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Criminal Justice Bill


Criminal Justice Bill
Part 5 — Disclosure

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 33    Notification of intention to call defence witnesses

After section 6B of the 1996 Act (inserted by section 32 above) there is

inserted—

       “6C            Notification of intention to call defence witnesses

           (1)           The accused must give to the court and the prosecutor a notice

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indicating whether he intends to call any persons (other than himself)

as witnesses at his trial and, if so—

                  (a)                 giving the name, address and date of birth of each such

proposed witness, or as many of those details as are known to

the accused when the notice is given;

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                  (b)                 providing any information in the accused’s possession which

might be of material assistance in identifying or finding any

such proposed witness in whose case any of the details

mentioned in paragraph (a) are not known to the accused when

the notice is given.

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           (2)           Details do not have to be given under this section to the extent that they

have already been given under section 6A(2).

           (3)           The accused must give a notice under this section during the period

which, by virtue of section 12, is the relevant period for this section.

           (4)           If, following the giving of a notice under this section, the accused—

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                  (a)                 decides to call a person (other than himself) who is not included

in the notice as a proposed witness, or decides not to call a

person who is so included, or

                  (b)                 discovers any information which, under subsection (1), he

would have had to include in the notice if he had been aware of

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it when giving the notice,

                         he must give an appropriately amended notice to the court and the

prosecutor.”

 34    Notification of names of experts instructed by defendant

After section 6C of the 1996 Act (inserted by section 33 above) there is

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inserted—

       “6D            Notification of names of experts instructed by accused

           (1)           If the accused instructs a person with a view to his providing any expert

opinion for possible use as evidence at the trial of the accused, he must

give to the court and the prosecutor a notice specifying the person’s

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name and address.

           (2)           A notice does not have to be given under this section specifying the

name and address of a person whose name and address have already

been given under section 6C.

           (3)           A notice under this section must be given during the period which, by

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virtue of section 12, is the relevant period for this section.”

 35    Further provisions about defence disclosure

After section 6D of the 1996 Act (inserted by section 34 above) there is

 

 

Criminal Justice Bill
Part 5 — Disclosure

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inserted—

       “6E            Disclosure by accused: further provisions

           (1)           Where an accused’s solicitor purports to give on behalf of the

accused—

                  (a)                 a defence statement under section 5, 6 or 6B, or

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                  (b)                 a statement of the kind mentioned in section 6B(4),

                         the statement shall, unless the contrary is proved, be deemed to be

given with the authority of the accused.

           (2)           If it appears to the judge at a pre-trial hearing that an accused has failed

to comply fully with section 5, 6B or 6C, so that there is a possibility of

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comment being made or inferences drawn under section 11(5), he shall

warn the accused accordingly.

           (3)           In subsection (2) “pre-trial hearing” has the same meaning as in Part 4

(see section 39).

           (4)           The judge in a trial before a judge and jury—

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                  (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.

           (5)           A direction under subsection (4)—

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                  (a)                 may be made either of the judge’s own motion 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.

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           (6)           The reference in subsection (4) to a defence statement is a reference—

                  (a)                 where the accused has given only an initial defence statement

(that is, a defence statement given under section 5 or 6), to that

statement;

                  (b)                 where he has given both an initial defence statement and an

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updated defence statement (that is, a defence statement given

under section 6B), to the updated defence statement;

                  (c)                 where he has given both an initial defence statement and a

statement of the kind mentioned in section 6B(4), to the initial

defence statement.”

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 36    Continuing duty of disclosure by prosecutor

Before section 8 of the 1996 Act there is inserted—

       “7A            Continuing duty of prosecutor to disclose

           (1)                         This section applies at all times—

                  (a)                 after the prosecutor has complied with section 3 or purported to

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comply with it, and

                  (b)                 before the accused is acquitted or convicted or the prosecutor

decides not to proceed with the case concerned.

 

 

Criminal Justice Bill
Part 5 — Disclosure

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           (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 accused or of assisting the

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case for the accused, and

                  (b)                 has not been disclosed to the accused.

           (3)                         If at any time there is any such material as is mentioned in subsection

(2) the prosecutor must disclose it to the accused as soon as is

reasonably practicable (or within the period mentioned in subsection

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(5)(a), where 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)                         Where the accused gives a defence statement under section 5, 6 or 6B—

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                  (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 during the period which, by virtue of section 12, is the

relevant period for this section;

                  (b)                 if the prosecutor considers that he is not so required, he must

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during that period give to the accused 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

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against the accused, or

                  (b)                 which, in pursuance of a code operative under Part 2, he has

inspected in connection with the case for the prosecution

against the accused.

