedings have agreed as mentioned

in subsection (4)(a)(ii); and

(b) the witness may not without the permission of the court give

evidence in chief except by means of the recording as to any

matter which, in the opinion of the court, is dealt with in the

witness’s recorded testimony.

(6) If, pursuant to subsection (2), a special measures direction provides for

part only of a recording to be admitted, references in subsections (4) and (5)

to the recording or to the witness’s recorded testimony are references to the

part of the recording or testimony which is to be so admitted.

(7) The court may give permission for the purposes of subsection (5)(b) if

it appears to the court to be in the interests of justice to do so, and may do so

either–

(a) on an application by a party to the proceedings; or

(b) on its own initiative.

Criminal Procedure and Evidence

2011-24

(8) The court may, in giving permission for the purposes of subsection

(5)(b), direct that the evidence in question is to be given by the witness by

means of a live link, and section 437 applies in relation to that evidence as it

applies in relation to evidence which is to be given in accordance with a

special measures direction.

(9) The Magistrates’ Court inquiring into an offence as examining justices

under Part 9 may consider any video recording in relation to which it is

proposed to apply for a special measures direction providing for it to be

admitted at the trial in accordance with this section.

(10) Nothing in this section affects the admissibility of any video

recording which would be admissible apart from this section.

Video recorded cross-examination or re-examination.

441.(1) If a special measures direction provides for a video recording to be

admitted under section 440 as evidence in chief of the witness, the direction

may also provide–

(a) for any cross-examination of the witness, and any re-

examination, to be recorded by means of a video recording;

and

(b) for such a recording to be admitted, so far as it relates to any

such cross-examination or re-examination, as evidence of the

witness under cross-examination or on re-examination, as the

case may be.

(2) A recording referred to in subsection (1) must be made in the presence

of such persons as rules of court or the direction may provide and in the

absence of the defendant, but in circumstances in which–

(a) the judge, magistrate or magistrates and legal representatives

acting in the proceedings are able to see and hear the

examination of the witness and to communicate with the

persons in whose presence the recording is being made; and

(b) the defendant is able to see and hear any such examination and

to communicate with any legal representative acting for him.

(3) If 2 or more legal representatives are acting for a party to the

proceedings, subsection (2)(a) and (b) are satisfied in relation to those

representatives if at all material times they are satisfied in relation to at least

one of them.

(4) If a special measures direction provides for a recording to be admitted

under this section, the court may nevertheless subsequently direct that it is

Criminal Procedure and Evidence

2011-24

not to be so admitted if any requirement of subsection (2) or rules of court

or the direction has not been complied with to the satisfaction of the court.

(5) If in pursuance of subsection (1) a recording has been made of any

examination of the witness, the witness may not be subsequently cross-

examined or re-examined in respect of any evidence given by the witness in

the proceedings unless the court gives a further special measures direction

making a provision as mentioned in subsection (1)(a) and (b) in relation to

any subsequent cross-examination, and re-examination, of the witness.

(6) The court may only give such a further direction if it appears to the

court–

(a) that the proposed cross-examination is sought by a party to the

proceedings as a result of that party having become aware,

since the time when the original recording was made in

pursuance of subsection (1), of a matter which that party could

not with reasonable diligence have ascertained by then; or

(b) that for any other reason it is in the interests of justice to give

the further direction.

(7) This section does not apply in relation to any cross-examination of the

witness by the defendant in person.

Examination of witness through intermediary.

442.(1) A special measures direction may provide for any examination of

the witness to be conducted through an interpreter or other person approved

by the court for the purposes of this section (“an intermediary”).

(2) The function of an intermediary is to communicate–

(a) to the witness, questions put to the witness; and

(b) to any person asking such questions, the answers given by the

witness in reply to them,

and to explain such questions or answers so far as necessary to enable them

to be understood by the witness or person.

(3) Any examination of the witness pursuant to subsection (1) must take

place in the presence of such persons as rules of court or the direction

provide, but so that–

(a) the judge, magistrate or magistrates and legal representatives

acting in the proceedings are able to see and hear the

Criminal Procedure and Evidence

2011-24

examination of the witness and to communicate with the

intermediary; and

(b) (except in the case of a video recorded examination) the jury (if

there is one) are able to see and hear the examination of the

witness.

(4) If 2 or more legal representatives are acting for a party to the

proceedings, subsection (3)(a) is satisfied in relation to those representatives

if at all material times it is satisfied in relation to at least one of them.

(5) A person may not act as an intermediary in a particular case except

after making a declaration, in a form prescribed by rules of court, that he

will faithfully perform his function as intermediary.

(6) Subsection (1) does not apply to an interview of the witness which is

recorded by means of a video recording with a view to its admission as

evidence in chief of the witness; but a special measures direction may

provide for such a recording to be admitted under section 441 if the

interview was conducted through an intermediary and–

(a) that person complied with subsection (5) before the interview

began; and

(b) the court’s approval for the purposes of this section is given

before the direction is given.

(7) Part 18 of the Crimes Act 2011 (Perjury and False Statements) applies

in relation to a person acting as an intermediary as it applies in relation to a

person lawfully sworn as an interpreter in a judicial proceeding; and for this

purpose, if a person acts as an intermediary in any proceeding which is not a

judicial proceeding for the purposes of that Part, that proceeding is to be

taken to be part of the judicial proceeding in which the witness’s evidence is

given.

Aids to communication.

443. A special measures direction may provide for the witness, while

giving evidence, to be provided with a device the court considers

appropriate with a view to enabling questions or answers to be

communicated to or by the witness despite any disability or disorder or

other impairment which the witness has or suffers from.

Status of evidence given under special measures.

444.(1) Subsections (2) to (4) apply to a statement made by a witness in

criminal proceedings which, in accordance with a special measures

Criminal Procedure and Evidence

2011-24

direction, is not made by the witness in direct oral testimony in court but

forms part of the witness’s evidence in those proceedings.

(2) The statement is to be treated as if made by the witness in direct oral

testimony in court; and accordingly it is–

(a) admissible evidence of any fact of which such testimony from

the witness would be admissible;

(b) not capable of corroborating any other evidence given by the

witness.

(3) Subsection (2) applies to a statement admitted under section 440 or

441 which is not made by the witness on oath even though it would have

been required to be made on oath if made by the witness in direct oral

testimony in court.

(4) In estimating the weight (if any) to be attached to the statement, the

court must have regard to all the circumstances from which an inference can

reasonably be drawn.

(5) If any statement made by a person on oath in any proceeding which is

not a judicial proceeding for the purposes of Part 18 of the Crimes Act 2011

is received in evidence in pursuance of a special measures direction, that

proceeding is to be taken for the purposes of that Part to be part of the

judicial proceeding in which the statement is so received in evidence.

(6) If in any proceeding which is not a judicial proceeding for the

purposes of Part 18 of the Crimes Act 2011–

(a) a person wilfully makes a false statement otherwise than on

oath which is subsequently received in evidence pursuant to a

special measures direction; and

(b) the statement is made in such circumstances that had it been

given on oath in any such judicial proceeding that person

would have been guilty of perjury,

the person commits an offence and is liable on summary conviction to

imprisonment for 6 months, or to a fine at level 5 on the standard scale, or

both.

(7) In this section “statement” includes any representation of fact, whether

made in words or otherwise.

(8) In relation to a person under the age of 14, subsection (6) has effect as

if for the words “a fine at level 5” there were substituted “a fine at level 3”.

Criminal Procedure and Evidence

2011-24

Special measures: Warning to jury.

445. If on a trial on indictment with a jury evidence has been given in

accordance with a special measures direction, the judge must give the jury

such warning (if any) as the judge considers necessary to ensure that the fact

that the direction was given in relation to the witness does not prejudice the

defendant.

Use of live link and intermediary for evidence of certain defendants

Live link directions.

446.(1) This section applies to any proceedings (whether in the

Magistrates’ Court or before the Supreme Court) against a person for an

offence.

(2) The court may, on the application of the defendant, give a live link

direction if it is satisfied that–

(a) the conditions in subsection (4) or, as the case may be,

subsection (5) are met in relation to the defendant; and

(b) it is in the interests of justice for the defendant to give evidence

through a live link.

(3) A live link direction is a direction that any oral evidence to be given

before the court by the defendant is to be given through a live link.

(4) If the defendant is aged under 18 when the application is made, the

conditions are that–

(a) his ability to participate effectively in the proceedings as a

witness giving oral evidence in court is compromised by his

level of intellectual ability or social functioning; and

(b) use of a live link would enable him to participate more

effectively in the proceedings as a witness.

(5) If the defendant has attained the age of 18 when the application is

made, the conditions are that–

(a) he suffers from a mental disorder or otherwise has a significant

impairment of intelligence and social function;

(b) he is for that reason unable to participate effectively in the

proceedings as a witness giving oral evidence in court; and

Criminal Procedure and Evidence

2011-24

effectively in the proceedings as a witness.

(6) While a live link direction has effect the defendant may not give oral

evidence before the court in the proceedings otherwise than through a live

link.

(7) The court may discharge a live link direction at any time before or

during any hearing to which it applies if it appears to the court to be in the

interests of justice to do so, without affecting the power to give a further

live link direction in relation to the defendant.

(8) The court may exercise the power conferred by subsection (7) on its

own initiative or on an application by a party.

(9) The court must state in open court its reasons for–

(a) giving or discharging a live link direction; or

(b) refusing an application for or for the discharge of a live link

direction,

and if it is the Magistrates’ Court, must cause those reasons to be entered in

the register of its proceedings.

Meaning of “live link”.

447.(1) In section 446 “live link” means an arrangement by which the

defendant, while absent from the place where the proceedings are being

held, is able to–

(a) see and hear a person there; and

(b) be seen and heard by the persons mentioned in subsection (2),

and for this purpose any impairment of eyesight or hearing is to be

disregarded.

(2) The persons are–

(a) the judge, magistrate or magistrates and the jury (if there is

one);

(b) if there are 2 or more defendant in the proceedings – the other

defendant or each of the other defendants;

Criminal Procedure and Evidence

2011-24

(d) any interpreter or other person appointed by the court to assist

the defendant.

Examination of defendant through intermediary.

448.(1) This section applies to any proceedings (whether in the

Magistrates’ Court or the Supreme Court) against a person for an offence.

(2) The court may, on the application of the defendant, give a direction

under this section if it is satisfied that–

(a) the condition in subsection (5) is or, as the case may be, the

conditions in subsection (6) are met in relation to the

defendant; and

(b) making the direction is necessary in order to ensure that the

defendant receives a fair trial.

(3) A direction under this section is a direction that provides for any

examination of the defendant to be conducted through an interpreter or other

person approved by the court for the purposes of this section (“an

intermediary”).

(4) The function of an intermediary is to communicate–

(a) to the defendant, questions put to him; and

(b) to any person asking such questions, the answers given by the

defendant in reply to them,

and to explain such questions or answers so far as necessary to enable them

to be understood by the defendant or the person in question.

(5) If the defendant is aged under 18 when the application is made, the

condition is that the defendant’s ability to participate effectively in the

proceedings as a witness giving oral evidence in court is compromised by

the defendant’s level of intellectual ability or social functioning.

(6) If the defendant has attained the age of 18 when the application is

made, the conditions are that the defendant–

(a) suffers from a mental disorder or otherwise has a significant

impairment of intelligence and social function; and

(b) is for that reason unable to participate effectively in the

proceedings as a witness giving oral evidence in court.

Criminal Procedure and Evidence

2011-24

(7) Any examination of the defendant pursuant to a direction under this

section must take place in the presence of such persons as rules of court or

the direction provide, and in circumstances in which–

(a) the judge, magistrate or magistrates and legal representatives

acting in the proceedings are able to see and hear the

examination of the defendant and to communicate with the

intermediary,

(b) the jury (if there is one) are able to see and hear the

examination of the defendant; and

other defendants is able to see and hear the examination of the

defendant.

For the purposes of this subsection any impairment of eyesight or hearing is

to be disregarded.

(8) If 2 or more legal representatives are acting for a party to the

proceedings, subsection (7)(a) is to be regarded as satisfied in relation to

those representatives if at all material times it is satisfied in relation to at

least one of them.

(9) A person may not act as an intermediary in a particular case except

after making a declaration, in a form prescribed by rules of court, that the

person will faithfully perform the function of an intermediary.

(10) Part 18 of the Crimes Act 2011 applies in relation to a person acting

as an intermediary as it applies in relation to a person lawfully sworn as an

interpreter in a judicial proceeding.

Further provision as to directions under section 448.

449.(1) The court may discharge a direction given under section 448 at any

time before or during the proceedings to which it applies if it appears to the

court that the direction is no longer necessary in order to ensure that the

defendant receives a fair trial (but this does not affect the power to give a

further direction under that section in relation to the defendant).

(2) The court may vary (or further vary) a direction given under section

448 at any time before or during the proceedings to which it applies if it

appears to the court that it is necessary for the direction to be varied in order

to ensure that the defendant receives a fair trial.

(3) The court may exercise the power in subsection (1) or (2) on its own in

initiative or on an application by a party.

Criminal Procedure and Evidence

2011-24

(4) The court must state in open court its reasons for–

(a) giving, varying or discharging a direction under section 448; or

(b) refusing an application for, or for the variation or discharge of,

a direction under that section,

and, if it is the Magistrates’ Court, it must cause the reasons to be entered in

the register of its proceedings.

Protection of witnesses from cross-examination by defendant in person

Complainants in proceedings for sexual offences.

450. No person charged with a sexual offence may in any criminal

proceedings cross-examine in person a witness who is the complainant,

either–

(a) in connection with that offence; or

(b) in connection with any other offence with which that person is

charged in the proceedings.

Child complainants and other child witnesses.

451.(1) No person charged with an offence to which this section applies

may in any criminal proceedings cross-examine in person a protected

witness, either–

(a) in connection with that offence; or

(b) in connection with any other offence with which that person is

charged in the proceedings.

(2) For the purposes of subsection (1) a “protected witness” is a witness

who−

(a) is the complainant or is alleged to have been a witness to the

commission of the offence to which this section applies; and

(b) is a child or falls to be cross-examined after giving evidence in

chief–

(i) by means of a video recording made (for the purposes of

section 440) at a time when the witness was a child; or

(ii) in any other way at a time when the witness was a child.

Criminal Procedure and Evidence

2011-24

(3) The offences to which this section applies are–

(a) any sexual offence or offence of violence;

(b) any other offence that involves an assault on, or injury or a

threat of injury to, any person.

(4) In this section “child” means–

(a) if the offence falls within subsection (3)(a), a person under the

age of 18;

(b) if the offence falls within subsection (3)(b), a person under the

age of 14.

(5) For the purposes of this section “witness” includes a witness who is

charged with an offence in the proceedings.

Direction prohibiting defendant from cross-examining particular

witness.

452.(1) This section applies if, in a case in which neither section 450 or 451

operates to prevent a defendant in any criminal proceedings from cross-

examining a witness in person–

(a) the prosecutor applies for the court to give a direction under

this section in relation to the witness; or

(b) the court on its own initiative raises the issue whether such a

direction should be given.

(2) If it appears to the court–

(a) that the quality of evidence given by the witness on cross-

examination–

(i) is likely to be diminished if the cross-examination is

conducted by the defendant in person; and

(ii) would be likely to be improved if a direction were given

under this section; and

(b) that it would not be contrary to the interests of justice to give

such a direction,

the court may give a direction prohibiting the defendant from cross-

examining the witness in person.

Criminal Procedure and Evidence

2011-24

(3) In deciding whether subsection (2)(a) applies in the case of a witness,

the court must have regard, in particular, to–

(a) any views expressed by the witness as to whether or not the

witness is content to be cross-examined by the defendant in

person;

(b) the nature of the questions likely to be asked, having regard to

the issues in the proceedings and the defence case advanced so

far (if any);

proceedings, both generally and in relation to the witness;

(d) any relationship between the witness and the defendant;

(e) whether any person other than the defendant is or has at any

time been charged in the proceedings with an offence to which

section 451 applies, and (if so) whether section 450 or 451

operates or would have operated to prevent that person from

cross-examining the witness in person;

(f) any direction under section 431 which the court has given, or

proposes to give, in relation to the witness.

(4) For the purposes of this section–

(a) “witness”, in relation to a defendant, does not include any other

person who is charged with an offence in the proceedings; and

(b) any reference to the quality of a witness’s evidence is to be

construed in accordance with section 428(2)(a).

Further provisions about directions under section 452.

453.(1) Subject to subsection (2), a direction under section 452 has binding

effect from the time it is made until the witness to whom it applies is

discharged.

(2) The court may discharge a direction if it appears to the court to be in

the interests of justice to do so, and may do so either–

(a) on an application made by a party to the proceedings, if there

has been a material change of circumstances since the relevant

time; or

(b) on its own initiative.

Criminal Procedure and Evidence

2011-24

(3) The court must state in open court its reasons for−

(a) giving;

(b) refusing an application for, or for the discharge of; or

a direction and, if it is the Magistrates’ Court, must cause the reasons to be

entered in the register of its proceedings.

(4) Rules of court may make provision for–

(a) uncontested applications to be determined by the court without

a hearing;

(b) preventing the renewal of an unsuccessful application for a

direction unless there has been a material change of

circumstances;

for, or for discharging, a direction;

(d) the manner in which confidential or sensitive information is to

be treated in connection with such an application and in

particular as to its being disclosed to, or withheld from, a party

to the proceedings.

(5) In this section “direction” means a direction under section 452.

Defence representation for purposes of cross-examination.

454.(1) This section applies if a defendant is prevented from cross-

examining a witness in person by virtue of section 450, 451 or 452.

(2) If it appears to the court that this section applies, it must–

(a) invite the defendant to arrange for a legal representative to act

for him for the purpose of cross-examining the witness; and

(b) require the defendant to notify the court, by the end of a period

specified by the court, whether a legal representative is to act

for him for that purpose.

(3) If by the end of the period specified under subsection (2)(b) either–

Criminal Procedure and Evidence

2011-24

(a) the defendant has notified the court that no legal representative

is to act for him for the purpose of cross-examining the

witness; or

(b) no notification has been received by the court and it appears to

the court that no legal representative is to so act,

the court must consider whether it is necessary in the interests of justice for

the witness to be cross-examined by a legal representative appointed to

represent the interests of the defendant.

(4) If the court determines that it is necessary for the witness to be so

cross-examined, the court must choose and appoint a legal representative to

cross-examine the witness in the interests of the defendant.

(5) In the circumstances described in subsection (4)–

(a) a person so appointed is not responsible to the defendant;

(b) the court may order such sums as appear to the court to be

reasonably necessary to cover the proper fee or costs of the

legal representative and any expenses incurred in providing

him with evidence or other material in connection with his

appointment to be paid out of public funds.

(6) Rules of court may make provision–

(a) as to the time when, and the manner in which, subsection (2) is

to be complied with;

(b) in connection with the appointment and payment of a legal

representative under subsection (4), and in particular for

securing that a person so appointed is provided with evidence

or other material relating to the proceedings.

Cross-examination: Warning to jury.

455. If on a trial on indictment with a jury a defendant is prevented from

cross-examining a witness in person by virtue of section 450, 451 or 452,

the judge must give the jury such warning (if any) as the judge considers

necessary to ensure that the defendant is not prejudiced–

(a) by any inferences that might be drawn from the fact that the

defendant has been prevented from cross-examining the

witness in person;

(b) if the witness has been cross-examined by a legal

representative appointed under section 454(4), by the fact that

Criminal Procedure and Evidence

2011-24

the cross-examination was carried out by such a legal

representative and not by a person acting as the defendant’s

own legal representative.

Protection of complainants in proceedings for sexual offences

Restriction on evidence or questions about complainant’s sexual

history.

456.(1) If at a trial a person is charged with a sexual offence, then, except

with the leave of the court–

(a) no evidence may be adduced; and

(b) no question may be asked in cross-examination, by or on

behalf of any defendant at the trial,

about any sexual behaviour of the complainant.

(2) The court may give leave in relation to any evidence or question only

on an application made by or on behalf of a defendant, and may not give

such leave unless it is satisfied that–

(a) subsection (3) or (5) applies; and

(b) a refusal of leave might have the result of rendering unsafe a

conclusion of the jury or (as the case may be) the court on any

relevant issue in the case.

(3) This subsection applies if the evidence or question relates to a relevant

issue in the case and either–

(a) that issue is not an issue of consent;

(b) it is an issue of consent and the sexual behaviour of the

complainant to which the evidence or question relates is

alleged to have taken place at or about the same time as the

event which is the subject matter of the charge against the

defendant; or

complainant to which the evidence or question relates is

alleged to have been, in any respect, so similar to–

(i) any sexual behaviour of the complainant which

(according to evidence adduced or to be adduced by or

on behalf of the defendant) took place as part of the

Criminal Procedure and Evidence

2011-24

event which is the subject matter of the charge against

the defendant; or

(ii) any other sexual behaviour of the complainant which

(according to such evidence) took place at or about the

same time as that event,

that the similarity cannot reasonably be explained as a

coincidence.

(4) For the purposes of subsection (3), no evidence or question is to be

regarded as relating to a relevant issue in the case if it appears to the court to

be reasonable to assume that the purpose (or main purpose) for which it

would be adduced or asked is to establish or elicit material for impugning

the credibility of the complainant as a witness.

(5) This subsection applies if the evidence or question–

(a) relates to any evidence adduced by the prosecution about any

sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is

necessary to enable the evidence adduced by the prosecution to

be rebutted or explained by or on behalf of the defendant.

(6) For the purposes of subsections (3) and (5), the evidence or question

must relate to a specific instance (or specific instances) of alleged sexual

behaviour on the part of the complainant.

(7) If this section applies in relation to a trial by virtue of the fact that one

or more of a number of persons charged in the proceedings is or are charged

with a sexual offence−

(a) it ceases to apply if the prosecutor decides not to proceed with

the case against that person or those persons in respect of that

charge; but

(b) it does not cease to apply upon that person or those persons

pleading guilty to, or being convicted of, that charge.

(8) Nothing in this section authorises any evidence to be adduced or any

question to be asked which cannot be adduced or asked apart from this

section.

Interpretation and application of section 456.

457.(1) In section 456−

Criminal Procedure and Evidence

2011-24

(a) “relevant issue in the case” means any issue falling to be

proved by the prosecution or defence in the trial of the

defendant;

(b) “issue of consent” means any issue whether the complainant in

fact consented to the conduct constituting the offence with

which the defendant is charged;

experience, whether or not involving any defendant or other

person, but excluding (except in section 456(3)(c)(i) and (5)(a))

anything alleged to have taken place as part of the event which

is the subject matter of the charge against the defendant; and

(d) subject to any order made under subsection (2), “sexual

offence” has the meaning given it in section 2 of this Act.

(2) The Minister may by order make any provision he considers

appropriate for adding or removing, for the purposes of section 456, any

offence to or from the offences which are sexual offences for the purposes

of this Part.

(3) Section 456 applies in relation to the following proceedings as it

applies to a trial–

(a) proceedings before the Magistrates’ Court inquiring into an

offence as examining justices;

(b) any hearing held between conviction and sentencing for the

purpose of determining matters relevant to the court’s decision

as to how the defendant is to be dealt with; and

and references in this section and section 456 to a person charged with an

offence include a person convicted of an offence.

Procedure on applications under section 456.

458.(1) An application for leave under section 456 must be heard in private

and in the absence of the complainant.

(2) If such an application has been determined, the court must state in

open court (but in the absence of the jury, if there is one)−

(a) its reasons for giving or refusing leave; and

Criminal Procedure and Evidence

2011-24

(b) if it gives leave, the extent to which evidence may be adduced

or questions asked in pursuance of the leave,

and, if it is the Magistrates’ Court, must cause those matters to be entered in

the register of its proceedings.

(3) Rules of court may make provision–

(a) requiring applications for leave to specify, in relation to each

item of evidence or question to which they relate, particulars of

the grounds on which it is asserted that leave should be given

by virtue of subsection (3) or (5) of section 456;

(b) enabling the court to request a party to the proceedings to

provide the court with information which it considers would

assist it in determining an application for leave;

to be treated in connection with such an application, and in

particular as to its being disclosed to, or withheld from, parties

to the proceedings.

Reporting restrictions: General

Restrictions on reporting alleged offences involving persons under 18.

459.(1) This section applies (subject to subsection (3)) when a criminal

investigation has begun in respect of an alleged offence against the law of

Gibraltar.

(2) No matter relating to any person involved in the offence may, while he

is under the age of 18, be included in any publication if it is likely to lead

members of the public to identify him as a person involved in the offence.

(3) The restrictions imposed by subsection (2) cease to apply once there

are proceedings in a court in respect of the offence.

(4) For the purposes of subsection (2), a reference to a person involved in

the offence is to–

(a) a person by whom the offence is alleged to have been

committed; or

(b) if this paragraph applies to the publication in question by virtue

of subsection (5)–

(i) a person against or in respect of whom the offence is

alleged to have been committed; or

Criminal Procedure and Evidence

2011-24

(ii) a person who is alleged to have been a witness to the

commission of the offence,

except that paragraph (b)(i) does not include a person in relation to whom

section 466 (Restriction on reporting of identity) applies in connection with

the offence.

(5) The matters relating to a person in relation to which the restrictions

imposed by subsection (2) apply (if their inclusion in any publication is

likely to have the result mentioned in that subsection) include in particular–

(a) his name;

(b) his address;

attended by him;

(d) the identity of any place where he works; and

(e) any still or moving picture of him.

(6) Subject to subsection (7), the court may by order dispense, to the

extent specified in the order, with the restrictions imposed by subsection (2)

in relation to a person if it is satisfied that it is necessary in the interests of

justice to do so.

(7) When deciding whether to make an order under subsection (6)

dispensing (to any extent) with the restrictions imposed by subsection (2) in

relation to a person, the court must have regard to the welfare of that person.

(8) If the Magistrates’ Court makes or refuses to make an order under

subsection (6), any person who was a party to the proceedings on the

application for the order may, in accordance with rules of court, appeal to

the Supreme Court against that decision and appear or be represented at the

hearing of the appeal.

(9) In this section–

(a) “offence” includes an act or omission outside Gibraltar which,

if committed in Gibraltar, would be an offence against the law

of Gibraltar;

(b) any reference to a criminal investigation, in relation to an

alleged offence, is to an investigation conducted by police

officers, or other persons charged with the duty of investigating

Criminal Procedure and Evidence

2011-24

offences, with a view to ascertaining whether a person should

be charged with the offence.

Power to restrict reporting of criminal proceedings involving persons

under 18.

460.(1) This section applies in relation to any criminal proceedings in any

court in Gibraltar.

(2) The court may direct that no matter relating to any person concerned in

the proceedings may, while he is under the age of 18, be included in any

publication if it is likely to lead members of the public to identify him as a

person concerned in the proceedings.

(3) The court or an appellate court may by direction (“an excepting

direction”) dispense, to any extent specified in that direction, with the

restrictions imposed by a direction under subsection (2) if it is satisfied that

it is necessary in the interests of justice to do so.

(4) The court or an appellate court may also by an excepting direction

dispense, to any extent specified in that direction, with the restrictions

imposed by a direction under subsection (2) if it is satisfied that–

(a) their effect is to impose a substantial and unreasonable

restriction on the reporting of the proceedings; and

(b) it is in the public interest to remove or relax that restriction.

(5) No excepting direction may be given under subsection (4) by reason

only of the fact that the proceedings have been determined in any way or

have been abandoned.

(6) When deciding whether to make–

(a) a direction under subsection (2) in relation to a person; or

(b) an excepting direction under subsection (3) or (4) by virtue of

which the restrictions imposed by a direction under subsection

(2) would be dispensed with (to any extent) in relation to a

person,

the court or (as the case may be) the appellate court must have regard to the

welfare of that person.

(7) For the purposes of subsection (2), any reference to a person

concerned in the proceedings is to a person–

(a) against or in respect of whom the proceedings are taken; or

Criminal Procedure and Evidence

2011-24

(b) who is a witness in the proceedings.

(8) The matters relating to a person in relation to which the restrictions

imposed by a direction under subsection (2) apply (if their inclusion in any

publication is likely to have the result mentioned in that subsection) include

in particular–

(a) his name;

(b) his address;

attended by him;

(d) the identity of any place where he works; and

(e) any still or moving picture of him.

(9) A direction under subsection (2) may be revoked by the court or an

appellate court.

(10) An excepting direction–

(a) may be given at the time the direction under subsection (2) is

given or subsequently; and

(b) may be varied or revoked by the court or an appellate court.

Power to restrict reports about certain adult witnesses in criminal

proceedings.

461.(1) This section applies if in any criminal proceedings in any court in

Gibraltar a party to the proceedings makes an application for the court to

give a reporting direction in relation to a witness in the proceedings (other

than the defendant) who has attained the age of 18.

(2) If the court determines–

(a) that the witness is eligible for protection; and

(b) that giving a reporting direction in relation to the witness is

likely to improve–

(i) the quality of evidence given by the witness; or

Criminal Procedure and Evidence

2011-24

(ii) the level of co-operation given by the witness to any

party to the proceedings in connection with that party’s

preparation of its case,

the court may give a reporting direction in relation to the witness.

(3) For the purposes of this section a witness is eligible for protection if

the court is satisfied–

(a) that the quality of evidence given by the witness; or

(b) the level of co-operation given by the witness to any party to

the proceedings in connection with that party’s preparation of

its case,

is likely to be diminished by reason of fear or distress on the part of the

witness in connection with being identified by members of the public as a

witness in the proceedings.

(4) In determining whether a witness is eligible for protection the court

must take into account, in particular–

(a) the nature and alleged circumstances of the offence to which

the proceedings relate;

(b) the age of the witness;

relevant, namely–

(i) the social and cultural background and ethnic origins of

the witness;

(ii) the domestic and employment circumstances of the

witness; and

(iii) any religious beliefs or political opinions of the witness;

(d) any behaviour towards the witness on the part of–

(i) the defendant;

(ii) members of the family or associates of the defendant; or

(iii) any other person who is likely to be a defendant or a

witness in the proceedings.

Criminal Procedure and Evidence

2011-24

(5) In determining that question the court must in addition consider any

views expressed by the witness.

(6) For the purposes of this section a reporting direction in relation to a

witness is a direction that no matter relating to the witness may during the

witness’s lifetime be included in any publication if it is likely to lead

members of the public to identify him as being a witness in the proceedings.

(7) The matters relating to a witness in relation to which the restrictions

imposed by a reporting direction apply (if their inclusion in any publication

is likely to have the result mentioned in subsection (6)) include in

particular–

(a) the witness’s name;

(b) the witness’s address;

witness;

(d) the identity of any place where the witness works; and

(e) any still or moving picture of the witness.

(8) In determining whether to give a reporting direction the court must

consider–

(a) whether it would be in the interests of justice to do so; and

(b) the public interest in avoiding the imposition of a substantial

and unreasonable restriction on the reporting of the

proceedings.

(9) The court or an appellate court may by direction (“an excepting

direction”) dispense, to any extent specified in that direction, with the

restrictions imposed by a reporting direction if it is–

(a) satisfied that it is necessary in the interests of justice to do so;

(b) satisfied that−

(i) the effect of those restrictions is to impose a substantial

and unreasonable restriction on the reporting of the

proceedings; and

(ii) it is in the public interest to remove or relax that

restriction,

Criminal Procedure and Evidence

2011-24

but no excepting direction may be given under paragraph (b) by reason only

of the fact that the proceedings have been determined in any way or have

been abandoned.

(10) A reporting direction may be revoked by the court or an appellate

court.

(11) An excepting direction–

(a) may be given at the time the reporting direction is given or

subsequently; and

(b) may be varied or revoked by the court or an appellate court.

(12) In this section–

(a) references to the quality of a witness’s evidence are to its

quality in terms of completeness, coherence and accuracy (and

for this purpose “coherence” refers to a witness’s ability in

giving evidence to give answers which address the questions

put to the witness and can be understood both individually and

collectively);

(b) references to the preparation of the case of a party to any

proceedings include, if the party is the prosecution, the

carrying out of investigations into any offence at any time

charged in the proceedings.

Restrictions on reporting directions given under this Part.

462.(1) Except as provided by this section, no publication may include a

report of a matter falling within subsection (2).

(2) The matters falling within this subsection are–

(a) a direction under section 431, 448 or 452 or an order

discharging, or in the case of a direction under section 431

varying, such a direction;

(b) proceedings–

(i) on an application for such a direction or order; or

(ii) if the court acts on its own initiative to determine

whether to give or make any such direction or order.

Criminal Procedure and Evidence

2011-24

(3) The court dealing with a matter falling within subsection (2) may order

that subsection (1) is not to apply, or is not to apply to a specified extent, to

a report of that matter.

(4) If–

(a) there is only one defendant in the relevant proceedings; and

(b) he objects to the making of an order under subsection (3),

then−

hearing the representations of the defendant that it is in the

interests of justice to do so; and

(d) if the order is made it does not apply to the extent that a report

deals with any such objections or representations.

(5) If–

(a) there are 2 or more defendants in the relevant proceedings; and

(b) one or more of them object to the making of an order under

subsection (3),

then–

hearing the representations of each of the defendant that it is in

the interests of justice to do so; and

(d) if the order is made it does not apply to the extent that a report

deals with any such objections or representations.

(6) Subsection (1) does not apply to the inclusion in a publication of a

report of matters after the relevant proceedings are either–

(a) determined (by acquittal, conviction or otherwise); or

(b) abandoned, in relation to the defendant or (if there is more than

one) in relation to each of the defendants.

(7) In this section “the relevant proceedings” means the proceedings to

which any such direction as is mentioned in subsection (2) relates or would

relate.

Criminal Procedure and Evidence

2011-24

(8) Nothing in this section affects any prohibition or restriction by virtue

of any other enactment on the inclusion of matter in a publication.

Offences relating to reporting.

463.(1) This section applies if a publication–

(a) includes any matter in contravention of section 459(2) or of a

direction under section 460(2) or 461(2); or

(b) includes a report in contravention of section 462.

(2) If the publication is a newspaper or periodical, any proprietor, any

editor and any publisher of the newspaper or periodical commits an offence.

(3) If the publication is a radio or television broadcast–

(a) any corporate body engaged in providing the service in which

the broadcast is included; and

(b) any person having functions in relation to the broadcast

corresponding to those of an editor of a newspaper,

commits an offence.

(4) In the case of any other publication, any person publishing it commits

an offence.

(5) A person who commits an offence under this section is liable on

summary conviction to a fine at level 5 on the standard scale.

(6) Proceedings for an offence under this section in respect of a

publication falling within subsection (1)(b) may not be instituted otherwise

than by or with the consent of the Attorney-General.

Defences relating to reporting.

464.(1) If a person is charged with an offence under section 463, it is a

defence to prove that at the time of the alleged offence he was not aware,

and neither suspected nor had reason to suspect, that the publication

included the matter or report in question.

(2) If–

(a) a person is charged with an offence under section 463; and

(b) the offence relates to the inclusion of any matter in a

publication in contravention of section 459(2),

Criminal Procedure and Evidence

2011-24

it is a defence to prove that at the time of the alleged offence he was not

aware, and neither suspected nor had reason to suspect, that the criminal

investigation in question had begun.

(3) If–

(a) paragraphs (a) and (b) of subsection (2) apply; and

(b) the contravention of section 459(2) does not relate to either–

(i) the person by whom the offence mentioned in that

provision is alleged to have been committed; or

(ii) (if the offence is one in relation to which section 466

applies) a person who is alleged to be a witness to the

commission of the offence,

it is a defence to show to the satisfaction of the court that the inclusion in

the publication of the matter in question was in the public interest on the

ground that, to the extent that they operated to prevent that matter from

being so included, the effect of the restrictions imposed by section 459(2)

was to impose a substantial and unreasonable restriction on the reporting of

matters connected with that offence.

(4) Subsection (5) applies if–

(a) paragraphs (a) and (b) of subsection (2) apply; and

(b) the contravention of section 459(2) relates to a person (“the

protected person”) who is neither–

(i) the person mentioned in subsection (3)(b)(i); nor

(ii) a person within subsection (3)(b)(ii) who is under the age

of 16.

(5) In a case mentioned in subsection (4), it is a defence, subject to

subsection (6), to prove–

(a) that written consent to the inclusion of the matter in question in

the publication had been given–

(i) by an appropriate person, if at the time when the consent

was given the protected person was under the age of 16;

Criminal Procedure and Evidence

2011-24

(ii) by the protected person, if that person was aged 16 or 17

at that time; and

(b) if the consent was given by an appropriate person - that written

notice had been previously given to that person drawing to his

attention the need to consider the welfare of the protected

person when deciding whether to give consent.

(6) The defence provided by subsection (5) is not available if–

(a) the consent was given by an appropriate person and it is proved

that written or other notice withdrawing the consent−

(i) was given to the appropriate recipient by any other

appropriate person or by the protected person; and

(ii) was so given in sufficient time to enable the inclusion in

the publication of the matter in question to be prevented;

(b) subsection (8) applies.

(7) If–

(a) a person is charged with an offence under section 463; and

(b) the offence relates to the inclusion of any matter in a

publication in contravention of a direction under section

461(2),

it is a defence, unless subsection (8) applies, to prove that the person in

relation to whom the direction was given had given written consent to the

inclusion of that matter in the publication.

(8) Written consent is not a defence if it is proved that any person

interfered–

(a) with the peace or comfort of the person giving the consent; or

(b) (if the consent was given by an appropriate person), with the

peace or comfort of either that person or the protected person,

with intent to obtain the consent.

(9) In this section–

“appropriate person” means (subject to subsections (10) and (11)) a

person who is a parent or guardian of the protected person;

Criminal Procedure and Evidence

2011-24

“guardian”, in relation to the protected person, means any person who is

not a parent of the protected person but who has parental

responsibility for the protected person within the meaning of the

Children Act 2009.

(10) If the protected person is a child who is looked after by the Care

Agency, “an appropriate person” means a person who is–

(a) a representative of the Agency; or

(b) a parent or guardian of the protected person with whom the

protected person is allowed to live.

(11) No person by whom the offence mentioned in section 459(2) is

alleged to have been committed is, by virtue of subsections (9) or (10), an

appropriate person for the purposes of this section.

(12) In this section “appropriate recipient”, in relation to a notice under

subsection (6)(a), means–

(a) the person to whom the notice giving consent was given;

(b) the person by whom the matter in question was published (if

different); or

in paragraph (b), any responsibility in relation to the

publication of that matter,

and for this purpose “person” includes a body of persons and a partnership.

Decisions as to public interest in relation to reporting.

465.(1) If for the purposes of sections 459 to 462 it falls to a court to decide

whether anything is (or, as the case may be, was) in the public interest, the

court must have regard, in particular, to the matters referred to in subsection

(2) (so far as relevant).

(2) Those matters are–

(a) the interest in–

(i) the open reporting of crime;

(ii) the open reporting of matters relating to human health or

safety; and

Criminal Procedure and Evidence

2011-24

(iii) the prevention and exposure of miscarriages of justice;

(b) the welfare of any person in relation to whom the relevant

restrictions imposed by or under any of sections 459 to 462

apply or would apply (or, as the case may be, applied); and

(i) by an appropriate person on behalf of a person within

paragraph (b) who is under the age of 16 (“the protected

person”); or

(ii) by a person within that paragraph who has attained that

age.

(3) In subsection (2) “appropriate person”, in relation to the protected

person, has the same meaning as it has for the purposes of section 464.

Reporting restrictions: Identity of victims

Restriction on reporting of identity of victims of sexual offences.

466.(1) If an allegation has been made that a sexual offence has been

committed against a person, no matter relating to that person may during

that person’s lifetime be included in any publication, if it is likely to lead

members of the public to identify that person as the person against whom

the offence is alleged to have been committed.

(2) If a person is accused of an offence to which this section applies, no

matter likely to lead members of the public to identify a person as the

person against whom the offence is alleged to have been committed (“the

complainant”) may during the complainant's lifetime be included in any

publication.

(3) This section–

(a) does not apply in relation to a person by virtue of subsection

(1) at any time after a person has been defendant of the

offence; and

(b) in its application in relation to a person by virtue of subsection

(2), has effect subject to any direction given under section 468.

(4) The matters relating to a person in relation to which the restrictions

imposed by subsection (1) or (2) apply, if their inclusion in any publication

is likely to have the result mentioned in that subsection, include in

particular–

Criminal Procedure and Evidence

2011-24

(a) the person’s name;

(b) the person’s address;

attended by the person;

(d) the identity of any place where the person works; and

(e) any still or moving picture of the person.

(5) Nothing in this section prohibits the inclusion in a publication of

matter consisting only of a report of criminal proceedings other than

proceedings at, or intended to lead to, or on an appeal arising out of, a trial

at which the defendant is charged with the offence.

Power to displace section 466.

467.(1) If, before the commencement of a trial at which a person is charged

with an offence to which section 466 applies, he or another person against

whom the complainant may be expected to give evidence at the trial, applies

to the judge for a direction under this subsection and satisfies the judge–

(a) that the direction is required for the purpose of inducing

persons who are likely to be needed as witnesses at the trial to

come forward; and

(b) that the conduct of the applicant's defence at the trial is likely

to be substantially prejudiced if the direction is not given,

the judge must direct that section 466 does not, by virtue of the accusation

alleging the offence in question, apply in relation to the complainant.

(2) If at a trial the judge is satisfied–

(a) that the effect of section 466 is to impose a substantial and

unreasonable restriction upon the reporting of proceedings at

the trial; and

(b) that it is in the public interest to remove or relax the restriction,

the judge must direct that that section does not apply to any matter specified

in the direction.

(3) A direction must not be given under subsection (2) by reason only of

the outcome of the trial.

Criminal Procedure and Evidence

2011-24

(4) If a person who has been convicted of an offence and has given notice

of appeal against the conviction, or notice of an application for leave so to

appeal, applies to the appellate court for a direction under this subsection

and satisfies the court–

(a) that the direction is required for the purpose of obtaining

evidence in support of the appeal; and

(b) that the applicant is likely to suffer substantial injustice if the

direction is not given,

the court must direct that section 466 does not, by virtue of an accusation

which alleges an offence to which that section applies and is specified in the

direction, apply in relation to a complainant so specified.

