Criminal Practice Directions

Published June 2021 (Updated August 2023)

This legal guide is intended to assist lawyers representing children in the criminal courts and explains how the Criminal Practice Directions1 can support in this context. The Criminal Practice Directions (CrimPD) supplement the Criminal Procedure Rules (CrimPR) by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children. The new Criminal Practice Directions were issued on 19th April 2023 and came into force on 29th May 2023. The new CrimPD has been drafted to contain only necessary information, and in a more accessible style. Paragraphs that restate the law (statute, case law, and CrimPR), that are descriptive only, or that refer to information in other guidance have been removed. Throughout this guide, we refer to both the Rules, the CrimPR, and the Practice Directions, the CrimPD.

It is well known that many children appearing in criminal courts have communication or learning difficulties.2 They are disproportionately likely to have a neurodisability, mental health problem or to have suffered a traumatic brain injury.3 These factors, as well as age and normal adolescent development, can make it difficult for children to participate in criminal proceedings, particularly in the Crown Court.

Defendants have a right to effective participation when they appear in criminal proceedings. This right has been articulated by the European Court of Human Rights (ECtHR)4 through Article 6 of the European Convention on Human Rights (ECHR), ‘right to a fair trial’. The CrimPD is the key domestic provision that sets out in detail ways to implement that effective participation right – it details a range of adjustments to proceedings that should be considered when children appear in the criminal courts.

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Status of the Criminal Practice Directions

The CrimPR are the ‘rules’ governing the practice and procedure to be followed in the criminal courts.5 They are secondary legislation.

The CrimPD, on the other hand, are not secondary legislation. They:

• supplement the rules acting as a guide for the exercise of judicial discretion
• are binding on the criminal courts6
• detail a range of adjustments (special measures and procedural modifications) that should be considered in all cases that involve a child defendant.7

Overview of modifications for child defendants

The CrimPD permits the use of modifications to the trial process, including:8 

• use of a courtroom that better facilitates communication
• the support of intermediaries
• removal of wigs and gowns
• allowing the child to sit not in the dock but rather with family members or others in a like relationship, and in a place which permits easy and informal communication with lawyers
• attendance throughout proceedings of a suitable supporting adult
• giving evidence via live link
• a ‘ground rules hearing’ (GRH) to plan the questioning of a child defendant, and
• timetabling that accommodates the child defendant’s ability to concentrate.

Applying the Criminal Practice Directions

• Legal representatives must be familiar with the detailed provisions in the CrimPD and ensure that they are complied with.9 
• Time for raising the CrimPD:
  • In the Crown Court, at the plea and trial preparation hearing (PTPH), where the PTPH form requires identification of any modifications sought or likely to be sought.10 
  • In the youth court, at the first appearance.11
• Where an application for special measures is granted or refused, the court must give its reasons.12

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In 1999, in the case of V v UK13 the ECtHR was asked to consider whether there had been a violation of Article 6 of the ECHR where two very young children had been tried in the adult Crown Court. The defendants were 11 years old at the time of their trials, and both had learning difficulties. The court had to decide whether the children had been able to ‘effectively participate’ in their trial.14 The ECtHR was critical of the way England and Wales treated young children in the criminal justice system, stating that: ... it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.15 The ECtHR further noted that proceedings involving children in the adult Crown Court should be conducted in such a way as ‘to reduce as far as possible [the child defendant’s] feelings of intimidation and inhibition’.16

The decision led to domestic reforms for children in the criminal justice system in England and Wales in the form of a Criminal Practice Direction – ‘Practice Direction (Crown Court: Young Defendants)’ – issued in 2000 by the then Lord Chief Justice (Lord Bingham), which set out the steps that should be taken in the trials of ‘young defendants’.17

In 2000, the CrimPD applied specifically and exclusively to young defendants, which it defined as ‘children and young persons’, aligning with the language of other legislation concerning children. Since 2000, there have been various amendments and overhauls that have extended the protective elements of the CrimPD to include all vulnerable people in court, whether children or adults. This legal guide explains the CrimPD as it can be applied specifically to children in the criminal courts. It should be used alongside other law, rules, and guidance; some of which is referenced in the CrimPD but some of which is not.

