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Criminal Justice Bill


Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

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General

 102   Assumption of truth in assessment of relevance or probative value

     (1)    Subject to subsection (2), a reference in this Chapter to the relevance or

probative value of evidence is a reference to its relevance or probative value on

the assumption that it is true.

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     (2)    In assessing the relevance or probative value of an item of evidence for any

purpose of this Chapter, 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.

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 103   Court’s duty to give reasons for rulings

     (1)    Where 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 a magistrates’ court, it must cause the ruling and the reasons for

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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

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section 92 or 93 (including a ruling on an application under section

93(3));

           (c)           a ruling under section 100.

 104   Rules of court

     (1)    Rules of court may make such provision as appears to the appropriate

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authority to be necessary or expedient for the purposes of this Act; and the

appropriate authority is the authority entitled to make the rules.

     (2)    The rules may require a defendant who—

           (a)           proposes to adduce evidence of a co-defendant’s bad character under

section 93(1)(f), or

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           (b)           proposes to cross-examine a witness with a view to eliciting such

evidence,

                   to serve on the co-defendant such notice, and such particulars of or relating to

the evidence, as may be prescribed.

     (3)    The rules may provide that the court or the co-defendant may, in such

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circumstances as may be prescribed, dispense with a requirement imposed by

virtue of subsection (2).

     (4)    In considering the exercise of its powers with respect to costs, the court may

take into account any failure by a defendant to comply with a requirement

imposed by virtue of subsection (2) and not dispensed with by virtue of

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subsection (3).

     (5)    The rules may—

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

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           (a)           limit the application of any provision of the rules to prescribed

circumstances;

           (b)           subject any provision of the rules to prescribed exceptions;

           (c)           make different provision for different cases or circumstances.

     (6)    Nothing in this section prejudices the generality of any enactment conferring

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power to make rules of court; and no particular provision of this section

prejudices any general provision of it.

     (7)    In this section—

                    “prescribed” means prescribed by rules of court;

                    “rules of court” means—

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                  (a)                 Crown Court Rules;

                  (b)                 Criminal Appeal Rules;

                  (c)                 rules under section 144 of the Magistrates’ Courts Act 1980

(c. 43).

 105   Interpretation of Chapter 1

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     (1)    In this Chapter—

                    “bad character” is to be read in accordance with section 90;

                    “criminal proceedings” means criminal proceedings in relation to which

the strict rules of evidence apply;

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

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with an offence in those proceedings; and “co-defendant”, in relation to

a defendant, means a person charged with an offence in the same

proceedings;

                    “important matter” means a matter of substantial importance in the

context of the case as a whole;

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                    “misconduct” means—

                  (a)                 the commission of an offence, or

                  (b)                 behaviour of a kind that, in the opinion of the court, might be

viewed with disapproval by a reasonable person;

                    “offence” includes a service offence;

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                    “probative value”, and “relevant” (in relation to an item of evidence), are

to be read in accordance with section 102;

                    “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;

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                    “service offence” means an offence under the Army Act 1955 (3 & 4 Eliz. 2

c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline

Act 1957 (c. 53);

                    “written charge” has the same meaning as in section 28 and also includes

an information.

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     (2)    Where a defendant is charged with two or more offences in the same criminal

proceedings, this Chapter has 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 this Chapter affects the exclusion of evidence—

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           (a)           under section 41 of the Youth Justice and Criminal Evidence Act 1999

(c. 23), or

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 2 — Hearsay evidence

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           (b)           on grounds other than the fact that it is evidence of a person’s bad

character.

 106   Armed forces

Schedule 5 (armed forces) has effect.

Chapter 2

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Hearsay evidence

Hearsay: main provisions

 107   Admissibility of hearsay evidence

     (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—

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           (a)           any provision of this Chapter or any other statutory provision makes it

admissible,

           (b)           any rule of law preserved by section 111 makes it admissible,

           (c)           all parties to the proceedings agree to it being admissible, or

           (d)           the court is satisfied that, despite the difficulties there may be in

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challenging the statement, it would not be contrary to 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)—

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           (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);

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           (c)           how important the matter or evidence mentioned in paragraph (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;

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           (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.

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     (3)    Nothing in this Chapter 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.