(5) A direction given under this section does not affect the operation of

section 466 before the direction is given.

(6) In subsections (1) and (2), “judge” means–

(a) in the case of an offence which is to be tried summarily or for

which the mode of trial has not been determined - any

magistrate;

(b) in any other case - any judge of the Supreme Court.

(7) If, after the commencement of a trial at which a person is charged with

an offence to which section 466 applies, a new trial of the person for that

offence is ordered, the commencement of any previous trial is to be

disregarded for the purposes of subsection (1).

Offences relating to reporting of identity of victims.

468.(1) If any matter is included in a publication in contravention of section

466, the following persons commit an offence and are liable on summary

conviction to a fine at level 5 on the standard scale–

(a) if the publication is a newspaper or periodical - any proprietor,

any editor and any publisher of the newspaper or periodical;

(b) if the publication is a radio or television broadcast–

(i) any corporate body engaged in providing the service in

which the broadcast is included; and

(ii) any person having functions in relation to the broadcast

corresponding to those of an editor of a newspaper;

Criminal Procedure and Evidence

2011-24

(2) If a person is charged with an offence under this section in respect of

the inclusion of any matter in a publication, it is a defence, subject to

subsection (3), to prove that the publication in which the matter appeared

was one in respect of which the person against whom the offence mentioned

in section 466 is alleged to have been committed had given written consent

to the appearance of matter of that description.

(3) Written consent is not a defence if it is proved that any person

interfered unreasonably with the peace or comfort of the person giving the

consent, with intent to obtain it, or that person was under the age of 16 at the

time when it was given.

(4) Proceedings for an offence under this section may not be instituted

except by or with the consent of the Attorney-General.

(5) If a person is charged with an offence under this section it is a defence

to prove that at the time of the alleged offence he was not aware, and neither

suspected nor had reason to suspect, that the publication included the matter

in question.

(6) If–

(a) a person is charged with an offence under this section; and

(b) the offence relates to the inclusion of any matter in a

publication in contravention of section 466,

it is a defence to prove that at the time of the alleged offence he was not

aware, and neither suspected nor had reason to suspect, that the allegation in

question had been made.

Anonymity of witnesses

Witness anonymity orders.

469.(1) In this Part, a “witness anonymity order” is an order made by a

court requiring specified measures to be taken in relation to a witness in

criminal proceedings that the court considers appropriate to ensure that the

identity of the witness is not disclosed in or in connection with the

proceedings.

(2) The kinds of measures that may be required to be taken in relation to a

witness include–

(a) that the witness’s name and other identifying details may be–

Criminal Procedure and Evidence

2011-24

(i) withheld; or

(ii) removed from materials disclosed to any party to the

proceedings;

(b) that the witness may use a pseudonym;

description that might lead to the identification of the witness;

(d) that the witness is screened to any specified extent;

(e) that the witness’s voice is subjected to modulation to any

specified extent.

(3) Subsection (2) does not affect the generality of subsection (1).

(4) Nothing in this section authorises the court to require−

(a) the witness to be screened to such an extent that the witness

cannot be seen by–

(i) the judge or other members of the court (if any);

(ii) the jury (if there is one); or

(iii) any interpreter or other person appointed by the court to

assist the witness;

(b) the witness’s voice to be modulated to such an extent that the

witness’s natural voice cannot be heard by any persons within

paragraph (a)(i) to (iii).

(5) In this section “specified” means specified in the witness anonymity

order concerned.

Applications for orders.

470.(1) An application for a witness anonymity order to be made in relation

to a witness in criminal proceedings may be made to the court by the

prosecutor or the defendant.

(2) If the application is made by the prosecutor, the prosecutor–

(a) must (unless the court directs otherwise) inform the court of

the identity of the witness; but

(b) need not disclose in connection with the application–

Criminal Procedure and Evidence

2011-24

(i) the identity of the witness; or

(ii) any information that might enable the witness to be

identified,

to any other party to the proceedings or his legal

representatives.

(3) If the application is made by the defendant, the defendant–

(a) must inform the court and the prosecutor of the identity of the

witness; but

(b) (if there is more than one defendant) need not disclose in

connection with the application–

(i) the identity of the witness; or

(ii) any information that might enable the witness to be

identified,

to any other defendant or his legal representatives.

(4) If the prosecutor or the defendant proposes to make an application

under this section in respect of a witness, any relevant material which is

disclosed by or on behalf of that party before the determination of the

application may be disclosed in such a way as to prevent–

(a) the identity of the witness; or

(b) any information that might enable the witness to be identified,

from being disclosed except as required by subsection (2)(a) or (3)(a).

(5) In subsection (4), “relevant material” means any document or other

material which falls to be disclosed, or is sought to be relied on, by or on

behalf of the party concerned in connection with the proceedings or

proceedings preliminary to them.

(6) The court must give every party to the proceedings the opportunity to

be heard on an application under this section.

(7) Subsection (6) does not prevent the court from hearing one or more

parties in the absence of a defendant and his legal representatives, if it

appears to the court to be appropriate to do so in the circumstances of the

case.

Criminal Procedure and Evidence

2011-24

(8) Nothing in this section is to be taken as restricting any power to make

rules of court.

Conditions for making order.

471.(1) This section applies when an application is made for a witness

anonymity order to be made in relation to a witness in criminal proceedings.

(2) The court may make such an order only if it is satisfied that Conditions

A to C below are met.

(3) Condition A is that the measures to be specified in the order are

necessary to–

(a) protect the safety of the witness or another person or to prevent

any serious damage to property; or

(b) prevent real harm to the public interest, whether affecting the

carrying on of any activities in the public interest or the safety

of a person involved in carrying on such activities, or

otherwise.

(4) Condition B is that, having regard to all the circumstances, the taking

of those measures would be consistent with the defendant receiving a fair

trial.

(5) Condition C is that the importance of the witness’s testimony is such

that in the interests of justice the witness ought to testify and

(a) the witness would not testify if the proposed order were not

made, or

(b) there would be real harm to the public interest if the witness

were to testify without the proposed order being made.

(6) In determining whether the measures to be specified in the order are

necessary for the purpose mentioned in subsection (3)(a), the court must

have regard (in particular) to any reasonable fear on the part of the witness

that–

(a) the witness or another person would suffer death or injury; or

(b) there would be serious damage to property,

if the witness were to be identified.

Relevant considerations.

Criminal Procedure and Evidence

2011-24

472.(1) When deciding whether Conditions A to C in section 471 are met in

the case of an application for a witness anonymity order, the court must

have regard to–

(a) the considerations mentioned in subsection (2) of this section;

and

(b) any other matters the court considers relevant.

(2) The considerations are–

(a) the general right of a defendant in criminal proceedings to

know the identity of a witness in the proceedings;

(b) the extent to which the credibility of the witness concerned

would be a relevant factor when the weight of his or her

evidence comes to be assessed;

decisive evidence implicating the defendant;

(d) whether the witness’s evidence could be properly tested

(whether on grounds of credibility or otherwise) without his or

her identity being disclosed;

(e) whether there is any reason to believe that the witness–

(i) has a tendency to be dishonest; or

(ii) has any motive to be dishonest in the circumstances of

the case,

having regard (in particular) to any previous convictions of the

witness and to any relationship between the witness and the

defendant or any associates of the defendant;

(f) whether it would be reasonably practicable to protect the

witness’s identity by any means other than by making a

witness anonymity order specifying the measures that are

under consideration by the court.

Warning to jury.

473.(1) Subsection (2) applies if, on a trial on indictment, any evidence has

been given by a witness at a time when a witness anonymity order applied

to the witness.

Criminal Procedure and Evidence

2011-24

(2) The judge must give the jury such warning as the judge considers

appropriate to ensure that the fact that the order was made in relation to the

witness does not prejudice the defendant.

Discharge or variation of order.

474.(1) A court that has made a witness anonymity order in relation to any

criminal proceedings may subsequently discharge or vary (or further vary)

the order if it appears to the court to be appropriate to do so in view of the

provisions of sections 471 and 472 that applied to the making of the order.

(2) The court may discharge or vary a witness anonymity order–

(a) on an application made by a party to the proceedings if there

has been a material change of circumstances since the relevant

time; or

(b) on its own initiative.

(3) The court must give every party to the proceedings the opportunity to

be heard–

(a) before determining an application made to it under subsection

(2);

(b) before discharging or varying the order on its own initiative.

(4) Subsection (3) does not prevent the court hearing one or more of the

parties to the proceedings in the absence of a defendant in the proceedings

and his legal representatives, if it appears to the court to be appropriate to do

so in the circumstances of the case.

(5) In subsection (2), “relevant time” means–

(a) the time when the order was made; or

(b) if a previous application has been made under subsection (2) -

the time when the application (or the last application) was

made.

Discharge or variation after proceedings.

475.(1) This section applies if–

(a) a court has made a witness anonymity order in relation to a

witness in criminal proceedings (“the old proceedings”), and

(b) the old proceedings have come to an end.

Criminal Procedure and Evidence

2011-24

(2) The court that made the order may discharge or vary (or further vary)

the order if it appears to the court to be appropriate to do so in view of–

(a) the provisions of sections 471 and 472 that apply to the making

of a witness anonymity order; and

(b) any other matters the court considers relevant.

(3) The court may do so–

(a) on an application made by a party to the old proceedings if

there has been a material change of circumstances since the

relevant time; or

(b) on an application made by the witness if there has been a

material change of circumstances since the relevant time.

(4) The court may not determine an application made to it under

subsection (3) unless in the case of each of the parties to the old proceedings

and the witness–

(a) it has given the person the opportunity to be heard; or

(b) it is satisfied that it is not reasonably practicable to

communicate with the person.

(5) Subsection (4) does not prevent the court hearing one or more of the

persons mentioned in that subsection in the absence of a person who was a

defendant in the old proceedings and his legal representatives, if it appears

to the court to be appropriate to do so in the circumstances of the case.

(6) “The relevant time” means–

(a) the time when the old proceedings came to an end; or

(b) if a previous application has been made under subsection (3) -

the time when the application (or the last application) was

made.

Discharge or variation on appeal.

476.(1) This section applies if–

(a) a court has made a witness anonymity order in relation to a

witness in criminal proceedings (“the trial proceedings”); and

Criminal Procedure and Evidence

2011-24

(b) a defendant in the trial proceedings has in those proceedings

been–

(i) convicted;

(ii) found not guilty by reason of insanity; or

(iii) found to be under a disability and to have done the act

charged in respect of an offence.

(2) The Court of Appeal may in proceedings on or in connection with an

appeal by the defendant from the trial proceedings discharge or vary (or

further vary) the order if it appears to the court to be appropriate to do so in

view of–

(a) the provisions of sections 471 and 472 that apply to the making

of a witness anonymity order; and

(b) any other matters the court considers relevant.

(3) The appeal court may not discharge or vary the order unless in the case

of each party to the trial proceedings it–

(a) has given the person the opportunity to be heard; or

(b) is satisfied that it is not reasonably practicable to communicate

with the person.

(4) Subsection (3) does not prevent the appeal court hearing one or more

of the parties to the trial proceedings in the absence of a person who was a

defendant in the trial proceedings and his legal representatives, if it appears

to the court to be appropriate to do so in the circumstances of the case.

(5) In this section a reference to the doing of an act includes a reference to

a failure to act.

Miscellaneous provisions

Regulations, orders and rules of court.

477.(1) The Minister may make regulations and orders to implement this

Part.

(2) Regulations and orders made by the Minister under this Part may make

different provision for different cases or circumstances and may contain

such incidental, supplemental, saving or transitional provisions as the

Minister thinks fit.

Criminal Procedure and Evidence

2011-24

(3) The Chief Justice may make any rules of court required by this Part or

that the Chief Justice considers necessary or expedient for the purposes of

this Part.

Savings.

478.(1) Except as expressly provided in this Part, nothing in this Part

affects–

(a) any power of a court to make an order, give directions or give

leave of any description in relation to any witness (including a

defendant);

(b) the operation of any rule of law relating to evidence in criminal

proceedings;

(whether by preventing questions being put or otherwise)

which is exercisable apart from this Part; or

(d) any prohibition or restriction imposed by virtue of this Act or

any other enactment upon a publication or upon matter

included in a radio or television broadcast.

(2) Nothing in this Part affects any power of a court to make an order or

give leave of any description, in the exercise of its inherent jurisdiction or

otherwise–

(a) in relation to a witness who is not an eligible witness; or

(b) in relation to an eligible witness if the order is made or the

leave is given otherwise than by reason of the fact that the

witness is an eligible witness.

(3) Nothing in this Part affects the common law rules as to the

withholding of information on the grounds of public interest immunity.

PART 20 – SENTENCING: GENERAL PRINCIPLES

Principles for sentencing

Purposes of sentencing.

479.(1) A court dealing with an offender in respect of an offence must have

regard to the following purposes of sentencing–

(a) the punishment of offenders;

Criminal Procedure and Evidence

2011-24

(b) the reduction of crime (including its reduction by deterrence);

(d) the protection of the public; and

(e) the making of reparation by offenders to persons affected by

their offences.

(2) Subsection (1) does not apply–

(a) in relation to offenders who are aged under 18 at the time of

conviction (as to whom Part 27 applies);

(b) to an offence the sentence for which is fixed by law; or

detention in a hospital or place of safety under the Mental

Health Act.

(3) In this Part “sentence”, in relation to an offence, includes any order

made by a court when dealing with the offender in respect of his offence;

and “sentencing” is to be construed accordingly.

Determining the seriousness of an offence.

480.(1) In considering the seriousness of any offence, the court must

consider the offender’s culpability in committing the offence and any harm

which the offence caused, was intended to cause or might forseeably have

caused.

(2) In considering the seriousness of an offence (“the current offence”)

committed by an offender who has one or more previous convictions, the

court must treat each previous conviction as an aggravating factor if (in the

case of that conviction) the court considers that it can reasonably be so

treated having regard, in particular, to–

(a) the nature of the offence to which the conviction relates and its

relevance to the current offence; and

(b) the time that has elapsed since the conviction.

(3) In considering the seriousness of any offence committed while the

offender was on bail, the court must treat the fact that it was committed in

those circumstances as an aggravating factor.

(4) Any reference to a previous conviction in subsection (2) is a

reference to–

Criminal Procedure and Evidence

2011-24

(a) a previous conviction by a court in Gibraltar; or

(b) a previous conviction outside Gibraltar by a court in a Member

State of the European Union of a relevant offence under the

law of that State.

(4A) For the purposes of subsection (4)(b) an offence is “relevant” if the

offence would constitute an offence under the law of Gibraltar if it were

done at the time when the consideration in accordance with this section

takes place.

(5) Subsections (2), (4) and (4A) do not prevent the court from treating

a previous conviction by–

(a) a court outside Gibraltar, or

(b) a court outside Gibraltar in a Member State of the European

Union of an offence which is not a relevant offence,

as an aggravating factor in any case where the court considers it appropriate

to do so.

Reduction in sentences for guilty pleas.

481. In determining what sentence to pass on an offender who has pleaded

guilty to an offence in criminal proceedings before that or another court, a

court must take into account–

(a) the stage in the proceedings for the offence at which the

offender indicated his intention to plead guilty; and

(b) the circumstances in which this indication was given.

Powers to mitigate sentences and deal appropriately with mentally

disordered offenders.

482.(1) Unless a provision of this Act otherwise provides, a court may

mitigate an offender’s sentence by taking into account any such matters as,

in the opinion of the court, are relevant in mitigation of sentence.

(2) A court, after taking into account such matters, may pass a community

sentence even though it is of the opinion that the offence, or the

combination of the offence and one or more offences associated with it, was

so serious that a community sentence would not normally be justified for the

offence.

(3) A court may–

Criminal Procedure and Evidence

2011-24

(a) mitigate any penalty included in an offender’s sentence by

taking into account any other penalty included in that sentence;

and

(b) in the case of an offender who is convicted of one or more

other offences, mitigate his sentence by applying any rule of

law as to the totality of sentences.

(4) Subsections (2) and (3) do not limit subsection (1).

(5) Nothing in this Act–

(a) requires a court to pass a custodial sentence, or any particular

custodial sentence, on a mentally disordered offender; or

(b) restricts any power which enables a court to deal with such an

offender in the manner it considers to be most appropriate in all

the circumstances.

Mitigation of sentence in the Magistrates’ Court.

483.(1) If under any law the Magistrates’ Court has power to sentence an

offender to imprisonment for a period specified by that law, or to a fine of

an amount specified by that law, unless the law expressly provides to the

contrary, the court may sentence him to imprisonment for less than that

period or, as the case may be, to a fine of less than that amount.

(2) If under any law an offender sentenced, on summary conviction, to

imprisonment or a fine is required to enter into a recognizance with or

without sureties to keep the peace or observe any other condition, the court

convicting him may dispense with or modify the requirement.

(3) If under any law the Magistrates’ Court has power to sentence an

offender to imprisonment but not to a fine, unless the law expressly

provides to the contrary, the court may, instead of sentencing him to

imprisonment, impose a fine–

(a) not exceeding level 3 on the standard scale; and

(b) not of such an amount as would subject him, in default of

payment of the fine, to a longer term of imprisonment or

detention than the term to which he is liable on conviction of

the offence.

Sentencing guidelines.

Criminal Procedure and Evidence

2011-24

484.(1) The Chief Justice, after consulting the Minister and such other

persons or bodies as the Chief Justice thinks fit, may issue guidelines

relating to the sentencing of offenders (“sentencing guidelines”), which may

be general in nature or limited to a particular category of offence or

offenders.

(2) In issuing sentencing guidelines, the Chief Justice must have regard

to–

(a) the need to promote consistency in sentencing;

(b) the sentences imposed by courts in other common law

jurisdictions for offences to which the guidelines relate;

preventing re-offending;

(d) the need to promote public confidence in the criminal justice

system; and

(e) any views communicated to the Chief Justice in writing on the

subject of sentencing.

(3) Every court must in sentencing an offender, have regard to any

sentencing guidelines which are relevant to the offender’s case.

(4) If and to the extent that sentencing guidelines have not been published

under subsection (1), and subject to any common law provision, a court

may, except where the circumstances of Gibraltar are such that it would not

be appropriate to do so, have regard to the Sentencing Guidelines Council

Guidelines for England and Wales published in December 2004 (as

amended or replaced from time to time).

Duty to give reasons for, and explain effect of, sentence.

485.(1) Subject to subsection (4), a court passing sentence on an offender

must–

(a) state in open court, in ordinary language and in general terms,

its reasons for deciding on the sentence passed; and

(b) explain to the offender in ordinary language–

(i) the effect of the sentence;

(ii) if the offender is required to comply with any order of

the court forming part of the sentence - the effects of

non-compliance with the order;

Criminal Procedure and Evidence

2011-24

(iii) any power of the court, on the application of the offender

or any other person, to vary or review any order of the

court forming part of the sentence; and

(iv) if the sentence consists of or includes a fine - the effects

of failure to pay the fine.

(2) In complying with subsection (1)(a), the court must–

(a) if applicable sentencing guidelines indicate that a sentence of a

particular kind, or within a particular range, would normally be

appropriate for the offence and the sentence is of a different

kind, or is outside that range  state the court’s reasons for

deciding on a sentence of a different kind or outside that range;

(b) if the sentence is a custodial sentence and the duty in

subsection (2) of section 499 is not excluded by subsection (1)

of that section – state that it is of the opinion referred to in

section 499(2) and why it is of that opinion;

opinion that section 562(1) applies and why it is of that

opinion;

(d) if, as a result of taking into account any matter referred to in

section 481(1), the court imposes a penalty on the offender

which is less severe than the penalty it would otherwise have

imposed  state that fact; and

(e) in every case, mention any aggravating or mitigating factors

which the court has regarded as being of particular importance.

(3) If the Magistrates’ Court passes a custodial sentence, it must cause any

reason stated by virtue of subsection (2)(b) to be specified in the warrant of

commitment and entered on the court records.

(4) Subsection (1) does not apply to an offence the sentence for which is

fixed by law.

Commencement and alteration of sentence

Commencement of sentence.

486.(1) A sentence imposed, or other order made, by a court when dealing

with an offender takes effect from the beginning of the day on which it is

imposed, unless the court otherwise directs.

Criminal Procedure and Evidence

2011-24

(2) The power to give a direction under subsection (1) has effect subject to

any restriction on consecutive sentences for released prisoners.

(3) In this section “sentence” is to be construed in accordance with section

487(8).

Alteration of Supreme Court sentence.

487.(1) Subject to the following provisions of this section, a sentence

imposed, or other order made, by the Supreme Court when dealing with an

offender may be varied or rescinded by the Supreme Court within the period

of 28 days beginning with the day on which the sentence or other order was

imposed or made or, if subsection (2) applies, within the time allowed by

that subsection.

(2) If 2 or more persons are jointly tried on an indictment, then, subject to

the following provisions of this section, a sentence imposed, or other order

made, by the Supreme Court on conviction of any of those persons on the

indictment may be varied or rescinded by the Supreme Court not later than–

(a) 28 days after the conclusion of the joint trial; or

(b) 56 days after the sentence or other order was imposed or made,

whichever is the earlier.

(3) For the purposes of subsection (2), the joint trial is concluded when

any of the persons jointly tried is sentenced or is acquitted or when a special

verdict is brought in, whichever is the later.

(4) A sentence or other order must not be varied or rescinded under this

section except by the court constituted as it was when the sentence or other

order was imposed or made.

(5) Subject to subsection (6), if a sentence or other order is varied under

this section the sentence or other order, as so varied, takes effect from the

beginning of the day on which it was originally imposed or made, unless the

court otherwise directs.

(6) For the purposes of an appeal or reference to the Court of Appeal, the

sentence or other order is to be regarded as imposed or made on the day on

which it is varied under this section.

(7) Rules of court may–

(a) as respects cases in which 2 or more persons are tried

separately on the same or related facts alleged in one or more

Criminal Procedure and Evidence

2011-24

indictments, provide for extending the period fixed by

subsection (1);

(b) subject to this section, prescribe the cases and circumstances in

which, and the time within which, any order or other decision

made by the Supreme Court may be varied or rescinded by that

court.

(8) In this section, “sentence” includes a recommendation for deportation

made when dealing with an offender.

Deferment of sentence

Power to defer sentence.

488.(1) Subject to this section, a court may defer passing sentence on an

offender for the purpose of enabling the court, or any other court to which it

falls to deal with him, to have regard in dealing with him to–

(a) his conduct after conviction (including, where appropriate, the

making by him of reparation for his offence); or

(b) any change in his circumstances.

(2) Without limiting subsection (1), the matters to which the court to

which it falls to deal with the offender may have regard by virtue of

paragraph (a) of that subsection include the extent to which the offender has

complied with any requirements imposed under subsection (3)(b).

(3) The power conferred by subsection (1) is exercisable only if–

(a) the offender consents;

(b) the offender undertakes to comply with any requirements as to

his conduct during the period of the deferment that the court

considers it appropriate to impose; and

and the character and circumstances of the offender, that it

would be in the interests of justice to exercise the power.

(4) Any deferment under this section–

(a) must be until a date not later than 6 months after the date on

which the deferment is announced by the court;

(b) can only be done once.

Criminal Procedure and Evidence

2011-24

(5) If sentence is deferred under subsection (1) a supervisor must be

appointed to–

(a) monitor the offender’s compliance with the requirements; and

(b) provide to the court to which it falls to deal with the offender in

respect of the offence in question any information the court

requires relating to the offender’s compliance with the

requirements.

(6) If a court has under this section deferred passing sentence on an

offender, it must forthwith give a copy of the order deferring the passing of

sentence and setting out any requirements imposed under subsection (3)(b)–

(a) to the offender;

(b) to the supervisor appointed under subsection (5).

(7) A court which under this section defers passing sentence on an

offender must not on the same occasion remand him.

(8) If–

(a) a court which under this section has deferred passing sentence

on an offender proposes to deal with him on the date originally

specified by the court; but

(b) the offender does not appear on the day so specified,

the court may issue a summons requiring him to appear before the court at a

time and place specified in the summons, or may issue a warrant to arrest

him and bring him before the court at a time and place specified in the

warrant.

Breach of undertakings.

489.(1) A court which under section 488 has deferred passing sentence on

an offender may deal with him before the end of the period of deferment if–

(a) he appears or is brought before the court under subsection (3);

and

(b) the court is satisfied that he has failed to comply with one or

more requirements imposed under section 488(3)(b) in

connection with the deferment.

(2) Subsection (3) applies if–

Criminal Procedure and Evidence

2011-24

(a) a court has under section 488 deferred passing sentence on an

offender;

(b) the offender undertook to comply with one or more

requirements imposed under paragraph (3)(b) of that section in

connection with the deferment; and

offender has reported to the court that the offender has failed to

comply with one or more of those requirements.

(3) If this subsection applies, the court may issue–

(a) a summons requiring the offender to appear before the court at

a time and place specified in the summons; or

(b) a warrant to arrest him and bring him before the court at a time

and place specified in the warrant.

Conviction of offence during period of deferment.

490.(1) A court which under section 488 has deferred passing sentence on

an offender may deal with him before the end of the period of deferment if

during that period he is convicted in Gibraltar of any offence.

(2) Subsection (3) applies if a court has under section 488 deferred

passing sentence on an offender in respect of one or more offences and

during the period of deferment the offender is convicted in Gibraltar of any

offence (“the later offence”).

(3) If this subsection applies, then (without affecting subsection (1) and

whether or not the offender is sentenced for the later offence during the

period of deferment), the court which passes sentence on him for the later

offence may also, if this has not already been done, deal with him for the

offence or offences for which passing of sentence has been deferred, except

that–

(a) the power conferred by this subsection may not be exercised by

the Magistrates’ Court if the court which deferred passing

sentence was the Supreme Court; and

(b) the Supreme Court, in exercising that power in a case in which

the court which deferred passing sentence was the Magistrates’

Court, may not pass any sentence which could not have been

passed by the Magistrates’ Court in exercising that power.

Criminal Procedure and Evidence

2011-24

(4) If a court which under section 488 has deferred passing sentence on an

offender proposes to deal with him by virtue of subsection (1) of this section

before the end of the period of deferment, the court may issue–

(a) a summons requiring him to appear before the court at a time

and place specified in the summons; or

(b) a warrant to arrest him and bring him before the court at a time

and place specified in the warrant.

Deferment of sentence: Supplementary.

491.(1) In deferring the passing of sentence under section 488 a court is to

be regarded as exercising a power of adjourning the trial and accordingly

any provisions about non-appearance of the defendant apply if the offender

does not appear on the date specified under section 490(4), but without

affecting section 488(8).

(2) If the passing of sentence on an offender has been deferred by a court

(“the original court”) under section 488, the power of that court under that

section to deal with the offender at the end of the period of deferment and

any power of that court under section 489(1) or 490(1), or of any court

under section 490(3), to deal with the offender–

(a) is power to deal with him, in respect of the offence for which

passing of sentence has been deferred, in any way in which the

original court could have dealt with him if it had not deferred

passing sentence; and

(b) without limiting paragraph (a), in the case of the Magistrates’

Court includes the power to commit him to the Supreme Court

for sentence.

(3) If–

(a) the passing of sentence on an offender in respect of one or

more offences has been deferred under section 488; and

(b) the Magistrates’ Court deals with him in respect of the offence

or any of the offences by committing him to the Supreme

Court,

the power of the Supreme Court to deal with him includes the same power

to defer passing sentence on him as if he had just been convicted of the

offence or offences on indictment before the court.

(4) Nothing in this section or sections 488 or 490 affects–

Criminal Procedure and Evidence

2011-24

(a) the power of the Supreme Court to bind over an offender to

come up for judgment when called upon; or

(b) the power of any court to defer passing sentence for any

purpose for which it may lawfully do so apart from this

section.

Pre-sentence reports

Pre-sentence reports and other requirements.

492.(1) In forming an opinion for the purposes of sentencing an offender, a

court must take into account all such information as is available to it about

the circumstances of the offence or (as the case may be) of the offence and

the offence or offences associated with it, including any aggravating or

mitigating factors.

(2) Subject to subsection (4), a court must obtain and consider a pre-

sentence report before imposing a custodial sentence other than one fixed by

law.

(3) Subject to subsection (4), a court must obtain and consider a pre-

sentence report before imposing a community sentence in order to form an

opinion as to the suitability for the offender of the particular requirement or

requirements to be imposed by the community sentence.

(4) Subsection (2) or (3) does not apply if, in the circumstances of the

case, the court is of the opinion that it is unnecessary to obtain a pre-

sentence report.

(5) In a case where the offender is aged under 18, the court must not form

the opinion mentioned in subsection (4) unless–

(a) there exists a previous pre-sentence report obtained in respect

of the offender; and

(b) the court has had regard to the information contained in that

report, or, if there is more than one such report, the most recent

report.

(6) No custodial sentence or community sentence is invalidated by the

failure of a court to obtain and consider a pre-sentence report before

imposing the sentence, but any court on an appeal against such a sentence

must–

(a) subject to subsection (7), obtain a pre-sentence report if none

was obtained by the court below; and

Criminal Procedure and Evidence

2011-24

(b) consider any such report obtained by it or by that court.

(7) Subsection (6)(a) does not apply if the court is of the opinion that–

(a) the court below was justified in forming an opinion that it was

unnecessary to obtain a pre-sentence report; or

(b) although the court below was not justified in forming that

opinion, in the circumstances of the case at the time it is before

the court, it is unnecessary to obtain a pre-sentence report.

(8) If the offender is aged under 18, the court must not form the opinion

mentioned in subsection (7) unless–

(a) there exists a previous pre-sentence report obtained in respect

of the offender; and

(b) the court has had regard to the information contained in that

report, or, if there is more than one such report, the most recent

report.

(9) In this section, “pre-sentence report” means a report which is made or

submitted by a probation officer with a view to assisting the court in

determining the most suitable method of dealing with an offender.

Additional requirements in case of mentally disordered offender.

493.(1) Subject to subsection (2), in any case where the offender is or

appears to be mentally disordered, the court must obtain and consider a

medical report before passing a custodial sentence other than one fixed by

law.

(2) Subsection (1) does not apply if, in the circumstances of the case, the

court is of the opinion that it is unnecessary to obtain a medical report.

(3) Before passing a custodial sentence other than one fixed by law on an

offender who is or appears to be mentally disordered, a court must

consider–

(a) any information before it which relates to his mental condition

(whether given in a medical report, a pre-sentence report or

otherwise); and

(b) the likely effect of such a sentence on that condition and on

any treatment which may be available for it.

Criminal Procedure and Evidence

2011-24

(4) No custodial sentence which is passed in a case to which subsection

(1) applies is invalidated by the failure of a court to comply with that

subsection, but any court on an appeal against such a sentence must–

(a) obtain a medical report if none was obtained by the court

below; and

(b) consider any such report obtained by it or by that court.

(5) In this section, “medical report” means a report as to an offender’s

mental condition made or submitted orally or in writing by a medical

practitioner, the responsible medical officer or a mental welfare officer as

defined in the Mental Health Act.

(6) If the court considers that a medical report is required, it may remand

the offender for the purpose in accordance with sections 664 to 667.

Disclosure of pre-sentence reports.

494.(1) This section applies if the court obtains a pre-sentence report, other

than a report given orally in open court.

(2) Subject to subsections (3) and (4), the court must give a copy of the

report–

(a) to the offender or his legal representative;

(b) if the offender is aged under 18 - to any parent or guardian of

his who is present in court; and

of the offence.

(3) If the offender is aged under 18 and it appears to the court that the

disclosure to the offender or to any parent or guardian of his of any

information contained in the report would be likely to create a risk of

significant harm to the offender, a complete copy of the report need not be

given to the offender or, as the case may be, to that parent or guardian.

(4) No information obtained by virtue of subsection (2)(c) may be used or

disclosed otherwise than for the purpose of–

(a) determining whether representations as to matters contained in

the report need to be made to the court; or

(b) making such representations to the court.

Criminal Procedure and Evidence

2011-24

(5) In relation to an offender aged under 18 for whom the Care Agency

has responsibility and who–

(a) is in the care of the Agency; or

(b) is provided with accommodation by the Agency,

references in this section to his parent or guardian are to be read as

references to the Agency.

Pre-sentence drug testing.

495.(1) If a person aged 14 or over is convicted of an offence and the court

is considering passing a community sentence or a suspended sentence, it

may make an order under subsection (2) for the purpose of ascertaining

whether the offender has any controlled drug in his body.

(2) The order requires the offender to provide, in accordance with the

order, samples of any description specified in the order.

(3) If the offender has not attained the age of 18, the order must provide

for the samples to be provided in the presence of an appropriate adult.

(4) If it is proved to the satisfaction of the court that the offender has,

without reasonable excuse, failed to comply with the order it may impose on

him a fine at level 4 on the standard scale.

Deportation

Power to recommend deportation.

496.(1) Subject to this section, if a person to whom section 12 of the

Immigration, Asylum and Refugee Act applies and who has attained the age

of 18 years is convicted in Gibraltar of an offence for which he is

punishable with imprisonment, the court when sentencing him for that

offence may, unless it commits him to be sentenced or further dealt with for

that offence by another court, recommend, in addition to so sentencing him,

that he be deported from Gibraltar.

(2) A court must not under this section recommend a person for

deportation unless the person has been given not less than 7 days notice of

the court’s intention to do so, but the court may after convicting an offender

adjourn the case for the purpose of enabling a notice to be given to him

under this section or, if a notice was given to him less than 7 days

previously, for the purpose of enabling the necessary 7 days to elapse.

(3) For the purposes of this section–

Criminal Procedure and Evidence

2011-24

(a) a person is deemed to have attained the age of 18 years at the

time of his conviction if, on consideration of any available

evidence, he appears to have done so to the court making or

considering a recommendation for deportation;

(b) the question whether an offence is one for which a person is

punishable with imprisonment must be decided without regard

to any enactment restricting the imprisonment of young

offenders or first offenders; and

have committed it he is, notwithstanding any enactment to the

contrary and even if the court does not proceed to conviction,

to be regarded as a person convicted of the offence, and

references to a conviction are to be construed accordingly.

(4) If a court recommends or purports to recommend a person for

deportation, the validity of the recommendation is not to be called in

question except on an appeal against the recommendation or against the

conviction on which it is made, but the recommendation is to be treated as a

sentence for the purpose of any enactment providing an appeal against

sentence.

(5) Nothing in this section empowers a court to recommend the

deportation of any person who is an EEA National within the meaning of

the Immigration, Asylum and Refugee Act, except in a case in which the

Principal Immigration Officer can refuse to allow the person to enter

Gibraltar or cancel any residence permit issued to the person.

PART 21 – CUSTODIAL SENTENCES

Duration of sentences

Duration of terms of imprisonment.

497.(1) This section applies where–

(a) a person is serving a term of imprisonment or detention in

respect of an offence, and

(b) he has been remanded in custody in connection with the

offence or a related offence.

(2) Subject to subsection (5), it is immaterial for that purpose whether, for

all or part of the period during which the person was remanded in custody,

the person was also remanded in custody in connection with other offences.

Criminal Procedure and Evidence

2011-24

(3) Subject to subsections (4) and (5), the number of days for which the

person

(a) was remanded in custody; or

(b) was in police detention

in connection with the offence or a related offence is to count as time served

by the person as part of the sentence.

(4) If, on any day on which the person was remanded in custody, the

person was also detained in connection with any other matter, that day is not

to count as time served.

(5) A day counts as time served–

(a) in relation to only one sentence, and

(b) only once in relation to that sentence.

(6) For the purposes of this section a suspended sentence is to be treated

as a sentence of imprisonment when it takes effect under section 509 and as

being imposed by the order under which it takes effect.

(7) In this section “related offence” means an offence, other than the

offence for which the sentence is imposed (“offence A”), with which the

person was charged and the charge for which was founded on the same facts

or evidence as offence A.

(8) For the purposes of the references in subsections (3) and (5) to the

term of imprisonment to which a person has been sentenced (that is to say,

the reference to the person's “sentence”), consecutive terms and terms which

are wholly or partly concurrent are to be treated as a single term if—

(a) the sentences were passed on the same occasion, or

(b) where they were passed on different occasions, the person has

not been released at any time during the period beginning with

the first and ending with the last of those occasions.

(9) The reference in subsection (4) to detention in connection with any

other matter does not include remand in custody in connection with another

offence but includes–

(a) detention pursuant to any custodial sentence;

(b) committal in default of payment of any sum of money;

Criminal Procedure and Evidence

2011-24

money;

(d) committal for failure to do or abstain from doing anything

required to be done or left undone.

(10) A reference in this Act or any other enactment to the length of any

sentence of imprisonment is, unless the context otherwise requires, a

reference to the sentence pronounced by the court and not the sentence as

reduced by this section.

(11) For the purposes of this section references to a remand in custody are

references to a person being–

(a) remanded in or committed to custody by order of a court,

(b) remanded, admitted or removed to hospital or a place of safety

under section 664, 666, 669 or 672 of the Criminal Procedure

and Evidence Act 2011.

Time in custody pending appeal.

498.(1) The time during which an appellant is in custody pending the

determination of his appeal is, subject to any direction to the contrary by the

court hearing the appeal, to be reckoned as part of the term of any sentence

to which he is for the time being subject.

(2) If a court gives a contrary direction under subsection (1) it must state

its reasons.

(3) The Court of Appeal must not give a contrary direction if it has given

leave to appeal under section 9(1)(b) or (c) of the Court of Appeal Act or if

the Supreme Court has granted a certificate under section 9(1)(b) of that

Act.

Restrictions on sentences of imprisonment

General restrictions on imposing discretionary custodial sentences.

499.(1) This section applies if a person is convicted of an offence

punishable with a custodial sentence other than one fixed by law.

(2) The court must not pass a custodial sentence unless it is of the opinion

that the offence, or the combination of the offence and one or more offences

associated with it, was so serious that neither a fine alone nor a community

sentence can be justified for the offence.

Criminal Procedure and Evidence

2011-24

(3) Nothing in subsection (2) prevents the court from passing a custodial

sentence on the offender if–

(a) he fails to express his willingness to comply with a

requirement which is proposed by the court to be included in a

community sentence and which requires an expression of such

willingness; or

(b) he fails to comply with an order under section 495 (Pre-

sentence drug testing).

(4) If a court passes a custodial sentence, it must–

(a) in a case not falling within subsection (3) - state in open court

that it is of the opinion that subsection (2) applies and why it is

of that opinion; and

(b) in any case - explain to the offender in open court and in

ordinary language why it is passing a custodial sentence on

him.

(5) The Magistrates’ Court must cause a reason stated by it under

subsection (4) to be specified in the warrant of commitment and to be

entered in the register.

Length of discretionary custodial sentences.

500. If a court passes a custodial sentence other than one fixed by law, the

custodial sentence must be for the shortest term (not exceeding the

permitted maximum) that in the opinion of the court is commensurate with

the seriousness of the offence, or the combination of the offence and one or

more offences associated with it.

Liability to imprisonment on conviction on indictment.

501. If a person is convicted on indictment of an offence against any

enactment and is for that offence liable to be sentenced to imprisonment, but

the sentence is not by any enactment either limited to a specified term or

expressed to extend to imprisonment for life, the person so convicted is

liable to imprisonment for not more than 2 years.

General limit on Magistrates’ Court’s power to impose imprisonment.

502.(1) The Magistrates’ Court does not have power to impose

imprisonment for more than 12 months in respect of any one offence.

(2) Subsection (1) does not affect–

Criminal Procedure and Evidence

2011-24

(a) section 506 (consecutive terms of imprisonment);

(b) any power of the Magistrates’ Court to impose a term of

imprisonment for non-payment of a fine, or for want of

sufficient distress to satisfy a fine.

(3) In subsection (2) “fine” includes a pecuniary penalty but does not

include a pecuniary forfeiture or pecuniary compensation.

(4) In this section “impose imprisonment” means pass a sentence of

imprisonment or fix a term of imprisonment for failure to pay any sum of

money, or for want of sufficient distress to satisfy any sum of money, or for

failure to do or abstain from doing anything required to be done or left

undone.

(5) The Magistrates’ Court must not impose imprisonment for less than 5

days.

Imprisonment of children and young persons.

503.(1) A child must not be imprisoned for any offence or be committed to

prison in default of payment of a fine, damages or costs.

(2) A young person must not be imprisoned for more than 2 years for any

offence.

(3) This section does not affect the operation of sections 629 and 630 as

regards sentences of detention on juveniles or section 631 as regards

imprisonment for life of offenders under 21.

Restriction on imposing custodial sentences on persons not legally

represented.

504.(1) The Magistrates’ Court on summary conviction, or the Supreme

Court on committal for sentence or on conviction on indictment, must not

pass a custodial sentence on a person who–

(a) is not legally represented in that court; and

(b) has not been previously sentenced to the same kind of sentence

by a court in Gibraltar,

unless he is a person to whom subsection (2) applies.

(2) This subsection applies to a person if either–

(a) he was granted a right to legal aid but the right was withdrawn

because of his conduct; or

Criminal Procedure and Evidence

2011-24

(b) having been informed of his right to apply for such

representation and having had the opportunity to do so, he

refused or failed to apply.

(3) For the purposes of this section a person is to be treated as legally

represented in a court if, but only if, he has the assistance of a legal

representative to represent him in the proceedings in that court at some time

after he is found guilty and before he is sentenced.

(4) For the purposes of subsection (1)(b) a previous sentence of

imprisonment which has been suspended and which has not taken effect

under section 509 is to be disregarded.

Consecutive sentences

Consecutive sentences: General.

505. When a sentence of imprisonment for an offence is passed on a person

who is already imprisoned under a sentence for another offence, the court

may order imprisonment for the subsequent offence to commence at the

expiration of the imprisonment for that other offence, even if the total term

of imprisonment exceeds the term for which the person can be sentenced for

either offence on its own.

Consecutive sentences: Magistrates’ Court.

506.(1) The Magistrates’ Court when imposing imprisonment on any

person may order that the term of imprisonment is to commence on the

expiration of any other term of imprisonment imposed by that or any other

court, but if the court imposes 2 or more terms of imprisonment to run

consecutively, the total of the terms must not, subject to this section, exceed

12 months.