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The duty of the parties

The CrimPR state that the parties are under a duty to alert the court to any potential impediment to the defendant’s effective participation in the trial.18

The court’s duty

The court is under a duty to:

• take ‘every reasonable step’ to encourage
  and facilitate the participation of any person,
  including the defendant19
• have regard to the welfare of a child defendant, as required by s44 Children and Young Persons Act 193320 and
• enable a witness or defendant to give their best evidence.21

Discharging the court’s duty

The court discharges the duty by (a) identifying the needs of witnesses at an early stage and (b) making provision for arrangements (whether statutory special measures or other modifications to the trial process) to meet those needs.

• The CrimPD note that ‘communication needs … are common to many witnesses and defendants under 18. Consideration must be given to the communication needs of all children and young people appearing in the criminal courts and to adapting the trial process to address any such needs’.22
• The modifications provided for by the CrimPD are not exhaustive. The court retains its inherent power at common law to make directions to ensure the effective participation of vulnerable defendants.23
• Special measures are also available under the Youth Justice and Criminal Evidence Act (YJCEA) 1999. CrimPR Part 18 sets out the procedure to be followed. Child defendants were originally specifically excluded from these special measures, but a ‘defendant’s live link direction’, according to which a child defendant may be allowed to give evidence by live link, is now available.24
• The CrimPD makes explicit provision for intermediaries to be used for the benefit of child defendants.
• The following sections of the CrimPD detail the relevant modifications available to vulnerable and child defendants:
  • CrimPD 6.1: ‘Vulnerable people in the courts’
  • CrimPD 6.2: ‘Intermediaries’
  • CrimPD 6.4: ‘Vulnerable defendants’ - CrimPD 5.5: ‘Use of live link’.
• Certain parts of the CrimPD apply solely to children – ie witnesses and defendants who are under 18:
  •  CrimPD 6.2.8-6.2.9(intermediaries and communication needs)
  • CrimPD 5.4.13 (absence of defendant).

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CrimPD 6.1: ‘Vulnerable people in the courts’

6.1.1 Assistance

• ‘Every reasonable step’ must be taken to facilitate the participation of any witness (whether ‘vulnerable’ or ‘intimidated’), including the defendant.28

• Facilitating participation includes:

  • enabling a witness or defendant to give their best evidence and

  • enabling a defendant to comprehend proceedings.

• The pre-trial and trial process should, so far as is necessary, be adapted to meet those ends.

6.1.2 Endorsement of the Advocate’s Gateway toolkits

• Advocates should consult and follow the relevant guidance in the Advocate’s Gateway toolkits29 whenever they prepare to question a young or otherwise vulnerable witness or defendant.

• Judges should also use the toolkits to aid case management

6.1.4- 6.1.6 Ground rules hearings

• 6.1.4: Ground rules hearings must be considered in all cases involving a vulnerable accused (this includes child defendants). The greater the level of vulnerability the more important it will be to hold such a meeting. A ground rules hearing is required in all trials involving an intermediary.30
• 6.1.5: It is essential for a note of decisions reached in the GRH to be created. The judge must use this document to ensure the agreed ground rules are complied with. The document should record any adaptations to the trial arrangements that are considered necessary and any time limits or subject boundaries for questions.
• 6.1.6: The judiciary is responsible for controlling questioning. Over-rigorous or repetitive cross-examination of a child or vulnerable witness should be stopped.
• 6.1.6: The need for intervention will be minimised if the communication needs of vulnerable witnesses are discussed in advance and ground rules are agreed and adhered to.

6.1.7- 6.1.8 Limitations on questioning

• Limitations will arise where there is a risk of a child ‘failing to understand, becoming distressed or acquiescing to leading questions’.
• Where limitations on questioning are prescribed, these limitations:
  • must meet the specific needs of the witness in a particular case
  • must be clearly defined and
  • may include ‘a radical departure from traditional cross-examination’, including restrictions on the advocate ‘putting the case’.