           (7)           Subsections (3) to (5) of section 3 (method by which prosecutor

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discloses) apply for the purposes of this section as they apply for the

purposes of that.

           (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.

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           (9)           Material must not be disclosed under this section to the extent that it is

material the disclosure of which is prohibited by section 17 of the

Regulation of Investigatory Powers Act 2000 (c. 23).”

 37    Application by defence for disclosure

In section 8 of the 1996 Act (application by accused for disclosure), for

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subsections (1) and (2) there is substituted—

           “(1)              This section applies where the accused has given a defence statement

under section 5, 6 or 6B and the prosecutor has complied with section

7A(5) or has purported to comply with it or has failed to comply with it.

           (2)              If the accused has at any time reasonable cause to believe that there is

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prosecution material which is required by section 7A to be disclosed to

 

 

Criminal Justice Bill
Part 5 — Disclosure

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him and has not been, he may apply to the court for an order requiring

the prosecutor to disclose it to him.”

 38    Faults in defence disclosure

For section 11 of the 1996 Act there is substituted—

       “11            Faults in disclosure by accused

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           (1)           This section applies in the three cases set out in subsections (2), (3) and

(4).

           (2)           The first case is where section 5 applies and the accused—

                  (a)                 fails to give an initial defence statement,

                  (b)                                     gives an initial defence statement but does so after the end of the

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period which, by virtue of section 12, is the relevant period for

section 5,

                  (c)                 is required by section 6B to give either an updated defence

statement or a statement of the kind mentioned in subsection (4)

of that section but fails to do so,

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                  (d)                 gives an updated defence statement or a statement of the kind

mentioned in section 6B(4) but does so after the end of the

period which, by virtue of section 12, is the relevant period for

section 6B,

                  (e)                 sets out inconsistent defences in his defence statement, or

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                  (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

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imposed by or under section 6A, 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

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without having complied with section 6A(2)(a) or (b) as

regards the witness in his defence statement.

           (3)           The second case is where section 6 applies, the accused gives an initial

defence statement, and the accused—

                  (a)                                     gives the initial defence statement after the end of the period

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which, by virtue of section 12, is the relevant period for section

6, or

                  (b)                 does any of the things mentioned in paragraphs (c) to (f) of

subsection (2).

           (4)           The third case is where the accused—

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                  (a)                 gives a witness notice but does so after the end of the period

which, by virtue of section 12, is the relevant period for section

6C, or

                  (b)                 at his trial calls a witness (other than himself) not included, or

not adequately identified, in a witness notice.

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           (5)           Where this section applies—

 

 

Criminal Justice Bill
Part 5 — Disclosure

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                  (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 accused is guilty of the offence concerned.

           (6)           Where—

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                  (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,

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                         comment by another party under subsection (5)(a) may be made only

with the leave of the court.

           (7)           Where this section applies by virtue of subsection (4), comment by

another party under subsection (5)(a) may be made only with the leave

of the court.

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           (8)           Where the accused 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

shall have regard—

                  (a)                 to the extent of the differences in the defences, and

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                  (b)                 to whether there is any justification for it.

           (9)           Where the accused calls a witness whom he has failed to include, or to

identify adequately, in a witness notice, in doing anything under

subsection (5) or in deciding whether to do anything under it the court

shall have regard to whether there is any justification for the failure.

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           (10)          A person shall not be convicted of an offence solely on an inference

drawn under subsection (5).

           (11)          Where the accused has given a statement of the kind mentioned in

section 6B(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

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imposed by or under section 6A or a failure to comply with section

6A(2)(a) or (b) shall be determined—

                  (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

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statement.

           (12)          In this section—

                  (a)                 “initial defence statement” means a defence statement given

under section 5 or 6;

                  (b)                 “updated defence statement” means a defence statement given

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under section 6B;

                  (c)                 a reference simply to an accused’s “defence statement” is a

reference—

                        (i)                        where he has given only an initial defence statement, to

that statement;

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                        (ii)                       where he has given both an initial and an updated

defence statement, to the updated defence statement;

 

 

Criminal Justice Bill
Part 7 — Trials on indictment without a jury

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                        (iii)                      where he has given both an initial defence statement

and a statement of the kind mentioned in section 6B(4),

to the initial defence statement;

                  (d)                 a reference to evidence in support of an alibi shall be construed

in accordance with section 5;

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                  (e)                 “witness notice” means a notice given under section 6C.”