(2) If 2 or more of the terms imposed by the court are imposed in respect

of an indictable offence tried summarily, the total of the terms so imposed

and any other terms imposed by the court may exceed 12 months but must

not, subject to this section, exceed 24 months.

(3) The limitations imposed by subsections (1) and (2) do not operate to

reduce the total of the terms that the court may impose in respect of any

offences below the term which the court has power to impose in respect of

any one of those offences.

(4) If a person has been sentenced by the Magistrates’ Court to

imprisonment and a fine for the same offence, a period of imprisonment

imposed for non-payment of the fine, or for want of sufficient distress to

Criminal Procedure and Evidence

2011-24

satisfy the fine, is not subject to the limitations imposed by subsections (1),

(2) and (3).

(5) For the purposes of this section a term of imprisonment is deemed to

be imposed in respect of an offence if it is imposed as a sentence or in

default of payment of a sum adjudged to be paid by the conviction or for

want of sufficient distress to satisfy such a sum.

Suspended sentences

Suspended sentences.

507.(1) A court which passes a sentence of imprisonment of not more than

2 years for an offence may order that the sentence is not to take effect

unless–

(a) during a period specified in the order (the “operational period”)

being not less than one year or more than 3 years from the date

of the order, the offender commits in Gibraltar another offence

punishable with imprisonment; and

(b) a court orders under section 509 that the original sentence is to

take effect.

(2) On passing a suspended sentence the court must explain to the

offender, in ordinary language, the liability under section 509 if during the

operational period he commits an offence punishable with imprisonment.

(3) Subject to any provision to the contrary in this Act or any other

enactment–

(a) a suspended sentence which has not taken effect under section

509 is to be treated as a sentence of imprisonment for the

purpose of all enactments except any enactment which

provides for disqualification for or loss of office, or forfeiture

of pensions, of persons sentenced to imprisonment; and

(b) if a suspended sentence has taken effect under that section, the

offender is to be treated for the purposes of those excepted

enactments as having been convicted on the date on which the

period allowed for making an appeal against an order under

that section expires or, if such an appeal is made, the date on

which it is finally disposed of or abandoned or fails for non-

prosecution.

Prison sentence partly served and partly suspended.

Criminal Procedure and Evidence

2011-24

508.(1) If a court passes on an offender a sentence of imprisonment of not

less than 3 months and not more than 2 years, it may order that, after he has

served part of the sentence in prison, the remainder of it is to be held in

suspense.

(2) The part of the sentence to be served in prison must be not less than 28

days and the part to be held in suspense must be not less than one-quarter of

the whole term, and the offender does not need to serve the latter part unless

it is restored under subsection (3), and this must be explained to him by the

court, using ordinary language and stating the substantial effect of

subsection (3).

(3) If at any time after the making of an order under subsection (1) the

offender is convicted of an offence punishable with imprisonment and

committed during the whole period of the original sentence, then, subject to

subsections (4) and (5), the court may restore the part of the sentence held in

suspense and order him to serve it.

(4) If a court, on considering the offender’s case with a view to exercising

the powers of subsection (3), is of opinion that (in view of all the

circumstances, including the facts of the subsequent offence) it would be

unjust fully to restore the part of the sentence held in suspense, it must–

(a) restore a lesser part of the sentence held in suspense; or

(b) make no order under subsection (3),

and in either event must give reasons for its decision.

(5) If an order restoring part of a sentence has been made under subsection

(3), no order restoring any further part of it may be made.

(6) If a court exercises the power under subsection (3) or (4)(a), it may

direct that the restored part of the original sentence is to take effect as a term

to be served either immediately or on the expiration of another term of

imprisonment passed on the offender by that or another court.

(7) In this section “the whole period” of a sentence means the time which

the offender would have had to serve in prison if the sentence had been

passed without an order under subsection (1) and he had no remission under

section 51 of the Prison Act.

Powers of court on conviction for further offence.

509.(1) If an offender is convicted of an offence punishable with

imprisonment committed during the operational period of a suspended

sentence and either he is convicted by or before a court having power under

subsection (4) to deal with him in respect of the suspended sentence or he

Criminal Procedure and Evidence

2011-24

subsequently appears or is brought before such court, then, unless the

sentence has already taken effect, that court must consider his case and deal

with him by one of the methods mentioned in subsection (2).

(2) The methods referred to in subsection (1) are that the court may–

(a) order that the suspended sentence is to take effect with the

original term unaltered;

(b) order that the sentence is to take effect with the substitution of

a lesser term for the original term;

substituting for the period specified in it a period expiring not

later than 3 years after the date of the variation; or

(d) make no order with respect to the suspended sentence.

(3) A court must make an order under subsection (2)(a) unless it is of

opinion that it would be unjust to do so in view of all the circumstances

which have arisen since the suspended sentence was passed, including the

facts of the subsequent offence, and if it is of that opinion must state its

reasons.

(4) If a court orders that a suspended sentence is to take effect, with or

without variation of the original term, the court may order that the sentence

is to take effect immediately or that it is to commence at the expiration of

another term of imprisonment passed on the offender by that or another

court.

(5) For the purposes of any enactment conferring rights of appeal in

criminal cases, an order made by a court under subsection (4) is to be treated

as a sentence passed on the offender by that court for the offence for which

the suspended sentence was passed.

(6) An offender may be dealt with in respect of a suspended sentence

either by the Supreme Court or, if the sentence was imposed by the

Magistrates’ Court, by that court.

(7) In proceedings for dealing with an offender in respect of a suspended

sentence which take place before the Supreme Court, any question whether

the offender has been convicted of an offence punishable with imprisonment

committed during the operational period of the suspended sentence is to be

decided by the court and not by a jury.

(8) If an offender is convicted by the Magistrates’ Court of an offence

punishable with imprisonment and the court is satisfied that the offence was

Criminal Procedure and Evidence

2011-24

committed during the operational period of a suspended sentence passed by

the Supreme Court, the court–

(a) if it thinks fit - may commit him in custody or on bail to the

Supreme Court; and

(b) if it does not commit him - must give written notice of the

conviction to the Registrar.

(9) If it appears to a judge, or a magistrate in the case of a suspended

sentence imposed by the Magistrates’ Court, that–

(a) an offender has been convicted in Gibraltar of an offence

punishable with imprisonment committed during the

operational period of a suspended sentence; and

(b) he has not been dealt with in respect of the suspended sentence,

the judge or magistrate, as the case may be, may issue a summons requiring

the offender to appear at the place and time specified in it, or may issue a

warrant for his arrest.

Detention

Detention in police cells.

510.(1) If the Magistrates’ Court has power to impose imprisonment on any

person, it may instead of doing so order him to be detained for a period not

exceeding 4 days in a place certified by the Chief Justice to be suitable for

the purpose.

(2) The Chief Justice may certify under this section any police cell or

similar place provided by the Commissioner of Police.

(3) A woman or girl must not be detained in any such place except under

the supervision of women.

(4) Rules of court may be made for the inspection of places certified by

the Chief Justice under this section, for the treatment of persons detained in

them and generally for the purpose of carrying this section into effect.

Detention for one day.

511.(1) If the Magistrates’ Court has power to commit to prison a person

convicted of an offence, or would have that power but for section 581, 582

or 586, the court may order him to be detained within the precincts of the

courthouse or at any police station until such hour, not later than 8.00 p.m.

Criminal Procedure and Evidence

2011-24

on the day on which the order is made, as the court directs, and, if it does so,

must not commit him to prison.

(2) The court must not make such an order under this section as will

deprive the offender of a reasonable opportunity of returning to his abode on

the day of the order.

Committal to custody overnight.

512.(1) If the Magistrates’ Court has power to commit to prison a person in

default of payment of a fine on summary conviction, or would have that

power but for section 581 or 582, the court may issue a warrant for his

detention in a police station, and, if it does so, must not commit him to

prison.

(2) A warrant under this section must–

(a) authorise any police officer to arrest the defaulter and take him

to a police station, unless the sum adjudged to be paid by the

conviction is paid before arrest; and

(b) require the officer in charge of the station to detain him there

until 8.00a.m. on the day following that on which he is

arrested, or, if he is arrested between midnight and 8.00 a.m.,

until 8.00 a.m. on the day on which he is arrested.

(3) The officer may release the detained person at any time within 4 hours

before 8.00 a.m. if the officer thinks it expedient to do so in order to enable

him to go to his work or for any other reason appearing to the officer to be

sufficient.

Life sentences

Recommendation as to minimum term.

513.(1) If a person is sentenced to a mandatory life sentence for an offence,

the court may state the minimum term that the court recommends the person

should serve in prison, by reference to the starting points specified in the

following subsections.

(2) If–

(a) the court considers that the seriousness of the offence (or the

combination of the offence and one or more offences

associated with it) is exceptionally high; and

(b) the offender was aged 21 or over when he committed the

offence,

Criminal Procedure and Evidence

2011-24

the appropriate starting point is a whole life order.

(3) Cases that would normally fall within subsection (2)(a) include–

(a) the murder of 2 or more persons, where each murder involves

any of the following–

(i) a substantial degree of premeditation or planning;

(ii) the abduction of the victim; or

(iii) sexual or sadistic conduct;

(b) the murder of a juvenile if it involves the abduction of the

juvenile or sexual or sadistic motivation;

religious or ideological cause, or

(d) a murder by an offender previously convicted of murder.

(4) If–

(a) the case does not fall within subsection (3) but the court

considers that the seriousness of the offence (or the

combination of the offence and one or more offences

associated with it) is particularly high; and

(b) the offender was aged 18 or over when he committed the

offence,

the appropriate starting point, in determining the minimum term, is 30 years.

(5) Cases not falling within subsection (3) that would normally fall within

subsection (4) include–

(a) the murder of a police officer or prison officer in the course of

his duty;

(b) a murder involving the use of a firearm or explosive;

furtherance of robbery or burglary, done for payment or done

in the expectation of gain as a result of the death);

(d) a murder intended to obstruct or interfere with the course of

justice;

Criminal Procedure and Evidence

2011-24

(e) a murder involving sexual or sadistic conduct;

(f) the murder of 2 or more persons;

(g) a murder that is racially or religiously aggravated; or

(h) a murder falling within subsection (3) committed by an

offender who was aged under 21 when he committed the

offence.

(6) If the offender was aged 18 or over when he committed the offence

and the case does not fall within subsection (3) or (5), the appropriate

starting point, in determining the minimum term, is 15 years.

(7) If the offender was aged under 18 when he committed the offence, the

appropriate starting point, in determining the minimum term, is 12 years.

(8) In this section, “life sentence” means–

(a) a sentence of imprisonment for life; or

(b) a sentence of detention during Her Majesty’s pleasure.

Aggravating and mitigating factors.

514.(1) Once a court has chosen a starting point for a minimum term

pursuant to section 513, the court should take into account any aggravating

or mitigating factors, to the extent that it has not allowed for them in its

choice of starting point.

(2) Detailed consideration of aggravating or mitigating factors may result

in a minimum term of any length (whatever the starting point), or in the

making of a whole life order.

(3) Aggravating factors (additional to those mentioned in section 513(3)

or (5)) that may be relevant to the offence of murder include–

(a) a significant degree of planning or premeditation;

(b) the fact that the victim was particularly vulnerable because of

age or disability;

death;

(d) the abuse of a position of trust;

Criminal Procedure and Evidence

2011-24

(e) the use of duress or threats against another person to facilitate

the commission of the offence;

(f) the fact that the victim was providing a public service or

performing a public duty; and

(g) concealment, destruction or dismemberment of the body.

(4) Mitigating factors that may be relevant to the offence of murder

include–

(a) an intention to cause serious bodily harm rather than to kill;

(b) lack of premeditation;

mental functioning which, although not falling within section

151 of the Crimes Act 2011 (Diminished responsibility),

lowered his degree of culpability;

(d) the fact that the offender was provoked (for example, by

prolonged stress);

(e) the fact that the offender acted to any extent in self-defence or

in fear of violence;

(f) a belief by the offender that the murder was an act of mercy;

and

(g) the age of the offender.

Duty to give reasons.

515.(1) A court making a recommendation under section 513 must state in

open court, in ordinary language, its reasons for deciding on the order made.

(2) In stating its reasons the court must, in particular state–

(a) which of the starting points in that section it has chosen and its

reasons for doing so; and

(b) its reasons for any departure from that starting point.

PART 22 – NON-CUSTODIAL SENTENCES

Interpretation of Part.

516.(1) In this Part, unless the contrary intention appears–

Criminal Procedure and Evidence

2011-24

“relevant order” means–

(a) a community order; or

(b) a youth rehabilitation order;

“responsible officer” means, in relation to an offender to whom an order

relates–

(a) if the only requirement imposed by the order is an unpaid work

requirement - the Community Service Officer;

(b) in any other case - the probation officer;

“review hearing” means a hearing as described in section 533(1)(b);

“warned period” in relation to a warning under section 546 means the

period of 12 months beginning with the date on which the warning

was given.

(2) Any reference in this Part to an offence punishable with imprisonment

is to be read without regard to any prohibition or restriction imposed by or

under any Act on the imprisonment of young offenders.

(3) If the Care Agency has parental responsibility for an offender who is

in its care or provided with accommodation by it, any reference in this Part

to the offender’s parent or guardian is to be read as a reference to that

authority.

(4) In subsection (3) “parental responsibility” has the same meaning as in

the Children Act 2009.

Discharge

Absolute and conditional discharge.

517.(1) If a court by or before which a person is convicted of an offence,

not being an offence for which the sentence is fixed by law, is of the

opinion, having regard to the circumstances including the nature of the

offence and the character of the offender, that it is inexpedient to impose a

penalty, the court may make an order either–

(a) discharging him absolutely; or

(b) if the court thinks fit, discharging him subject to the condition

that he commits no offence during such period, not exceeding 3

Criminal Procedure and Evidence

2011-24

years from the date of the order, as may be specified in the

order.

(2) An order discharging a person subject to a condition as mentioned in

subsection (1)(b) is in this Act referred to as an “order for conditional

discharge” and the period specified in any such order is referred to as “the

period of conditional discharge”.

(3) If by virtue of section 518 a person conditionally discharged under this

section is sentenced for the offence in respect of which the order for

conditional discharge was made, that order ceases to have effect.

(4) On making the order for conditional discharge, the court may, if it

thinks it expedient for the purpose of the offender’s reformation, allow any

person who consents to do so to give security for the good behaviour of the

offender.

(5) Nothing in this section prevents a court, on discharging an offender

absolutely or conditionally in respect of any offence, from imposing a

disqualification on him or from making in respect of the offence an order

for forfeiture of property under an enactment which so provides.

Commission of further offence by person conditionally discharged.

518.(1) If it appears to the Supreme Court or a magistrate, where that court

or magistrate has jurisdiction in accordance with subsection (2), that a

person in whose case an order for conditional discharge has been made–

(a) has been convicted by a court in Gibraltar of an offence

committed during the period of conditional discharge; and

(b) has been dealt with in respect of that offence,

that court or magistrate may, subject to subsection (3), issue a summons

requiring the person to appear at the place and time specified in it or a

warrant for his arrest.

(2) Jurisdiction for the purposes of subsection (1) may be exercised–

(a) if the order for conditional discharge was made by the Supreme

Court - by a judge of that court;

(b) if the order was made by the Magistrates’ Court – by a

magistrate.

(3) A magistrate must not issue a summons under this section except on

information and must not issue a warrant except on information in writing

and on oath.

Criminal Procedure and Evidence

2011-24

(4) A summons or warrant issued under this section must direct the person

to whom it relates to appear or be brought before the court by which the

order for conditional discharge was made.

(5) If a person in whose case an order for conditional discharge has been

made by the Supreme Court is convicted by the Magistrates’ Court of an

offence committed during the period of conditional discharge, the

Magistrates’ Court–

(a) may commit him to custody or release him on bail until he can

be brought or appear before the Supreme Court; and

(b) if it does so, must send to the Supreme Court a copy of the

minute or memorandum of the conviction entered in the

(6) If it is proved to the satisfaction of the court by which an order for

conditional discharge was made that the person in whose case the order was

made has been convicted by a court in Gibraltar of an offence committed

during the period of conditional discharge, the court may deal with him for

the offence for which the order was made in any way in which it could deal

with him if he had just been convicted by or before that court of that

offence.

(7) If a person in whose case an order for conditional discharge has been

made by the Magistrates’ Court is–

(a) convicted before the Supreme Court of an offence committed

during the period of conditional discharge; or

(b) dealt with by the Supreme Court for any such offence in

respect of which he was committed for sentence to the

Supreme Court,

the Supreme Court may deal with him for the offence for which the order

was made in any manner in which the Magistrates’ Court could deal with

him if it had just convicted him of that offence.

(8) If an order for conditional discharge has been made by the

Magistrates’ Court in the case of an offender under 18 years of age in

respect of an offence which is triable only on indictment in the case of an

adult, any powers exercisable under subsection (6) or (7) by that or any

other court in respect of the offender after he attains the age of 18 are

powers to do either or both of the following–

(a) impose a fine not exceeding £5,000 for the offence in respect

of which the order was made;

Criminal Procedure and Evidence

2011-24

(b) deal with the offender for that offence in any way in which the

Magistrates’ Court could deal with him if it had just convicted

him of an offence punishable with imprisonment for not more

than 6 months.

Effect of discharge.

519.(1) Subject to subsection (2), a conviction of an offence for which an

order is made under section 517 discharging the offender absolutely or

conditionally is not a conviction for any purpose other than the purposes of

the proceedings in which the order is made and of any subsequent

proceedings which may be taken against the offender under section 518.

(2) If the offender was aged 18 or over at the time of his conviction of the

offence in question and is subsequently sentenced under section 518 for that

offence, subsection (1) does not apply to the conviction.

(3) Without affecting subsections (1) and (2), the conviction of an

offender who is discharged absolutely or conditionally under section 517 is

to be disregarded for the purposes of any law which–

(a) imposes any disqualification or disability upon convicted

persons; or

(b) authorises or requires the imposition of any such

disqualification or disability.

(4) Subsections (1) to (3) do not affect–

(a) any right of an offender discharged absolutely or conditionally

under section 517 to rely on his conviction in bar of any

subsequent proceedings for the same offence;

(b) any right of any such offender to appeal against the conviction

or otherwise; or

conviction of any such offender.

Discharge: Supplementary.

520.(1) If an order for conditional discharge has been made on appeal, for

the purposes of section 518 it is deemed–

(a) if it was made on an appeal brought from the Magistrates’

Court - to have been made by the Magistrates’ Court;

Criminal Procedure and Evidence

2011-24

(b) if it was made on an appeal brought from the Supreme Court or

from the Court of Appeal - to have been made by the Supreme

Court.

(2) In proceedings before the Supreme Court under section 518, any

question whether any person in whose case an order for conditional

discharge has been made has been convicted of an offence committed

during the period of conditional discharge is to be decided by the court and

not by the verdict of a jury.

Community sentences

Community orders.

521.(1) If an adult is convicted of an offence punishable with

imprisonment, not being an offence for which the sentence is fixed by law,

the court by or before which he is convicted may make an order (a

“community order”) imposing on him any one or more of the following

requirements–

(a) an unpaid work requirement;

(b) an activity requirement;

(d) a prohibited activity requirement;

(e) a curfew requirement;

(f) an exclusion requirement;

(g) a residence requirement;

(h) a mental health treatment requirement;

(i) a drug rehabilitation requirement;

(j) an alcohol treatment requirement;

(k) a supervision requirement.

(2) Subsection (1) has effect subject to the provisions of this Part relating

to particular requirements.

(3) A community order must specify a date, not more than 3 years after

the date of the order, by which all the requirements in it must have been

complied with.

Criminal Procedure and Evidence

2011-24

(4) A community order which imposes 2 or more requirements under

subsection (1) may also specify an earlier date or dates in relation to

compliance with any one or more of them.

(5) Before making a community order imposing 2 or more different

requirements falling under subsection (1), the court must consider whether,

in the circumstances of the case, the requirements are compatible with each

other.

Youth rehabilitation orders.

522.(1) If a juvenile is convicted of an offence punishable with

imprisonment, not being an offence for which the sentence is fixed by law,

the court by or before which the person is convicted may make an order (a

“youth rehabilitation order”) imposing on the person any one or more of the

following requirements–

(a) if the offender is aged 16 or 17 at the time of conviction - an

unpaid work requirement;

(b) an activity requirement;

(d) a prohibited activity requirement;

(e) a curfew requirement;

(f) an exclusion requirement;

(g) a residence requirement;

(h) a mental health treatment requirement;

(i) a drug rehabilitation requirement;

(j) an intoxicating substance treatment requirement.

(k) a supervision requirement.

(2) Subsection (1) has effect subject to the provisions of this Part relating

to particular requirements.

(3) A youth rehabilitation order must specify a date, not more than 3 years

after the date of the order, by which all the requirements in it must have

been complied with.

Criminal Procedure and Evidence

2011-24

(4) A youth rehabilitation order which imposes 2 or more requirements

under subsection (1) may also specify an earlier date or dates in relation to

compliance with any one or more of them.

(5) Before making a youth rehabilitation order imposing 2 or more

different requirements falling under subsection (1), the court must consider

whether, in the circumstances of the case, the requirements are compatible

with each other.

(6) Before making a youth rehabilitation order, the court must obtain and

consider information about the offender’s family circumstances and the

likely effect of such an order on those circumstances.

Unpaid work requirement.

523.(1) In this Part “unpaid work requirement” means a requirement that

the offender must perform unpaid work in accordance with this section.

(2) The number of hours which a person may be required to work under

an unpaid work requirement must be specified in the order and must be in

aggregate–

(a) not less than 40;

(b) in relation to a community order - not more than 300; and

(3) A court may not impose an unpaid work requirement in respect of an

offender unless–

(a) after hearing (if the courts thinks necessary) a probation

officer, the court is satisfied that the offender is a suitable

person to perform work under such a requirement; and

(b) it is satisfied that provision for the offender to work under such

a requirement can be made.

(4) An offender in respect of whom an unpaid work requirement of an

order is in force must perform for the number of hours specified in the order

such work at such times as he may be instructed by the responsible officer.

(5) Subject to section 558(1)(Extension of unpaid work requirement), the

work required to be performed under an unpaid work requirement must be

performed during a period of 12 months.

Criminal Procedure and Evidence

2011-24

(6) Unless revoked, an order imposing an unpaid work requirement

remains in force until the offender has worked under it for the number of

hours specified in it.

Activity requirement.

524.(1) In this Part “activity requirement” means a requirement that the

offender must do either or both of the following–

(a) present himself to a person or persons specified in the order at

a place or places so specified on such number of days as may

be so specified;

(b) participate in activities specified in the order on such number

of days as may be so specified.

(2) The specified activities may consist of or include activities whose

purpose is that of reparation, such as activities involving contact between

offenders and persons affected by their offences.

(3) A court may not include an activity requirement in an order unless the

court–

(a) has consulted a probation officer;

(b) is satisfied that it is feasible to ensure compliance with the

requirement; and

activities proposed to be specified in the order can be made.

(4) A court may not include an activity requirement in an order if

compliance with that requirement would involve the co-operation of a

person other than the offender and the offender’s responsible officer, unless

that other person consents to its inclusion.

(5) The aggregate number of days specified under subsection (1)(a) and

(b) must not exceed 60.

(6) The requirement mentioned in subsection (1)(a) means that the

offender must–

(a) in accordance with instructions given by his responsible

officer, present himself at a place or places on the number of

days specified in the order; and

(b) while at any place, comply with instructions given by, or under

the authority of, the person in charge of that place or activity.

Criminal Procedure and Evidence

2011-24

(7) The requirement mentioned in subsection (1)(b) means that the

offender must–

(a) in accordance with instructions given by his responsible

officer, participate in activities on the number of days specified

in the order; and

(b) while participating, comply with instructions given by, or

under the authority of, the person in charge of the activities.

Programme requirement.

525.(1) In this Part “programme requirement” means a requirement that the

offender must participate in a programme specified in the order at a place so

specified on such number of days as may be so specified.

(2) A court may not include a programme requirement in an order unless–

(a) the programme which the court proposes to specify in the order

has been recommended to the court as being suitable for the

offender by a probation officer; and

(b) the court is satisfied that the programme is available at the

place proposed to be specified.

(3) A court may not include a programme requirement in an order if

compliance with that requirement would involve the co-operation of a

person other than the offender and the offender’s responsible officer, unless

that other person consents to its inclusion.

(4) A requirement to participate in a programme means that the offender

must–

(a) in accordance with instructions given by the responsible

officer, participate in the programme at the place specified in

the order on the number of days specified in the order; and

(b) while at that place, comply with any instructions given by, or

under the authority of, the person in charge of the programme.

Prohibited activity requirement.

526.(1) In this Part “prohibited activity requirement” means a requirement

that the offender must refrain from participating in activities specified in the

order–

(a) on a day or days so specified; or

Criminal Procedure and Evidence

2011-24

(b) during a period so specified.

(2) A court may not include a prohibited activity requirement in an order

unless it has consulted a probation officer.

(3) The requirements that may by virtue of this section be included in an

order include a requirement that the offender does not possess, use or carry

a firearm within the meaning of the Firearms Act.

Curfew requirement.

527.(1) In this Part “curfew requirement” means a requirement that the

offender must remain, for periods specified in the order, at a place so

specified.

(2) An order imposing a curfew requirement may specify different places

or different periods for different days, but may not specify periods which

amount to less than 2 hours or more than 12 hours in any day.

(3) An order which imposes a curfew requirement may not specify periods

which fall outside the period of 6 months beginning with the day on which it

is made.

(4) Before making an order imposing a curfew requirement, the court

must obtain and consider information about the place proposed to be

specified in the order, including information as to the attitude of persons

likely to be affected by the enforced presence of the offender.

Exclusion requirement.

528.(1) In this Part “exclusion requirement” means a provision prohibiting

the offender from entering a place specified in the order for a period so

specified.

(2) An exclusion requirement may–

(a) provide for the prohibition to operate only during the periods

specified in the order; and

(b) specify different places for different periods or days.

(3) The period specified in–

(a) a youth rehabilitation order must be no more than 3 months;

and

(b) a community order must be no more than 2 years.

Criminal Procedure and Evidence

2011-24

Residence requirement.

529.(1) In this Part, “residence requirement” means a requirement that,

during a period specified in the order, the offender must–

(a) reside at a place specified in the order; or

(b) in relation to a youth rehabilitation order – reside with an

individual specified in the order.

(2) If the order so provides, a residence requirement does not prohibit the

offender from residing, with the prior approval of the responsible officer, at

a place other than that specified in the order.

(3) Before making an order containing a residence requirement, the court

must consider the home surroundings of the offender.

(4) A court may not specify a hostel or other institution as the place where

the offender must reside, except on the recommendation of a probation

officer.

(5) A court may not by virtue of subsection (1)(b) include in an order a

requirement that the offender reside with an individual unless that individual

has consented to the requirement.

Mental health treatment requirement.

530.(1) In this Part, “mental health treatment requirement” means a

requirement that the offender must submit, during a period or periods

specified in the order, to treatment by or under the direction of a registered

medical practitioner with a view to the improvement of the offender’s

mental condition.

(2) The treatment required must be such one of the following kinds of

treatment as may be specified in the order–

(a) treatment as a volunteer patient under section 4 of the Mental

Health Act in a hospital as defined by that Act;

(b) treatment as a resident patient in such a hospital;

place specified in the order; or

(d) treatment by or under the direction of a specified registered

medical practitioner,

Criminal Procedure and Evidence

2011-24

but the nature of the treatment is not to be specified in the order except as

mentioned in paragraphs (a) to (d).

(3) A court may not by virtue of this section include a mental health

treatment requirement in an order unless–

(a) the court is satisfied, on the evidence of a registered medical

practitioner appearing to the court to be experienced in the

diagnosis of mental disorders, that the mental condition of the

offender–

(i) is such as requires and may be susceptible to treatment;

and

(ii) is not such as to justify his being detained under Part II

of the Mental Health Act;

(b) the court is also satisfied that arrangements have been or can be

made for the treatment intended to be specified in the order,

including arrangements for the reception of the offender if he is

required to submit to treatment as a resident patient or as a

voluntary patient; and

a requirement.

(4) While the offender is under treatment as a resident patient or is to be

treated as a voluntary patient pursuant to a mental health requirement of an

order, his responsible officer must carry out the supervision of the offender

to such extent only as may be necessary for the purpose of the revocation or

amendment of the order.

Mental health treatment at place other than as specified in order.

531.(1) If the medical practitioner by whom or under whose direction an

offender is being treated for his mental condition pursuant to a mental health

treatment requirement is of the opinion that part of the treatment can be

better or more conveniently given in or at an institution or place which–

(a) is not specified in the order; and

(b) is one in or at which the treatment of the offender will be given

by or under the direction of a registered medical practitioner,

the medical practitioner may, with the consent of the offender, make

arrangements for the offender to be treated accordingly.

Criminal Procedure and Evidence

2011-24

(2) The arrangements mentioned in subsection (1) may provide for the

offender to receive part of his treatment as a resident patient in or at an

institution or place even if it is not one which could have been specified for

that purpose in the order.

(3) If arrangements as mentioned in subsection (1) are made for the

treatment of an offender–

(a) the medical practitioner by whom the arrangements are made

must give notice in writing to the offender’s responsible

officer, specifying the institution or place in or at which the

treatment is to be carried out; and

(b) the treatment provided for by the arrangements are deemed to

be treatment to which he is required to submit pursuant to the

order.

Drug rehabilitation requirement.

532.(1) In this Part “drug rehabilitation requirement” means a requirement

that during a period specified in an order (“the treatment and testing

period”) the offender–

(a) must submit to treatment by or under the direction of a

specified person who has the necessary qualifications or

experience (“the treatment provider”) with a view to reducing

or eliminating the offender’s dependency on or propensity to

misuse controlled drugs; and

(b) for the purpose of ascertaining whether he has any controlled

drug in his body during that period, must provide samples of a

description, and at times or in circumstances (subject to the

provisions of the order) decided by the responsible officer or

by the treatment provider.

(2) A court may not impose a drug rehabilitation requirement unless–

(a) it is satisfied–

(i) that the offender is dependent on, or has a propensity to

misuse, controlled drugs; and

(ii) that his dependency or propensity is such as requires and

may be susceptible to treatment;

(b) it is also satisfied that arrangements have been or can be made

for the treatment intended to be specified in the order,

Criminal Procedure and Evidence

2011-24

including arrangements for the reception of the offender if he is

to be required to submit to treatment as a resident;

suitable for the offender by a probation officer; and

(d) the offender expresses his willingness to comply with the

requirement.

(3) The treatment and testing period must be at least 6 months.

(4) The required treatment for any particular period may be–

(a) treatment as a resident in or at an institution or place specified

in the order; or

(b) treatment as a non-resident in or at an institution or place, and

at intervals, so specified,

but the nature of the treatment is not to be specified in the order except as

mentioned in paragraph (a) or (b).

(5) An order imposing a drug rehabilitation requirement must provide that

the results of tests carried out on any samples provided by the offender

pursuant to the requirement to a person other than the responsible officer are

to be communicated to the responsible officer.

Drug rehabilitation requirement: Provision for review by court.

533.(1) An order imposing a drug rehabilitation requirement may, and must

if the treatment and testing period is for more than 12 months–

(a) provide for the requirement to be reviewed periodically at

intervals of not less than one month;

(b) provide for each review of the requirement to be made, subject

to section 534(5), at a hearing held for the purpose by the court

responsible for the order;

(d) provide for the responsible officer to make to the court

responsible for the order, before each review, a report in

writing on the offender’s progress under the requirement; and

(e) provide for each such report to include the test results

communicated to the responsible officer under section 532(5).

Criminal Procedure and Evidence

2011-24

(2) In this section a reference to the court responsible for an order

imposing a drug rehabilitation requirement is a reference to the court by

which the order is made.

(3) If an order imposing a drug rehabilitation requirement has been made

on an appeal brought from the Supreme Court or from the Court of Appeal,

for the purposes of subsection (2), it is to be taken to have been made by the

Supreme Court.

Periodic review of drug rehabilitation requirement.

534.(1) At a review hearing the court may, after considering the responsible

officer’s report referred to in that subsection, amend the order, so far as it

relates to the drug rehabilitation requirement.

(2) The court–

(a) may not amend the drug rehabilitation requirement unless the

offender expresses his willingness to comply with the

requirement as amended;

(b) may not amend any provision of the order so as to reduce the

period for which the drug rehabilitation requirement has effect

below the minimum specified in section 532(3); and

requirement or provision of the order while an appeal against

the order is pending.

(3) If the offender fails to express his willingness to comply with the drug

rehabilitation requirement as proposed to be amended by the court, the court

may–

(a) revoke the order; and

(b) deal with him, for the offence in respect of which the order was

made, in any way in which he could have been dealt with for

that offence by the court which made the order if the order had

not been made.

(4) In dealing with the offender under subsection (3)(b), the court must

take into account the extent to which the offender has complied with the

requirements of the order.

(5) If at a review hearing the court, after considering the responsible

officer’s report, is of the opinion that the offender’s progress under the

requirement is satisfactory, the court may amend the order so as to provide

for each subsequent review to be made by the court without a hearing.

Criminal Procedure and Evidence

2011-24

(6) If at a review without a hearing the court, after considering the

responsible officer’s report, is of the opinion that the offender’s progress

under the requirement is no longer satisfactory, the court may require the

offender to attend a hearing of the court at a specified time and place.

(7) At that hearing the court, after considering that report, may–

(a) exercise the powers conferred by this section as if the hearing

were a review hearing; and

(b) so amend the order as to provide for each subsequent review to

be made at a review hearing.

(8) In this section a reference to the court, in relation to a review without a

hearing, is to be read–

(a) in the case of the Supreme Court - as a reference to a judge of

the court;

(b) in the case of the Magistrates’ Court - as a reference to a

magistrate.

Alcohol treatment requirement.

535.(1) In this Part “alcohol treatment requirement” means a requirement

that the offender must submit, during a period specified in the order, to

treatment by or under the direction of a specified person who has the

necessary qualifications or experience with a view to the reduction or

elimination of the offender’s dependency on alcohol.

(2) A court may not impose an alcohol treatment requirement in respect of

an offender unless it is satisfied that–

(a) he is dependent on alcohol;

(b) his dependency is such as requires and may be susceptible to

treatment; and

intended to be specified in the order, including arrangements

for the reception of the offender if he is required to submit to

treatment as a resident.

(3) A court may not impose an alcohol treatment requirement unless the

offender expresses his willingness to comply with its requirements.

Criminal Procedure and Evidence

2011-24

(4) The period for which the alcohol treatment requirement has effect

must not be less than 6 months.

(5) The treatment required by an alcohol treatment requirement for any

particular period must be–

(a) treatment as a resident in or at an institution or place specified

in the order;

(b) treatment as a non-resident in or at an institution or place, and

at intervals, so specified; or

necessary qualifications or experience who is so specified,

but the nature of the treatment must not be specified in the order except as

mentioned in paragraph (a), (b) or (c).

Intoxicating substance treatment requirement.

536.(1) In this Part, “intoxicating substance treatment requirement” means

a requirement that the offender must submit, during a period or periods

specified in the order, to treatment, by or under the direction of a person so

specified who has the necessary qualifications or experience, with a view to

the reduction or elimination of the offender’s dependency on or propensity

to misuse intoxicating substances.

(2) A court may not include an intoxicating substance treatment

requirement in a youth rehabilitation order unless it is satisfied that–

(a) the offender is dependent on, or has propensity to misuse,

intoxicating substances; and

(b) the offender’s dependency or propensity is such as requires and

may be susceptible to treatment.

(3) The treatment required during a period specified under subsection (1)

must be–

(a) treatment as a resident in or at an institution or place specified

in the order;

(b) treatment as a non-resident in or at an institution or place, and

at intervals, as so specified; or

necessary qualifications or experience as so specified,

Criminal Procedure and Evidence

2011-24

but the nature of the treatment must not be specified in the order except as

mentioned in paragraph (a), (b) or (c).

(4) A court may not include an intoxicating substance treatment

requirement in a youth rehabilitation order unless–

(a) the requirement has been recommended to the court as suitable

to the offender by a probation officer;

(b) the offender has expressed his willingness to comply with the

requirement; and

made for the treatment intended to be specified in the order,

including arrangements for the reception of the offender if he is

required to submit to treatment as a resident.

(5) In this section “intoxicating substance” means–

(a) alcohol;

(b) any other substance or product (other than a controlled drug)

which is, or the fumes of which are, capable of being inhaled

or otherwise used for the purpose of causing intoxication.

Supervision requirement.

537.(1) In this Part “supervision requirement” means a requirement that,

during the period for which the order remains in force, the offender must

attend appointments with the responsible officer or another person decided

by the responsible officer, at a time and place decided by the responsible

officer.

(2) The purpose for which a supervision requirement may be imposed is

that of promoting the offender’s rehabilitation.

Further provisions about relevant orders

Relevant order made by Supreme Court: Direction in relation to

further proceedings.

538.(1) If the Supreme Court imposes a relevant order under this Part, it

may include in the order a direction that further proceedings relating to the

sentence are to be in the Magistrates’ Court.

(2) If a direction is given under subsection (1), and the Magistrates’ Court

would be required, or has the power, to deal with the offender in one of the

ways mentioned in section 550, the court may instead–

Criminal Procedure and Evidence

2011-24

(a) commit the offender in custody; or

(b) release the offender on bail,

until the offender can be brought or appear before the Supreme Court.

(3) If the Magistrates’ Court deals with the case under subsection (2) it

must send to the Supreme Court–

(a) a certificate signed by a magistrate certifying that the offender

has failed to comply with the community sentence in the

respect specified in the certificate; and

(b) such other particulars of the case as are appropriate,

and a certificate purporting to be so signed is admissible as evidence of the

failure before the Supreme Court.

(4) In subsection (1), “further proceedings”, in relation to an order, means

proceedings–

(a) for any failure to comply with the order; or

(b) on any application for amendment or revocation of the order.

Relevant orders made on appeal.

539. If a relevant order has been made on appeal, for the purposes of this

Part it is to be treated–

(a) if it was made on appeal from the Magistrates’ Court - as

having been made by the Magistrates’ Court;

(b) if it was made on an appeal brought from the Supreme Court or

the Court of Appeal - as having been made by the Supreme

Court.

Duties of responsible officer.

540. When a relevant order has effect, it is the duty of the responsible

officer–

(a) to make any arrangements that are necessary in connection

with the requirements imposed by the order;

(b) to promote the offender’s compliance with those requirements;

and

Criminal Procedure and Evidence

2011-24

Requirement must avoid conflict with religious beliefs, etc.

541. The court must ensure, as far as practicable, that any requirement

imposed by a relevant order is such as to avoid–

(a) any conflict with the offender’s religious beliefs; and

(b) any interference with the times, if any, at which he normally

works or attends school or any other educational establishment.

Provision of copies of relevant orders.

542.(1) The appropriate officer of the court by which any relevant order is

made must provide copies of the order–

(a) to the offender;

(b) if the offender is aged under 14 - to the offender’s parent or

guardian; and

(2) If an order imposes any of the following requirements, the court by

which the order is made must also provide the person specified in relation to

that requirement with a copy of so much of the order as relates to that

requirement–

(a) an activity requirement. - the person specified in section

524(1)(a);

(b) an exclusion requirement imposed for the purpose (or partly for

the purpose) of protecting a person from being approached by

the offender - the person intended to be protected;

- the individual specified in section 529(1)(b);

(d) a residence requirement relating to residence in an institution -

the person in charge of the institution;

(e) a mental health treatment requirement - the person specified

under section 530(2)(d) or the person in charge of the

institution or place specified under section 530(2)(a), (b) or (c);

Criminal Procedure and Evidence

2011-24

(f) a drug rehabilitation requirement - the person in charge of the

institution or place specified under section 531(3)(a) or (b);

(g) an alcohol treatment requirement - the person specified under

section 535(5)(c) or the person in charge of the institution or

place specified under section 535(5)(a) or (b);

(h) an intoxicating substance treatment requirement - the person

specified in section 536(3)(c) or the person in charge of the

institution or place specified under section 536(3)(a) or (b).

(3) On the making of an order revoking or amending a relevant order, the

appropriate officer of the court must–

(a) provide copies of the revoking or amending order to–

(i) the offender;

(ii) if the offender is aged under 14 - the offender’s parent or

guardian; and

(iii) the responsible officer;

(b) in the case of an amending order which imposes or amends a

requirement specified in subsection (2)(a) to (h) - provide a

copy of the revoking or amending order to the person specified

in relation to that requirement.

(4) In this section “appropriate officer” means–

(a) in relation to the Magistrates’ Court - the clerk or some other

officer authorised by him to act for that purpose; and

(b) in relation to the Supreme Court - the Registrar or some other

officer authorised by him to act for that purpose.

Duty of offender to keep in touch with responsible officer.

543.(1) An offender in respect of whom a relevant order is in force–

(a) must keep in touch with the responsible officer in accordance

with any instructions as he is from time to time given by that

officer; and

(b) must notify him of any change of address.

(2) The obligation imposed by subsection (1) is enforceable as if it were a

requirement imposed by the order.

Criminal Procedure and Evidence

2011-24

Breach of requirement of community sentence

Community order: Duty to give warning.

544.(1) If the responsible officer is of the opinion that the offender has

failed without reasonable excuse to comply with any of the requirements of

a community order, the officer must give him a warning under this section

unless–

(a) the offender has within the previous 12 months been given a

warning under this section in relation to a failure to comply

with any of the requirements of the community order; or

(b) the officer causes an information to be laid before a magistrate.

(2) A warning under this section must–

(a) describe the circumstances of the failure;

(b) state that the failure is unacceptable; and

fails to comply with any requirement of the order, he will be

liable to be brought before a court.

(3) The responsible officer must, as soon as practicable after the warning

has been given, record that fact.

(4) In relation to any community order which was made by the Supreme

Court and does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by the Magistrates’ Court, the

reference in subsection (1)(b) to a magistrate is to be read as a reference to

the Supreme Court.

