Commentary on Sections Supplementary Section 36: Proceedings in the Crown Court
123.This section sets out certain issues relating to proceedings in the Crown Court. Subsection (1) provides that proceedings in the Crown Court when exercising its jurisdiction under sections 19, 20 or 21 will be civil proceedings. This is to make it clear that, although the Crown Court is normally a court of criminal jurisdiction, when it is exercising its powers to make or vary an order it is acting as a court of civil jurisdiction. As with proceedings before the High Court, it is intended that the proceedings will be civil rather than criminal for ECHR purposes. Subsection (2) provides that the applicable standard of proof will be the civil one. Subsection (3) provides that the court can take into account evidence beyond that which would have been admissible in the criminal proceedings during which the proposed subject of the order was convicted. This would include hearsay evidence. The subsection also provides that the court may adjourn proceedings, even after sentencing. The consequences set out in subsections (2) and (3) are just three consequences of the proceedings being civil. There will be others that are not specified in the Act
124.Subsection (4) provides that the appropriate committee for the making of rules of court in relation to orders made in the Crown Court is the Criminal Procedure Rule Committee under the powers in Part 7 of the Courts Act 2003. This is in line with the location of rules of court in relation to other civil orders on conviction.
125.Subsections (5) and (6) provide that serious crime prevention orders may be made or varied by the Crown Court in spite of sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000 or the corresponding provisions in Northern Ireland, which relate to discharging a person absolutely or conditionally. This means that a person who is given an absolute or conditional discharge can still have an order made in relation to him or have his existing order varied by the Crown Court. Express provision is needed in the Act because the effect of sections 12 and 14 of the 2000 Act is that a person who is given an absolute or conditional discharge is not sentenced for the offence and is not treated as having a conviction for the offence. The effect of these sections needs to be altered in relation to serious crime prevention orders because the Crown Court only has jurisdiction to make or vary such an order if there has been a conviction for a serious offence and an order is made in addition to sentence.