Part 6

Allocation and sending of offences

 39    Allocation of offences triable either way, and sending cases to Crown Court

Schedule 3 (which makes provision in relation to the allocation and other

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treatment of offences triable either way, and the sending of cases to the Crown

Court) shall have effect.

 40    Mode of trial for certain firearms offences: transitory arrangements

     (1)    The Magistrates’ Courts Act 1980 is amended as follows.

     (2)    In section 24 (summary trial of information against child or young person for

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indictable offence)—

           (a)           in subsection (1), for “homicide” there is substituted “one falling within

subsection (1B) below”,

           (b)           in subsection (1A)(a), for “of homicide” there is substituted “falling

within subsection (1B) below”,

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           (c)           after subsection (1A), there is inserted—

                  “(1B)                    An offence falls within this subsection if—

                        (a)                        it is an offence of homicide; or

                        (b)                        each of the requirements of section 51A(1) of the

Firearms Act 1968 would be satisfied with respect to—

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                               (i)                              the offence; and

                               (ii)                             the person charged with it,

                                                   if he were convicted of the offence.”

     (3)    In section 25 (power to change from summary trial to committal proceedings

and vice versa), in subsection (5), for “homicide” there is substituted “one

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falling within section 24(1B) above”.

Part 7

Trials on indictment without a jury

 41    Application by defendant for trial to be conducted without jury

     (1)    This section applies where one or more defendants are to be tried on

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indictment for one or more offences.

     (2)    The defendant, or any of the defendants, may apply to a judge of the Crown

Court for the trial to be conducted without a jury.

     (3)    Subject to subsection (4), if an application under subsection (2) is made the

judge must make an order that the trial is to be conducted without a jury.

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Part 7 — Trials on indictment without a jury

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     (4)    The judge must refuse an application under subsection (2) if subsection (5), (6),

(7) or (8) applies.

     (5)    This subsection applies if two or more defendants are to be tried and any of

them opposes the application.

     (6)    This subsection applies if—

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           (a)           the defendant, or any of the defendants, holds, or has held, an office or

employment concerned with the administration of civil or criminal

justice,

           (b)           the judge is satisfied that, if that defendant were convicted of the

offence or any of the offences concerned, questions would arise as to

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whether he had properly discharged the functions of that office or

employment or was a fit person to hold or to have held that office or

employment, and

           (c)           the judge is satisfied that the matters mentioned in paragraphs (a) and

(b) give rise to exceptional circumstances which make it desirable in the

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interests of justice for the trial to be conducted with a jury.

     (7)    This subsection applies if the judge is satisfied—

           (a)           that, because of the conduct which is alleged to constitute the offence or

any of the offences concerned, the issues which will arise at the trial for

determination include issues relating to whether the administration of

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civil or criminal justice has been prejudiced or brought into disrepute,

and

           (b)           that the matters mentioned in paragraph (a) give rise to exceptional

circumstances which make it desirable in the interests of justice for the

trial to be conducted with a jury.

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     (8)    This subsection applies if none of subsections (5) to (7) applies but the judge is

satisfied that exceptional circumstances exist which make it necessary in the

public interest for the trial to be conducted with a jury.

     (9)    In this section “the administration of civil or criminal justice” includes the

investigation and prosecution of offences and the carrying out or enforcement

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of an order or sentence of a court.

 42    Applications by prosecution for certain complex or lengthy trials to be

conducted without jury

     (1)    This section applies where one or more defendants are to be tried on

indictment for one or more offences.

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     (2)    The prosecution may apply to a judge of the Crown Court for the trial to be

conducted without a jury.

     (3)    If an application under subsection (2) is made and the judge is satisfied that

both of the following two conditions are fulfilled, he must make an order that

the trial is to be conducted without a jury; but if he is not so satisfied he must

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refuse the application.

     (4)    The first condition is that the complexity of the trial or the length of the trial (or

both)—

           (a)           is likely to make the trial so burdensome to the members of a jury

hearing the trial that it is necessary in the interests of justice for the trial

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to be conducted without a jury, or

 

 

 
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