Community order: Breach of order after warning.

545.(1) If–

(a) the responsible officer has given a warning under section 544

to the offender in respect of a community order; and

(b) at any time within the 12 months beginning with the date on

which warning was given, the responsible officer is of the

opinion that the offender has since that date failed without

reasonable excuse to comply with any of the requirements of

the community order,

Criminal Procedure and Evidence

2011-24

the officer must cause an information to be laid before a magistrate in

respect of the failure in question.

(2) In relation to any community order which was made by the Supreme

Court and does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by the Magistrates’ Court, the

reference in subsection (1) to a magistrate is to be read as a reference to the

Supreme Court.

Youth rehabilitation order: Duty to give warning.

546.(1) If the responsible officer is of the opinion that the offender has

failed without reasonable excuse to comply with a youth rehabilitation

order, the responsible officer must give the offender a warning under this

section unless under section 547(1) or (3) the responsible officer causes an

information to be laid before a magistrate in respect of that failure.

(2) A warning under this section must–

(a) describe the circumstances of the failure;

(b) state that the failure is unacceptable; and

court–

(i) if the warning was given during the warned period

relating to a previous warning under this section - if

during that period the offender again fails to comply with

the order; or

(ii) in any other case - if during the warned period relating to

the warning, the offender fails on more than one

occasion to comply with the order.

(3) The responsible officer must, as soon as practicable after the warning

has been given, record that fact.

(4) In relation to a youth rehabilitation order which was made by the

Supreme Court and does not include a direction that any failure to comply

with the requirements of the order is to be dealt with by the Magistrates’

Court, the reference in subsection (1) to a magistrate is to be read as a

reference to the Supreme Court.

Youth rehabilitation order: Breach of order after warning.

547.(1) If the responsible officer–

Criminal Procedure and Evidence

2011-24

(a) has given a warning (the “first warning”) under section 546 to

the offender in respect of a youth rehabilitation order;

(b) during the warned period relating to the first warning, has

given another warning under that section to the offender in

respect of a failure to comply with the order; and

first warning, the offender has again failed without reasonable

excuse to comply with the order,

the responsible officer must cause an information to be laid before a

magistrate in respect of the failure mentioned in paragraph (c).

(2) Subsection (1) does not apply if the responsible officer is of the

opinion that there are exceptional circumstances which justify not causing

an information to be so laid.

(3) If the responsible officer is of the opinion that the offender has failed

without reasonable excuse to comply with a youth rehabilitation order and

subsection (1) does not apply, the responsible officer may cause an

information to be laid before a magistrate in respect of that failure.

(4) In relation to any youth rehabilitation order which was made by the

Supreme Court and does not include a direction that any failure to comply

with the requirements of the order is to be dealt with by the Magistrates’

Court, the reference in subsections (1) and (3) to a magistrate is to be read

as a reference to the Supreme Court.

Issue of summons or warrant by magistrate.

548.(1) This section applies to–

(a) a relevant order made by the Magistrates’ Court;

(b) a relevant order made by the Supreme Court which includes a

direction that a failure to comply with the requirements of the

order is to be dealt with by the Magistrates’ Court.

(2) If at any time while a relevant order to which this section applies is in

force it appears to a magistrate that the offender has failed to comply with

any of the requirements of the order, the magistrate may–

(a) issue a summons requiring the offender to appear at the place

and time specified in it; or

(b) if the information is in writing and on oath - issue a warrant for

his arrest.

Criminal Procedure and Evidence

2011-24

(3) A summons or warrant issued under this section must direct the

offender to appear or be brought before the Magistrates’ Court.

Issue of summons or warrant by Supreme Court.

549.(1) This section applies to a relevant order made by the Supreme Court

which does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by the Magistrates’ Court.

(2) If at any time while an order to which this section applies is in force it

appears on information to the Supreme Court that the offender has failed to

comply with any of the requirements of the order, the Supreme Court may–

(a) issue a summons requiring the offender to appear at the place

and time specified in it; or

(b) if the information is in writing and on oath - issue a warrant for

his arrest.

(3) Any summons or warrant issued under this section must direct the

offender to appear or be brought before the Supreme Court.

(4) If a summons issued under subsection (2)(a) requires the offender to

appear before the Supreme Court and the offender does not appear in

answer to the summons, the Supreme Court may issue a warrant for the

arrest of the offender.

Powers of Magistrates’ Court on breach.

550.(1) If an offender appears or is brought before the Magistrates’ Court

under section 548 and the court is satisfied that he has failed without

reasonable excuse to comply with any of the requirements of the order, the

court must deal with him in respect of the failure in one of the following

ways–

(a) if the offender is aged under 18, or if the order is a youth

rehabilitation order - by ordering the offender to pay a fine

limited to the amount specified in Schedule 9 Part B or C, as

the case may be;

(b) subject to relevant requirements of this Part, by amending the

terms of the order so as to impose more onerous requirements

which the court could include if it were then making an order;

with him, for the offence in respect of which the order was

Criminal Procedure and Evidence

2011-24

made, in any way in which the court could deal with him if he

had just been convicted by it of the offence.

(2) In dealing with an offender under subsection (1), the Magistrates’

Court must take into account the extent to which the offender has complied

with the requirements of the order.

(3) In dealing with an offender under subsection (1)(b), the court may

extend the duration of particular requirements, subject to any limit imposed

by this Part, but may not extend the period specified under section 521(3) or

522(3).

(4) If–

(a) the court is dealing with the offender under subsection (1)(b);

and

(b) the order does not contain an unpaid work requirement,

section 523(2)(a) applies in relation to the inclusion of a requirement as if

for “40” there were substituted “20”.

(5) If the court deals with an offender under subsection (1)(c) it must first

revoke the order if it is still in force.

(6) If an order was made by the Supreme Court and the Magistrates’ Court

would, apart from this subsection, be required to deal with the offender

under subsection (1), it may instead commit him to custody or release him

on bail until he can be brought or appear before the Supreme Court.

(7) If the Magistrates’ Court deals with an offender under subsection (6) it

must send to the Supreme Court−

(a) a certificate signed by a magistrate certifying that the offender

has failed to comply with the requirements of the order in the

respect specified in the certificate; and

(b) any other particulars of the case that are appropriate,

and a certificate purporting to be so signed is admissible as evidence of the

failure before the Supreme Court.

(8) A person sentenced under subsection (1)(c) for an offence may appeal

to the Supreme Court against the sentence.

(9) A fine imposed under subsection (1)(a) is to be treated as a sum

adjudged to be paid on a conviction.

Criminal Procedure and Evidence

2011-24

Powers of Supreme Court on breach.

551.(1) If under section 549 or by virtue of section 550(6) an offender

appears or is brought before the Supreme Court and it is proved to the

satisfaction of that court that he has failed without reasonable excuse to

comply with any of the requirements of the order, the Supreme Court must–

(a) if the offender is aged under 18, or if the order is a youth

rehabilitation order, order the offender to pay a fine limited to

the amount specified in Schedule 9 Part B or C, as the case

may be;

(b) subject to relevant requirements of this Part, amend the terms

of the order so as to impose more onerous requirements which

the Supreme Court could impose if it were then making the

order; or

order was made, in any way in which he could have been dealt

with for that offence by the court which made the order if the

order had not been made.

(2) In dealing with an offender under subsection (1), the Supreme Court

must take into account the extent to which the offender has complied with

the requirements of the order.

(3) In dealing with an offender under subsection (1)(b), the court may

extend the duration of particular requirements, subject to any limit imposed

by this Part, but may not extend the period specified under section 521(3) or

522(3).

(4) If–

(a) the court is dealing with the offender under subsection (1)(b);

and

(b) the order does not contain an unpaid work requirement,

section 523(2)(a) applies in relation to the inclusion of such a requirement

as if for “40” there were substituted “20”.

(5) If the Supreme Court deals with an offender under subsection (1)(c), it

must first revoke the order if it is still in force.

(6) In proceedings before the Supreme Court under this section any

question whether the offender has complied with the requirements of the

order is to be decided by the court and not by the verdict of the jury.

Criminal Procedure and Evidence

2011-24

(7) A fine imposed under subsection (1)(a) is to be treated as a sum

adjudged to be paid on a conviction.

Restriction of powers when treatment required.

552.(1) An offender who is required by any of the following requirements

of an order–

(a) a mental health treatment requirement;

(b) a drug rehabilitation requirement;

(d) an intoxicating substance treatment requirement,

to submit to treatment for his mental condition, or his dependency on or

propensity to misuse drugs, alcohol, or any other intoxicating substance, is

not to be treated for the purposes of section 550 or 551 as having failed to

comply with that requirement on the ground only that he had refused to

undergo any surgical, electrical or other treatment if, in the opinion of the

court, his refusal was reasonable having regard to all the circumstances.

(2) A court may not under section 550(1)(b) or 551(1)(b) amend a mental

health treatment requirement, a drug rehabilitation requirement, an alcohol

treatment requirement or an intoxicating substance treatment requirement

unless the offender expresses his willingness to comply with the

requirement as amended.

Revocation and amendment of relevant orders

Revocation of relevant order by Magistrates’ Court.

553.(1) This section applies if a relevant order, other than an order made by

the Supreme Court and falling within section 554(1)(a), is in force and on

the application of the offender or the responsible officer it appears to the

Magistrates’ Court that, having regard to circumstances which have arisen

since the order was made, it would be in the interests of justice–

(a) for the order to be revoked; or

(b) for the offender to be dealt with in some other way for the

offence in respect of which the order was made.

(2) The Magistrates’ Court may–

(a) revoke the order; or

Criminal Procedure and Evidence

2011-24

(b) both–

(i) revoke the order; and

(ii) deal with the offender, for the offence in respect of

which the order was made, in any way in which it could

deal with him if he had just been convicted by the court

of the offence.

(3) The circumstances in which a relevant order may be revoked under

subsection (2) include the offender making good progress or his responding

satisfactorily to supervision or treatment, as the case requires.

(4) In dealing with an offender under subsection (2)(b), the Magistrates’

Court must take into account the extent to which the offender has complied

with the requirements of the order.

(5) A person sentenced under subsection (2)(b) for an offence may appeal

to the Supreme Court against that sentence.

(6) If the Magistrates’ Court proposes to exercise its powers under this

section otherwise than on the application of the offender, it must summon

him to appear before the court and, if he does not appear in answer to the

summons, may issue a warrant for his arrest.

Revocation of relevant order by Supreme Court.

554.(1) This section applies if–

(a) there is in force a relevant order made by the Supreme Court

which does not include a direction that any failure to comply

with the requirements of the order is to be dealt with by the

Magistrates’ Court; and

(b) the offender or the responsible officer applies to the Supreme

Court for the order to be revoked or for the offender to be dealt

with in some other way for the offence in respect of which the

order was made.

(2) If it appears to the Supreme Court to be in the interests of justice to do

so, having regard to circumstances which have arisen since the order was

made, the Supreme Court may–

(a) revoke the order; or

(b) both–

(i) revoke the order; and

Criminal Procedure and Evidence

2011-24

(ii) deal with the offender, for the offence in respect of

which the order was made, in any way in which he could

have been dealt with for that offence by the court which

made the order if the order had not been made.

(3) The circumstances in which an order may be revoked under subsection

(2) include the offender making good progress or his responding

satisfactorily to supervision or treatment, as the case requires.

(4) In dealing with an offender under subsection (2)(b), the Supreme

Court must take into account the extent to which the offender has complied

with the requirements of the order.

(5) If the Supreme Court proposes to exercise its powers under this section

otherwise than on the application of the offender, it must summon him to

appear before the court and, if he does not appear in answer to the

summons, may issue a warrant for his arrest.

Amendment of requirements of a relevant order.

555.(1) The appropriate court may, on the application of the offender or the

responsible officer, by order amend a relevant order–

(a) by cancelling any of the requirements of the order; or

(b) subject to relevant requirements of this Part, by replacing any

of those requirements with a requirement of the same kind,

which the court could include if it were then making the order.

(2) The court may not under this section amend a mental health treatment

requirement, a drug rehabilitation requirement, an alcohol treatment

requirement or an intoxicating substance treatment requirement unless the

offender expresses his willingness to comply with the requirement as

amended.

(3) If the offender fails to express his willingness to comply with one of

those requirements as proposed to be amended by the court under this

section, the court may–

(a) revoke the order; and

(b) deal with him, for the offence in respect of which the order was

made, in any way in which he could have been dealt with for

that offence by the court which made the order if the order had

not been made.

Criminal Procedure and Evidence

2011-24

(4) In dealing with the offender under subsection (3)(b), the court must

take into account the extent to which the offender has complied with the

requirements of the order.

(5) In this section “the appropriate court” means–

(a) in relation to any relevant order imposing a drug rehabilitation

requirement which is subject to review - the court responsible

for the order;

(b) in relation to any relevant order which was made by the

Supreme Court and does not include any direction that any

failure to comply with the requirements of the order is to be

dealt with by the Magistrates’ Court - the Supreme Court; and

Amendment of treatment requirements.

556.(1) If the medical practitioner or other person by whom or under whose

direction an offender is, pursuant to a mental health treatment requirement, a

drug rehabilitation requirement, an alcohol treatment requirement or an

intoxicating substance treatment requirement, being treated for his mental

condition or his dependency on or propensity to misuse drugs, alcohol or

any other intoxicating substance–

(a) is of the opinion mentioned in subsection (2); or

(b) is for any reason unwilling to continue to treat or direct the

treatment of the offender,

he must make a report in writing to that effect to the responsible officer and

that officer must apply under section 555 to the appropriate court for the

variation or cancellation of the requirement.

(2) The opinion mentioned in subsection (1) is that–

(a) the treatment of the offender should be continued beyond the

period specified in the order;

(b) the offender needs different treatment;

(d) the offender does not require further treatment.

(3) In this section “appropriate court” has the same meaning as in section

555.

Criminal Procedure and Evidence

2011-24

Amendment in relation to review of drug rehabilitation requirement.

557. If the responsible officer is of the opinion that an order imposing a

drug rehabilitation requirement which is subject to review should be so

amended as to provide for each subsequent periodic review required by

section 534 (Periodic review of drug rehabilitation requirement) to be made

without a hearing instead of at a review hearing, or vice versa, he must

apply under section 555 to the court responsible for the order for the

variation of the order.

Extension of unpaid work requirement.

558.(1) If–

(a) an order imposing an unpaid work requirement is in force in

respect of any offender; and

(b) on the application of the offender or the responsible officer, it

appears to the appropriate court, that it would be in the

interests of justice to do so having regard to circumstances

which have arisen since the order was made,

the court may extend the period of 12 months specified in section 523.

(2) In this section “the appropriate court” has the same meaning as in

section 555.

Powers of court following subsequent conviction

Powers of Magistrates’ Court following subsequent conviction.

559.(1) This section applies if–

(a) an offender in respect of whom a relevant order made by the

Magistrates’ Court is in force is convicted of an offence by the

Magistrates’ Court; and

(b) it appears to the court that it would be in the interests of justice

to exercise its powers under this section, having regard to

circumstances which have arisen since the order was made.

(2) The Magistrates’ Court may–

(a) revoke the order; or

(b) both–

Criminal Procedure and Evidence

2011-24

(i) revoke the order; and

(ii) deal with the offender, for the offence in respect of

which the order was made, in any way in which he could

have been dealt with for that offence by the court which

made the order if the order had not been made.

(3) In dealing with an offender under subsection (2)(b), the Magistrates’

Court must take into account the extent to which the offender has complied

with the requirements of the order.

(4) A person sentenced under subsection (2)(b) for an offence may appeal

to the Supreme Court against that sentence.

Powers when relevant order made by Supreme Court.

560.(1) If an offender in respect of whom a relevant order made by the

Supreme Court is in force is convicted of an offence by the Magistrates’

Court, the Magistrates’ Court may commit the offender in custody or release

him on bail until he can be brought before the Supreme Court.

(2) If the Magistrates’ Court deals with an offender under subsection (1),

it must send to the Supreme Court such particulars of the case as are

appropriate.

Powers of Supreme Court following subsequent conviction.

561.(1) This section applies if–

(a) an offender in respect of whom a relevant order is in force–

(i) is convicted of an offence by the Supreme Court; or

(ii) is brought or appears before the Supreme Court by virtue

of section 560 or having been committed by the

Magistrates’ Court to the Supreme Court for sentence;

and

(b) it appears to the Supreme Court that it would be in the interests

of justice to exercise its powers under this section, having

regard to circumstances which have arisen since the order was

made.

(2) The Supreme Court may–

(a) revoke the order; or

(b) both–

Criminal Procedure and Evidence

2011-24

(i) revoke the order; and

(ii) deal with the offender, for the offence in respect of

which the order was made, in any way in which he could

have been dealt with for that offence by the court which

made the order if the order had not been made.

(3) In dealing with an offender under subsection (2)(b), the Supreme

Court must take into account the extent to which the offender has complied

with the requirements of the order.

Supplementary

Restrictions on imposing community sentences.

562.(1) A court must not pass a community sentence on an offender unless

it is of the opinion that the offence, or the combination of the offence and

one or more offences associated with it, was serious enough to warrant such

a sentence.

(2) If a court passes a community sentence which consists of or includes a

community order or a youth rehabilitation order–

(a) the particular requirement or requirements forming part of the

order must be such as, in the opinion of the court, is, or taken

together are, the most suitable for the offender; and

(b) the restrictions on liberty imposed by the order must be such as

in the opinion of the court are commensurate with the

seriousness of the offence, or the combination of the offence

and one or more offences associated with it.

(3) In determining the restrictions on liberty to be imposed by a

community order or youth rehabilitation order in respect of an offence, the

court may have regard to any period for which the offender has been

remanded in custody in connection with the offence or any other offence the

charge for which was founded on the same facts or evidence.

No relevant order to be made while appeal pending.

563.(1) Subject to subsection (2), no application in respect of a relevant

order may be made under any of sections 553 to 558 while an appeal against

the order is pending.

(2) Subsection (1) does not apply to an application under 555 which–

Criminal Procedure and Evidence

2011-24

(a) relates to a mental health treatment requirement, a drug

rehabilitation requirement, an alcohol treatment requirement or

an intoxicating substance treatment requirement; and

(b) is made by the responsible officer with the consent of the

offender.

Issue of summons or warrant under certain sections.

564.(1) Subject to subsection (2), if a court proposes to exercise its powers

under any of sections 555 to 561, otherwise than on the application of the

offender, the court–

(a) must summon him to appear before the court; and

(b) if he does not appear in answer to the summons, may issue a

warrant for his arrest.

(2) This section does not apply to an order cancelling a requirement of an

order or reducing the period of any requirement, or substituting a new place

for the one specified in the order.

Regulations.

565.(1) The Minister may by regulations regulate–

(a) the supervision of persons who are subject to relevant orders;

(b) without limiting paragraph (a), the functions of responsible

officers in relation to offenders subject to an order;

Care Agency, as the case may be, for persons subject to unpaid

work requirements to perform work and the performance of

such work;

(d) the attendance of persons subject to activity requirements at the

places at which they are required to attend, including hours of

attendance, reckoning days of attendance and the keeping of

attendance records.

(2) Regulations made under subsection (1)(c) may, in particular, make

provision–

(a) limiting the number of hours of work to be done by a person on

any one day;

Criminal Procedure and Evidence

2011-24

(b) as to the reckoning of hours worked and the keeping of work

records; and

with the performance of work.

Hearing by Magistrates’ Court.

566.(1) This section applies to any hearing in relation to an offender held

by the Magistrates’ Court in any proceedings under this Part.

(2) The court may adjourn the hearing, and if it does so may–

(a) direct that the offender be released forthwith; or

(b) remand the offender.

(3) If the court remands the offender under subsection (2)–

(a) it must fix the time and place at which the hearing is to be

resumed; and

(b) that time and place must be the time and place at which the

offender is required to appear or be brought before the court by

virtue of the remand.

(4) If the court adjourns the hearing under subsection (2) but does not

remand the offender–

(a) it may fix the time and place at which the hearing is to be

resumed;

(b) if it does not do so, it must not resume the hearing unless it is

satisfied that the offender, the responsible officer and, if the

offender is aged under 14, a parent or guardian of the offender,

have had adequate notice of the time and place for the resumed

hearing.

Power to provide for court review of relevant orders.

567. Rules of court may make provision–

(a) enabling or requiring a court that makes a relevant order, or

another court, to review the order periodically;

(b) enabling a court to amend a relevant order so as to include or

remove a provision for review by a court; and

Criminal Procedure and Evidence

2011-24

court on a review.

PART 23 – FINES AND RECOGNIZANCES

Imposing of fines

Power to order statement as to offender’s financial circumstances.

568.(1) If an individual has been convicted of an offence, the court may,

before sentencing him, make a financial circumstances order with respect to

him.

(2) If the Magistrates’ Court has been notified that an individual desires to

plead guilty without appearing before the court, the court may make a

financial circumstances order with respect to him.

(3) In this section “a financial circumstances order” means, in relation to

any individual, an order requiring him to give to the court, within a period

specified in the order, such a statement of his financial circumstances as the

court requires.

(4) An individual who without reasonable excuse fails to comply with a

financial circumstances order is liable on summary conviction to a fine at

level 3 on the standard scale.

(5) If an individual, in furnishing any statement for purposes of a financial

circumstances order–

(a) makes a statement which he knows to be false in a material

particular;

(b) recklessly furnishes a statement which is false in a material

particular; or

he is liable on summary conviction to a fine at level 4 on the standard scale.

(6) Proceedings in respect of an offence under subsection (5) may,

notwithstanding any rule about limitation of time, be commenced at any

time within 2 years from the date of the commission of the offence or within

6 months from its first discovery by the prosecutor, whichever period

expires the earlier.

General power of Supreme Court to fine offender convicted on

indictment.

Criminal Procedure and Evidence

2011-24

569.(1) If a person is convicted on indictment of any offence, other than an

offence for which the sentence is fixed by law, the Supreme Court may

impose a fine instead of or in addition to dealing with him in any other way

in which the court has power to deal with him.

(2) Subsection (1)–

(a) does not apply if the court is precluded from sentencing an

offender by its exercise of some other power;

(b) is subject to any enactment requiring the offender to be dealt

with in a particular way.

Standard scale of fines.

570.(1) The standard scale of fines for offences is as set out in Part A of

Schedule 9.

(2) The statutory maximum fine is the highest level of fine on the standard

scale.

(3) Any provision in an enactment that provides–

(a) that a person convicted of an offence is liable on conviction to

the statutory maximum fine, or a fine at a specified level on the

standard scale; or

(b) confers power by subsidiary legislation to make a person liable

on conviction of an offence to the statutory maximum fine, or a

fine at a specified level on the standard scale,

is to be construed as referring respectively to the statutory maximum fine or

the standard scale as set out in Schedule 9 from time to time.

Fixing of fines.

571.(1) Before fixing the amount of any fine to be imposed on an offender

who is an individual, a court must inquire into his financial circumstances.

(2) The amount of any fine fixed by a court must be such as, in the

opinion of the court, reflects the seriousness of the offence.

(3) In fixing the amount of any fine to be imposed on an offender

(whether an individual or other person), a court must take into account the

circumstances of the case including, among other things, the financial

circumstances of the offender so far as they are known, or appear, to the

court.

Criminal Procedure and Evidence

2011-24

(4) Subsection (3) applies whether taking into account the financial

circumstances of the offender has the effect of increasing or reducing the

amount of the fine.

(5) If an offender has–

(a) been convicted in his absence;

(b) failed to comply with an order under section 568(1); or

his financial circumstances,

and the court considers that it has insufficient information to make a proper

determination of the financial circumstances of the offender, it may make

such determination as it thinks fit.

Remission of fines.

572.(1) This section applies if a court has, in fixing the amount of a fine,

determined the offender’s financial circumstances under section 571.

(2) If, on subsequently inquiring into the offender’s financial

circumstances, the court is satisfied that had it had the results of that inquiry

when sentencing the offender it would–

(a) have fixed a smaller amount; or

(b) not have fined him,

it may remit the whole or part of the fine.

(3) If under this section the court remits the whole or part of a fine after a

term of imprisonment has been fixed under section 579 it must reduce the

term by the corresponding proportion.

(4) In calculating any reduction required by subsection (3), any fraction of

a day is to be ignored.

(5) The Magistrates’ Court must not remit the whole or any part of a fine

imposed by, or sum due under a recognizance forfeited by–

(a) the Supreme Court;

(b) the Court of Appeal; or

Criminal Procedure and Evidence

2011-24

without the consent of the Supreme Court.

Power to allow time, etc.

573.(1) If a fine is imposed by, or a recognizance is forfeited before a court,

the court, on application by or on behalf of the person liable to make the

payment, may make an order–

(a) allowing time for the payment of the fine or the amount due

under the recognizance;

(b) directing payment of that amount by instalments of the

amounts and on the dates specified in the order;

reducing the amount due under it.

(2) The court on ordering a person to pay a fine or recognizance must,

unless a warrant of distress is issued under section 581, allow him at least 7

days to pay the sum or the first instalment of the sum.

(3) If the court has allowed time for payment, the court may allow further

time or order payment by instalments.

(4) If a court refuses to allow time for payment, it must state the reasons

for not allowing the person time to pay.

(5) If time is allowed for payment, or payment by instalments is ordered,

the court must not when convicting impose a term of imprisonment in the

event of a future default in paying the sum unless the offender is present and

the court decides that for special reason, whether having regard to the

gravity of the offence, to the character of the offender or other special

circumstances, it is expedient that in default of payment he should be

imprisoned without further inquiry.

(6) If a court has ordered payment by instalments and default is made in

the payment of any one instalment, proceedings may be taken as if the

default had been made in the payment of all the instalments then remaining

unpaid.

(7) The power conferred by this section to discharge a recognizance or

reduce the amount due under it is in addition to the powers conferred by any

other law relating to the discharge, cancellation, mitigation or reduction of

recognizances or sums forfeited under them.

(8) This section does not apply to a fine imposed by the Supreme Court on

appeal from a decision of the Magistrates’ Court.

Criminal Procedure and Evidence

2011-24

Part payment and defaults of instalments.

574.(1) If an order is made under section 573 directing payment by

instalments of a fine or an amount due under a recognizance, and default is

made in the payment of any instalment, the same proceedings may be taken

as if default had been made in payment of all the instalments then remaining

unpaid.

(2) When an order as mentioned in subsection (1) has been made, then–

(a) on payment of the fine or the amount to the appropriate

authority or, if the person in respect of whom the order is made

is in prison, the Superintendent - the order ceases to have

effect, and, if the person is in prison and is not liable to be

detained for any other cause, he must forthwith be discharged;

(b) on payment to the appropriate authority or the Superintendent

of part of the fine or of the amount - the total number of days in

the term of imprisonment must be reduced by such number of

days as bears to the total number of days less one day the

proportion most nearly approximating to, without exceeding,

the proportion which the part paid bears to the amount of the

fine or amount.

(3) Any sums received by the Superintendent under subsection (2) must be

paid by him to the appropriate authority.

(4) In this section, “appropriate authority” means–

(a) in relation to the Magistrates’ Court - the clerk of the court;

(b) in any other case - the Registrar.

Juvenile offenders

Limit on fines imposed by Magistrates’ Court in respect of juveniles.

575.(1) The maximum fine that can be imposed on a child for any offence

is as prescribed in Part B of Schedule 9.

(2) The maximum fine that can be imposed on a young person for any

offence is as prescribed in Part C of Schedule 9.

Power to order statement as to financial circumstances of parent or

guardian.

576.(1) Before exercising its powers under section 577 against the parent or

guardian of an individual who has been convicted of an offence, the court

Criminal Procedure and Evidence

2011-24

may make a financial circumstances order with respect to the parent or (as

the case may be) guardian.

(2) In this section “financial circumstances order” has the meaning given

by subsection (3) of section 568, and subsections (4) to (6) of that section

apply in relation to a financial circumstances order made under this section

as they apply in relation to such an order made under that section.

Power to order parent or guardian to pay fine, costs or compensation.

577.(1) If–

(a) a juvenile is convicted of any offence for the commission of

which a fine or costs may be imposed or a compensation order

may be made; and

(b) the court is of the opinion that the case would best be met by

the imposition of a fine or costs or the making of such an order,

whether with or without any other penalty,

the court must order that the fine, compensation or costs awarded be paid by

the parent or guardian of the juvenile instead of by the juvenile himself,

unless the court is satisfied–

(a) that the parent or guardian cannot be found; or

(b) that it would be unreasonable to make an order for payment,

having regard to the circumstances of the case.

(2) If but for this subsection a court would impose a fine on a juvenile for

a breach of any order or condition imposed by a court, the court must order

that the fine be paid by the parent or guardian of the juvenile instead of by

the juvenile himself, unless the court is satisfied–

(a) that the parent or guardian cannot be found; or

(b) that it would be unreasonable to make an order for payment,

having regard to the circumstances of the case.

(3) In the case of a young person aged 16 or over, subsections (1) and (2)

have effect as if, instead of imposing a duty, they conferred a power to make

an order as mentioned in those subsections.

(4) Subject to subsection (5), no order may be made under this section

without giving the parent or guardian an opportunity of being heard.

(5) An order under this section may be made against a parent or guardian

who, having been required to attend, has failed to do so.

Criminal Procedure and Evidence

2011-24

(6) A parent or guardian may appeal to the Supreme Court against an

order under this section made by the Magistrates’ Court.

(7) A parent or guardian may appeal to the Court of Appeal against an

order under this section made by the Supreme Court, as if he had been

convicted on indictment and the order were a sentence passed on his

conviction.

(8) In relation to a juvenile for whom the Care Agency has parental

responsibility and who–

(a) is in the Agency’s care; or

(b) is provided with accommodation by the Agency in the exercise

of any statutory functions,

references in this section to his parent or guardian are to be construed as

references to that authority.

Fixing of fine or compensation to be paid by parent or guardian.

578.(1) For the purposes of any order under section 577 made against the

parent or guardian of a juvenile–

(a) section 571 has effect as if any reference in subsections (1) to

(4) of that section to the financial circumstances of the offender

were a reference to the financial circumstances of the parent or

guardian, and as if subsection (5) were omitted;

(b) section 596(3) (amount payable under a compensation order)

has effect as if any reference to the means of the person against

whom the compensation order is made were a reference to the

financial circumstances of the parent or guardian; and

insufficient means to pay both compensation and a fine) has

effect as if the reference to the offender were a reference to the

parent or guardian;

but in relation to an order under section 577 made against the Care Agency

this subsection has effect subject to subsection (2) of this section.

(2) For the purposes of any order under section 577 made against the Care

Agency, sections 571(1) and 596(3) do not apply.

(3) For the purposes of an order under section 577, if the parent or

guardian of an offender who is a juvenile–

Criminal Procedure and Evidence

2011-24

(a) has failed to comply with an order under section 576; or

(b) has otherwise failed to co-operate with the court in its inquiry

into his financial circumstances,

and the court considers that it has insufficient information to make a proper

determination of the parent’s or guardian’s financial circumstances, it may

make such determination as it thinks fit.

(4) If a court has, in fixing the amount of a fine, decided the financial

circumstances of a parent or guardian under subsection (3), subsections (2)

to (4) of section 572 have effect as they have effect in the case mentioned in

section 572(1), but as if the reference in section 572(2) to the offender’s

financial circumstances were a reference to the financial circumstances of

the parent or guardian.

Enforcement of fines and recognizances

Imprisonment for non-payment of a fine.

579.(1) Subject to this section, if the court imposes a fine on any person or

forfeits his recognizance, the court must make an order fixing a term of

imprisonment or of detention for default which he is to undergo if any sum

which he is liable to pay is not duly paid or recovered.

(2) A person must not when a fine is imposed on him or his recognizance

is forfeited by the court be committed to prison or detained pursuant to an

order under subsection (1) unless–

(a) the person appears to the court to have sufficient means to pay

the sum forthwith;

(b) on being asked by the court whether he wishes to have time for

payment, the person does not ask for time;

(d) it appears to the court that the person is unlikely to remain long

enough at a place of abode in Gibraltar to enable payment of

the sum to be enforced by other methods;

(e) when the order is made the court sentences him to immediate

imprisonment, custody for life or detention in the prison for

that or another offence, or so sentences him for an offence in

addition to forfeiting his recognizance, or he is already serving

a sentence of custody for life or a term–

Criminal Procedure and Evidence

2011-24

(i) of imprisonment; or

(ii) of detention in the prison; or

(f) there are other special circumstances appearing to the court to

justify immediate committal.

(3) The periods set out in the second column of Schedule 10 are the

maximum periods of imprisonment or detention under subsection (1)

applicable respectively to the amounts set out opposite them.

(4) If a person liable for the payment of a fine or a sum due under a

recognizance to which this section applies is sentenced by the court to, or is

serving or otherwise liable to serve a term of imprisonment or detention in

the prison, the court may order that any term of imprisonment or detention

fixed under subsection (1) does not begin to run until after the end of the

first-mentioned term.

(5) This section does not apply to a fine imposed by the Supreme Court

on appeal against a decision of the Magistrates’ Court, but subsections (1) to

(3) apply in relation to a fine imposed or recognizance forfeited by the

Court of Appeal, or by Her Majesty in Council on appeal from that court, as

they apply in relation to a fine imposed or recognizance forfeited by a court.

(6) For the purposes of any reference in this section, however expressed,

to the term of imprisonment or other detention to which a person has been

sentenced or which, or part of which, he has served, consecutive terms and

terms which are wholly or partly concurrent are, unless the context

otherwise requires, to be treated as a single term.

(7) Any reference in this section, however expressed, to a previous

sentence is to be construed as a reference to a previous sentence passed by a

court in Gibraltar.

Enforcement of fines imposed and recognizances forfeited by Supreme

Court.

580.(1) Subject to subsection (5), a fine imposed or a recognizance

forfeited by the Supreme Court is to be treated for the purposes of collection

and enforcement of the fine or other sum as having been imposed or

forfeited by the Magistrates’ Court and, in the case of a fine, as having been

so imposed on conviction by that court.

(2) Subsection (3) applies if the Magistrates’ Court issues a warrant of

commitment on a default in the payment of–

(a) a fine imposed by the Supreme Court; or

Criminal Procedure and Evidence

2011-24

(b) a sum due under a recognizance forfeited by the Supreme

Court.

(3) In such a case, the term of imprisonment or detention specified in the

warrant of commitment as the term which the offender is liable to serve is–

(a) the term fixed by the Supreme Court under section 579(1); or

(b) if that term has been reduced under section 572 or section 574,

that term as so reduced.

(4) Subsections (1) to (3) apply in relation to a fine imposed or

recognizance forfeited by the Court of Appeal, or by Her Majesty in

Council on appeal from that court, as they apply in relation to a fine

imposed or recognizance forfeited by the Supreme Court.

Enforcement by distress or committal.

581.(1) Subject to the following provisions of this Part, if default is made in

paying a fine or recognizance, the Magistrates’ Court may issue a warrant of

distress for the purpose of paying the sum or issue a warrant committing the

defaulter to prison pursuant to section 579(1).

(2) A warrant of committal may be issued in respect of a person for failure

to pay a fine or recognizance if it appears on the return to a warrant of

distress that the money and goods of the person are insufficient to pay the

fine or recognizance with the costs and charges of levying the sum.

(3) The period for which a person may be committed to prison under such

a warrant must not, subject to the provisions of any other law, exceed the

period applicable to the case under section 579(3).

Restriction on committal and means inquiry.

582.(1) A court must not commit a person to prison for failing to pay a fine

or recognizance or for want of sufficient distress to pay a fine or

recognizance unless the court has inquired into the person’s means in his

presence.

(2) Subsection (1) does not apply if the person is in prison.

(3) The court may, for the purpose of enabling inquiry to be made under

this section–

(a) issue a summons requiring the person to appear before the

court at the time and place appointed in the summons; or

(b) issue a warrant to arrest him and bring him before the court.

Criminal Procedure and Evidence

2011-24

(4) On the failure of a person to appear before the court in answer to a

summons under this section the court may issue a warrant to arrest him and

bring him before the court.

(5) A warrant issued under this section may be executed in like manner,

and the like proceedings may be taken with a view to its execution, as if it

had been issued under section 581.

(6) A warrant under this section ceases to have effect when the sum in

respect of which the warrant is issued is paid to the police officer holding

the warrant.

Defect in distress warrant and irregularity in execution.

583.(1) A warrant of distress issued for the purpose of paying a fine or

recognizance must not, if it states that the fine or recognizance has been

ordered to be paid, be held void by reason of any defect in the warrant.

(2) A person acting under a warrant of distress is not a trespasser ab initio

by reason only of any irregularity in the execution of the warrant.

(3) Nothing in this section affects the claim of any person for special

damages in respect of any loss caused by a defect in the warrant or

irregularity in its execution.

(4) A person who removes any goods marked as articles impounded in the

execution of a warrant of distress, or defaces or removes any such mark,

commits an offence and is liable on summary conviction, to a fine at level 1

on the standard scale.

(5) A person who has the duty of executing a warrant of distress who–

(a) wilfully retains from the proceeds of a sale of the goods on

which distress is levied;

(b) otherwise exacts any greater costs and charges than those

properly payable; or

commits an offence and is liable on summary conviction to a fine at level 1

on the standard scale.

Release from custody, etc., on payment.

584.(1) If imprisonment or other detention has been imposed on any person

by the order of the Magistrates’ Court in default of payment of a fine or

Criminal Procedure and Evidence

2011-24

recognizance, or for want of sufficient distress to pay a fine or recognizance,

then, on the payment of the fine or recognizance, together with the costs and

charges, if any, of the commitment and distress–

(a) the order ceases to have effect; and

(b) if the person has been committed to custody he must be

released unless he is in custody for some other cause.

(2) If, after a period of imprisonment or other detention has been imposed

on any person in default of payment of a fine or recognizance, or for want of

sufficient distress to pay a fine or recognizance, payment is made of part of

the fine or recognizance, the period of detention is to be reduced by such

number of days as bears to the total number of days in that period less one

day the same proportion as the amount so paid bears to so much of the fine

and the costs and charges of any distress levied to pay it, as was due when

the period of detention was imposed.

(3) In calculating the reduction required under subsection (2) any fraction

of a day is to be ignored.

Power of court to order search of person and application of money

found.

585.(1) If a court, on convicting a person, or on an appeal brought by any

person–

(a) imposes a fine on a person or forfeits his recognizance;

(b) makes against a person any order for the payment of costs by a

defendant;

(d) makes against a parent or guardian an order under section 577,

then, if that person is before it, the court may order him to be searched.

(2) Any money found–

(a) on a search under subsection (1); or

(b) on the arrest of a person ordered to pay a fine or recognizance;

in default of payment of the fine or recognizance,

Criminal Procedure and Evidence

2011-24

may, unless the court otherwise directs, be applied towards payment of the

fine or recognizance, and the balance, if any, must be returned to him.

(3) The court must not allow the application of any money found on a

person if it is satisfied that–

(a) the money does not belong to him; or

(b) the loss of the money would be more injurious to his family

than would be his detention.

Supervision pending payment.

586.(1) If a person is fined on summary conviction and the Magistrates’

Court does not commit him to prison forthwith in default of payment, the

court may, either on the occasion of the conviction or on a subsequent

occasion, order him to be placed under the supervision of a person the court

from time to time appoints.

(2) An order placing a person under supervision in respect of any sum

remains in force so long as he remains liable to pay the sum or any part of it,

unless the order ceases to have effect or is discharged under subsection (3).

(3) An order under this section may be discharged by the court, without

affecting the power to make a new order.

(4) If a juvenile has been ordered to pay a fine on summary conviction and

the court does not commit him to prison forthwith in default of payment, the

court must not commit him to prison in default of payment of the fine, or for

want of sufficient distress to pay the fine, unless he has been placed under

supervision in respect of the sum or the court is satisfied that it is

undesirable or impracticable to place him under supervision.

(5) If a court, being satisfied as aforesaid, commits a juvenile to prison

without an order under this section having been made, the court must state

the grounds on which it is so satisfied in the warrant of commitment.

(6) If an order placing a person under supervision with respect to a sum is

in force, the Magistrates’ Court must not commit him to prison in default of

payment of the sum, or for want of sufficient distress to satisfy the sum,

unless the court before committing him has–

(a) taken all reasonably practicable steps to obtain from the person

appointed for his supervision an oral or written report on the

offender’s conduct and means; and

(b) considered any report so obtained, and, in a case where an

inquiry is required by section 582, any report of that inquiry.

Criminal Procedure and Evidence

2011-24

Amendment of Schedules.

587. If it appears to the Minister that there has been a change in the value of

money since the date on which the sums specified in Schedule 9 or 10 were

last decided, he may by order substitute for any sum in either Schedule any

other sum that appears to him to be justified by the change.

PART 24 – COSTS, COMPENSATION, RESTITUTION,

FORFEITURE, ETC.

Costs

Award of costs by Magistrates’ Court.

588.(1) On the summary trial of an information the Magistrates’ Court may

make any order as to costs–

(a) on conviction - to be paid by the defendant to the prosecutor;

and

(b) on dismissal of the information - to be paid by the prosecutor

to the defendant,

as it thinks just and reasonable, subject to the following subsections.

(2) If under the conviction the court orders payment of any sum as a fine,

penalty, forfeiture or compensation, and the sum so ordered to be paid does

not exceed £1, the court must not order the defendant to pay any costs under

this section unless in any particular case it thinks fit to do so.

(3) If the defendant is a juvenile, the amount of the costs ordered to be

paid by the defendant himself under this subsection must not exceed the

amount of any fine ordered to be so paid.

(4) The court must specify in the conviction, or, as the case may be, the

order of dismissal, the amount of any costs that it orders to be paid under

subsection (1).

(5) If examining magistrates decide not to commit the defendant for trial

on the ground that the evidence is not sufficient to put him upon his trial,

and are of opinion that the charge was not made in good faith, they may

order the prosecutor to pay the whole or any part of the costs incurred in or

in relation to the defence.

