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Binding Rulings - Crown Court

Reviewed June 2017

Principle

Part IV of the Criminal Procedure and Investigations Act 1996 ("CPIA") empowers a judge, at a pre-trial hearing, to make a binding ruling. (Archbold 2011 4-91a).

Section 40(1) permits a judge to make a ruling on:

  • any question as to the admissibility of evidence; or
  • any other question of law relating to the case concerned.

Such rulings are binding on all parties until the conclusion of the case (section 40(3) CPIA).

Whilst nothing in the Act prevents any judge from making a binding ruling even upon a matter requiring the exercise of judicial discretion, it is recommended that prosecuting advocates do not seek binding rulings from judges sitting at pre-trial hearings, which might later be subject to challenge, or which might fetter the trial judge's discretion.

Where a Judge makes a ruling at a pre-trial hearing under section 40(1) CPIA it is not binding for the purposes of a retrial.
A judge may discharge or vary a ruling if it appears to be in the interests of justice to do so (s.40(4)(b) CPIA).
Prosecutors should be aware of the distinction between pre-trial hearings and preparatory hearings under sections 28-38 CPIA.

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Guidance

What is a Pre-trial Hearing?

A hearing is a pre-trial hearing if it relates to a trial on indictment and takes place after committal, sending, transfer or service of a voluntary bill of indictment but before the start of the trial.

The term start of the trial is defined in section 39(3) CPIA as when the jury is sworn. See Archbold 2011 4-93.

Purpose of Binding Rulings

The purpose of binding rulings is to determine disputed evidential or legal issues at an early stage in the Crown Court proceedings. The provisions set out in the Act are intended to restrict the opportunity for either party to re-argue the same point at the trial hearing subject to a right to apply to vary or discharge rulings.

Binding Rulings as to Admissibility of Evidence under Section 40(1) (a) of the Act

Admissibility of evidence tends to fall into two groups:

  • Evidence which is excluded or admitted by a legal rule.
  • This group includes evidence agreed under Section 10 Criminal Justice Act 1967, the admission in evidence of exhibits or schedules, and the exclusion of evidence under the rule against hearsay.
  • It does not include applications to give evidence through a live television link nor does it cover recordings of testimony from child witnesses.
  • Evidence which can be admitted or excluded as a matter of judicial discretion.
  • This group covers evidence which requires the exercise of judicial discretion as to whether or not it can be admitted without prejudicing the fairness of the trial hearing.
  • The effectiveness of binding rulings in respect of this group of evidence is limited because of judicial reluctance to fetter the trial judge's discretion, particularly where a voire dire is required.
  • It is therefore recommended that prosecuting advocates do not seek binding rulings from judges sitting at pre-trial hearings which might later be subject to challenge or which might fetter the trial judge's discretion.

Binding Rulings as to any other Questions of Law under Section 40(1)(b) of the Act

This subsection allows a judge to rule on such matters as disputes over the form of the indictment, the validity of the committal proceedings, compliance with disclosure provisions under the Act, to prevent such arguments causing delay in the trial.

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Procedure

Identifying Issues which may lead to a Binding Ruling

When reviewing a case destined for Crown Court trial, the reviewing lawyer should consider

  • Whether there are any issues arising in the case that make it desirable to seek a binding ruling in advance of the trial hearing.
  • Whether any issues can be identified which are likely to result in an application by the defence for a binding ruling.

In either case once such issues are identified the reviewing lawyer should ensure that the prosecuting advocate at the pre-trial hearing is fully instructed as to the nature and extent of any application by the prosecution for a ruling and, in the case of defence applications for such rulings, the CPS stance in respect of the application.

Section 40(2) of the Act provides that a binding ruling may be sought by any party to the case or made of the judge's own motion. The Act provides that rulings may be made at any stage prior to the start of the trial. However, in practice such applications are likely to be dealt with either at plea and directions hearings or at pre-trial review.

Where a judge is invited to make a binding ruling it is essential that a full note be made of the facts upon which the prosecuting advocate seeks the ruling. In addition once a binding ruling is made the caseworker or lawyer covering the court must ensure that the prosecution file is clearly and accurately endorsed as to the order made and the terms of any reporting restriction. The caseworker responsible for the file should draw the order to the attention of the reviewing lawyer as soon as is practicable after the hearing date.

Variation or Discharge of Rulings

Binding rulings made under the Act are only binding subject to the power to vary or discharge the ruling set out in section 40(4) of the Act. This allows any judge, not necessarily the one who made the ruling, the power to vary or discharge the ruling either of his/her own motion or upon the application of any party to the proceedings.

The judge has to be satisfied that it is in the interests of justice to do so. In addition where the application is made by a party to the proceedings they must show that there has been a material change of circumstance since the matter was last considered by a judge - see Section 40(5) of the Act.

There are no formal rules of court laid down governing the procedures for making a binding ruling or to vary or discharge such a ruling. These matters are the subjects of local arrangements at each Crown Court. Prosecutors and caseworkers should familiarise themselves with the arrangements applying in their area.

Reporting Restrictions and Binding Rulings

Section 41 of the Act applies reporting restrictions in relation to binding rulings or applications to vary or discharge them. However, a judge has the authority in appropriate cases to lift, either partially or in whole, such reporting restrictions. See: Section 41 Criminal Procedure and Investigations Act 1996.

Publication of Restricted Material, Subject to a Binding Ruling

Section 42 of the Act creates a summary offence to publish material in contravention of reporting restrictions imposed under Section 41 of the Act. The Attorney Generals consent is required to bring a prosecution in respect of this offence. See: Consents to Prosecute, elsewhere in this guidance.

Speeches

Where a judge rules that a particular line of questioning is inadmissible, it is improper for an advocate against whom the ruling is made to refer in a closing speech to the matter, exploration of which was prohibited, however much the reference is dressed up with acknowledgments as to the binding nature of a judge's ruling and however many disclaimers there may be of any intention of going behind the ruling: R. v. Fahy [2002] Crim.L.R. 596, C.A.