CrimPD 6.2: ‘Intermediaries’

6.2.1 Intermediary role and function

• Role: to ‘facilitate communication with witnesses and defendants who have communication needs’.31
• Primary function: to ‘improve the quality of evidence and aid understanding between the court, the advocates and the witness or defendant’.

Duty to court

• Intermediaries are ‘independent of parties and owe their duty to the court’.32

6.2.2 Assessment

• The process ‘begins with assessment by an intermediary and a report’.33

6.2.4- 6.2.6 Intermediaries for defendants

• 6.2.4: The court ‘may direct the appointment of an intermediary to assist a defendant in reliance on its inherent powers (C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin))’ but there is ‘no presumption that a defendant will be so assisted’ and ‘even where an intermediary would improve the trial process, appointment is not mandatory’.
• 6.2.4: The court should nonetheless adapt the trial process to address a defendant’s communication needs.34
• 6.2.5: Other measures designed to accommodate the needs of a vulnerable defendant will need to be considered, whether or not an intermediary is appointed.
• 6.2.6: The court may exercise its inherent powers to direct appointment of an intermediary to assist a defendant when giving evidence or for an entire trial. Terms of appointment are for the court.35

6.2.8- 6.2.9 Intermediaries for witnesses and defendants under 18

• 6.2.8: Communication needs (such as short attention span, suggestibility and reticence in relation to authority figures) are common to many witnesses and defendants under 18. Consideration should therefore be given to the communication needs of all children and young people appearing in the criminal courts and to adapting the trial process to address any such needs.
• 6.2.9: Assessment by an intermediary should be considered for witnesses and defendants under 18 who seem liable to misunderstand questions or to experience difficulty expressing answers, including those who seem unlikely to be able to recognise a problematic question (such as one that is misleading or not readily understood), and those who may be reluctant to tell a questioner in a position of authority if they do not understand.

CrimPD 6.4: ‘Vulnerable defendants’

6.4.1- 6.4.6

• This section is exclusively directed at vulnerable (including child) defendants.
• 6.4.1 A ground rules hearing must always be considered in a case involving a young or otherwise vulnerable defendant
• 6.4.2: Includes a series of modifications available to the court to ensure that a vulnerable defendant can participate.38 For a summary of these, see Annex 1 to this guide.
• The Crown Court PTPH239 form sets out all of the modifications provided for in CrimPD 6.4, and has at the end a box for ‘other’ modifications that might be required.

6.4.3- 6.4.6 Vulnerable defendants at trial

• 6.4.3: Consideration must be given to the need to ensure, by any appropriate means, that the defendant can comprehend and participate effectively in the trial process.
• 6.4.4: A vulnerable defendant who wishes to give evidence by live link, in accordance with s33A YJCEA 1999 may apply for a direction to that effect. The procedure in CrimPR 18.14-18.17 should be followed.
• 6.4.5: The court should consider restricting attendance by members of the public in the courtroom, perhaps limited to those with an immediate and direct interest in the outcome. The court may also restrict the number of reporters attending in the courtroom.
• 6.4.6: Where it has been decided to limit access to the courtroom, arrangements should be made for the proceedings to be related audibly, and if possible, visually to another room.

CrimPD 5.5: ‘Use of live links'

5.5 Use of Live Link

• Where it is lawful and in the interests of justice to do so, courts should exercise their statutory and other powers to conduct hearings by live link. The Live Link in Criminal Courts Guidance40 issued by the Lord Chief Justice must be complied with.

6.4.4

• A vulnerable defendant who wishes to give evidence by live link, in accordance with s33A YJCEA 1999, may apply for a direction to that effect; the procedure in CrimPR 18.14-18.17 should be followed.

9.6 Sentencing remarks in the Crown Court

9.6.1

• The provision of written sentencing remarks can be helpful and in the case of a young or otherwise vulnerable defendant is to be encouraged.

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