(6) If the amount ordered to be paid under subsection (5) exceeds £500,

the prosecutor may appeal within 14 days to the Supreme Court, and no

proceedings may be taken upon the order until the time allowed for giving

Criminal Procedure and Evidence

2011-24

notice of appeal has elapsed, or, if within that time notice of appeal is given,

until the appeal is decided or ceases to be prosecuted.

Costs in other matters.

589.(1) The provisions of this Part apply if a person is committed by the

Magistrates’ Court to the Supreme Court under Part 10 with a view to his

being sentenced for an indictable offence.

(2) The provisions of this Part apply if a person committed or sent for trial

is not ultimately tried, in which case the Supreme Court has the same power

to order the payment of costs as if the examining magistrates had not

committed the defendant for trial.

Costs of defective or redundant indictments.

590. If it appears to the court that an indictment contains unnecessary

matter, or is of unnecessary length, or is materially defective in any respect,

the court may make such order as to the payment of that part of the costs of

the prosecution which has been incurred by reason of the indictment so

containing unnecessary matter, or being of unnecessary length, or being

materially defective as the court thinks fit.

Award of costs by Supreme Court.

591.(1) If a person is acquitted on indictment brought by a private

prosecutor or on a voluntary bill of indictment, the Supreme Court may

order the prosecutor to pay the whole or any part of the costs incurred in or

in relation to the defence, including any proceedings before the examining

magistrates.

(2) Costs payable under this section, if any, are to be assessed by the

Registrar.

Award of costs on appeal.

592.(1) The Supreme Court may, when it dismisses an appeal, order the

appellant to pay the whole or any part of the costs of the appeal.

(2) The Supreme Court may, when it allows an appeal against a

conviction, order the payment by the prosecutor to the appellant of such

sums as appear to the Supreme Court to be reasonably sufficient to

compensate the appellant for any expenses properly incurred in the

prosecution of the appeal, including any preliminary or incidental

proceedings, or in carrying on his defence.

(3) Costs payable under this section, if any, are to be assessed by the

Registrar.

Criminal Procedure and Evidence

2011-24

Enforcement of orders.

593.(1) If the Supreme Court orders the payment of costs by a defendant or

appellant or the prosecutor under this Part the payment is enforceable–

(a) in the same manner as an order for payment of costs made by

the Supreme Court in a civil case or as a sum adjudged

summarily to be paid as a civil debt;

(b) if the person liable to pay is the person convicted, out of any

money taken from him on arrest so far as the Supreme Court

directs.

(2) If the Magistrates’ Court orders the payment of costs by the defendant

or the prosecutor, then–

(a) payment of costs by the defendant is enforceable as a sum

adjudged to be paid by the conviction;

(b) payment of costs by the prosecutor is enforceable as a sum

adjudged summarily to be paid as a civil debt.

Saving.

594. Nothing in this Part affects the provision in any law for the payment of

the costs of the prosecution or defence of any offence out of any assets,

money or fund or by any person other than the prosecutor or defendant.

Compensation

Compensation orders against convicted persons.

595.(1) A court by or before which a person is convicted of an offence,

instead of or in addition to dealing with him in any other way, may, on

application or otherwise, make an order (a “compensation order”) requiring

him–

(a) to pay compensation for any personal injury, loss or damage

resulting from that offence or any other offence which is taken

into consideration by the court in determining sentence; or

(b) to make payments for funeral expenses or bereavement in

respect of a death resulting from any such offence, other than a

death due to an accident arising out of the presence of a motor

vehicle on a road,

subject to the following subsections and section 596.

Criminal Procedure and Evidence

2011-24

(2) If the person is convicted of an offence the sentence for which is fixed

by law subsection (1) has have effect as if the words “instead of or” were

omitted.

(3) A court must give reasons, on passing sentence, if it does not make a

compensation order in a case in which this section empowers it to do so.

(4) In the case of an offence under Part 16 of the Crimes Act 2011, if the

property in question is recovered, any damage to the property occurring

while it was out of the owner’s possession is to be treated for the purposes

of subsection (1) as having resulted from the offence, however and by

whomever the damage was caused.

(5) A compensation order may only be made in respect of injury, loss or

damage (other than loss suffered by a person’s dependants in consequence

of his death) which was due to an accident arising out of the presence of a

motor vehicle on a road, if it is in respect of damage which is treated by

subsection (4) as resulting from an offence under Part 16 of the Crimes Act

2011.

(6) If a compensation order is made in respect of injury, loss or damage

due to an accident arising out of the presence of a motor vehicle on a road,

the amount to be paid may include an amount representing the whole or part

of any loss of or reduction in preferential rates of insurance attributable to

the accident.

(7) A vehicle the use of which is exempted from insurance by section 3 of

the Insurance (Motor Vehicles) (Third Party Risks) Act 1986 is not

uninsured for the purposes of subsection (6).

(8) A compensation order in respect of funeral expenses may be made for

the benefit of anyone who incurred the expenses.

Amount payable under a compensation order.

596.(1) Subject to subsection (2), compensation under section 595 must be

of an amount the court considers appropriate, having regard to any evidence

and to any representations made by or on behalf of the defendant or the

prosecutor.

(2) In the case of the Magistrates’ Court, the compensation must not

exceed £20,000.

(3) In deciding whether to make a compensation order against any person,

and if so the amount to be paid by the person under the order, the court must

have regard to his means so far as they appear or are known to the court.

Criminal Procedure and Evidence

2011-24

(4) If the court considers that–

(a) it would be appropriate both to impose a fine and to make a

compensation order; but

(b) the offender has insufficient means to pay both an appropriate

fine and appropriate compensation,

the court must give priority to compensation, though it may impose a fine as

well.

Compensation orders: Appeals.

597.(1) An appellate court may by order annul or vary any compensation

order made by the court of trial, although the conviction is not quashed; and

the order, if annulled, does not take effect and, if varied, takes effect as

varied.

(2) If the appellate court restores a conviction, it may make any

compensation order which the court of trial could have made.

(3) A person in whose favour a compensation order is made is not entitled

to receive the amount due to him until (disregarding any power of a court to

grant leave to appeal out of time) there is no further possibility of an appeal

on which the order could be varied or set aside.

(4) Rules of court may provide for the way in which a court is to deal with

money paid in satisfaction of a compensation order while the entitlement of

the person in whose favour it was made is suspended.

(5) If a compensation order has been made against any person in respect

of an offence taken into consideration in determining his sentence–

(a) the order ceases to have effect if he successfully appeals

against his conviction of the offence or, if more than one, all

the offences, of which he was convicted in the proceedings in

which the order was made;

(b) he may appeal against the order as if it were part of the

sentence imposed in respect of the offence or, if more than one,

any of the offences, of which he was so convicted.

Review of compensation orders.

598.(1) At any time before a compensation order has been complied with or

fully complied with, the court which made the compensation order may, on

the application of the person against whom it was made, discharge the order,

or reduce the amount which remains to be paid, if it appears to the court–

Criminal Procedure and Evidence

2011-24

(a) that the injury, loss or damage in respect of which the order was

made has been held in civil proceedings to be less than was taken

to be for the purposes of the order;

(b) in the case of an order in respect of the loss of any property - that

the property has been recovered by the person in whose favour

the order was made; or

made has suffered a substantial reduction in his means which

was unexpected at the time when the order was made, and that

his means seem unlikely to increase for a considerable period.

(2) The court may exercise a power conferred by subsection (1) only–

(a) when (disregarding any power of a court to grant leave to

appeal out of time) there is no further possibility of an appeal

on which the compensation order could be varied or set aside;

and

(b) before the person against whom the compensation order was

made has paid into court the whole of the compensation which

the order requires him to pay.

(3) If the compensation order was made by the Supreme Court, the

Magistrates’ Court must not exercise any power conferred by subsection (1)

in a case where it is satisfied as mentioned in paragraph (c) of that

subsection unless it has first obtained the consent of the Supreme Court.

(4) If a compensation order has been made on appeal, for the purposes of

subsection (2) the order is deemed–

(a) if it was made on an appeal from the Magistrates’ Court - to

have been made by that court;

(b) if it was made on an appeal from the Supreme Court or from

the Court of Appeal - to have been made by the Supreme

Court.

Effect of compensation order on subsequent award of damages in civil

proceedings.

599.(1) This section has effect if a compensation order has been made in

favour of any person in respect of any injury, loss or damage and a claim by

him in civil proceedings for damages in respect of the injury, loss or damage

subsequently falls to be decided.

Criminal Procedure and Evidence

2011-24

(2) The damages in the civil proceedings are to be assessed without regard

to the order, but if the whole or part of the amount awarded by the order has

been paid, the damages awarded in the civil proceedings may not exceed the

amount, if any, by which, as so assessed they exceed the amount paid under

the order.

(3) If the whole or part of the amount awarded by the order remains

unpaid and the court awards damages in the civil proceedings, then, unless

the person against whom the order was made has ceased to be liable to pay

the amount unpaid, the court must direct that the judgement–

(a) if it is for an amount not exceeding the amount unpaid under

the order – is not to be enforced; or

(b) if it is for an amount exceeding the amount unpaid under the

order – is not to be enforced as to a corresponding amount,

without the leave of the court.

Restitution

Restitution orders.

600.(1) This section applies if goods have been stolen, and either–

(a) a person is convicted of any offence with reference to the theft

(whether or not the stealing is the gist of his offence); or

(b) a person is convicted of any other offence, but an offence as

mentioned in paragraph (a) is taken into consideration in

determining his sentence.

(2) If this section applies, the court by or before which the offender is

convicted may on the conviction (whether or not the passing of sentence is

in other respects deferred)–

(a) order anyone having possession or control of the stolen goods

to restore them to any person entitled to recover them from

him;

(b) on the application of a person entitled to recover from the

person convicted any other goods directly or indirectly

representing the stolen goods (as being the proceeds of any

disposal or realisation of the whole or part of them or of goods

so representing them) - order those other goods to be delivered

or transferred to the applicant; or

Criminal Procedure and Evidence

2011-24

to be paid, out of any money of the person convicted which

was taken out of his possession on his arrest, to any person

who, if those goods were in the possession of the person

convicted, would be entitled to recover them from him.

(3) If the court has power on a person’s conviction to make an order

against him both under paragraph (b) and under paragraph (c) of subsection

(2) with reference to the stealing of the same goods, the court may make

orders under both paragraphs provided that the person in whose favour the

orders are made does not as a result recover more than the value of those

goods.

(4) If the court on a person’s conviction makes an order under subsection

(2)(a) for the restoration of any goods, and it appears to the court that the

person convicted–

(a) has sold the goods to a person acting in good faith; or

(b) has borrowed money on the security of them from a person so

acting,

the court may order to be paid to the purchaser or lender, out of any money

of the person convicted which was taken out of his possession on his arrest,

a sum not exceeding the amount paid for the purchase by the purchaser or,

as the case may be, the amount owed to the lender in respect of the loan.

(5) The court must not exercise the powers conferred by this section

unless in the opinion of the court the relevant facts sufficiently appear from

evidence given at the trial or the available documents, together with

admissions made by or on behalf of any person in connection with any

proposed exercise of the powers.

(6) In subsection (5) “the available documents” means–

(a) any written statements or admissions which were made for use,

and would have been admissible, as evidence at the trial; and

(b) such written statements, depositions and other documents as

were tendered by or on behalf of the prosecutor at any

committal proceedings.

(7) Subject to subsection (8), references in this section to stealing are to be

construed in accordance with Part 16 of the Crimes Act 2011.

(8) In this section and section 601, “goods”, unless the context otherwise

requires, includes money and every other description of property (within the

Criminal Procedure and Evidence

2011-24

meaning of Part 16 of the Crimes Act 2011) except land, and includes things

severed from the land by stealing.

(9) An order may be made under this section in respect of money owed by

the Government.

(10) The powers conferred by subsections (2)(c) and (4) are exercisable on

the application of any person appearing to the court to be interested in the

property concerned.

Restitution orders: Appeals.

601. (1) An appellate court may by order annul or vary a restitution order

made by the trial court even if the conviction is not quashed, and the order,

if annulled, does not take effect, and, if varied, takes effect as so varied.

(2) If a restitution order is made against any person in respect of an

offence taken into consideration in determining his sentence–

(a) the order ceases to have effect if he successfully appeals

against his conviction of the offence or, if more than one, all

the offences, of which he was convicted in the proceedings in

which the order was made;

(b) he may appeal against the order as if it were part of the

sentence imposed in respect of the offence or, if more than one,

any of the offences, of which he was so convicted.

(3) A restitution order made by any court must be suspended–

(a) in any case - until the end of the period for the time within

which an appeal against conviction may be brought;

(b) if notice of appeal is given within that period - until the

determination of the appeal.

(4) If the operation of a restitution order is suspended until the

determination of an appeal, the order does not take effect as to the property

in question if the conviction is quashed on appeal.

(5) Subsection (4) does not apply if the order is made under section

600(2)(a) or (b) and the court so directs, being of the opinion that the title to

the goods to be restored or, as the case may be, delivered or transferred

under the order is not in dispute.

(6) Rules of court may provide for securing the safe custody of any

property during the suspension of the operation of a restitution order.

Criminal Procedure and Evidence

2011-24

Return of property

Return of property taken from defendant.

602.(1) If–

(a) a summons or warrant has been issued requiring any person to

appear or be brought before the Magistrates’ Court to answer

to an information; or

(b) a person has been arrested without a warrant for an offence,

and property has been taken from the person after the issue of the summons

or warrant or, as the case may be, on or after his arrest without a warrant,

the police must report the taking of the property, with particulars of it, to the

Magistrates’ Court.

(2) If the court considers that the whole or any part of the property can be

returned to the defendant consistently with the interests of justice and the

safe custody of the defendant, it may direct that the property, or any part of

it, is to be returned to the defendant or to some other person as the defendant

designates.

Title to stolen property.

603. Notwithstanding any enactment to the contrary, if property has been

stolen or obtained by fraud or other wrongful means, the title to that or any

other property is not affected by reason only of the conviction of the

offender.

Forfeiture

Powers of forfeiture.

604.(1) If a person is convicted of an offence and the court by or before

which he is convicted is satisfied that any property which has been lawfully

seized from him, or which was in his possession or under his control at the

time when he was apprehended for the offence or when a summons in

respect of it was issued–

(a) has been used for the purpose of committing, or facilitating the

commission of, any offence; or

(b) was intended by him to be used for that purpose,

the court may (subject to subsection (6)) make an order under this section (a

“forfeiture order”) in respect of that property.

Criminal Procedure and Evidence

2011-24

(2) If a person is convicted of an offence and the offence, or an offence

which the court has taken into consideration in determining his sentence,

consists of unlawful possession of property which–

(a) has been lawfully seized from him; or

(b) was in his possession or under his control at the time when he

was arrested for the offence of which he has been convicted or

when a summons in respect of that offence was issued,

the court may (subject to subsection (6)) make a forfeiture order in respect

of that property.

(3) For the purposes of this section, facilitating the commission of an

offence includes the taking of any steps after it has been committed for the

purposes of disposing of any property to which it relates or avoiding arrest

or detection.

(4) A forfeiture order deprives the offender of his rights, if any, in the

property to which it relates, and the property, if not already in police

possession, must be taken into the possession of the police.

(5) Any power conferred on a court by subsection (1) or (2) may be

exercised–

(a) whether or not the court also deals with the offender in any

other way in respect of the offence of which he has been

convicted; and

(b) without regard to any restrictions on forfeiture in any other

enactment.

(6) In considering whether to make a forfeiture order in respect of any

property, a court must have regard–

(a) to the value of the property; and

(b) to the likely financial and other effects on the offender of the

making of the order (taken together with any other order that

the court contemplates making).

(7) If a person commits an offence to which this subsection applies by–

(a) driving, attempting to drive, or being in charge of a vehicle; or

(b) failing to comply with a requirement made under section 65 of

the Traffic Act 2005 (Failure to provide specimen for analysis)

in the course of an investigation into whether the offender had

Criminal Procedure and Evidence

2011-24

committed an offence while driving, attempting to drive or

being in charge of a vehicle; or

and 54 of the Traffic Act 2005 (Duty to stop and give

information or report accident),

the vehicle is to be regarded for the purposes of subsection (1) as used for

the purpose of committing the offence or any offence of aiding, abetting,

counselling or procuring the commission of the offence.

(8) Subsection (7) applies to–

(a) an offence under the Traffic Act 2005 which is punishable with

imprisonment;

(b) an offence of manslaughter; and

harm by furious driving).

Application of proceeds of forfeited property.

605. (1) If–

(a) an offender has been convicted of an offence which has

resulted in a person suffering personal injury, loss or damage;

(b) any such offence is taken into consideration by the court in

determining sentence,

and the court makes a forfeiture order under section 604, the court may also

make an order that any proceeds which arise from the disposal of the

property and which do not exceed a sum specified by the court must be paid

to that person.

(2) The court may make an order under this section only if it is satisfied

that but for the inadequacy of the offender’s means it would have made a

compensation order under which the offender would have been required to

pay compensation of an amount not less than the specified amount.

Disposal of non-pecuniary forfeitures.

606. Subject to the Imports and Exports Act and to any other law relating to

customs or excise or the control of imports, anything other than money–

(a) forfeited on a conviction by the Magistrates’ Court; or

Criminal Procedure and Evidence

2011-24

(b) the forfeiture of which may be enforced by the Magistrates’

Court,

must be sold or otherwise disposed of in the manner the court directs, and

the proceeds must be applied as if they were a fine imposed under the law

on which the proceedings for the forfeiture are founded.

Miscellaneous

Awards for courage in arrest.

607.(1) A court before which a person is convicted of an indictable offence

may order payment from funds appropriated by the Parliament under the

relevant Appropriation Act to any person who appears to the court to have

been active in or towards the arrest of any person convicted of that offence.

(2) Subject to section 608, the amount ordered to be paid to a person or

persons under subsection (1) may be such sum, not exceeding £500 in the

case of the Magistrates’ Court or £1,000 in the case of the Supreme Court,

as the court considers reasonable and sufficient to compensate the person or

persons for their expenses, exertions, and loss of time in or towards the

arrest.

Levels of compensation.

608. The Minister may, after consultation with the Chief Justice, by order

vary–

(a) the maximum amounts of compensation that can be awarded

by a court under section 596;

(b) the sums that can be paid as a reward under section 607(2).

Power of court to allow time for payment, or payment by instalments,

of costs and compensation.

609. If a court makes an order against a person for the payment of costs or

compensation, the court may–

(a) allow time for the payment of the sum due under the order;

(b) direct payment of that sum by instalments of amounts and on

dates that the court specifies.

PART 25 – REHABILITATION OF OFFENDERS

Rehabilitated persons and spent convictions.

Criminal Procedure and Evidence

2011-24

610.(1) Subject to this section, if an individual has been convicted, whether

before or after the commencement of this Part, of any offence or offences,

and the conditions mentioned in subsection (2) are satisfied, then, after the

end of the rehabilitation period applicable to the conviction (including any

extension under section 614 of the period originally applicable) or, if that

rehabilitation period ended before the commencement of this Part, after the

commencement of this Part, that individual is for the purposes of this Part to

be treated as a rehabilitated person in respect of the conviction and the

conviction is for those purposes to be treated as spent.

(2) The conditions are that the individual–

(a) did not have imposed on him in respect of that conviction a

sentence which is excluded from rehabilitation under this Part;

and

(b) has not had imposed on him in respect of a subsequent

conviction during the rehabilitation period applicable to the

first-mentioned conviction in accordance with section 614 a

sentence which is excluded from rehabilitation under this Part.

(3) Subject to subsection (4), a person does not become a rehabilitated

person for the purposes of this Part in respect of a conviction unless he has

served or otherwise undergone or complied with any sentence imposed on

him in respect of that conviction.

(4) The following do not prevent a person from becoming a rehabilitated

person for the purposes of this Part–

(a) failure to pay a fine or other sum adjudged to be paid by or

imposed on a conviction, or breach of a condition of a

recognizance or bond to keep the peace or be of good

behaviour;

(b) breach of any condition or requirement applicable in relation to

a sentence which renders the person to whom it applies liable

to be dealt with for the offence for which the sentence was

imposed, or, if the sentence was a suspended sentence of

imprisonment, liable to be dealt with in respect of that sentence

(whether or not, in any case, he is in fact so dealt with).

(5) In this Part “sentence” includes any order made by a court in dealing

with a person in respect of his conviction of any offence or offences, other

than–

(a) an order for committal or any other order made in default of

payment of a fine or other sum adjudged to be paid by or

Criminal Procedure and Evidence

2011-24

imposed on a conviction, or for want of sufficient distress to

satisfy any such fine or other sum;

(b) an order dealing with a person in respect of a suspended

sentence of imprisonment.

(6) In this Part, references to a conviction, however expressed, include

references to–

(a) a conviction by or before a court outside Gibraltar; and

(b) any finding (other than a finding linked with a finding of

mental disorder) in any criminal proceedings or in care

proceedings under Part VIII of the Children Act 2009 that a

person has committed an offence or done the act or made the

omission charged.

(7) A conviction in respect of which an order is made placing the person

convicted on probation or discharging him absolutely or conditionally is to

be treated as a conviction for the purposes of this Part and the person in

question may become a rehabilitated person in respect of that conviction

and the conviction may become a spent conviction for those purposes

accordingly.

Effect of rehabilitation.

611.(1) Subject to sections 615 to 618, a person who has become a

rehabilitated person for the purposes of this Part in respect of a conviction is

to be treated for all purposes in law as a person who has not committed or

been charged with or prosecuted for or convicted of or sentenced for the

offence or offences which were the subject of that conviction.

(2) Despite the provisions of any other enactment or rule of law to the

contrary, but subject to subsection (1)–

(a) no evidence is admissible in any proceedings before a court

exercising its jurisdiction or functions in Gibraltar to prove that

any such person has committed or been charged with or

prosecuted for or convicted of or sentenced for any offence

which was the subject of a spent conviction; and

(b) a person must not, in any such proceedings, be asked, and, if

asked, is not required to answer, any question relating to his

past which cannot be answered without acknowledging or

referring to a spent conviction or spent convictions or any

circumstances ancillary thereto.

Criminal Procedure and Evidence

2011-24

(3) Subject to the exceptions provided for by section 616, if a question

seeking information with respect to a person’s previous convictions,

offences, conduct or circumstances is put to him or to any other person

otherwise than in proceedings before a court–

(a) the question is to be treated as not relating to spent convictions

or to any circumstances ancillary to spent convictions, and the

answer to it may be framed accordingly; and

(b) the person questioned is not to be subject to any liability or

otherwise prejudiced in law by reason of any failure to

acknowledge or disclose a spent conviction or any

circumstances ancillary to a spent conviction in his answer to

the question.

(4) Subject to the exceptions provided for by section 616–

(a) any obligation imposed on any person by any rule of law or by

the provisions of any agreement or arrangement to disclose any

matters to any other person does not extend to requiring him to

disclose a spent conviction or any circumstances ancillary to a

spent conviction (whether the conviction is his own or

another’s); and

(b) a conviction which has become spent or any circumstances

ancillary thereto, or any failure to disclose a spent conviction

or any such circumstances, is not a proper ground for

dismissing or excluding a person from any office, profession,

occupation or employment, or for prejudicing him in any way

in any occupation or employment.

(5) For the purposes of this section and section 615 any of the following

are circumstances ancillary to a conviction–

(a) the offence or offences which were the subject of that

conviction;

(b) the conduct constituting that offence or those offences;

sentence imposed in respect of that conviction, any

proceedings (whether by way of appeal or otherwise) for

reviewing that conviction or any such sentence, and anything

done pursuant to or undergone in compliance with any such

sentence.

Criminal Procedure and Evidence

2011-24

(6) For the purposes of this section and section 615, “proceedings before a

court” includes, in addition to proceedings before a court of law,

proceedings before any tribunal, body or person that has power–

(a) by virtue of any enactment, law, custom or practice;

(b) under the rules governing any association, institution,

profession, occupation or employment; or

with respect to questions arising under it,

to decide any question affecting the rights, privileges, obligations or

liabilities of any person, or to receive evidence affecting the determination

of any such question.

Excluded sentences.

612.(1) The sentences excluded from rehabilitation under this Part are–

(a) a sentence of imprisonment for life;

(b) a sentence of imprisonment for more than 48 months;

(2) Any other sentence is a sentence subject to rehabilitation under this

Part.

Rehabilitation periods for particular sentences.

613.(1) For the purposes of this Part the rehabilitation period applicable to a

sentence specified in the first column of the table in Schedule 11 (Table of

rehabilitation periods) is the period beginning with the date of the

conviction in respect of which the sentence is imposed, and ending–

(a) where the defendant is an adult, at the time listed specified in

the second column of the table in Schedule 11;

(b) where the defendant is a juvenile, at the time listed specified in

the third column of the table in Schedule 11.

(2) In subsection (1) and Schedule 11 the age of the defendant is the age

at the date of conviction.

(2A) Where no provision is made by or under a community or youth

rehabilitation order or a relevant order for the last day on which the order is

Criminal Procedure and Evidence

2011-24

to have effect, the rehabilitation period for the order is to be the period of 24

months beginning with the date of conviction.

(2B) There is no rehabilitation period for–

(a) an order discharging a person absolutely for an offence;

(b) a caution; or

sentence is not dealt with in Schedule 11 or under subsection

(2A),

and, in such cases, references in this Part to any rehabilitation period are to

be read as if the period of time were nil.

(3) For the purposes of this section–

(a) consecutive terms of imprisonment are to be treated as a single

term;

(b) terms of imprisonment which are wholly or partly concurrent

(that is terms of imprisonment imposed in respect of offences

of which a person was convicted in the same proceedings) are

to be treated as a single term;

a court dealing with a person in respect of a suspended

sentence of imprisonment, of the term originally imposed;

(d) no account is to be taken of any subsequent variation of the day

originally provided for by or under an order as the last day on

which the order is to have effect;

(e) a sentence imposed by a court outside Gibraltar is to be treated

as the sentence mentioned in this section to which it most

closely corresponds.

(4) A reference in this Part to the period during which a probation order

was in force include references to any period during which any order or

requirement to which this subsection applies, being an order or requirement

made or imposed directly or indirectly in substitution for the first-mentioned

order or requirement, is or was in force.

(5) The Minister may by Order amend the second or third column of the

Table in Schedule 11 or the number of months for the time being specified

in subsection (2A).

Criminal Procedure and Evidence

2011-24

(6) In this section and Schedule 11 “relevant order” means–

(a) an order discharging a person conditionally for an offence;

(b) an order binding a person over to keep the peace or be of good

behaviour;

(d) any order which imposes a disqualification, disability,

prohibition or other penalty and is not otherwise dealt with in

Schedule 11 or under subsection (2A),

but does not include a reparation order.

The rehabilitation period applicable to a conviction.

614.(1) If only one sentence is imposed in respect of a conviction (not

being a sentence excluded from rehabilitation under this Part) the

rehabilitation period applicable to the conviction is, subject to the following

provisions of this section, the period applicable to the sentence in

accordance with section 613.

(2) If more than one sentence is imposed in respect of a conviction

(whether or not in the same proceedings) and none of the sentences imposed

is excluded from rehabilitation under this Part, then, subject to this section,

if the periods applicable to those sentences in accordance with section 613

differ, the rehabilitation period applicable to the conviction is the longer or

the longest (as the case may be) of those periods.

(3) Without affecting subsection (2), if in respect of a conviction a person

was conditionally discharged or a probation order was made, and after the

end of the rehabilitation period applicable to the conviction in accordance

with subsection (1) or (2) he is dealt with, in consequence of a breach of

conditional discharge or probation order, for the offence for which the order

for conditional discharge or probation order was made, then, if the

rehabilitation period applicable to the conviction in accordance with

subsection (2) (taking into account any sentence imposed when he is so

dealt with) ends later than the rehabilitation period previously applicable to

the conviction–

(a) he is to be treated for the purposes of this Part as not having

become a rehabilitated person in respect of that conviction; and

(b) the conviction is for those purposes to be treated as not having

become spent,

Criminal Procedure and Evidence

2011-24

in relation to any period falling before the end of the new rehabilitation

period.

(4) Subject to subsection (6), if during the rehabilitation period applicable

to a conviction–

(a) the person convicted is convicted of a further offence; and

(b) no sentence excluded from rehabilitation under this Part is

imposed on him in respect of the later conviction,

and if the rehabilitation period applicable in accordance with this section to

either of the convictions would end earlier than the period so applicable in

relation to the other, the rehabilitation period which would (apart from this

subsection) end the earlier is extended so as to end at the same time as the

other rehabilitation period.

(5) If a person is convicted of a further offence during a rehabilitation

period in respect of an offence–

(a) if the rehabilitation period is the rehabilitation period

applicable to an order imposing on the person any

disqualification, disability, prohibition or other penalty, the

rehabilitation period applicable to the later conviction is not

extended by reference to that period; but

(b) if any other sentence is imposed in respect of the first-

mentioned conviction for which a rehabilitation period is

prescribed by section 613, the rehabilitation period applicable

to the later conviction is, if appropriate, extended under

subsection (4) by reference to the rehabilitation period

applicable in accordance with that section to that sentence, or,

if more than one such sentence is imposed, by reference to the

longer or longest of the periods so applicable to those

sentences, as if the period in question were the rehabilitation

period applicable to the first-mentioned conviction.

(6) For the purposes of subsection (4)(a) the following are to be

disregarded–

(a) a conviction of an indictable offence tried summarily pursuant

to Part 8;

(b) any conviction by or before a court outside Gibraltar of an

offence in respect of conduct which, if it had taken place in

Gibraltar, would not have constituted an offence under the law

of Gibraltar.

Criminal Procedure and Evidence

2011-24

Limitations on rehabilitation under this Part, etc.

615.(1) Nothing in section 611(1) affects–

(a) any right of Her Majesty, by virtue of Her Royal prerogative or

otherwise, to grant a free pardon, to quash any conviction or

sentence, or to commute any sentence;

(b) the enforcement by any process or proceedings of any fine or

other sum adjudged to be paid by or imposed on a spent

conviction;

respect of any breach of a condition or requirement applicable

to a sentence imposed in respect of a spent conviction; or

(d) the operation of any enactment by virtue of which, in

consequence of any conviction, a person is subject, otherwise

than by way of sentence, to any disqualification, disability,

prohibition or other penalty the period of which extends

beyond the rehabilitation period applicable in accordance with

section 614 to the conviction.

(2) Subject to section 620, nothing in section 611(1) affects the

determination of any issue, or prevents the admission or requirement of any

evidence, relating to a person’s previous convictions or to circumstances

ancillary to it–

(a) in any criminal proceedings before a court in Gibraltar,

including any appeal or reference in a criminal matter;

(b) in any care proceedings under the Children Act 2009 or on

appeal from any such proceedings, or in any proceedings

relating to the variation or discharge of a care order or

supervision order under that Act;

if, when the issue or the admission or requirement of the

evidence falls to be decided, the person consents to the

determination of the issue or, as the case may be, the admission

or requirement of the evidence despite the provisions of section

611(1).

(3) If at any stage in any proceedings before a court the court is satisfied,

in the light of any considerations which appear to it to be relevant (including

any evidence which has been or may thereafter be put before it), that justice

cannot be done in the case except by admitting or requiring evidence

relating to a person’s spent convictions or to circumstances ancillary to

Criminal Procedure and Evidence

2011-24

them, the court may admit or, as the case may be, require the evidence in

question despite the provisions of section 611(1), and may decide any issue

to which the evidence relates in disregard, so far as necessary, of those

provisions.

(4) Subsection (3) does not apply to proceedings to which, by virtue of

section 612(1) or of an order made under subsection (5), section 611(1) has

no application, or proceedings to which section 618 applies.

(5) The Minister may by order exclude the application of section 611(1) in

relation to any proceedings specified in the order (other than proceedings to

which section 618 applies) to such extent and for such purposes as are so

specified.

(6) No order made by a court with respect to any person otherwise than on

a conviction may be included in any list or statement of that person’s

previous convictions given or made to any court which is considering how

to deal with him in respect of an offence.

Exceptions to rehabilitation.

616.(1) Section 611(3) does not apply in relation to any question asked by

or on behalf of any person in the course of the duties of his office or

employment, in order to assess the suitability–

(a) of the person to whom the question relates for admission to any

of the professions specified in Part 1 of Schedule 12;

(b) of the person to whom the question relates for any office or

employment specified in Part 2 of Schedule 12;

person to pursue any occupation specified in Part 3 of Schedule

12 or to pursue it subject to a particular condition or restriction;

(d) of the person to whom the question relates or of any other

person to hold a licence, certificate or permit of a kind

specified in Part 4 of Schedule 12 or to hold it subject to a

particular condition or restriction,

if the person questioned is informed at the time the question is asked that,

by virtue of this section, spent convictions are to be disclosed.

(2) Section 611(3) does not apply in relation to any question asked in the

course of duties by or on behalf of a person

Criminal Procedure and Evidence

2011-24

(a) employed in the service of the Government or the Crown or

any statutory body; or

(b) authorised to provide air traffic services,

if–

safeguarding the security of Gibraltar, the suitability of the

person to whom the question relates or of any other person; and

(d) the person questioned is informed at the time the question is

asked that, by virtue of this section, spent convictions are to be

disclosed for the purpose of safeguarding the security of

Gibraltar.

(3) Section 611(3) does not apply in relation to any question asked by or

on behalf of any person in the course of his duties at work, in order to assess

the suitability of a person to work with children, if–

(a) the question relates to the person whose suitability is being

assessed;

(b) the person whose suitability is being assessed lives on the

premises where his work with children would normally take

place and the question relates to a person living in the same

household as him;

premises where his work with children would normally take

place and the question relates to a person who regularly works

on those premises at a time when the work with children

usually takes place; or

(d) the work for which the person’s suitability is being assessed is

working with children which would normally take place on

premises other than premises where that person lives and the

question relates to a person who lives on those other premises

or to a person who regularly works on them at a time when the

work takes place,

and if the person to whom the question relates is informed at the time the

question is asked that, by virtue of this section, spent convictions are to be

disclosed.

(4) Section 611(3) does not apply in relation to any question asked by or

on behalf of any person in the course of his duties to assess the suitability of

any other person to adopt children in general or a child in particular if –

Criminal Procedure and Evidence

2011-24

(a) the question relates to the person whose suitability is being

assessed; or

(b) the question relates to a person over the age of 18 living in the

same household as the person whose suitability is being

assessed,

and if the person to whom the question relates is informed at the time the

question is asked that, by virtue of this section, spent convictions are to be

disclosed.

(5) Section 611(3) does not apply in relation to any question asked by or

on behalf of any person, in the course of the duties of his work, in order to

assess the suitability of a person to provide day care for children if–

(a) the question relates to the person whose suitability is being

assessed; or

(b) the question relates to a person who lives on the premises

which are or are proposed to be day care premises,

and if the person to whom the question relates is informed at the time the

question is asked that, by virtue of this section, spent convictions are to be

disclosed.

(6) Section 611(3) does not apply in relation to any question asked by or

on behalf of a person listed in Part 5 of Schedule 12 to the extent that it

relates to a conviction (or any circumstances ancillary to a conviction) of

any individual, but only if–

(a) the person questioned is informed at the time the question is

asked that, by virtue of this section, spent convictions are to be

disclosed; and

(b) the question is asked in order to assess the suitability of the

individual to whom the question relates in respect of any of the

services mentioned in paragraph 1 of that Part,

and if the person to whom the question relates is informed at the time that

the question is asked that, by virtue of this section, spent convictions are to

be disclosed.

(7) Section 611(4) does not apply in relation to the dismissal or exclusion

of any person from any profession specified in Part 1 of Schedule 12, or

from any office or employment or occupation specified in Part 2 of that

Schedule, or from any occupation specified in Part 3 of that Schedule.

Criminal Procedure and Evidence

2011-24

(8) Section 611(4) does not apply in relation to any action taken for the

purpose of safeguarding the security of Gibraltar.

(9) Section 611(4) does not apply in relation to any proceedings specified

in Part 6 of Schedule 12 to the extent that a decision needs to be taken in

those proceedings relating to a person’s spent conviction or to

circumstances ancillary to a conviction.

(10) Section 611(4) does not apply in relation to any decision specified in

Part 7 of Schedule 12.

Exceptions: Supplementary.

617.(1) For the purpose of section 616 & Schedule 12, unless the context

otherwise requires–

“day care premises” means any premises at which day care for children is

provided and children are looked after;

“work” includes–

(a) work of any kind, whether paid or unpaid, and whether under a

contract of service or apprenticeship, under a contract for

services, or otherwise than under a contract; and

(b) an office established by or by virtue of an enactment;

“work with children” means any work which is normally concerned with

the provision of any form of information, advice or guidance

wholly or mainly to children which relates to their physical,

emotional or educational well-being and includes giving of such

advice by means of telephone or other form of electronic

communication including the internet and mobile telephone text

messaging.

(2) If, by virtue of section 616, the operation of any provision of this Part

is excluded in relation to spent convictions, the exclusion is to be taken to

extend to spent convictions for offences of every description.

(3) In this Part any reference to a conviction includes a reference to a

caution, and any reference to a spent conviction is to be construed

accordingly.

Defamation actions.

618.(1) This section applies to any action for libel or slander begun after

the commencement of this Part by a rehabilitated person and founded upon

the publication of any matter imputing that the claimant has committed or

Criminal Procedure and Evidence

2011-24

been charged with or prosecuted for or convicted of or sentenced for an

offence which was the subject of a spent conviction.

(2) Nothing in section 611(1) affects an action to which this section

applies if the publication complained of took place before the conviction in

question became spent, and the following provisions of this section do not

apply in any such case.

(3) Subject to subsections (5) and (6), nothing in section 611(1) prevents

the defendant in an action to which this section applies from relying on any

defence of justification or fair comment or of absolute or qualified privilege

which is available to him, or restricts the matters he may establish in support

of any such defence.

(4) Without limiting subsection (3), if in any such action malice is alleged

against a defendant who is relying on a defence of qualified privilege,

nothing in section 611(1) restricts the matters he may establish in rebuttal of

the allegation.

(5) A defendant in any such action is not by virtue of subsection (3)

entitled to rely upon the defence of justification if the publication is proved

to have been made with malice.

(6) Subject to subsection (7), a defendant in any such action is not, by

virtue of subsection (3), entitled to rely on any matter or adduce or require

any evidence for the purpose of establishing the defence that the matter

published constituted a fair and accurate report of judicial proceedings, if it

is proved that the publication contained a reference to evidence which was

ruled to be inadmissible in the proceedings by virtue of section 611(1).

(7) Subsection (3) applies without the qualifications imposed by

subsection (6) in relation to–

(a) a report of judicial proceedings contained in any bona fide

series of law reports which does not form part of any other

publication and consists solely of reports of proceedings in

courts of law;

(b) a report or account of judicial proceedings published for bona

fide educational, scientific or professional purposes, or given in

the course of any lecture, class or discussion given or held for

any of those purposes.

Unauthorised disclosure of spent convictions.

619.(1) In this section–

Criminal Procedure and Evidence

2011-24

“official record” means a record containing information about persons

convicted of offences that is kept by any of Her Majesty’s forces,

or by a police force, court or Government department in Gibraltar

or elsewhere, for the purposes of their functions;

“specified information” means information imputing that a named or

otherwise identifiable rehabilitated living person has committed or

been charged with or prosecuted for or convicted of or sentenced

for any offence which is the subject of a spent conviction.

(2) Subject to any order made under subsection (5), a person who, in the

course of his official duties, has or at any time has had custody of or access

to any official record or the information contained in it commits an offence

if, knowing or having reasonable cause to suspect that any specified

information he has obtained in the course of those duties is specified

information, he discloses it, otherwise than in the course of those duties, to

another person.

(3) In proceedings for an offence under subsection (2) it is a defence to

show that the disclosure was made–

(a) to the rehabilitated person or to another person at the express

request of the rehabilitated person; or

(b) to a person whom the defendant reasonably believed to be the

rehabilitated person or to another person at the express request

of a person whom the defendant reasonably believed to be the

rehabilitated person.

(4) A person who obtains any specified information from any official

record by means of fraud, dishonesty or a bribe commits an offence.

(5) The Minister may by order make such provision as appears to him to

be appropriate for excepting the disclosure of specified information derived

from an official record from the provisions of subsection (2) in the cases or

classes of case specified in the order.

(6) A person who commits an offence under subsection (2) is liable on

summary conviction to a fine at level 4 on the standard scale.

(7) A person who commits an offence under subsection (4) is liable on

summary conviction to imprisonment for 6 months or to a fine at level 5 on

the standard scale, or to both.

(8) Proceedings for an offence under subsection (2) or (4) may not be

instituted except by, or with the consent of, the Attorney-General.

References to spent convictions in court proceedings.

Criminal Procedure and Evidence

2011-24

620.(1) The court and every legal representative appearing in a court should

not refer to a spent conviction if such reference can reasonably be avoided.

(2) After a verdict of guilty–

(a) the court must be provided with a statement of the defendant’s

record for the purpose of sentence;

(b) the record should contain all previous convictions, but those

which are spent should, as far as possible, be marked as such.

(3) No person should refer in open court to a spent conviction without the

authority of the judge or person presiding, which authority should not be

given unless the interests of justice so require.

(4) A person when passing sentence should make no reference to spent

convictions unless it is necessary to do so to explain the sentence being

passed.

PART 26 - ANTI-SOCIAL BEHAVIOUR ORDERS

Anti-social behaviour orders (ASBOs).

621.(1) If it appears to the Attorney-General that, in respect of any person

aged 10 or over that–

(a) the person has acted in an anti-social manner, that is to say, in a

manner that caused or was likely to cause harassment, alarm or

distress to one or more persons not of the same household as

himself; and

(b) an order under this section is necessary to protect any member

of the public from further anti-social acts by the person,

the Attorney-General may apply by complaint to the Magistrates’ Court for

an order under this section.

(2) If, on such an application, the Magistrates’ Court is satisfied of the

matters mentioned in subsection (1), the court may make an anti-social

behaviour order which prohibits the defendant from doing anything

described in the order.

(3) An order under this section has effect for a period (not less than 6

months) specified in the order, or until further order.

Criminal Procedure and Evidence

2011-24

(4) Subject to subsection (5), the Attorney-General or the defendant may

apply in writing to the court which made an order under this section for it to

be varied or discharged by a further order.

(5) Except with the consent of both parties, no order under this section

may be discharged earlier than 6 months after it was made.

Orders on conviction in criminal proceedings (CRASBOs).

622.(1) If a person is convicted of an offence and the court is satisfied that–

(a) the person has acted in an anti-social manner, that is to say in a

manner that caused or was likely to cause harassment, alarm or

distress to one or more persons not of the same household as

himself; and

(b) an order under this section is necessary to protect any member

of the public from further anti-social acts by the person,

the court may make an anti-social behaviour order which prohibits the

person from doing anything described in the order.

(2) The court may make an order under this section on its own initiative or

on the application of the Attorney-General.

(3) An order under this section must not be made in respect of a person

except–

(a) in addition to a sentence imposed on the person for an offence;

(b) in addition to an order discharging the person conditionally.

(4) An order under this section has effect for a period (not less than 6

months) specified in the order, or until further order.

(5) An order under this section takes effect on the day on which it is made,

except that if the person in respect of whom it is made is at the same time

sentenced to imprisonment, the order takes effect upon his release from

prison.

(6) Subject to subsection (7), a person subject to an order under this

section, or the Attorney-General, may in writing apply to the court which

made the order for it to be varied or discharged.

(7) Except with the consent of both parties, no order under this section

may be discharged earlier than 6 months after it takes effect.

Criminal Procedure and Evidence

2011-24

Supplementary provisions.

623.(1) For the purpose of deciding whether it is satisfied of the matter

mentioned in section 621(1)(a) or 622(1)(a), the court must disregard any

act of the defendant which he shows was reasonable in the circumstances.

(2) The prohibitions that may be imposed by an anti-social behaviour

order are only those reasonably necessary for the purpose of protecting

persons from further anti-social acts by the defendant.

(3) If without reasonable excuse a person does anything which he is

prohibited from doing by an anti-social behaviour order, the person commits

an offence and is liable–

(a) on summary conviction, to imprisonment for 6 months or to a

fine at level 5 on the standard scale, or both; or

(b) on conviction on indictment, to imprisonment for 5 years or a

fine, or both.

(4) If a person is convicted of an offence under subsection (3), it is not

open to the court to impose a conditional discharge for the offence.

(5) In proceedings for an offence under subsection (3), a copy of the

original anti-social behaviour order, certified as such by the clerk of the

Magistrates’ Court, is admissible in evidence of its having been made and of

its contents, to the same extent that oral evidence of those things is

admissible in those proceedings.

Appeals against orders.

624.(1) An appeal lies to the Supreme Court against the making by the

Magistrates’ Court of an anti-social behaviour order.

(2) On such an appeal the Supreme Court may make–

(a) any order necessary to give effect to its determination of the

appeal; and

(b) any incidental or consequential orders that appear to it to be

just.

(3) An order of the Supreme Court made on an appeal under this section

(other than one directing that an application be re-heard by the Magistrates’

Court) is, for the purposes of section 621(4) or 622(6), to be treated as if it

were an order of the Magistrates’ Court.

PART 27 – YOUNG OFFENDERS AND JUVENILES GENERALLY

Criminal Procedure and Evidence

2011-24

Juvenile Courts

Constitution and procedure of Juvenile Courts.

625.(1) Subject to section 626, the Magistrates’ Court when sitting for the

purpose of hearing any charge against a juvenile or when exercising any

other jurisdiction conferred on a Juvenile Court by this or any other Act is

to be known as the Juvenile Court.

(2) The Juvenile Court must not sit in any room in which sittings of a

court other than the Juvenile Court are held if the sitting of that other court

has been or will be held there within an hour before or after the sitting of the

Juvenile Court.

(3) No person may be present at any sitting of the Juvenile Court except–

(a) members and officers of the court;

(b) parties to the case before the court, their legal representatives,

and witnesses and other persons directly concerned in that

case;

(d) any other persons that the court authorises to be present.

(4) Rules of court may provide for regulating the procedure of the

Juvenile Court.

Charges to be heard in the Juvenile Court.

626.(1) Subject to subsections (2) and (3), every charge against a juvenile

of an offence punishable summarily is to be heard by the Magistrates’ Court

sitting as the Juvenile Court, except that–

(a) a charge made jointly against a juvenile and an adult must be

heard by the Magistrates’ Court; and

(b) if a juvenile is charged with an offence and an adult is charged

at the same time with aiding, abetting, causing, procuring,

allowing or permitting that offence, the case must be tried in

the Magistrates’ Court.

(2) If, in the course of any proceedings before the Magistrates’ Court not

sitting as the Juvenile Court, it appears that the person to whom the

proceedings relate is a juvenile, the court may, if it thinks fit to do so,

proceed with the hearing and determination of those proceedings.

Criminal Procedure and Evidence

2011-24

(3) If a notification that the defendant wishes to plead guilty without

appearing before the court is received by the clerk of the court and the court

has no reason to believe that the defendant is a juvenile, then, if he is a

juvenile he is deemed to have attained the age of 18 for the purposes of

subsection (1) in its application to the proceedings in question.

(4) No rule, whether contained in this Act or any other law, that a charge

is to be brought before the Juvenile Court restricts the powers of any

magistrate to entertain an application for bail or for a remand, and to hear

any evidence necessary for that purpose.

Extension of jurisdiction.

627.(1) The Juvenile Court when sitting for the purpose of hearing a charge

against a person who is believed to be a juvenile may, if it thinks fit to do

so, proceed with the hearing and determination of the charge even if it is

discovered that the person in question is not a juvenile.

(2) The attainment of the age of 18 years by a juvenile who is subject to a

youth rehabilitation order, or a person in whose case an order for

conditional discharge has been made, does not deprive the Juvenile Court of

jurisdiction to enforce his attendance and deal with him in respect of any

failure to comply with the requirements of the order or the commission of a

further offence or to amend or discharge the youth rehabilitation order.

Restrictions on reports of proceedings in which juveniles are concerned.

628.(1) The following prohibitions apply (subject to subsection (5)) in

relation to any proceedings to which this section applies–

(a) no report may be published which reveals the name, address or

school of any juvenile concerned in the proceedings or includes

any particulars likely to lead to the identification of any

juvenile concerned in the proceedings; and

(b) no picture may be published or included in a relevant

programme as being or including a picture of any juvenile

concerned in the proceedings.

(2) The proceedings to which this section applies are

(a) proceedings in the Juvenile Court;

(b) proceedings on appeal from the Juvenile Court (including

proceedings by way of case stated);

Criminal Procedure and Evidence

2011-24

order; and

(d) proceedings on appeal from the Magistrates’ Court arising out

of proceedings under section 522 (Youth rehabilitation orders),

including proceedings by way of case stated.

(3) The reports to which this section applies are–

(a) reports in a newspaper;

(b) reports included in a relevant programme; and

(4) For the purposes of this section a juvenile is “concerned” in any

proceedings whether as being the person against or in respect of whom the

proceedings are taken or as being a witness in the proceedings.

(5) If a court is satisfied that it is in the public interest to do so, it may, in

relation to a juvenile who has been convicted of an offence, by order

dispense to any specified extent with the requirements of this section in

relation to any proceedings before it to which this section applies by virtue

of subsection (2)(a) or (b), if they relate to–

(a) the prosecution or conviction of the offender for the offence;

(b) the manner in which he, or his parent or guardian, should be

dealt with in respect of the offence; or

discharge of any order made in respect of the offence.

(6) A court must not exercise its power under subsection (5) without–

(a) giving the parties to the proceedings an opportunity to make

representations; and

(b) taking into account any representations which are so made.

(7) Subject to subsections (8) and (9) a court may, in relation to

proceedings before it to which this section applies, by order dispense to any

specified extent with the requirements of this section in relation to a juvenile

who is concerned in the proceedings if it is satisfied–

(a) that it is appropriate to do so for the purpose of avoiding

injustice to the juvenile; or

Criminal Procedure and Evidence

2011-24

(b) that, as respects a juvenile to whom this paragraph applies who

is unlawfully at large, it is necessary to dispense with those

requirements for the purpose of apprehending him and bringing

him before a court or returning him to the place in which he

was in custody.

(8) Subsection (7)(b) applies to any juvenile who is charged with or has

been convicted of–

(a) a violent offence;

(b) a sexual offence; or

with imprisonment for 14 years or more.

(9) The court must not exercise its power under subsection (7)(b)–

(a) except pursuant to an application by or on behalf of the

Attorney-General; and

(b) unless notice of the application has been given by the

Attorney-General to any legal representative of the juvenile.

(10) If a report or picture is published or included in a relevant programme

in contravention of subsection (1), the following persons commit an offence

and are liable on summary conviction to a fine not exceeding level 5 on the

standard scale–

(a) in the case of publication of a written report or a picture as part

of a newspaper - any proprietor, editor or publisher of the

newspaper;

(b) in the case of the inclusion of a report or picture in a relevant

programme–any corporate body which provides the

programme and any person having functions in relation to the

programme corresponding to those of an editor of a newspaper.

Imprisonment or detention of young offenders

Juveniles who commit murder, etc. to be detained at Her Majesty’s

pleasure.

629.(1) If a person convicted of murder or any other offence the sentence

for which is fixed by law as life imprisonment appears to the court to have

been aged under 18 at the time the offence was committed, the court must

(notwithstanding anything in this or any other Act) sentence him to be

detained during Her Majesty’s pleasure.

Criminal Procedure and Evidence

2011-24

(2) The place of detention pursuant to this section and section 630 is the

prison, unless the Minister by order directs that a person should be detained

in some other place for the purposes of this section or section 630.

Juveniles who commit certain serious offences to be detained for

specified period.

630.(1) Subsection (2) applies if a juvenile is convicted on indictment of–

(a) an offence punishable in the case of a person aged 18 or over

with imprisonment for 14 years or more, not being an offence

the sentence for which is fixed by law;

(b) an offence under section 215 of the Crimes Act 2011 (Sexual

assault); or

an offence under section 45 of the Traffic Act 2005 (Causing death by

reckless or dangerous driving of motor vehicles).

(2) If the court is of the opinion that none of the other methods in which

the case may be dealt with is suitable, the court may sentence the offender to

be detained for a specified period, not exceeding the maximum term of

imprisonment with which the offence is punishable in the case of a person

aged 18 or over.

(3) Subsection (2) is subject to sections 499 and 500 (restrictions on

imposition of custodial sentences).

Duty to impose imprisonment for life in certain cases where offender

under 21.

631.(1) If a person aged under 21 is convicted of murder or any other

offence the sentence for which is fixed by law as imprisonment for life, the

court must sentence him to imprisonment for life unless he is liable to be

detained under section 629.

(2) If a person aged at least 18 but under 21 is convicted of an offence–

(a) for which the sentence is not fixed by law; but

(b) for which a person aged 21 or over would be liable to

imprisonment for life,

the court must, if it considers that a sentence for life would be appropriate,

sentence him to imprisonment for life.

Criminal Procedure and Evidence

2011-24

(3) Subsection (2) is subject to sections 499 and 500 (restrictions on

imposition of custodial sentences).

Duty to remit young offenders to the Juvenile Court for sentence.

632.(1) Subsection (2) applies if a juvenile is convicted by or before any

court, other than the Juvenile Court, of an offence other than homicide.

(2) The court must, unless satisfied that it would be undesirable to do so,

remit the case to the Juvenile Court, subject to subsection (6).

(3) If a case is remitted under subsection (2), the offender must be brought

before the Juvenile Court accordingly, and that court may deal with him in

any way in which it might have dealt with him if he had been tried and

convicted by that court.

(4) A court by which an order remitting a case to the Juvenile Court is

made under subsection (2)–

(a) may, subject to sections 129 (Bail in cases of treason, etc.) and

130 (Bail in cases of murder), give any directions necessary

with respect to the custody of the offender or for his release on

bail until he can be brought before the Juvenile Court; and

(b) must send to the clerk of the Juvenile Court a certificate setting

out the nature of the offence and stating–

(i) that the offender has been convicted of the offence; and

(ii) that the case has been remitted for the purpose of being

dealt with under this section.

(5) If a case is remitted under subsection (2), the offender does not have a

right of appeal against the order of remission, but has the same right of

appeal against any order of the Juvenile Court as if he had been convicted

by that court.

(6) If the Magistrates’ Court convicts a juvenile of an offence it must

exercise the power conferred by subsection (2) unless the court is of the

opinion that the case is one which can properly be dealt with by means of–

(a) an order discharging the offender absolutely or conditionally;

(b) an order for the payment of a fine; or

guardian to enter into a recognizance to take proper care of him

and exercise proper control over him,

Criminal Procedure and Evidence

2011-24

with or without any other order that the court has power to make when

absolutely or conditionally discharging an offender.

(7) For the purposes of subsection (6), taking care of a person includes

giving him protection and guidance and control includes discipline.

(8) The provisions of this Part are in addition to and do not derogate from

the provisions of Part 22 regarding the making of youth rehabilitation orders

on young offenders.

Remitting an offender who attains the age of 18 to the Magistrates’

Court for sentence.

633.(1) If a person who appears or is brought before the Juvenile Court

charged with an offence subsequently attains the age of 18, the Juvenile

Court may, at any time after conviction and before sentence, remit him for

sentence to the Magistrates’ Court.

(2) If an offender is remitted under subsection (1), the Juvenile Court must

adjourn proceedings in relation to the offence, and–

(a) any enactment relating to remand or the granting of bail in

criminal proceedings has effect, in relation to the Juvenile

Court’s power or duty to remand the offender on that

adjournment, as if any reference to the court to or before which

the person remanded is to be brought or appear after remand

were a reference to the Magistrates’ Court; and

(b) subject to subsection (3), the Magistrates’ Court may deal with

the case in any way in which it would have power to deal with

it if all proceedings relating to the offence which took place

before the Juvenile Court had taken place before the

Magistrates’ Court.

(3) If an offender is remitted under subsection (1), section 632(6) does not

apply to the Magistrates’ Court.

(4) An offender who is remitted under subsection (1) has no right of

appeal against the order of remission (without affecting any right of appeal

against an order made in respect of the offence by the Magistrates’ Court to

which he is remitted).

Reparation orders on young offenders

Making of reparation orders.

Criminal Procedure and Evidence

2011-24

634.(1) If a juvenile is convicted of an offence other than one for which the

sentence is fixed by law, the court by or before which he is convicted may,

subject to section 635, make an order (a “reparation order”) requiring him to

make reparation specified in the order–

(a) to a person or persons identified by the court as a victim of the

offence or a person otherwise affected by it; or

(b) to the community at large.

(2) The court must not make a reparation order in respect of the offender if

it proposes–

(a) to pass on him a custodial sentence; or

(b) to make in respect of him a youth rehabilitation order.

(3) Before making a reparation order, a court must obtain and consider a

written report by a probation officer indicating–

(a) the type of work that is suitable for the offender; and

(b) the attitude of the victim or victims to the requirements

proposed to be included in the order.

(4) Before making a reparation order, the court must explain to the

offender in ordinary language–

(a) the effect of the order and of the requirements proposed to be

included in it;

(b) the consequences which may follow under section 636 if he

fails to comply with any of those requirements; and

on the application either of the offender or of a probation

officer.

(5) The court must give reasons if it does not make a reparation order in a

case where it has power to do so.

(6) In this section and section 635, “make reparation”, in relation to an

offender, means make reparation for the offence otherwise than by the

payment of compensation.

Requirements and provisions of reparation orders.

635.(1) A reparation order must not require the offender–

Criminal Procedure and Evidence

2011-24

(a) to work for more than 24 hours in aggregate; or

(b) to make reparation to any person without the consent of that

person.

(2) Subject to subsection (1), requirements specified in a reparation order

must be such as in the opinion of the court are commensurate with the

seriousness of the offence, or the combination of the offence and one or

more offences associated with it.

(3) Requirements so specified must, as far as practicable, be such as to

avoid–

(a) any conflict with the offender’s religious beliefs or with the

requirements of any community order to which he is subject;

and

(b) any interference with the times, if any, at which he normally

works or attends school or any other educational establishment.

(4) Any reparation required by a reparation order–

(a) must be made under the supervision of a probation officer; and

(b) must be made within 3 months from the making of the order.

Breach of requirement of reparation order.

636.(1) This section applies if while a reparation order is in force in respect

of an offender it is proved to the satisfaction of the court that made the

order, on the application of a probation officer, that the offender has failed

to comply with any requirement included in the order.

(2) If this section applies, the court, whether or not it also makes an order

under section 637 may–

(a) order the offender to pay a fine of up to £1,000;

(b) if the reparation order was made by the Magistrates’ Court or

the Juvenile Court - revoke the order and deal with the

offender, for the offence in respect of which the order was

made, in any way in which he could have been dealt with for

that offence by the court which made the order if the order had

not been made; or

Criminal Procedure and Evidence

2011-24

commit him in custody or release him on bail until he can be

brought or appear before the Supreme Court.

(3) If a court deals with an offender under subsection (2)(c), it must send

to the Supreme Court a certificate signed by a magistrate giving–

(a) particulars of the offender’s failure to comply with the

requirement in question; and

(b) any other particulars of the case that are appropriate.

(4) If–

(a) by virtue of subsection (2)(c) the offender is brought or appears

before the Supreme Court; and

(b) it is proved to the satisfaction of the court that he has failed to

comply with the requirement in question,

that court may deal with him, for the offence in respect of which the order

was made, in any way in which it could have dealt with him for that offence

if it had not made the order.

(5) If the Supreme Court deals with an offender under subsection (4), it

must revoke the reparation order if it is still in force.

(6) A fine imposed under this section is deemed, for the purposes of any

enactment, to be a sum adjudged to be paid upon a conviction.

(7) In dealing with an offender under this section, a court must take into

account the extent to which he has complied with the requirements of the

reparation order.

(8) If a reparation order has been made on appeal, for the purposes of this

section it is deemed–

(a) if it was made on an appeal brought from the Magistrates’

Court or the Juvenile Court - to have been made by that court;

(b) if it was made on an appeal brought from the Supreme Court or

from the Court of Appeal - to have been made by the Supreme

Court;

and, in relation to a reparation order made on appeal, subsection (2)(b) has

effect as if the words “if the order had not been made” were omitted and

subsection (4) has effect as if the words “if it had not made the order” were

omitted.

Criminal Procedure and Evidence

2011-24

Revocation and amendment of reparation order.

637.(1) If while a reparation order is in force in respect of an offender it

appears to the court, on the application of a probation officer or the

offender, that it is appropriate to make an order under this subsection, the

court may make an order–

(a) revoking the reparation order; or

(b) amending it–

(i) by cancelling any provision included in it; or

(ii) by inserting in it (either in addition to or in substitution

for any of its provisions) any provision which could have

been included in the order if the court had then had

power to make it and were exercising the power.

(2) If an application under subsection (1) for the revocation of a reparation

order is dismissed, no further application for its revocation may be made

under that subsection by any person except with the consent of the court.

Presence of offender in court, remands, etc.

638.(1) If a probation officer makes an application under section 636 or 637

he may bring the offender before the court; and, subject to subsection (7),

the court must not make an order under either of those sections unless the

offender is present before the court.

(2) Without affecting any other power to issue a summons or warrant, the

court to which an application under section 636 or 637 is made may issue a

summons or warrant for the purpose of securing the attendance of the

offender before it.

(3) If the offender is arrested pursuant to a warrant issued by virtue of

subsection (2) and cannot be brought immediately before the court, the

person in whose custody he is–

(a) may make arrangements for his detention in a place of safety

for a period of not more than 72 hours from the time of the

arrest (and he may be detained pursuant to the arrangements);

and

(b) must within that period bring him before the Juvenile Court.

(4) If an offender is under subsection (3)(b) brought before the Juvenile

Court the court may–

Criminal Procedure and Evidence

2011-24

(a) direct that he be released forthwith; or

(b) subject to subsection (6), remand him to segregated

accommodation in the prison or other place of safety.

(5) Subject to subsection (6), if an application is made to a court under

section 637, the court may remand (or further remand) the offender to

segregated accommodation in the prison or other place of safety, if–

(a) a warrant has been issued under subsection (2) for the purpose

of securing the attendance of the offender before the court; or

(b) the court considers that remanding (or further remanding) him

will enable information to be obtained which is likely to assist

the court in deciding whether and, if so, how to exercise its

powers under section 637.

(6) If the offender is aged 18 or over at the time when he is brought before

the Juvenile Court under subsection (3)(b), or is aged 18 or over at a time

when (apart from this subsection) the court could exercise its powers under

subsection (5) in respect of him, he must be remanded to segregated

accommodation in the prison.

(7) A court may make an order under section 637 in the absence of the

offender if the effect of the order is confined to–

(a) revoking the reparation order; or

(b) cancelling a requirement included in the reparation order.

(8) In this section, and in sections 642(2) and 648(1), “place of safety”

means any police station or any hospital or other suitable place which is

able and willing to receive a juvenile temporarily.

Reparation orders: Appeals.

639. An offender may appeal to the Supreme Court against–

(a) any order made under section 636 or 637 except an order made

or which could have been made in his absence under section

638(7);

(b) the dismissal of an application under section 637(1) to revoke a

reparation order.

Fines on young offenders

Criminal Procedure and Evidence

2011-24

Application of Part 23.

640. The provisions of sections 575 to 578 as to juvenile offenders apply to

the imposing of fines on young offenders as if they were set out in full in

this Part.

Binding over of parent or guardian

Binding over of parent or guardian.

641.(1) If a juvenile is convicted of an offence, the powers conferred by

this section are exercisable by the court by which he is sentenced for that

offence, and if the offender is aged under 16 when sentenced the court

must–

(a) exercise those powers if it is satisfied, having regard to the

circumstances of the case, that their exercise is appropriate in

the interests of preventing the commission by him of further

offences; and

(b) if it does not exercise them, state in open court that it is not

satisfied as mentioned in paragraph (a) and why it is not so

satisfied.

(2) The powers conferred by this section in relation to the parent or

guardian of an offender are–

(a) if the parent or guardian consents - to order the parent or

guardian to enter into a recognizance to take proper care of the

offender and exercise proper control over him;

(b) if the parent or guardian refuses consent and the court

considers the refusal unreasonable - to order the parent or

guardian to pay a fine of up to £1,000.

(3) If the court has passed a community sentence on the offender, it may

include in the recognizance a provision that the offender’s parent or

guardian must ensure that the offender complies with the requirements of

that sentence.

(4) An order under this section must not require the parent or guardian to

enter into a recognizance–

(a) for more than £1,000; or

(b) for a period exceeding 3 years; or

Criminal Procedure and Evidence

2011-24

3 years–for a period exceeding that shorter period.

(5) The power to forfeit a recognizance applies in relation to a

recognizance entered into pursuant to an order under this section as it

applies in relation to a recognizance to keep the peace.

(6) A fine imposed under subsection (2)(b) is deemed, for the purposes of

any enactment, to be a sum adjudged to be paid upon a conviction.

(7) In fixing the amount of a recognizance under this section, the court

must take into account among other things the means of the parent or

guardian so far as they appear or are known to the court, whether taking into

account the means of the parent or guardian has the effect of increasing or

reducing the amount of the recognizance.

(8) A parent or guardian may appeal to the Supreme Court against an

order under this section made by the Magistrates’ Court or the Juvenile

Court.

(9) A parent or guardian may appeal to the Court of Appeal against an

order under this section made by the Supreme Court, as if he had been

convicted on indictment and the order were a sentence passed on his

conviction.

(10) A court may vary or revoke an order made by it under this section if,

on the application of the parent or guardian, it appears to the court, having

regard to any change in the circumstances since the order was made, to be in

the interests of justice to do so.

(11) For the purposes of this section, taking care of a person includes

giving him protection and guidance and control includes discipline.

Attendance at court of parent or guardian.

642.(1) If a juvenile is charged with an offence or is for any other reason

brought before a court, the court–

(a) may in any case; and

(b) must in the case of a juvenile who is under the age of 16 years,

require a person who is a parent or guardian of the juvenile to attend at the

court during all the stages of the proceedings, unless and to the extent that

the court is satisfied that it would be unreasonable to require such

attendance, having regard to the circumstances of the case.

Criminal Procedure and Evidence

2011-24

(2) If a juvenile is arrested or taken to a place of safety, the police officer

by whom he is arrested or the officer in charge of the police station to which

he is brought, or the person by whom he is taken to the place of safety, as

the case may be, must cause the parent or guardian of the juvenile, if he can

be found, to be warned to attend at the court before which the juvenile will

appear.

(3) The attendance of the parent or guardian of a juvenile is not required

under this section in any case where the juvenile was before the institution

of the proceedings removed from the custody or charge of his parent by an

order of a court.

(4) In relation to a juvenile for whom the Care Agency has parental

responsibility and who–

(a) is in their care; or

(b) is provided with accommodation by them in the exercise of

functions under the Children Act 2009,

the reference in subsections (1) to (3) to a person who is a parent or

guardian of the juvenile is to be construed as a reference to the Agency.

(5) Rules of court may make provision–

(a) for enforcing the attendance of the parent or guardian of a

juvenile brought before a court;

(b) enabling such parent or guardian to take part in the

proceedings;

(d) prescribing forms of summons to a juvenile and to his parent or

guardian.

(6) This section is in addition to and does not derogate from section 83

(Right to have someone informed when arrested) and section 84 (Additional

rights of children and young persons who are arrested) in relation to a

juvenile in police detention.

Schedule 13 offences

Presumption and determination of age.

643.(1) If in any charge or indictment for any of the offences set out in

Schedule 13, except as provided in that Schedule–

Criminal Procedure and Evidence

2011-24

(a) it is alleged that the person by or in respect of whom the

offence was committed was a juvenile or was under or had

attained any specified age; and

(b) he appears to the court to have been at the date of the

commission of the alleged offence a juvenile, or to have been

under or to have attained the specified age, as the case may be,

he is for the purposes of this Act presumed at that date to have been a

juvenile or to have been under or to have attained that age, as the case may

be, unless the contrary is proved.

(2) If in any charge or indictment for any of the offences set out in

Schedule 13, it is alleged that the person in respect of whom the offence was

committed was a juvenile, it is not a defence to prove that a person alleged

to have been a child was a young person or that a person alleged to have

been a young person was a child if the acts constituting the alleged offence

would equally have been an offence if committed in respect of any juvenile.

Power to proceed with case in absence of juvenile.

644. If in any proceedings with relation to any of the offences mentioned in

Schedule 13, the court is satisfied that the attendance before the court of any

juvenile in respect of whom the offence is alleged to have been committed

is not essential to the just hearing of the case, the case may be proceeded

with and decided in the absence of the juvenile.

Extension of power to take deposition of juvenile.

645.(1) If a magistrate is satisfied by the evidence of a duly qualified

medical practitioner that the attendance before a court of any juvenile in

respect of whom any of the offences mentioned in Schedule 13 is alleged to

have been committed would involve serious danger to his life or health, the

magistrate–

(a) may take in writing the deposition of the juvenile on oath; and

(b) must sign the deposition and add to it a statement of his reason

for taking it and of the day when and place where it was taken,

and of the names of the persons (if any) present at the taking of

it.

(2) The magistrate taking a deposition pursuant to subsection (1) must

send it with his statement–

(a) if the deposition relates to an offence for which an accused

person is already committed for trial - to the Registrar of the

Supreme Court; and

Criminal Procedure and Evidence

2011-24

(b) in any other case - to the clerk to the Magistrates’ Court.

Admission of deposition of juvenile in evidence.

646.(1) If, in any proceedings in respect of any of the offences mentioned

in Schedule 13, the court is satisfied by the evidence of a duly qualified

medical practitioner that the attendance before the court of any juvenile in

respect of whom the offence is alleged to have been committed would

involve serious danger to his life or health, a deposition of the juvenile taken

under this Act is admissible in evidence either for or against the defendant

without further proof of it if it purports to be signed by the magistrate by or

before whom it purports to be taken.

(2) The deposition is not admissible in evidence against the defendant

unless it is proved that reasonable notice of the intention to take the

deposition has been served upon him and that he or his legal representative

had, or might have had if present, an opportunity of cross-examining the

juvenile making the deposition.

Mode of charging offences and limitation of time.

647.(1) If a person is charged with committing any of the offences

mentioned in Schedule 13 in respect of 2 or more juveniles, the same

information or summons may charge the offence in respect of all or any of

them, but the person charged is not, if he is summarily convicted, liable to a

separate penalty in respect of each juvenile except upon separate

informations.

(2) The same information or summons may charge a person with the

offences of assault, ill-treatment, neglect, abandonment, or exposure,

together or separately, and may charge him with committing all or any of

those offences in a manner likely to cause unnecessary suffering or injury to

health, alternatively or together, but if those offences are charged together

the person charged is not, if he is summarily convicted, liable to a separate

penalty for each.

(3) If an offence mentioned in Schedule 13 charged against any person is a

continuous offence, it is not necessary to specify in the information,

summons, or indictment, the date of the acts constituting the offence.

(4) A person must not be summarily convicted of an offence set out in

Schedule 13 unless the offence was wholly or partly committed within 6

months before the information was laid, but, subject to this section,

evidence may be taken of acts constituting, or contributing to constitute, the

offence, and committed at any previous time.

Warrant to search for juvenile suspected of being ill-treated, etc.

Criminal Procedure and Evidence

2011-24

648.(1) If it appears to a magistrate on information on oath laid by any

person who, in the opinion of the magistrate, is acting in the interests of a

juvenile, that there is reasonable cause to suspect–

(a) that the juvenile has been or is being assaulted, ill-treated, or

neglected in a manner likely to cause him unnecessary

suffering, or injury to health; or

(b) that any offence set out in Schedule 13 has been or is being

committed in respect of the juvenile,

the magistrate may issue a warrant authorizing any police officer–

(i) to search for the juvenile and, if it is found that he has

been or is being assaulted, ill-treated or neglected in the

manner aforesaid, or that any such offence has been or is

being committed in respect of him, to take him to and

detain him in a place of safety, until he can be brought

before the Juvenile Court; or

(ii) to remove the juvenile with or without search to a place

of safety and detain him there until he can be brought

before the Juvenile Court.

(2) Any police officer authorised by warrant under this section to search

for any juvenile, or to remove any juvenile with or without search, may

enter, if need be by force, any house, building, or other place specified in

the warrant, and may remove him from it.

(3) A warrant issued under this section must be executed by a police

officer, who–

(a) must be accompanied by the person laying the information, if

that person so desires, unless the magistrate by whom the

warrant is issued otherwise directs; and

(b) may also, if the magistrate so directs, be accompanied by a

medical practitioner.

(4) It is not necessary in an information or warrant under this section to

name the juvenile.

Miscellaneous provisions

General considerations when dealing with juveniles.

Criminal Procedure and Evidence

2011-24

649.(1) Every court in dealing with a juvenile who is brought before it,

either as an offender or otherwise, must–

(a) have regard to the welfare of the juvenile; and

(b) in a proper case take steps for removing him from undesirable

surroundings, and for securing that proper provision is made

for his education and training.

(2) The words “conviction” and “sentence” must not be used in relation to

juveniles dealt with summarily and any reference in any enactment to a

person convicted, a conviction or a sentence is, in the case of a juvenile, to

be construed as including a reference to a person found guilty of an offence,

a finding of guilt or an order made upon such a finding, as the case may be.

(3) A conviction or finding of guilt of or against a juvenile is to be

disregarded for the purposes of any law which imposes any disqualification

or disability upon convicted persons or authorises or requires the imposition

of any such disqualification or disability.

Segregation of juveniles in detention.

650. Arrangements must be made–

(a) for preventing as far as possible a juvenile while detained in a

police station, or while being conveyed to or from any criminal

court, or while waiting before or after attendance in any

criminal court, from associating with an adult, not being a

relative, who is charged with any offence other than an offence

with which the juvenile is jointly charged; and

(b) for ensuring as far as possible that a girl who is a juvenile is

while so detained, conveyed, or waiting, under the care of a

woman.

Prohibition of unnecessary presence of children in court.

651.(1) No child, other than an infant in arms, may be present in court

during the trial of any other person charged with an offence, or during any

proceedings preliminary to such a trial, except during any time that his

presence is required as a witness or otherwise for the purposes of justice, or

if the court consents to his presence.

(2) If a child is present in court when under this section he is not to be

permitted to be so the court must order him to be removed.

Power to clear court while juvenile is giving evidence.

Criminal Procedure and Evidence

2011-24

652.(1) If, in any proceedings in relation to an offence against, or any

conduct contrary to, decency or morality, a person who, in the opinion of

the court, is a juvenile is called as a witness, the court may direct that all or

any persons, not being members or officers of the court or parties to the

case, their legal representatives, or persons otherwise directly concerned in

the case, be excluded from the court during the taking of the evidence of

that witness

(2) Nothing in this section authorises the exclusion of bona fide

representatives of a newspaper or news agency.

(3) The powers conferred on a court by this section are in addition to and

do not affect any other powers of the court to hear proceedings in camera.

Evidence of child of tender years.

653.(1) Section 342 (Reception of unsworn evidence) applies for the

purpose of determining whether a child should give sworn or unsworn

evidence.

(2) If a child whose evidence is received unsworn in any proceedings for

an offence by virtue of section 342 wilfully gives false evidence in such

circumstances that he would, if the evidence had been given on oath, have

been guilty of perjury, he is liable to be dealt with for an offence under

section 459 of the Crimes Act 2011 (Penalty for giving false unsworn

evidence).

Summary trial of information against juvenile.

654. Not used.

Power to prohibit publication of certain matter in newspapers.

655.(1) In relation to any proceedings in any court, the court may direct

that–

(a) no published report of the proceedings is to reveal the name,

address or school, or include any particulars likely to lead to

the identification, of any juvenile concerned in the

proceedings, either as being the person by or against or in

respect of whom the proceedings are taken, or as being a

witness in them;

(b) no picture is to be published or included in a relevant

programme as being or including a picture of any juvenile so

concerned in the proceedings,

unless to the extent (if at all) permitted by the direction of the court.

Criminal Procedure and Evidence

2011-24

(2) If a report or picture is published or included in a relevant programme

in contravention of subsection (1), the following persons commit an offence

and are liable on summary conviction to a fine not exceeding level 5 on the

standard scale–

(a) in the case of publication of a written report or a picture as part

of a newspaper - any proprietor, editor or publisher of the

newspaper;

(b) in the case of the inclusion of a report or picture in a relevant

programme – any corporate body which provides the

programme and any person having functions in relation to the

programme corresponding to those of an editor of a newspaper.

(3) This section is in addition to and does not derogate from the provisions

of section 628 as regards the proceedings mentioned in subsection (2) of

that section.

Dealing with persons who attain the age of 18.

656.(1) If a person, whether charged with an offence or not, is brought

before a court, except for the purpose of giving evidence, and it appears to

the court that he is a juvenile, the court must make due inquiry as to the age

of the person, and for that purpose must take any evidence that is

forthcoming at the hearing of the case.

(2) An order or judgment of the court is not invalidated by any subsequent

proof that the age of the person has not been correctly stated to the court,

and–

(a) the age, presumed or declared by the court to be the age of the

person so brought before it is, for the purposes of this Act,

deemed to be the true age of that person;

(b) if it appears to the court that the person so brought before it has

attained the age of 18 years, that person is for the purposes of

this Act deemed not to be a juvenile.

(3) If proceedings in respect of a young person are begun for an offence

and he attains the age of 18 before the conclusion of the proceedings, the

court may deal with the case and make any order which it could have made

if he had not attained that age.

PART 28 – MENTALLY DISORDERED OFFENDERS

Interpretation of Part.

Criminal Procedure and Evidence

2011-24

657.(1) In this Part

“hospital” has the same meaning as in the Mental Health Act;

“hospital order” means an order made under section 662(2), 668 or

674(5);

“interim hospital order” means an order made under section 669;

“medical practitioner” means a person registered as a medical

practitioner under the Medical and Health Act 1997;

“mental disorder” has the same meaning as in the Mental Health Act;

“place of safety”, in relation to an adult, means any police station or

prison and any hospital which is able and willing temporarily to

receive him, and in relation to a juvenile has the same meaning as

in section 638(8);

“responsible medical officer”, in relation to a person liable to be detained

in a hospital pursuant to an order or direction under this Part,

means the medical practitioner in charge of the treatment of the

person;

“supervision order” means an order made under section 677(1);

“transfer direction” means a direction given under section 671(1);

“under a disability”, in relation to a defendant, means suffering from

mental disorder and consequently incapable of making his defence.

(2) Any reference in this Part to an offence punishable on summary

conviction with imprisonment is to be construed without regard to any

prohibition or restriction imposed by or under any enactment relating to the

imprisonment of young offenders.

(3) If a person who is detained in a hospital pursuant to an order or

direction under this Part is further detained by virtue of a subsequent order

or direction under this Part or a subsequent application for admission for

treatment under the Mental Health Act, he must be treated as if the

subsequent order, direction or application described him as suffering from

the form or forms of mental disorder specified in the earlier order or

direction.

Fitness to be tried

Finding of unfitness to be tried.

Criminal Procedure and Evidence

2011-24

658.(1) This section applies if on the trial of a person the question arises, at

the instance of the defence or otherwise, whether the defendant is under

such a disability as would constitute a bar to his being tried.

(2) If the court has reason to believe that the defendant is suffering from

mental disorder and consequently incapable of making his defence, it must–

(a) cause the person to be medically examined; and

(b) thereafter take medical and any other available evidence

regarding the state of the defendant’s mind.

(3) If, having regard to the nature of the supposed disability, the court is of

opinion that it is expedient to do so and in the interests of the defendant, it

may postpone consideration of the question of fitness to be tried until any

time up to the opening of the case for the defence.

(4) If, before the question of fitness to be tried falls to be decided, the jury

return a verdict of acquittal on the count or each of the counts on which the

defendant is being tried or, in the case of the Magistrates’ Court, the court

dismisses the information or each of the informations on which the

defendant is being tried, that question must not be decided.

(5) Subject to subsections (3) and (4), the question of fitness to be tried

must be decided as soon as it arises.

(6) The question of fitness to be tried must be decided by the court

without a jury.

(7) The court must not make a decision under subsection (6) except on the

written or oral evidence of 2 or more medical practitioners.

(8) If a court finds that the defendant is unfit to be tried, it must make a

decision under section 662(2) and for that purpose may adjourn the case for

further medical evidence to be adduced in accordance with this Part.

Appeals against finding of unfitness.

659.(1) For the purpose of providing an appeal against a finding of the

Magistrates’ Court that the defendant is unfit to be tried, sections 268 and

278 apply as if references to a special finding included references to such a

decision.

(2) For the purpose of providing an appeal against a finding of the

Supreme Court that the defendant is unfit to be tried, section 9 of the Court

of Appeal Act applies as if references to a conviction included references to

such a finding.

Criminal Procedure and Evidence

2011-24

(3) Section 278 applies with necessary modifications to appeals to the

Court of Appeal pursuant to subsection (2) as it applies to appeals to the

Supreme Court on the question of fitness to be tried.

Finding that the defendant did the act or made the omission charged

against him.

660.(1) This section applies if under section 658(6) a court finds that the

defendant is unfit to be tried.

(2) The trial must not proceed or further proceed but, in the case of a trial

on indictment, the jury must decide–

(a) on the evidence (if any) already given in the trial; and

(b) on any evidence that is adduced or further adduced by the

prosecution, or adduced by a person appointed by the court

under this section to put the case for the defence,

whether they are satisfied, as respects the count or each of the counts on

which the defendant was to be or was being tried, that he did the act or

made the omission charged against him as the offence.

(3) If as respects that count or any of those counts the jury are not so

satisfied, they must return a verdict of acquittal as if on the count in

question the trial had proceeded to a conclusion.

(4) If the question of disability was decided after arraignment of the

defendant, the decision under subsection (2) must be made by the jury by

whom he was being tried.

(5) In the case of a summary trial, the trial must not proceed or further

proceed, but the court must decide on the evidence as mentioned in

subsection (2) whether it is satisfied as respects the information or each of

the informations on which the defendant was being tried, that he did the act

or made the omission charged against him as an offence.

(6) If as respects that information or any of those informations the court is

not so satisfied, it must return a verdict of acquittal as if on the information

in question the trial had proceeded to a conclusion.

Acquittal on ground of mental disorder.

661.(1) If–

(a) an act or omission is charged against any person as an offence;

and

Criminal Procedure and Evidence

2011-24

(b) it is given in evidence on the trial of the person for that offence

that he was suffering from mental disorder so as not to be

responsible in law for his actions at the time when the act was

done or omission made,

then, if it appears to the court before which the person is tried that he did the

act or made the omission charged, but was suffering from mental disorder at

the time when he did or made the same, the court must return a special

verdict to the effect that the defendant was not guilty by reason of mental

disorder.

(2) A court must not return a special verdict under this section except on

the written or oral evidence of 2 or more medical practitioners.

Powers to deal with persons not guilty by reason of mental disorder or

unfit to be tried.

662.(1) This section applies if–

(a) a verdict is returned under section 661 that the defendant is not

guilty by reason of mental disorder; or

(b) findings are recorded

(i) under section 658, that the defendant is unfit to be tried;

and

(ii) under section 660, that he did the act or made the

omission charged against him.

(2) The court must make in respect of the defendant–

(a) a hospital order or an interim hospital order;

(b) a supervision order; or

(3) Subsection (2) does not apply if the offence to which the special

findings or verdict relate is an offence the sentence for which is fixed by

law.

(4) If a person confined in hospital by a hospital order or an interim

hospital order is found by the responsible medical officer to be fit to be

tried, the officer must forthwith send a certificate to that effect to the court

which recorded the finding under section 658 in respect of the person.

Criminal Procedure and Evidence

2011-24

(5) A certificate issued under subsection (4) is admissible in evidence and

the court must upon receipt of it–

(a) order the removal of the person from the place where he is

detained; and

(b) cause him to be brought in custody before it and proceed as

provided by section 663.

Resumption of trial if defendant fit to be tried.

663.(1) If, during any criminal proceedings in a court, the defendant

appears to be fit to be tried, although it is alleged that, at the time when the

act was committed in respect of which he is charged he was by reason of

mental disorder incapable of knowing the nature of the act or that it was

wrong or contrary to law, the court must–

(a) proceed with the case; and

(b) if it is a preliminary inquiry whether the defendant ought, in

the opinion of the court, to be committed for trial – so commit

him.

(2) If a trial is adjourned pursuant to section 658(8), the court may at any

time resume the trial and require the defendant to appear or be brought

before it.

(3) If, when a person is brought before a court pursuant to subsection (2),

the court considers the person fit to be tried, the trial must proceed, but if

the court considers the defendant to be still unfit to be tried, it must take

action as if the defendant were brought before it for the first time.

Remands to hospital

Remand to hospital for report on defendant’s mental condition.

664.(1) The court may at any time remand a person to whom this section

applies to a hospital specified by the court for a report on his mental

condition.

(2) This section applies to any person who–

(a) is awaiting trial before the Supreme Court for an offence

punishable with imprisonment (other than an offence the

sentence for which is fixed by law);

(b) has been arraigned before the Supreme Court (whether

convicted or not) and has not been sentenced;

Criminal Procedure and Evidence

2011-24

summary conviction with imprisonment, if–

(i) the court is satisfied that he did the act or made the

omission charged; or

(ii) he has consented to the exercise by the court of the

powers conferred by this section.

(3) Subject to subsection (4), the powers conferred by this section may

only be exercised if–

(a) the court is satisfied, on the written or oral evidence of a

medical practitioner, that there is reason to suspect that the

defendant suffers from mental disorder; and

(b) the court is of the opinion that it would be impracticable for a

report on his mental condition to be made if he were remanded

on bail.

(4) The court must not remand a defendant to a hospital under this section

unless satisfied, on the written or oral evidence of the medical practitioner

who would be responsible for making the report, or of some other person

representing the person in charge of the hospital, that arrangements have

been made for his admission to that hospital within 7 days from the date of

the remand.

(5) If satisfied as mentioned in subsection (4), the court may, pending his

admission, direct that the person be conveyed to and detained in a place of

safety.

Remand for report.

665.(1) If, in the case of a person to whom section 664 applies, the court

does not consider an immediate order under that section to be appropriate, it

may–

(a) adjourn the case to enable a medical examination and report to

be made; and

(b) remand the person on bail for a period or periods not exceeding

3 weeks at a time, and not more than 12 weeks in all,

in order that an inquiry can be made into his physical or mental condition

before the method of dealing with him is decided.

Criminal Procedure and Evidence

2011-24

(2) If, on the trial by the Magistrates’ Court of an offence punishable with

imprisonment, the court–

(a) is satisfied that the defendant did the act or made the omission

charged; but

(b) is of the opinion that an inquiry ought to be made into his

physical or mental condition before the method of dealing with

him is decided,

the court must adjourn the case to enable a medical examination and report

to be made, and must remand him.

(3) An adjournment under subsection (1) or (2) must not be for more than

3 weeks at a time if the court remands the defendant in custody, nor for

more than 4 weeks at a time if it remands him on bail.

(4) If a person is remanded on bail under subsection (1) or (2)–

(a) it must be a condition of the recognizance that he undergo

medical examination by a specified medical practitioner in or

at an institution or place specified in the recognizance or by the

medical practitioner; and

(b) if arrangements have been made for the reception of the

defendant, it may be a condition of the recognizance that, for

the purpose of the examination, he reside, for a specified

period in or at a specified institution or place.

(5) If the Magistrates’ Court on committing or sending any person for trial

on bail is of the opinion that an inquiry ought to be made as mentioned in

subsection (1) or (2), the court may make it a condition of the recognizance

taken for the purposes of his committal, but subject to the condition for his

appearance, that he undergo medical examination or reside as mentioned in

subsection (4).

(6) Notwithstanding anything in the Mental Health Act, a person released

on a recognizance conditioned as provided by this section may be received,

for the purpose of medical examination, in a hospital.

Remand for report: Supplementary.

666.(1) If a court has remanded a defendant under section 664 or 665 it

may further remand him if it appears to the court, on the written or oral

evidence of the medical practitioner responsible for making the report, that a

further remand is necessary for completing the assessment of the

defendant’s mental condition.

Criminal Procedure and Evidence

2011-24

(2) The power of further remanding a defendant under either of those

sections may be exercised by the court without his being brought before the

court if he is legally represented and his representative is given an

opportunity of being heard.

(3) A defendant must not be remanded or further remanded under either of

those sections for more than 28 days at a time or for more than 12 weeks in

all.

(4) A defendant remanded to hospital under either of those sections is

entitled–

(a) to obtain at his own expense an independent report on his

mental condition from a medical practitioner chosen by him;

and

(b) to apply to the court on the basis of it for his remand to be

terminated under subsection (5).

(5) The court may at any time terminate the remand if it appears to the

court that it is appropriate to do so.

Effect of remand to hospital.

667.(1) If a defendant is remanded under section 664–

(a) a police officer or any other person directed to do so by the

court must convey the defendant to the hospital specified by

the court within the period specified in the order; and

(b) the person in charge of the hospital must admit him within that

period and thereafter detain him in accordance with the

provisions of this Part.

(2) If a defendant absconds from a hospital to which he has been

remanded under section 664, or while being conveyed to or from that

hospital–

(a) he may be arrested without warrant by any police officer;

(b) he must, after being arrested, be brought as soon as practicable

before the court that remanded him; and

way in which it could have dealt with him if he had not been

remanded under section 664.

Hospital orders

Criminal Procedure and Evidence

2011-24

Making of a hospital order.

668.(1) If a person is convicted before the Supreme Court of an offence

punishable with imprisonment, other than an offence the sentence for which

is fixed by law, or is convicted by the Magistrates’ Court of an offence

punishable on summary conviction with imprisonment, and the conditions

mentioned in subsection (2) are satisfied, the court may by order authorize

the person’s admission to and detention in a hospital specified in the order.

(2) The conditions referred to in subsection (1) are that–

(a) the court is satisfied, on the written or oral evidence of 2

registered medical practitioners, that the offender is suffering

from mental disorder of a nature or degree that makes it

appropriate for him to be detained in a hospital for medical

treatment; and

(b) the court is of the opinion, having regard to all the

circumstances including the nature of the offence and the

character and antecedents of the offender, and to the other

available methods of dealing with him, that the most suitable

method of disposing of the case is by means of an order under

this section.

(3) If a person is charged before the Magistrates’ Court with any act or

omission as an offence and the court would have power, on convicting the

person of that offence, to make an order under subsection (1) in his case as

being a person suffering from mental disorder, then, if the court is satisfied

that the person did the act or made the omission charged, the court may, if it

thinks fit, make such an order without convicting the person.

(4) A hospital order made in respect of a person under this Part–

(a) must specify the hospital to which the person is to be admitted;

(b) must not be made unless the court is satisfied on the written or

oral evidence of the registered medical practitioner who would

be in charge of the person’s treatment, or of someone

representing the person in charge of the hospital, that

arrangements have been made for the admission of the person

to that hospital within 28 days after the making of the order.

(5) The court may, pending the admission of the person within that period,

give such directions as it thinks fit for the person’s conveyance to and

detention in a place of safety.

(6) A hospital order made under section 662(2) must specify the form or

forms of mental disorder from which, upon the evidence taken into account

Criminal Procedure and Evidence

2011-24

under section 658, 660 or 661, the offender is found by the court to be

suffering.

(7) No hospital order may be made under section 662(2) unless the

offender is described by each of the practitioners whose evidence is taken

into account under section 658, 660, or 661 as suffering from the same one

of the forms of mental disorder, whether or not he is also described by either

of them as suffering from another form.

(8) If a hospital order is made under section 662(2), the court must not–

(a) pass sentence of imprisonment or impose a fine or impose a

community sentence in respect of the offence; or

(b) make an order for binding over of a parent or guardian,

but the court may make any other order which it has power to make apart

from this section.

(9) A hospital order made in respect of a person under this Part is an order

of the court for the purposes of section 38 of the Mental Health Act and the

person must be detained in the hospital under Part III of that Act as a

criminal person of unsound mind.

Interim hospital orders.

669.(1) If a person is convicted before the Supreme Court of an offence

punishable with imprisonment (other than an offence the sentence for which

is fixed by law) or is convicted by the Magistrates’ Court of an offence

punishable with imprisonment, and the court before or by which he is

convicted is satisfied, on the written or oral evidence of 2 medical

practitioners–

(a) that the offender is suffering from mental disorder; and

(b) that there is reason to suppose that the mental disorder from

which the offender is suffering is such that it may be

appropriate for a hospital order to be made in his case,

the court may, before making a hospital order or dealing with him in some

other way, make an interim order authorising his admission to a hospital

specified in the order and his detention there in accordance with this section.

(2) In the case of an offender who is subject to an interim hospital order

the court may make a hospital order without his being brought before the

court if he is legally represented and his representative is given an

opportunity of being heard.

Criminal Procedure and Evidence

2011-24

(3) An interim hospital order must not be made for the admission of an

offender to a hospital unless the court is satisfied, on the written or oral

evidence of the medical practitioner who would be in charge of his

treatment, or of some other person representing the person in charge of the

hospital, that arrangements have been made for his admission to that

hospital within 28 days of the date of the order.

(4) If the court is satisfied as required by subsection (3), the court may,

pending the person’s admission, give directions for his conveyance to and

detention in a place of safety.

(5) An interim hospital order–

(a) remains in force for a period, not exceeding 12 weeks,

specified in the order;

(b) may be renewed for further periods of not more than 28 days at

a time if it appears to the court, on the written or oral evidence

of the responsible medical officer, that the continuation of the

order is warranted.

(6) No interim hospital order may continue in force for more than 12

months in all and the court must terminate the order if it makes a hospital

order in respect of the offender or decides after considering the written or

oral evidence of the responsible medical officer to deal with the offender in

some other way.

(7) The power of renewing an interim hospital order may be exercised

without the offender being brought before the court if he is legally

represented and his representative is given an opportunity of being heard.

(8) An interim hospital order made in respect of a person under this Part is

an order of the court for the purposes of section 38 of the Mental Health Act

and the person must be detained in the hospital under Part III of that Act as

a criminal person of unsound mind for the duration of the interim order.

Effect of hospital orders and interim hospital orders.

670.(1) If a hospital order or an interim hospital order is made in respect of

an offender–

(a) a police officer or any other person directed to do so by the

court must convey the offender to the hospital specified in the

order within 28 days; and

(b) the person in charge of the hospital must admit him within that

period and thereafter detain him in accordance with the

provisions of the Mental Health Act.

Criminal Procedure and Evidence

2011-24

(2) If an offender absconds from a hospital in which he is detained

pursuant to a hospital order or an interim hospital order, or while being

conveyed to or from that hospital–

(a) he may be arrested without warrant by a police officer;

(b) he must, after being arrested, be brought as soon as practicable

before the court that made the order; and

in which it could have dealt with him if no such order had been

made.

(3) A person who is admitted to a hospital pursuant to a hospital order or

an interim hospital order is to be treated for the purposes of the Mental

Health Act as if he had been so admitted or placed on the date of the order

pursuant to an application for admission for treatment duly made under Part

II of that Act.

(4) If a person is admitted to a hospital pursuant to a hospital order, any

previous application or order by virtue of which he was liable to be detained

in a hospital ceases to have effect.

(5) If the order, or the conviction on which it was made, is quashed on

appeal, subsection (4) does not apply.

(6) A person admitted to a hospital pursuant to a hospital order is entitled–

(a) to obtain at his own expense an independent report on his

mental condition from a medical practitioner chosen by him;

and

(b) to apply to the court on the basis of it for the hospital order to

be terminated under subsection (7).

(7) The court may at any time terminate a hospital order if it appears to the

court that it is appropriate to do so.

Transfer to hospital of prisoners, etc.

Removal to hospital of persons serving sentences of imprisonment, etc.

671.(1) If in the case of a person serving a sentence of imprisonment the

Minister is satisfied, by reports from at least 2 medical practitioners, that

(a) the person is suffering from mental disorder; and

Criminal Procedure and Evidence

2011-24

(b) the mental disorder from which the person is suffering is of a

nature or degree that makes it appropriate for him to be

detained in a hospital for medical treatment,

the Minister may, if he is of the opinion having regard to the public interest

and all the circumstances that it is expedient so to do, by warrant direct that

the person be removed to and detained in a hospital specified in the

direction.

(2) A transfer direction ceases to have effect at the end of 14 days after it

is given unless within that period the person with respect to whom it was

given has been received into the hospital specified in the direction.

(3) A transfer direction with respect to any person has the same effect as a

hospital order made in his case and section 668(7) applies to such a person.

(4) A transfer direction must specify the form or forms of mental disorder

referred to in subsection (1)(a) from which, upon the reports taken into

account under that subsection, the Minister finds the patient to be suffering.

(5) No transfer direction may be given unless the patient is described in

each of the reports mentioned in subsection (4) as suffering from the same

form of disorder, whether or not he is also described in either report as

suffering from another form.

Removal to hospital of other prisoners.

672.(1) If in the case of a person to whom this section applies the Minister

is satisfied by the same reports as are required for the purposes of section

671 that that person–

(a) is suffering from mental disorder of a nature or degree which

makes it appropriate for him to be detained in a hospital for

medical treatment; and

(b) is in urgent need of such treatment,

the Minister has the same power of giving a transfer direction in respect of

the person under that section as if he were serving a sentence of

imprisonment.

(2) This section applies to–

(a) persons detained in a prison who are not serving a sentence of

imprisonment;

(b) persons remanded in custody by the Magistrates’ Court;

Criminal Procedure and Evidence

2011-24

Act.

(3) Subsections (3) to (5) of section 671 apply for the purposes of this

section and of any transfer direction given by virtue of this section as they

apply for the purposes of that section and of any transfer direction under

that section.

Prisoners under sentence.

673.(1) If a transfer direction has been given in respect of a person serving

a sentence of imprisonment and before his release date the Minister is

notified by the responsible medical officer or any other medical practitioner

that the person no longer requires treatment in hospital for mental disorder,

or that no effective treatment for his disorder can be given in the hospital to

which he has been removed, the Minister may–

(a) by warrant direct that he be remitted to the prison, there to be

dealt with as if he had not been so removed; or

(b) exercise any power of releasing him on licence or discharging

him under supervision which would have been exercisable if he

had been remitted to the prison,

and on his arrival in the prison or, as the case may be, his release or

discharge, the transfer direction ceases to have effect.

(2) In this section, references to a person’s release date are to the day (if

any) on which he would be entitled to be released (whether unconditionally

or on licence) from the prison.

(3) For the purposes of calculating time spent in prison, a person who,

having been transferred pursuant to a transfer direction from the prison, is at

large in circumstances in which he is liable to be taken into custody under

any provision of this Part, is to be treated as unlawfully at large and absent

from the prison.

Detained persons.

674.(1) This section has effect if a transfer direction has been given in

respect of a person as described in section 672(2)(a), in this section referred

to as “the detainee”.

(2) The transfer direction ceases to have effect when the detainee’s case is

disposed of by the court that has jurisdiction to try or otherwise deal with

him, but without affecting any power of that court to make a hospital order

or other order under this Part in his case.

Criminal Procedure and Evidence

2011-24

(3) If the Minister is notified by the responsible medical officer or any

other medical practitioner at any time before the detainee’s case is disposed

of by that court–

(a) that the detainee no longer requires treatment in hospital for

mental disorder; or

(b) that no effective treatment for his disorder can be given at the

hospital to which he has been removed,

the Minister may by warrant direct that he be remitted to the prison, there to

be dealt with as if he had not been so removed, and on his arrival at the

prison the transfer direction ceases to have effect.

(4) If no direction has been given under subsection (3) and the court with

jurisdiction to try or otherwise deal with the detainee is satisfied on the

written or oral evidence of the responsible medical officer that–

(a) the detainee no longer requires treatment in hospital for mental

disorder; or

(b) no effective treatment for his disorder can be given at the

hospital to which he has been removed,

the court may order him to be remitted to the prison or released on bail and

on his arrival at the prison or, as the case may be, his release on bail the

transfer direction ceases to have effect.

(5) If no direction or order has been given or made under subsection (3) or

(4) and it appears to the court that has jurisdiction to try or otherwise deal

with the detainee that–

(a) it is impracticable or inappropriate to bring the detainee before

the court; and

(b) the conditions set out in subsection (6) are satisfied,

the court may make a hospital order in his case in his absence and, in the

case of a person awaiting trial, without convicting him.

(6) A hospital order may be made in respect of a person under subsection

(5) if the court–

(a) is satisfied, on the written or oral evidence of at least 2 medical

practitioners, that the detainee is suffering from mental

disorder of a nature or degree which makes it appropriate for

the person to be detained in a hospital for medical treatment;

and

Criminal Procedure and Evidence

2011-24

(b) is of the opinion, after considering any depositions or other

documents required to be sent to the proper officer of the court,

that it is proper to make such an order.

Persons remanded by the Magistrates’ Court.

675.(1) This section has effect if a transfer direction has been given in

respect of a person as described in section 672(2)(b), in this section referred

to as “the defendant”.

(2) Subject to subsection (5), the transfer direction ceases to have effect on

the expiration of the period of remand unless the defendant is sent in

custody to the Supreme Court for trial or to be otherwise dealt with.

(3) Subject to subsection (4), the power of further remanding the

defendant under section 171 may be exercised by the court without his

being brought before the court; and if the court further remands the

defendant in custody (whether or not he is brought before the court) the

period of remand, for the purposes of this section, is deemed not to have

expired.

(4) The court must not under subsection (3) further remand the defendant

in his absence unless he has appeared before the court within the previous 6

months.

(5) If the Magistrates’ Court is satisfied, on the written or oral evidence of

the responsible medical officer–

(a) that the defendant no longer requires treatment in hospital for

mental disorder; or

(b) that no effective treatment for his disorder can be given in the

hospital to which he has been removed,

the court may direct that the transfer direction ceases to have effect even if

the period of remand has not expired or the defendant is sent to the Supreme

Court as mentioned in subsection (2).

(6) If the defendant is sent to the Supreme Court as mentioned in

subsection (2) and the transfer direction has not ceased to have effect under

subsection (5), section 674 applies as if the transfer direction given in his

case were a direction given in respect of a person falling within that section.

Persons detained under the Immigration, Asylum and Refugee Act.

676.(1) Subject to subsection (2), a transfer direction given in respect of a

person detained under the Immigration, Asylum and Refugee Act ceases to

Criminal Procedure and Evidence

2011-24

have effect on the expiration of the period during which he would, but for

his removal to hospital, be liable to be detained in the prison.

(2) If a transfer direction has been given in respect of any such person as

is mentioned in subsection (1), then, if the Minister is notified by the

responsible medical officer or any other medical practitioner at any time

before the expiration of the period there mentioned–

(a) that that person no longer requires treatment in hospital for

mental disorder; or

(b) that no effective treatment for his disorder can be given in the

hospital to which he has been removed,

the Minister may by warrant direct that he be remitted to the prison, and on

his arrival at the prison the transfer direction ceases to have effect.

Supervision orders

Power to make supervision orders.

677.(1) If–

(a) a verdict is returned under section 661 that the defendant is not

guilty by reason of mental disorder; or

(b) findings are recorded

(i) under section 658, that the defendant is unfit to be tried;

and

(ii) under section 660, that he did the act or made the

omission charged against him,

and the conditions mentioned in subsection (3) are satisfied, the court may

make an order requiring the person in respect of whom it is made (“the

supervised person”) to be under the supervision of a supervising officer for

a period specified in the order of not more than 2 years.

(2) A supervision order may require the supervised person to submit,

during the whole of the period or a part specified in the order, to treatment

by or under the direction of a medical practitioner.

(3) The court must not make a supervision order unless it is satisfied–

(a) that, having regard to all the circumstances of the case, the

making of the order is the most suitable means of dealing with

the defendant; and

Criminal Procedure and Evidence

2011-24

(b) that arrangements have been made for the treatment intended to

be specified in the order.

(4) Before making an order under this section, the court must explain to

the defendant in ordinary language–

(a) the effect of the order (including any requirements proposed to

be included in the order in accordance with section 678 or 680;

and

(b) that the Magistrates’ Court has power under section 681 to

review the order on the application either of the defendant or of

the supervising officer.

(5) Immediately after making such an order, the court must give copies of

it–

(a) to the supervised person;

(b) to the supervising officer; and

supervised person is required by the order to reside.

(6) If such an order is made, the supervised person must keep in touch

with the supervising officer in accordance with any instructions that the

officer gives him from time to time and must notify the officer of any

change of address.

Requirements as to medical treatment.

678.(1) A supervision order may, if the court is satisfied as mentioned in

subsection (2), include a requirement that the supervised person must

submit, during the whole of the period specified in the order or during a

specified part of that period, to treatment by or under the direction of a

medical practitioner with a view to the improvement of his mental

condition.

(2) The court may impose a requirement as mentioned in subsection (1)

only if satisfied on the written or oral evidence of 2 or more medical

practitioners, that the mental condition of the supervised person–

(a) is such as requires and may be susceptible to treatment; but

(b) is not such as to warrant the making of a hospital order under

this Part.

Criminal Procedure and Evidence

2011-24

(3) If the court is satisfied on the written or oral evidence of 2 or more

medical practitioners that–

(a) because of his medical condition, other than his mental

condition, the supervised person is likely to pose a risk to

himself or others; and

(b) the condition may be susceptible to treatment,

the supervision order may (whether or not it includes a requirement under

subsection (1)) include a requirement that the supervised person must

submit, during the whole of the period specified in the order or during a

specified part of that period, to treatment by or under the direction of a

medical practitioner with a view to the improvement of the condition.

(4) The treatment required by a supervision order must be either–

(a) treatment as a non-resident patient in or at an institution or

place specified in the order; or

(b) treatment by or under the direction of a medical practitioner so

specified,

but the nature of the treatment must not be specified in the order.

(5) While the supervised person is under treatment as a resident patient

pursuant to a requirement of a supervision order, the supervising officer

must carry out the supervision only to the extent necessary for the purpose

of the revocation or amendment of the order.

Change of place of treatment.

679.(1) If the medical practitioner by whom or under whose direction the

supervised person is being treated pursuant to a supervision order is of the

opinion that part of the treatment can be better or more conveniently given

in or at an institution or place which–

(a) is not specified in the order; and

(b) is one in or at which the treatment of the supervised person will

be given by or under the direction of a medical practitioner,

he may, with the consent of the supervised person, make arrangements for

him to be treated accordingly.

(2) If any arrangements as mentioned in subsection (1) are made for the

treatment of a supervised person–

Criminal Procedure and Evidence

2011-24

(a) the medical practitioner by whom the arrangements are made

must give notice in writing to the supervising officer,

specifying the institution or place in or at which the treatment

is to be carried out; and

(b) the treatment provided for by the arrangements is deemed to be

treatment to which the person is required to submit pursuant to

the supervision order.

(3) Arrangements as mentioned in subsection (1) may provide for the

supervised person to receive part of his treatment as a resident patient in or

at an institution or place of any description, even if it is not one which could

have been specified for that purpose in the supervision and treatment order.

Requirement as to residence.

680.(1) A supervision order may include requirements as to the residence

of the supervised person.

(2) Before making an order containing any such requirement, the court

must consider the home surroundings of the supervised person.

(3) If an order requires the supervised person to reside in a specified place,

the period for which he is so required to reside must be specified in the

order.

Revocation or amendment of a supervision order.

681.(1) If a supervision order is in force in respect of any person and, on

the application of the supervised person or the supervising officer, it appears

to the Magistrates’ Court that, having regard to circumstances which have

arisen since the order was made, it would be in the interests of the health or

welfare of the supervised person that the order should be revoked, the court

may revoke the order.

(2) The court by which a supervision order was made may on its own

initiative revoke the order if, having regard to circumstances which have

arisen since the order was made, it considers that it would be inappropriate

for the order to continue.

(3) Subject to subsection (4), the Magistrates’ Court may, on the

application of the supervised person or the supervising officer, by order

amend a supervision order–

(a) by cancelling any of the requirements of the order; or

Criminal Procedure and Evidence

2011-24

(b) by inserting in the order (either in addition to or instead of any

such requirement) any requirement which the court could have

included when making it.

(4) The power of the Magistrates’ Court under subsection (3) does not

include power to amend an order by extending the period specified in it

beyond the end of 2 years from the date of the original order.

(5) If the medical practitioner by whom or under whose direction the

supervised person is being treated pursuant to any requirement of a

supervision order–

(a) is of the opinion mentioned in subsection (6); or

(b) is for any reason unwilling to continue to treat or direct the

treatment of the supervised person,

he must make a report in writing to that effect to the supervising officer who

must apply under subsection (2) to the Magistrates’ Court for the variation

or cancellation of the requirement.

(6) The opinion referred to in subsection (5) is that–

(a) the treatment of the supervised person should be continued

beyond the period specified in the supervision order;

(b) the supervised person needs different treatment, of a kind to

which he could be required to submit pursuant to such an

order;

(d) the supervised person does not require further treatment.

(7) On the making of an order revoking or amending a supervision order,

the clerk of the Magistrates’ Court must give a copy of the order to–

(a) the supervised person;

(b) the supervising officer; and

person was required by the original order to reside.

Miscellaneous

Periodical reports.

Criminal Procedure and Evidence

2011-24

682.(1) The person in charge of any place in which a person suffering from

mental disorder is detained must report in writing to the Minister once a

year and at any other time the Minister requires.

(2) A report under subsection (1) must contain such particulars as the

Minister requires of the condition and circumstances of every person

suffering from mental disorder in the place to which it relates.

(3) The Minister must, at least once in every 2 years during which a

person suffering from mental disorder is detained–

(a) review the condition, history and circumstances of the person;

and

(b) in the light of reports provided pursuant to this Part, decide

whether he ought to be discharged or otherwise dealt with.

(4) If the Minister decides as mentioned in subsection (3)(b), he must

initiate, or cause to be initiated, proceedings for a review or revocation of

any order made under this Part in accordance with the provisions of this

Part.

(5) The requirements of this section are in addition to any other

requirement about reporting on persons detained in a hospital contained in

the Mental Health Act or any other enactment.

Appeals against orders.

683.(1) For the purpose of providing an appeal against a hospital order,

interim hospital order or supervision order made by the Magistrates’ Court,

Part 13 applies as if references to a sentence included references to such an

order.

(2) For the purpose of providing an appeal against a hospital order, interim

hospital order or supervision order made by the Supreme Court, the Court of

Appeal Act applies as if references to a sentence included references to such

an order.

Evidence by prosecution of mental disorder or diminished

responsibility.

684. If on a trial for murder the defendant contends–

(a) that at the time of the alleged offence he was suffering from

mental disorder so as not to be responsible according to law for

his actions; or

Criminal Procedure and Evidence

2011-24

(b) that at that time he was suffering from such abnormality of

mental functioning as is specified in section 151 of the Crimes

Act 2011 (Diminished responsibility),

the court must allow the prosecution to adduce or elicit evidence tending to

prove the other of those contentions, and may give directions as to the stage

of the proceedings at which the prosecution may adduce such evidence.

PART 29 – CODES OF PRACTICE

Codes of practice

Codes of practice on search, arrest, seizure, etc.

685.(1) The Minister must issue one or more codes of practice in

connection with–

(a) the exercise by police officers of statutory powers to–

(i) search a person without first arresting him;

(ii) search a vehicle without making an arrest; or

(iii) arrest a person;

(b) the detention, treatment, questioning and identification of

persons by police officers;

(d) the seizure and treatment of property found by police officers

on persons, premises, vehicles or vessels; and

(e) the exercise by police officers of any other statutory or

common law powers.

(2) Without limiting subsection (1), the Minister must issue a code of

practice in connection with the exercise by police officers of powers under

section 91 (Testing for presence of Class A or Class B drugs).

Code on recording of interviews.

686.(1) The Minister must–

(a) issue a code of practice for tape-recording of interviews

conducted by police officers at police stations of persons

suspected of committing offences; and

Criminal Procedure and Evidence

2011-24

(b) make an order requiring that the tape-recording of interviews

so conducted of persons suspected of committing offences of

any type, or of a type specified in the order; be held in

accordance with the code of practice.

(2) The Minister may–

(a) issue a code of practice for the visual recording of interviews

conducted by police officers at police stations of persons

suspected of committing offences; and

(b) make an order requiring–

(i) the visual recording of interviews so conducted; and

(ii) that such interviews be held in accordance with the code

of practice.

(3) A requirement imposed by an order under this section may be imposed

in relation to specified cases or specified police stations, or both.

(4) In this section, references to a visual recording include a visual

recording which includes an audio recording.

Codes of practice on criminal investigations.

687.(1) The Minister must issue one or more codes of practice containing

provisions designed to ensure that–

(a) when a criminal investigation is conducted all reasonable steps

are taken for the purposes of the investigation and, in

particular, all reasonable lines of inquiry are pursued;

(b) information which is obtained in the course of a criminal

investigation and may be relevant to the investigation is

recorded;

(d) any other material which is obtained in the course of a criminal

investigation and may be relevant to the investigation is

retained;

(e) information falling within paragraph (b) and material falling

within paragraph (d) is revealed to a person who is involved in

the prosecution of criminal proceedings arising out of or

relating to the investigation and who is identified in accordance

with prescribed provisions;

Criminal Procedure and Evidence

2011-24

(f) when such a person inspects information or other material

pursuant to a requirement that it be revealed to him, and he

requests that it be disclosed to the defendant, the defendant is

allowed to inspect it or is given a copy of it;

(g) when such a person is given a document indicating the nature

of information or other material pursuant to a requirement that

it be revealed to him, and he requests that it be disclosed to the

defendant, the defendant is allowed to inspect it or is given a

copy of it;

(h) the person who is to allow the defendant to inspect information

or other material or to give him a copy of it must decide which

of those (inspecting or giving a copy) is appropriate;

(i) if the defendant is allowed to inspect material as mentioned in

paragraph (f) or (g) and he requests a copy, he is given one

unless the person allowing the inspection is of opinion that it is

not practicable or not desirable to give him one;

(j) a person mentioned in paragraph (e) is given a written

statement that prescribed activities which the code requires

have been carried out.

(2) The code or codes may include provision that–

(a) a police officer identified in accordance with prescribed

provisions must carry out a prescribed activity which the code

requires;

(b) a police officer so identified must take steps to ensure the

carrying out by a person (whether or not a police officer) of a

prescribed activity which the code requires;

prescribed circumstances (as where a person dies or retires).

(3) The code or codes may include provision about the form in which

information is to be recorded.

(4) The code or codes may include provision about the manner in which

and the period for which–

(a) a record of information is to be retained; and

(b) any other material is to be retained,

Criminal Procedure and Evidence

2011-24

and if a person is charged with an offence the period may extend beyond a

conviction or an acquittal.

(5) The code or codes may include provision about the time when, the

form in which, the way in which, and the extent to which, information or

any other material is to be revealed to the person mentioned in subsection

(1)(e).

(6) A person other than a police officer who is charged with the duty of

conducting a criminal investigation must in discharging that duty have

regard to any relevant provision of a code of practice that would apply if the

investigation were conducted by police officers.

Examples of disclosure provisions in a code of practice.

688.(1) This section gives examples of the kinds of provision that may be

included in a code of practice on criminal investigations issued under

section 687.

(2) The code may provide that if the person required to reveal material has

possession of material which he believes is sensitive he must give a

document which–

(a) indicates the nature of that material; and

(b) states that he so believes.

(3) The code may provide that if the person required to reveal material has

possession of material which is of a description prescribed under this

subsection and which he does not believe is sensitive he must give a

document which–

(a) indicates the nature of that material; and

(b) states that he does not so believe.

(4) The code may provide that if–

(a) a document is given pursuant to provision contained in the

code by virtue of subsection (2); and

(b) a person identified in accordance with prescribed provisions

asks for any of the material,

the person giving the document must give a copy of the material asked for

to the person asking for it or (depending on the circumstances) must allow

him to inspect it.

Criminal Procedure and Evidence

2011-24

(5) The code may provide that if–

(a) a document is given pursuant to provision contained in the

code by virtue of subsection (3);

(b) all or any of the material is of a description prescribed under

this subsection; and

as entitled to material of that description,

the person giving the document must give a copy of the material of that

description to the person so identified or (depending on the circumstances)

must allow him to inspect it.

(6) The code may provide that if–

(a) a document is given pursuant to provision contained in the

code by virtue of subsection (3);

(b) all or any of the material is not of a description prescribed

under subsection (5); and

asks for material not of that description,

the person giving the document must give a copy of the material asked for

to the person asking for it or (depending on the circumstances) must allow

him to inspect it.

(7) The code may provide that if the person required to reveal material has

possession of material which he believes is sensitive and of such a nature

that provision contained in the code by virtue of subsection (2) should not

apply with regard to it–

(a) that provision is not to apply with regard to the material;

(b) the person must notify a person identified in accordance with

prescribed provisions of the existence of the material; and

(8) For the purposes of this section material is sensitive to the extent that

its disclosure under this Part would be contrary to the public interest.

Code on police interviews of witnesses notified by defendant.

Criminal Procedure and Evidence

2011-24

689.(1) The Minister must issue a code of practice which gives guidance to

police officers, and other persons charged with the duty of investigating

offences, in relation to arranging and conducting interviews of persons–

(a) particulars of whom are given in a defence statement in

accordance with section 243(2); or

(b) who are included as proposed witnesses in a notice given under

section 245.

(2) The code must include (in particular) guidance in relation to–

(a) information that should be provided to the interviewee and the

defendant in relation to such an interview;

(b) the notification of the defendant’s legal representative of such

an interview;

(d) the attendance of the defendant’s legal representative at such

an interview;

(e) the attendance of any other appropriate person at such an

interview, taking into account the interviewee’s age or any

disability of the interviewee.

(3) Any police officer or other person charged with the duty of

investigating offences who arranges or conducts such an interview must

have regard to the code.

Publication of codes of practice.

690.(1) Before issuing a code of practice, the Minister–

(a) must publish a draft of the code;

(b) must consider any representations made to him about the draft;

and

(2) Before issuing a code of practice the Minister must lay it in the

Parliament and if the Parliament has not passed a motion disapproving the

code within 30 days of the commencement of the next sitting, it will be

deemed to be approved by the Parliament and may be issued by the

Minister.

Criminal Procedure and Evidence

2011-24

(3) Upon being issued by the Minister, a code–

(a) must be published in the Gazette;

(b) does not come into operation until the Minister by order so

provides.

(4) An order bringing a code into operation may include transitional or

saving provisions.

(5) Deleted

(6) A code may be made so as to–

(a) apply only in relation to one or more specified localities in

Gibraltar;

(b) have effect only for a specified period;

offender.

Amendment or revision of codes of practice.

690A.(1) The Minister may at any time by order amend or revise the whole

or any part of a code of practice.

(2) Where the Minister has made an order under subsection (1) the order

containing the amendment or revision−

(a) must be published in the Gazette;

(b) must be laid before the Parliament at the next sitting following

the date of the publication in the Gazette; and

therein.

(3) An order containing an amendment or revision under this section

may include transitional or saving provisions.

(4) If the Parliament within 30 days of the commencement of the next

sitting, resolves to pass a motion disapproving of the amendment or

revision−

Criminal Procedure and Evidence

2011-24

(a) any action undertaken in pursuance of the amendment or

revision shall be deemed valid if undertaken prior to the

resolution of the Parliament;

(b) the Minister shall as soon as practicable thereafter−

(i) revoke the amended or revised code of practice; and

(ii) (notwithstanding the provisions of subsections (1) and

(2) of section 690) issue a code of practice in such terms

as contained in the relevant code of practice prior to the

relevant amendment or revision; and

deemed to have come into operation on the date of the

resolution of the Parliament.

(5) Notwithstanding the generality of subsection (1), a code may be

amended or revised so as to–

(a) apply only in relation to one or more specified localities in

Gibraltar;

(b) have effect only for a specified period;

offender

Effect and status of codes of practice.

691.(1) In all criminal and civil proceedings–

(a) a code of practice issued under this Part is admissible in

evidence; and

(b) if any provision of a code appears to the court or tribunal

conducting the proceedings to be relevant to any question

arising in the proceedings, it is to be taken into account in

deciding that question.

(2) Persons other than police officers who have a duty to investigate

offences or charge offenders must in the discharge of that duty have regard

to any relevant provision of a code of practice.

(3) A failure–

(a) by a police officer to comply with any provision of a code of

practice; or

Criminal Procedure and Evidence

2011-24

(b) by any person to comply with section 688(6); or

regard to any provision of the code,

does not invalidate any action taken by the police officer or other person or

in itself render the officer or other person liable to any criminal or civil

proceedings.

(4) A police officer is liable to disciplinary proceedings under Part VIII of

the Police Act 2006 for a failure to comply with any provision of a code of

practice which imposes a duty on the officer.

(5) If it appears to a court or tribunal conducting criminal or civil

proceedings that–

(a) any provision of a code issued under this Part; or

(b) any failure mentioned in subsection (3),

is relevant to any question arising in the proceedings, the provision or

failure may be taken into account in deciding the question.

Common law rules as to criminal investigations.

692.(1) A code of practice issued under this Part applies in relation to

suspected or alleged offences into which no criminal investigation has

begun before it comes into operation.

(2) If a code of practice applies in relation to a suspected or alleged

offence, the rules of common law which–

(a) were effective immediately before the appointed day; and

(b) relate to the matter mentioned in subsection (3),

do not apply in relation to the suspected or alleged offence.

(3) The matter is the revealing of material–

(a) by a police officer or other person charged with the duty of

conducting an investigation with a view to it being ascertained

whether a person should be charged with an offence or whether

a person charged with an offence is guilty of it;

(b) to a person involved in the prosecution of criminal

proceedings.

Criminal Procedure and Evidence

2011-24

(4) In subsection (2) “the appointed day” means the day appointed under

section 690(3)(b) for the code of practice to come into operation.

PART 30 – MISCELLANEOUS AND TRANSITIONAL PROVISIONS

Police officers performing duties of higher rank.

693.(1) For the purpose of any provision of this Act or any other Act under

which a power in respect of the investigation of offences or the treatment of

persons in police custody is exercisable only by or with the authority of a

police officer of at least the rank of Chief Inspector, an officer of the rank of

Inspector is to be treated as holding the rank of Chief Inspector if–

(a) he has been authorised by an officer holding a rank above the

rank of Chief Inspector to exercise the power or, as the case

may be, to give his authority for its exercise; or

(b) he is acting during the absence of an officer holding the rank of

Chief Inspector who has authorised him, for the duration of

that absence, to exercise the power or, as the case may be, to

give his authority for its exercise.

(2) For the purpose of any provision of this Act or any other Act under

which a power mentioned in subsection (1) is exercisable only by or with

the authority of an officer of at least the rank of Inspector, an officer of the

rank of sergeant is to be treated as holding the rank of Inspector if he has

been authorised by an officer of at least the rank of Chief Inspector to

exercise the power or, as the case may be, to give his authority for its

exercise.

Power of a police officer to use reasonable force.

694. If any provision of this Act–

(a) confers a power on a police officer; and

(b) does not provide that the power may only be exercised with the

consent of some person other than a police officer,

the officer may use reasonable force, if necessary, in the exercise of the

power.

Application of Act to other persons.

695.(1) Subject to subsection (2), and to the extent practicable, the

provisions of this Act relating to the investigation of offences, the searching,

questioning and detention of suspects, the seizure of property and the

Criminal Procedure and Evidence

2011-24

retention of evidence apply to customs officers investigating offences or

charging offenders as they apply in relation to police officers.

(2) The Minister may by order, after consultation with the Minister for

Finance, declare modifications to the manner in which provisions of this Act

and the Codes of Practice apply to customs officers including in relation to

the harmonisation of the provisions with the Imports and Exports Act, 1986.

(3) Subject to subsection (6) the provisions relating to the investigation of

offences, the searching, questioning and detention of suspects, the seizure of

property and the retention of evidence apply to persons to whom section 78

of the Police Act 2006 apply when carrying out duties–

(a) in such areas of Gibraltar as are in the possession and under the

control of the Ministry of Defences;

(b) in the immediate vicinity of the areas of Gibraltar described in

(i) above in relation to the security of such areas.

(4) The Minister with responsibility for justice may by order, to the extent

practicable, extend to public officers other than police officers and customs

officers the provisions of this Act relating to the investigation of offences,

the searching, questioning and detention of suspects, the seizure of property

and the retention of evidence.

(5) An order under subsection (3) may make such modifications to the

manner in which provisions of this Act apply to persons to whom they are

extended by the order as the Minister considers appropriate.

(6) The Minister with responsibility for justice may by order make such

modifications to the manner in which provisions of this Act apply to persons

by virtue of subsection (3).

Rules of court.

696.(1) Rules of court may provide for any matter in respect of which rules

may be made under this Act and generally for the better carrying out of the

purposes and provisions of this Act.

(2) In the absence of rules made by the Chief Justice on any matter, a

provision of the Criminal Procedure Rules on that matter applies to the

extent appropriate.

(3) The power in this section is in addition to the power to make rules

under section 4(2).

Regulations.

Criminal Procedure and Evidence

2011-24

697.(1) The Minister may make regulations generally for carrying out any

of the purposes or provisions of this Act or any matters incidental or

consequential to those purposes as appear to the Government to be

necessary or proper for giving full effect to this Act or to the obligations of

the Government under European Union law.

(2) This power in subsection (1) is in addition to and does not derogate

from any other power to make regulations conferred by this Act.

Amendment of Schedules.

698.(1) The Minister may by order published in the Gazette amend any

Schedule.

(2) The power in subsection (1) is subject to section 587 as to the

amendment of Schedule 9 and 10.

(3) An order under this Act amending a Schedule may make such

transitional and consequential provisions as appear to the Minister to be

necessary or expedient.

Repeals and savings.

699.(1) The Criminal Procedure Act and the Crimes (Vulnerable

Witnesses) Act 2009 (“the repealed Acts”) are repealed.

(2) Subject to subsection (3), all items of subsidiary legislation made

under either of the repealed Acts continue in force as if made under the

corresponding provision of this Act until amended or replaced under this

Act.

(3) If there is no corresponding provision of this Act under which an item

of subsidiary legislation referred to in subsection (2) could be made, the

item is repealed, except that it continues to have effect in relation to

proceedings that had commenced before the repeal as provided in section

700.

(4) Any direction, exemption, notice or other non-legislative instrument

made or issued by the Government or any person or body under either of the

repealed Acts which could be made or issued by the Government or an

equivalent person or body under this Act continues to have effect as if made

or issued by the Government or that person or body under this Act until

varied or revoked under this Act.

(5) Any delegation made, direction given or other action taken by a person

under either of the repealed Acts which could be taken by an equivalent

person under this Act continues to have effect as if taken by that person

under this Act.

Criminal Procedure and Evidence

2011-24

Transitional provisions.

700.(1) Proceedings for an offence under any enactment or at common law

that had commenced before the commencement of this Act must continue in

accordance with the provisions of the Criminal Procedure Act as if it had

not been repealed.

(2) A provision of this Act applies–

(a) in relation to proceedings on indictment for an offence - only if

the person charged with the offence is arraigned on or after the

commencement of the relevant provision;

(b) in relation to proceedings in the Magistrates’ Court - only if the

time when the court begins to receive evidence in the

proceedings falls after the commencement of the relevant

provision.

(3) If an offence committed before the commencement of this Act is by

any enactment in force that was passed before the commencement of this

Act made punishable only on summary conviction, it remains only so

punishable.

(4) An appeal against conviction or sentence in respect of an offence

committed before the commencement of this Act must be conducted as if

this Act had not been enacted.

(5) Any investigation of an offence conducted by a police officer or a

customs officer or immigration officer which was in progress at the

commencement of this Act but had not resulted in the commencement of

proceedings must continue under this Act.

(6) All sentences of imprisonment (including suspended sentences), fines,

conditional discharges, disqualifications and forfeitures imposed in

accordance with the Criminal Procedure Act continue to have effect and can

be varied or appealed from as if that Act had not been repealed.

(7) Probation orders made under section 205 of the Criminal Procedure

Act continue in force in accordance with that Act until they expire or are

revoked under that Act.

(8) All witness summonses, orders for production of documents,

recognizances and other orders made under the Criminal Procedure Act

continue to have effect as if that Act had not been repealed and may be

varied or revoked under that Act.

Criminal Procedure and Evidence

2011-24

(9) For purposes of this section, proceedings for an offence commence

on–

(a) arrest without warrant;

(b) the issue of a warrant for arrest;

(d) the service of an indictment or other document specifying the

charge;

(e) an oral charge,

in respect of the offence.

Consequential amendments.

701.(1) A reference in any other enactment to either of the repealed Acts is,

to the extent possible, to be read as a reference to the corresponding

provision of this Act.

(2) The Government may by order make such modifications or

adaptations of any enactment as appear to it necessary or expedient in

consequence of the repeal of the Criminal Procedure Act.

(3) An order under subsection (2) may make such transitional and

consequential provisions as appear to the Minister to be necessary or

expedient.

Service of documents.

702.(1) Any notice or other document required or authorised by or under

this Act to be served on any person may be served on him either by

delivering it to him, by leaving it at his proper address or by sending it by

post.

(2) Any notice or other document so required or authorised to be served

on a corporate body is duly served if it is served on the secretary or clerk of

that body.

(3) For the purposes of this section, and of section 8 of the Interpretation

and General Clauses Act in its application to this section, the proper address

of any person is, in the case of the secretary or clerk of a body corporate,

that of the registered or principal office of that body, and in any other case is

the last address of the person to be served which is known to the

Government.

Amendment of the Criminal Procedure Act (Police Detention).

Criminal Procedure and Evidence

2011-24

703.(1) In section 42 of the Criminal Procedure Act after subsection (2)

insert–

“(2A) Any time during which a person is on bail pursuant to

subsection shall not be included in the twentyfour hour period

referred to in subsection (1).

(2) The amendment made by subsection (1) is deemed always to

have had effect.

Criminal Procedure and Evidence

2011-24

SCHEDULE 1

(Sections 13(1), 26(2) and 38(7))

SPECIAL PROCEDURE FOR ACCESS TO EXCLUDED

MATERIAL

Making of orders by a judge or magistrate

1. If on an application made by a police officer a judge or magistrate is

satisfied that one or other of the sets of access conditions is fulfilled, he may

make an order under paragraph 4.

2. The first set of access conditions is fulfilled if–

(a) there are reasonable grounds for believing that–

(i) an indictable offence has been committed;

(ii) there is material which consists of special procedure

material or also includes special procedure material and

does not also include excluded material on premises

specified in the application, or on premises occupied or

controlled by a person specified in the application;

(iii) the material is likely to be of substantial value (whether

by itself or together with other material) to the

investigation in connection with which the application is

made; and

(iv) the material is likely to be relevant evidence;

(b) other methods of obtaining the material have–

(i) been tried without success; or

(ii) not been tried because it appeared that they were bound

to fail; and

(i) the benefit likely to accrue to the investigation if the

material is obtained; and

(ii) the circumstances under which the person in possession

of the material holds it,

Criminal Procedure and Evidence

2011-24

that the material should be produced or that access to it should be

given.

3. The second set of access conditions is fulfilled if–

(a) there are reasonable grounds for believing that there is material

which consists of or includes excluded material or special

procedure material on premises specified in the application, or

on premises occupied or controlled by a person specified in the

application;

(b) but for section 13(2) a search of such premises for that material

could have been authorised by the issue of a warrant to a police

officer under an enactment other than this Schedule; and

4. An order under this paragraph is an order that the person who appears to

the judge or magistrate to be in possession of the material to which the

application relates must–

(a) produce it to a police officer for him to take away; or

(b) give a police officer access to it,

not later than 7 days after the date of the order or the end of any longer

period the order specifies.

5. If the material consists of information stored in any electronic form–

(a) an order under paragraph 4(a) has effect as an order to produce

the material in a form–

(i) in which it can be taken away and in which it is visible

and legible; or

(ii) from which it can readily be produced in a visible and

legible form;

(b) an order under paragraph 4(b) has effect as an order to give a

police officer access to the material in a form in which it is

visible and legible.

6. For the purposes of sections 27 and 29 material produced in pursuance of

an order under paragraph 4(a) is to be treated as if it were material seized by

a police officer.

Notice of application for an order

Criminal Procedure and Evidence

2011-24

7. An application for an order under paragraph 4 must be made inter partes.

8. Notice of an application for such an order may be served on a person

either by delivering it to him or by leaving it at his proper address or by

sending it by post to him in a registered letter.

9. Such a notice may be served on–

(a) a corporate body - by serving it on the body’s secretary or clerk

or other similar officer; and

(b) a partnership - by serving it on one of the partners.

10. For the purposes of this Schedule the proper address of a person is–

(a) in the case of secretary or clerk or other similar officer of a

corporate body – that of the registered or principal office of

that body;

(b) in the case of a partner of a firm - that of the principal office of

the firm;

served.

11. If notice of an application for an order under paragraph 4 has been

served on a person, he must not conceal, destroy, alter or dispose of the

material to which the application relates except with–

(a) the leave of a judge or magistrate; or

(b) the written permission of a police officer,

until–

(i) the application is dismissed or abandoned; or

(ii) he has complied with an order under paragraph 4 made

on the application.

Issue of warrant by a judge or magistrate

12. If on an application made by a police officer a judge or magistrate is

satisfied–

(a) that–

(i) either set of access conditions is fulfilled; and

Criminal Procedure and Evidence

2011-24

(ii) any of the further conditions set out in paragraph 14 is

also fulfilled; or

(b) that–

(i) the second set of access conditions is fulfilled; and

(ii) an order under paragraph 4 relating to the material has

not been complied with,

he may issue a warrant authorising a police officer to enter and search the

premises.

13. A police officer may seize and retain anything for which a search has

been authorised under paragraph 12.

14. The further conditions mentioned in paragraph 12(a)(ii) are that–

(a) it is not practicable to communicate with any person entitled to

grant entry to the premises;

(b) it is practicable to communicate with a person entitled to grant

entry to the premises, but not practicable to communicate with

any person entitled to grant access to the material;

(i) is subject to a restriction or obligation such as is

mentioned in section 15(2)(b); and

(ii) is likely to be disclosed in breach of it if a warrant is not

issued;

(d) service of notice of an application for an order under paragraph

4 may seriously prejudice the investigation.

15.(1) If a person fails to comply with an order under paragraph 4 or

contravenes paragraph 11, a judge may deal with him as if he had

committed a contempt of the Supreme Court.

(2) Any enactment relating to contempt of the Supreme Court has effect in

relation to such a failure as if it were such a contempt.

Criminal Procedure and Evidence

2011-24

SCHEDULE 2

(Section 44(2))

PRESERVED POWERS OF ARREST

Sections 71(1) and 74(1) of this Act

Rule 28 of the Elections Rules

Sections 5 and 59 of the Immigration, Asylum and Refugee Act

Sections 75, 76, 79 and 80 of the Mental Health Act

Section 29 of the Prison Act

Section 17A of the Tobacco Act 1997

Sections 53, 62 and 64 of the Traffic Act 2005

Section 9 of the Imports and Exports Act 1986

Criminal Procedure and Evidence

2011-24

SCHEDULE 3

(Sections 2(1) and 56)

DESIGNATED POLICE STATIONS

The following are the police stations to be used for the purpose of detaining

arrested persons–

1. New Mole House Police Station

_____________________________

SCHEDULE 4

(Section 90(11))

FINGERPRINTING AND SAMPLES: ATTENDANCE AT POLICE

STATION

In this Schedule, “appropriate officer” in relation to a person whose

fingerprints are to be taken means the officer investigating the offence for

which the person was arrested or charged or informed that he would be

reported, as the case may be.

Part 1 - Fingerprinting

Persons arrested and released

1.(1) A police officer may require a person to attend a police station for the

purpose of taking his fingerprints under section 86(8).

(2) The power under sub-paragraph (1) may not be exercised in a case

falling within section 86(8)(b) (fingerprints taken on previous occasion

insufficient, etc.) later than 6 months after the day on which the appropriate

officer was informed that section 86(4)(a) or (b) applied.

Persons charged, etc.

2.(1) A police officer may require a person to attend a police station for the

purpose of taking his fingerprints under section 86(9).

(2) The power under sub-paragraph (1) may not be exercised later than 6

months after–

(a) in a case falling within section 86(9)(a) (fingerprints not taken

previously) - the day on which the person was charged or

informed that he would be reported; or

Criminal Procedure and Evidence

2011-24

(b) in a case falling within section 86(9))b) (fingerprints taken on

previous occasion insufficient, etc.) - the day on which the

appropriate officer was informed that section 86(4)(a) or (b)

applied.

Persons convicted, etc. of an offence in Gibraltar

3.(1) A police officer may require a person to attend a police station for the

purpose of taking his fingerprints under section 86(10).

(2) If the condition in section 86(10)(c) is satisfied (fingerprints not taken

previously), the power under sub-paragraph (1) may not be exercised later

than 2 years after the day on which the person was convicted or cautioned.

(3) If the condition in section 86(10)(d) is satisfied (fingerprints taken on

previous occasion insufficient, etc.) the power under subparagraph (1) may

not be exercised later than 2 years after the day on which an appropriate

officer was informed that section 86(4)(a) or (b) applied.

(4) Sub-paragraphs (2) and (3) do not apply if the offence is a qualifying

offence.

Persons convicted, etc. of an offence outside Gibraltar

4. A police officer may require a person to attend a police station for the

purpose of taking his fingerprints under section 86(14).

Multiple attendance

5.(1) If a person’s fingerprints have been taken under section 86 on 2

occasions in relation to any offence, he may not under this Schedule be

required to attend a police station to have his fingerprints taken under that

section in relation to that offence on a subsequent occasion without the

authorisation of an officer of at least the rank of Inspector.

(2) If an authorisation is given under sub-paragraph (1)–

(a) the fact of the authorisation; and

(b) the reasons for giving it,

must be recorded as soon as practicable after it has been given.

Part 2 - Intimate samples

Persons suspected to be involved in an offence

6. A police officer may require a person to attend a police station for the

purpose of taking an intimate sample from him under section 88(2) if, in the

course of the investigation of an offence, 2 or more non-intimate samples

suitable for the same means of analysis have been taken from him but have

proved insufficient.

Criminal Procedure and Evidence

2011-24

Persons convicted, etc. of an offence outside Gibraltar

7. A police officer may require a person to attend a police station for the

purpose of taking a sample from him under section 88(4) if 2 or more non-

intimate samples suitable for the same means of analysis have been taken

from him under section 89(7) but have proved insufficient.

Part 3 - Non-intimate samples

Persons arrested and released

8.(1) A police officer may require a person to attend a police station for the

purpose of taking a non-intimate sample from him under section 89(4).

(2) The power under sub-paragraph (1) may not be exercised in a case

falling within section 89(4))b) (sample taken on a previous occasion not

suitable, etc.) later than 6 months after the day on which the appropriate

officer was informed of the matters specified in section 89(4)(b)(i) or (ii).

Persons charged. etc.

9.(1) A police officer may require a person to attend a police station for the

purpose of taking a non-intimate sample from him under section 89(4).

(2) The power under sub-paragraph (1) may not be exercised in a case

falling within section 89(4)(a) (sample not taken previously) later than 6

months after the day on which he was charged or informed that he would be

reported.

(3) The power under sub-paragraph (1) may not be exercised in a case

falling within section 89(4))b) (sample taken on a previous occasion not

suitable, etc.) later than 6 months after the appropriate officer was informed

of the matters specified in section 89(4)(b)(i) or (ii).

Persons convicted etc of an offence in Gibraltar

10.(1) A police officer may require a person to attend a police station for

the purpose of taking a non-intimate sample from him under section

89(8)(a).

(2) If the condition in section 89(8)(c) is satisfied (sample not taken

previously), the power under sub-paragraph (1) above may not be exercised

later than 2 years after the day on which the person was convicted or

cautioned.

(3) If the condition in section 89(8)(d) is satisfied (sample taken on a

previous occasion not suitable, etc.), the power under subparagraph (1) may

not be exercised later than 2 years after the day on which an appropriate

officer was informed of the matters specified in section 89(8)(d)(i) or(ii).

Criminal Procedure and Evidence

2011-24

(4) Sub-paragraphs (2) and (3) do not apply if the offence is a qualifying

offence.

Persons convicted etc of an offence outside Gibraltar

11. A police officer may require a person to attend a police station for the

purpose of taking a non-intimate sample from him under section 89(10).

Multiple exercise of power

12.(1) If a non-intimate sample has been taken from a person under section

89 on 2 occasions in relation to any offence, he may not under this Schedule

be required to attend a police station to have another such sample taken

from him under that section in relation to that offence on a subsequent

occasion without the authorisation of an officer of at least the rank of

Inspector.

(2) If an authorisation is given under sub-paragraph (1)–

(a) the fact of the authorisation; and

(b) the reasons for giving it,

must be recorded as soon as practicable after it has been given.

Part 4 - General and supplementary

Requirement to have power to take fingerprints or sample

13. A power conferred by this Schedule to require a person to attend a

police station for the purposes of taking fingerprints or a sample under any

provision of this Act may be exercised only in a case where the fingerprints

or sample may be taken from the person under that provision (and, in

particular, if any necessary authorisation for taking the fingerprints or

sample under that provision has been obtained).

Date and time of attendance

14.(1) A requirement under this Schedule–

(a) must give the person a period of at least 7 days within which he

is to attend the police station; and

(b) may direct him so to attend at a specified time of day or

between specified times of day.

(2) In specifying a period or time or times of day for the purposes of

subparagraph (1), the police officer must consider whether the fingerprints

or sample could reasonably be taken at a time when the person is for any

other reason required to attend the police station.

Criminal Procedure and Evidence

2011-24

(3) A requirement under this Schedule may specify a period shorter than 7

days if–

(a) there is an urgent need for the fingerprints or sample for the

purposes of the investigation of an offence; and

(b) the shorter period is authorised by an officer of at least the rank

of Inspector.

(4) If an authorisation is given under sub-paragraph (3)(b)–

(a) the fact of the authorisation; and

(b) the reasons for giving it,

must be recorded as soon as practicable after it has been given.

(5) If the police officer giving a requirement under this Schedule and the

person to whom it is given so agree, it may be varied so as to specify any

period within which, or date or time at which, the person must attend; but a

variation does not have effect unless confirmed by the police officer in

writing.

Criminal Procedure and Evidence

2011-24

SCHEDULE 5

(Sections 2(1) and 91)

TRIGGER OFFENCES FOR TESTING FOR DRUGS

1. An offence under any of the following provisions of the Crimes Act

2011 is a trigger offence–

Section 397 (Theft)

Section 398 (Robbery)

Section 399 (Burglary)

Section 400 (Aggravated burglary)

Section 401 (Going equipped for stealing, etc)

Section 404 (Handling stolen goods)

Section 408 (Taking a conveyance without authority)

Section 415 (Fraud)

Section 416 (Fraud by false representation)

Section 417 (Fraud by failing to disclose information)

Section 418 (Fraud by abuse of position)

Section 425 (False accounting)

Section 427 (Suppression, etc., of documents)

Section 564 (Begging)

2. An attempt to commit an offence under any of the following provisions

of the Crimes Act 2011 is a trigger offence–

Section 397 (Theft)

Section 398 (Robbery)

Section 399 (Burglary)

Section 404 (Handling stolen goods)

Criminal Procedure and Evidence

2011-24

Section 415 (Fraud)

Section 416 (Fraud by false representation)

Section 417 (Fraud by failing to disclose information)

Section 418 (Fraud by abuse of position)

Section 425 (False accounting)

Section 427 (Suppression, etc. of documents)

3. Any offence under section 504 or 506 of the Crimes Act 2011

(production, supply or possession of controlled drugs) is a trigger offence.

Criminal Procedure and Evidence

2011-24

SCHEDULE 6

(Sections 145(3), 148(1) and (9) and 163(1))

OFFENCES THAT ARE ONLY TRIABLE SUMMARILY

Offence Value

1. Offences under section 354 of the

Crimes Act 2011 (Destroying or

damaging property), excluding any

offence committed by destroying or

damaging property by fire.

As regards property alleged to have

been destroyed - what the property

would probably have cost to buy in

the open market at the material time.

If immediately after the material

time the damage was capable of

repair–

(i) what would probably then have

been the market price for the repair

of the damage; or

(ii) what the property alleged to have

been damaged would probably have

cost to buy in the open market at the

material time,

whichever is the less.

If immediately after the material

time the damage was beyond repair -

what the property would probably

have cost to buy in the open market

at the material time.

2.(a) Aiding, abetting, counselling or

procuring the commission of any

offence mentioned in paragraph 1;

(b) attempting to commit any

offence so mentioned; and

offence so mentioned.

The value indicated in paragraph 1

above for the offence alleged to have

been aided, abetted, counselled or

procured, or attempted or incited,

calculated as for the corresponding

entry in paragraph 1 above.

3. Offences under section 409 of the

Crimes Act 2011 (Aggravated

vehicle-taking) if no allegation is

made under subsection (1)(b) other

The total value of the damage

alleged to have been caused.

In the case of damage to any

Criminal Procedure and Evidence

2011-24

than of damage property other than the vehicle

involved in the offence, as for the

corresponding entry in paragraph 1

above, substituting a reference to the

time of the accident concerned for

any reference to the material time.

In the case of damage to the vehicle

involved in the offence –

(a) if immediately after the vehicle

was recovered the damage was

capable of repair–

(i) what would probably then have

been the market price for the repair

of the damage, or

(ii) what the vehicle would probably

have cost to buy in the open market

immediately before it was

unlawfully taken,

whichever is the less; or

(b) if immediately after the vehicle

was recovered the damage was

beyond repair, what the vehicle

would probably have cost to buy in

the open market immediately before

it was unlawfully taken.

Criminal Procedure and Evidence

2011-24

SCHEDULE 7

(Section 312)

QUALIFYING OFFENCES FOR RETRIAL

Offences against the person

Murder

Attempted murder

Soliciting murder

Manslaughter

Kidnapping

Corporate manslaughter

Sexual offences

Rape

Attempted rape

Assault by penetration

Sexual assault

Causing a person to engage in sexual activity without consent

Rape of a child under 16

Assault of a child under 16 by penetration

Sexual assault of a child under 16

Causing or inciting a child under 16 to engage in sexual activity

Sexual activity with a child family member

Sex with an adult relative (Incest) – Penetration or consenting to penetration

Sexual activity with a person with a mental disorder impeding choice

Causing or inciting a person with a mental disorder impeding choice to

engage in sexual activity

Criminal Procedure and Evidence

2011-24

Drugs offences

Unlawful importation of Class A drug

Unlawful exportation of Class A drug

Fraudulent evasion in respect of Class A drug

Producing or being concerned in production of Class A drug

Criminal damage

Arson endangering life

Causing explosion likely to endanger life or property

Intent or conspiracy to cause explosion likely to endanger life or property

Crimes against humanity

Grave breaches of the Geneva Conventions

Directing terrorist organisation

Hostage-taking

Inchoate offences

An offence of conspiracy to commit an offence listed in this Schedule

Aiding, abetting, counselling or procuring the commission of an offence

listed in this Schedule

Criminal Procedure and Evidence

2011-24

SCHEDULE 8

(Section 371(4))

CATEGORIES OF OFFENCES THAT ESTABLISH A PROPENSITY

PART A

Theft category

1. An offence under section 397 of the Crimes Act 2011 (Theft).

2. An offence under section 398 of that Act (Robbery).

3. An offence under section 399 of that Act (Burglary) if it was committed

with intent to commit an offence of stealing anything in the building or part

of a building in question.

4. An offence under section 399 of that Act (Burglary) if the offender stole

or attempted to steal anything in the building or that part of it.

5. An offence under section 400 of that Act (aggravated burglary) if the

offender committed a burglary described in paragraph 3 or 4 of this Part of

the Schedule.

6. An offence under section 401 of that Act (Going equipped for stealing).

7. An offence under section 404 of that Act (Handling stolen goods).

8. An offence under section 408 of that Act (Taking a conveyance without

authority).

9. An offence under section 409 of that Act (Aggravated vehicle-taking).

10. An offence under section 412 of that Act (Making off without

payment).

11. An offence of–

(a) aiding, abetting, counselling, procuring or inciting the

commission of an offence specified in this Part of this

Schedule; or

(b) attempting to commit an offence so specified.

PART B

Sexual offences (persons under the age of 16) category

Criminal Procedure and Evidence

2011-24

1. An offence under section 103 of the Criminal Offences Act (Rape) if it

was committed in relation to a person under the age of 16.

2. An offence under section 107 of that Act (Intercourse with a girl under

13).

3. An offence under section 108 of that Act (Intercourse with a girl under

16).

4. An offence under section 110 of that Act (Intercourse with a defective) if

it was committed in relation to a person under the age of 16.

5. An offence under section 112 of that Act (Incest by a man) if it was

committed in relation to a person under the age of 16.

6. An offence under section 113 of that Act (Incest by a woman) if it was

committed in relation to a person under the age of 16.

7. An offence under section 115 of that Act (Buggery) if it was committed

in relation to a person under the age of 16.

8. An offence under section 116 of that Act (Indecency between men) if it

was committed in relation to a person under the age of 16.

9. An offence under section 117 of that Act (Indecent assault on a woman)

if it was committed in relation to a person under the age of 16.

10. An offence under section 118 of that Act (Indecent assault on a man) if

it was committed in relation to a person under the age of 16.

11. An offence under any of sections 213 to 216 of the Crimes Act 2011

(Rape etc.) if it was committed in relation to a person under the age of 16.

12. An offence under any of sections 217 to 220 of the Crimes Act 2011

(Rape etc. against children under 13).

13. An offence under section 221 of that Act (Sexual activity with a child).

14. An offence under section 222 of that Act (Causing, encouraging or

assisting a child to engage in sexual activity).

15. An offence under section 226 of that Act if doing it will involve the

commission of an offence under section 221 or 222 of that Act (Arranging

or facilitating the commission of a child sex offence).

16. An offence under section 228 of that Act (Abuse of position of trust:

Sexual activity with a child) if the child is under 16.

Criminal Procedure and Evidence

2011-24

17. An offence under section 229 of that Act (Abuse of position of trust:

Causing or inciting a child to engage in sexual activity) if the child is under

16.

20. An offence under section 236 of that Act (Sexual activity with a child

family member) if the child is under 16.

21. An offence under section 237 of that Act (Inciting a family member to

engage in sexual activity) if the family member is under 16.

22. An offence under section 241 of that Act (Sexual activity with a person

with a mental disorder impeding choice) if the person is under 16.

23. An offence under section 242 of that Act (Causing or inciting a person

with a mental disorder impeding choice to engage in sexual activity) if the

person is under 16.

24. An offence under section 245 of that Act (Inducement, threat, or

deception to procure activity with a person with a mental disorder) if the

person is under 16.

25. An offence under section 246 of that Act (Causing a person with a

mental disorder to engage in or agree to engage in sexual activity by

inducement, threat or deception) if the person is under 16.

26. An offence under section 249 of that Act (Care workers: Sexual activity

with a person with a mental disorder) if the person is under 16.

27. An offence under section 250 of that Act (Care workers: Causing or

inciting sexual activity) if it was committed in relation to a person under the

age of 16.

28. An offence of–

(a) aiding, abetting, counselling, procuring or inciting the

commission of an offence specified in this Part of this

Schedule; or (b) attempting or conspiring to commit an offence so specified.

Criminal Procedure and Evidence

2011-24

SCHEDULE 9

(Sections 550(1), 570, 575 and 587)

PART A

STANDARD SCALE OF FINES FOR OFFENCES

Level on the scale

Amount

of fine

1 200

2 400

3 1,000

4 4,000

5 10,000

PART B

MAXIMUM FINE PAYABLE BY A CHILD

The maximum fine payable by a child is £500.

PART C

MAXIMUM FINE PAYABLE BY A YOUNG PERSON

The maximum fine payable by a young person is £2,000.

Criminal Procedure and Evidence

2011-24

SCHEDULE 10

(Sections 579(3) and 587)

MAXIMUM PERIODS OF IMPRISONMENT OR DETENTION

IN DEFAULT OF PAYMENT

An amount not exceeding £200 7 days

An amount exceeding £200 but not

exceeding £500

14 days

An amount exceeding £500 but not

exceeding £1,000

28 days

An amount exceeding £1,000 but not

exceeding £2,500

45 days

An amount exceeding £2,500 but not

exceeding £5,000

3 months

An amount exceeding £5,000 but not

exceeding £10,000

6 months

An amount exceeding £10,000 but

not exceeding £20,000

12 months

An amount exceeding £20,000 but

not exceeding £50,000

18 months

An amount exceeding £50,000 but

not exceeding £100,000

2 years

An amount exceeding £100,000 but

not exceeding £250,000

3 years

An amount exceeding £250,000 but

not exceeding £1 million

5 years

An amount exceeding £1 million 10 years

1. If the amount due at the time imprisonment is imposed is the balance of a

sum after part payment, the maximum period applicable to the amount is the

period applicable to the whole sum reduced by such number of days as

bears to the total number of days in the period the same proportion as the

part paid bears to the whole sum.

2. In calculating the reduction required under paragraph 1–

(a) any fraction of a day is to be left out of account; and

Criminal Procedure and Evidence

2011-24

(b) the maximum period must not be reduced to less than 5 days.

Criminal Procedure and Evidence

2011-24

SCHEDULE 11

(Section 613)

TABLE OF REHABILITATION PERIODS

Sentence End of rehabilitation

period for adult

offenders

End of rehabilitation

period for offenders

under 18 at date of

conviction

A custodial sentence

of more than 30

months and up to, or

consisting of, 48

months

The end of the period of

7 years beginning with

the day on which the

sentence (including any

licence period) is

completed

The end of the period of

42 months beginning

with the day on which

the sentence (including

any licence period) is

completed

A custodial sentence

of more than 6

months and up to, or

consisting of, 30

months

The end of the period of

48 months beginning

with the day on which

the sentence (including

any licence period) is

completed

The end of the period of

24 months beginning

with the day on which

the sentence (including

any licence period) is

completed

A custodial sentence

of 6 months or less

The end of the period of

24 months beginning

with the day on which

the sentence (including

any licence period) is

completed

The end of the period of

18 months beginning

with the day on which

the sentence (including

any licence period) is

completed

A fine The end of the period of

12 months beginning

with the date of the

conviction in respect of

which the sentence is

imposed

The end of the period of

6 months beginning with

the date of the

conviction in respect of

which the sentence is

imposed

A compensation

order

The date on which the

payment is made in full

The date on which the

payment is made in full

A community or

youth rehabilitation

order or a probation

order under the

Criminal Procedure

Act

The end of the period of

12 months beginning

with the day provided

for by or under the order

as the last day on which

the order is to have

effect

The end of the period of

6 months beginning with

the day provided for by

or under the order as the

last day on which the

order is to have effect

A relevant order The day provided for by

or under the order as the

last day on which the

order is to have effect

The day provided for by

or under the order as the

last day on which the

order is to have effect

Criminal Procedure and Evidence

2011-24

Criminal Procedure and Evidence

2011-24

SCHEDULE 12

(Sections 616 and 617(1))

EXCEPTIONS TO REHABILITATION

In this Schedule–

“care services” means–

(a) accommodation and nursing or personal care in a care home;

(b) personal care or nursing or support for a person to live

independently in his own home;

(d) any services provided in an establishment catering for a person

with learning difficulties;

“Financial Services Commission” means the body established by the

Financial Services Commission Act 2007;

“financial services legislation” means any of the Acts listed in Part 5 of

this Schedule and any item of subsidiary legislation made under

any of them;

“firearms dealer” has the meaning given by section 2 of the Firearms

Act;

“funds in court” has the meaning given by the Supreme Court Fund

Rules;

“judicial appointment” means an appointment to any office by virtue of

which the holder has power (whether alone or with others) under

any enactment or rule of law to determine any question affecting

the rights, privileges, obligations or liabilities of any person;

“key worker”, in relation to a body, means any individual who is likely,

in the course of the duties of his office or employment to play a

significant role in the decision making process of the body in

relation to the exercise of the body’s statutory functions, or to

support directly such a person;

“member of the judiciary” means persons appointed to any office by

virtue of which the holder has power (whether alone or with others)

under any enactment or rule of law to determine any question

Criminal Procedure and Evidence

2011-24

affecting the rights, privileges, obligations or liabilities of any

person;

“personal information” means any information which is of a personal or

confidential nature and is not in the public domain and it includes

information in any form but excludes anything disclosed for the

purposes of proceedings in a particular cause or matter;

“road service licence” means a road service licence granted under the

Transport Act 1998;

“tribunal security officers” means persons who, in the course of their

work, guard tribunal buildings, offices and other accommodation

used in relation to tribunals against unauthorised access or

occupation, against outbreaks of disorder or against damage;

“tribunal” means a person other than a court exercising the judicial

power of the Crown;

“vulnerable adult” means a person aged 18 or over who has a condit ion

of the following type–

(a) a substantial learning or physical disability;

(b) physical or mental illness or mental disorder, chronic or

otherwise, including an addiction to alcohol or drugs; or

PART 1

EXCEPTED PROFESSIONS

1. Barrister or solicitor.

2. Chartered accountant or certified accountant.

3. Medical practitioner, dentist or pharmacist.

4. Nurse, midwife or health visitor.

5. Veterinary surgeon.

6. Psychologist.

7. Legal executive.

Criminal Procedure and Evidence

2011-24

8. Actuary.

PART 2

EXCEPTED OFFICES AND EMPLOYMENTS

1. Judicial appointments.

2. The Attorney-General and any officer appointed by him to conduct

prosecutions.

3. The clerk to the Magistrates’ Court and any assistant clerk.

4. Police officers and police cadets training to becoming police officers.

5. Any employment concerned with the administration of, or otherwise

normally carried out wholly or partly within the precincts of the prison, and

members of the board of visitors appointed under section 8 of the Prison

Act.

6. Traffic wardens appointed under section 84 of the Traffic Act 2005.

7. Probation officers and community service officers.

8. Immigration officers.

9. Any office or employment concerned with the provision of care services

to vulnerable adults, and of such a kind as to enable a person, in the course

of his normal duties, to have access to vulnerable adults in receipt of such

services.

10. Any employment or other work concerned with the provision of health

services and of such a kind as to enable the holder of the employment or the

person engaged in the work to have access to persons in receipt of such

services in the course of his normal duties.

11. Any work in an educational institution if the normal duties of the work

involve regular contact with juveniles.

12. Any employment with the Gibraltar Society for the Prevention of

Cruelty to Animals which involves the humane killing of animals.

13. Any office or employment under the Income Tax Act or the Imports

and Exports Act.

14. Any employment concerned with monitoring, for the purpose of

protecting juveniles, communications by means of the internet.

Criminal Procedure and Evidence

2011-24

15. Any employment or other work which is normally carried out in a

hospital used primarily for the provision of psychiatric services.

16. Judges’ clerks, secretaries and legal secretaries.

17. Court officers who, in the course of their work, have direct contact with

judges of the Supreme Court or the Court of Appeal.

18. Persons who in the course of their work have regular access to personal

information relating to an identifiable member of the judiciary.

19. Court officers who, in the course of their work, attend the Magistrates’

Court, the Supreme Court or the Court of Appeal.

20. Court security officers, and tribunal security officers.

21. Persons who, in the course of their work, have unsupervised access to

court-houses, offices and other accommodation used in relation to the courts

or any tribunal established by law.

22. Persons who execute court judgments and persons who act under their

authority.

23. The Official Receiver and his deputy.

24. Persons appointed to the office of Public Trustee under the Public

Trustee Act and deputies to or agents of the Public Trustee.

25. Receivers appointed under section 16 of the Supreme Court Act.

26. Home inspectors.

27. Court officers and other persons who exercise functions in connection

with the administration and management of funds in court.

28. Persons whose work in any Government department gives them access

to sensitive or personal information about children or vulnerable adults.

29. Any office, employment or other work concerned with the

establishment or operation of a database under Part XII of the Children Act

2009, if the person has access to information included in the database.

30. Any office, employment or other work of a kind that requires or permits

a person to be given access to a database under Part XII of the Children Act

2009.

31. Any employment with the Care Agency.

Criminal Procedure and Evidence

2011-24

32. Any work with children, as defined in section 617.

33. Office as or employment with the Licensing Authority or the Gambling

Commissioner under the Gambling Act 2005.

34. Any office or employment with the Financial Services Commission.

35. Any employment or other work in which the normal duties involve

caring for, training, supervising, or being solely in charge of, juveniles

serving in the naval, military or air forces of the Crown.

PART 3

EXCEPTED OCCUPATIONS

1. Firearms dealer.

2. Any occupation in respect of which a licence is required under the

Gambling Act 2005.

3. Any occupation which is concerned with carrying on a nursing home in

respect of which registration is required by the Medical and Health Act.

4. Any occupation in respect of which the holder, as occupier of premises

on which explosives are kept, is required pursuant to Part III of the

Explosives Regulations to obtain from the Commissioner of Police an

explosives certificate certifying him to be a fit person to acquire or acquire

and keep explosives.

PART 4

EXCEPTED LICENCES, CERTIFICATES AND PERMITS

1. Firearm certificates, shot gun certificates and permits issued under the

Firearms Act.

2. Explosives certificates issued by the Commissioner of Police pursuant to

the Explosives Regulations as to the fitness of a person to acquire or acquire

and keep explosives.

3. Road service licences issued to owners and drivers of public service

vehicles under the Transport Act 1998.

4. Licences issued under the Gambling Act 2005.

PART 5

EXCEPTED QUESTIONERS

Criminal Procedure and Evidence

2011-24

1. The Financial Services Commission when asking questions of any

person in connection with–

(a) the issue of a certificate, licence, permit or declaration;

(b) the approval of any activity; or

under the financial services legislation.

2. Any person who is required by law or who is duly authorised by the

Financial Services Commissioner to ask questions as mentioned in

paragraph 1, when asking such questions.

For purposes of this Schedule, the financial services legislation means any

of the following Acts and any item of subsidiary legislation made under any

of them–

Financial Collateral Arrangements Act 2004.

Financial Institutions (Prudential Supervision) Act, 1997.

Financial Services (Auditors) Act 2009.

Financial Services (Banking) Act.

Financial Services (Collective Investment Schemes) Act 2005.

Financial Services (Distance Marketing) Act 2006.

Financial Services (Insurance Companies) Act.

Financial Services (Investment and Fiduciary Services) Act.

Financial Services (Investor Compensation Scheme) Act 2002.

Financial Services (Listing of Securities) Act 2006.

Financial Services (Markets in Financial Instruments) Act 2006.

Financial Services (Moneylending) Act.

Financial Services (Occupational Pensions Institutions) Act 2006.

Financial Services (Takeover Bids) Act 2006.

Criminal Procedure and Evidence

2011-24

Financial Services (Temporary Business Continuity) Act 2007.

Financial Services (Training and Competence) Act 2006.

Financial Services Act, 1998.

Financial Services Commission Act 2007.

PART 6

EXCEPTED PROCEEDINGS

1. Proceedings in respect of a person’s admission to, or disciplinary

proceedings against a member of, any profession specified in Part 1 of this

Schedule.

2. Disciplinary proceedings against a police officer.

3. Proceedings under or arising out of the Gambling Act 2005.

4. Proceedings at any hearing conducted pursuant to, or before any tribunal

established under, the financial services legislation.

5. Proceedings under the Mental Health Act before any tribunal.

6. Proceedings under the Firearms Act in respect of–

(a) the registration of a person as a firearms dealer;

(b) the grant, renewal, variation or revocation of a certificate or

permit.

7. Proceedings in respect of an application for, or cancellation of

registration in respect of a nursing home under the Medical and Health Act.

8. Proceedings on an application to the Commissioner of Police for an

explosives certificate pursuant to the Explosives Regulations as to the

fitness of the applicant to acquire or acquire and keep explosives.

9. Proceedings relating to a road service licence.

10. Proceedings before the Parole Board.

11. Proceedings under Part IV of the Drug Trafficking Offences Act.

12. Proceedings by way of appeal against, or review of, any decision taken,

by virtue of any of the provisions of this Schedule, on consideration of a

spent conviction.

Criminal Procedure and Evidence

2011-24

13. Proceedings held for the receipt of evidence affecting the determination

of any question arising in any proceedings specified in this Schedule.

PART 7

EXCEPTED DECISIONS

1. Any decision by the Financial Services Commission, or any other person

or body relating to–

(a) the issue of a certificate, licence, permit or declaration;

(b) the approval of any activity; or

under the financial services legislation, made by reason of, or partly by

reason of, a spent conviction of an individual, or of any circumstances

ancillary to such a conviction, or of a failure (whether or not by that

individual) to disclose such a conviction or any such circumstances.

2. Any decision of the Financial Services Commission to dismiss, fail to

promote or exclude a person from being a key worker of the Commission,

made by reason of, or partly by reason of, a spent conviction of an

individual, or of any circumstances ancillary to such a conviction, or of a

failure (whether or not by that individual) to disclose such a conviction or

any such circumstances.

3. Any decision by the Financial Services Commission, or any other person

or body, to dismiss an individual from, to fail to promote to or to exclude an

individual from a status under the financial services legislation by reason of,

or partly by reason of, a spent conviction of that individual or of his

associate, or of any circumstances ancillary to such a conviction, or of a

failure (whether or not by that individual) to disclose such a conviction or

any such circumstances.

4. Any decision of an investment exchange or clearing house to refuse to

admit any person as, or to exclude, a member by reason of, or partly by

reason of, a spent conviction of an individual, or of any circumstances

ancillary to such a conviction or of a failure (whether or not by that

individual) to disclose such a conviction or any such circumstances.

5. Any decision of the Licensing Authority under the Gambling Act 2005.

Criminal Procedure and Evidence

2011-24

SCHEDULE 13

(Sections 643 to 648)

OFFENCES AGAINST JUVENILES WITH RESPECT TO WHICH

SPECIAL PROVISIONS APPLY

1. Any offence listed in Schedule 3 to the Crimes Act 2011 (Sexual

offences) and committed against or in respect of a juvenile.

2. Any offence listed in Schedule 4 to the Crimes Act 2011 (Offences of

violence) and committed against or in respect of a juvenile

3. Aiding, abetting, counselling or procuring the suicide of a juvenile.

4. Common assault or battery.

5. Any other offence involving bodily injury to a juvenile.

6. An offence of–

(a) aiding, abetting, counselling, procuring or inciting the

commission of any offence listed in Schedule 3 or 4 to the

Crimes Act 2011; or

(b) attempting or conspiring to commit any such offence.

Criminal Procedure and Evidence

2011-24

SCHEDULE 14

(Section 12)

SUMMARY OFFENCES IN RESPECT OF WHICH AN

APPLICATION UNDER SECTION 12 MAY BE MADE

1. An offence under section 49(3) of the Crimes Act 2011 (Wasteful

employment of the Police)

2. An offence under section 58 of the Crimes Act 2011 (Fear or

provocation of violence)

3. An offence under section 88 of the Crimes Act 2011 (Intentional

harassment, alarm or distress)

4. An offence under section 89 of the Crimes Act 2011 (Harassment,

alarm or distress)

5. An offence under section 92 of the Crimes Act 2011 (Harassing

conduct)

6. An offence under section 96 of the Crimes Act 2011 (Offence of

sending letters etc. with intent to cause distress or anxiety)

7. An offence under section 97 of the Crimes Act 2011 (Offence of

improper use of public electronic communications network)

8. An offence under section 97A of the Crimes Act 2011 (Offence of

harassment etc. of a person in his home)

9. An offence under section 132 of the Crimes Act 2011 (Dealing in

offensive weapons)

10. An offence under section 62 of the Traffic Act 2005 (Driving, or

being in charge, when under influence of drink or drugs)

11. An offence under section 63 of the Traffic Act 2005 (Driving or

being in charge of a motor vehicle with alcohol concentration above

prescribed limit.