 108   Statements and matters stated

     (1)    In this Chapter references to a statement or to a matter stated are to be read as

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follows.

 

 

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Part 11 — Evidence
Chapter 2 — Hearsay evidence

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     (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 Chapter applies if (and only if) the purpose,

or one of the purposes, of the person making the statement appears to the court

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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

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 109   Cases where a witness is unavailable

     (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,

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           (b)           the person who made the statement (the relevant person) is identified

to the court’s satisfaction, and

           (c)           any of the five conditions mentioned in subsection (2) is satisfied.

     (2)    The conditions are—

           (a)           that the relevant person is dead;

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           (b)           that the relevant person is unfit to be a witness because of his bodily or

mental condition;

           (c)           that the relevant person is outside the United Kingdom and it is not

reasonably practicable to secure his attendance;

           (d)           that the relevant person cannot be found although such steps as it is

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reasonably practicable to take to find him have been taken;

           (e)           that through fear 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.

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     (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—

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           (a)           to the statement’s contents,

           (b)           to 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),

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           (c)           in appropriate cases, to the fact that a direction under section 19 of the

Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures

for the giving of evidence by fearful witnesses etc) could be made in

relation to the relevant person, and

           (d)           to any other relevant circumstances.

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Criminal Justice Bill
Part 11 — Evidence
Chapter 2 — Hearsay evidence

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     (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

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           (b)           by a person acting on his behalf,

            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).

 110   Business and other documents

     (1)    In criminal proceedings a statement contained in a document is admissible as

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evidence of any matter stated if—

           (a)           oral evidence given in the proceedings would be admissible as

evidence of that matter,

           (b)           the requirements of subsection (2) are satisfied, and

           (c)           the requirements of subsection (5) are satisfied, in a case where

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subsection (4) requires them to be.

     (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,

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           (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

           (c)           each person (if any) through whom the information was supplied from

the relevant person to the person mentioned in paragraph (a) received

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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.

     (4)    The additional requirements of subsection (5) must be satisfied if the

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statement—

           (a)           was prepared for the purposes of pending or contemplated criminal

proceedings, or for a criminal investigation, but

           (b)           was not prepared in accordance with section 3 of the Criminal Justice

(International Co-operation) Act 1990 (c. 5) or an order under

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paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (c. 33)

(which relate to overseas evidence).

     (5)    The requirements of this subsection are satisfied if—

           (a)           any of the five conditions mentioned in section 109(2) is satisfied

(absence of relevant person etc), or

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           (b)           the relevant person cannot reasonably be expected to have any

recollection of the matters dealt with in the statement (having regard to

the length of time since he supplied the information and all other

circumstances).

     (6)    A statement is not admissible under this section if the court makes a direction

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to that effect under subsection (7).

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 2 — Hearsay evidence

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     (7)    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,

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           (c)           the way in which or the circumstances in which the information was

supplied or received, or

           (d)           the way in which or the circumstances in which the document

concerned was created or received.

 111   Preservation of certain common law categories of admissibility

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     (1)    The following rules of law are preserved.

Public information etc

        1                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

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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,

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                    (c)                   records (such as the records of certain courts, treaties, Crown

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

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matter.

Reputation as to character

        2                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 character.

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                        Note

                        The rule is preserved only so far as it allows the court to treat such

evidence as proving the matter concerned.

Reputation or family tradition

        3                Any rule of law under which in criminal proceedings evidence of

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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

                    (c)                   the identity of any person or thing.

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                        Note

 

 

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Part 11 — Evidence
Chapter 2 — Hearsay evidence

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                        The rule is preserved only so far as it allows the court to treat such

evidence as proving or disproving the matter concerned.

Res gestae

        4                Any rule of law under which in criminal proceedings a statement is

admissible as evidence of any matter stated if—

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                    (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

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the statement, or

                    (c)                   the statement relates to a physical sensation or a mental state

(such as intention or emotion).

Confessions etc

        5                Any rule of law relating to the admissibility of confessions or mixed

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statements in criminal proceedings.

Admissions by agents etc

        6                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

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                    (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.

Common enterprise

        7                Any rule of law under which in criminal proceedings a statement

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made by a party to a common enterprise is admissible against

another party to the enterprise as evidence of any matter stated.

Expert evidence

        8                Any rule of law under which in criminal proceedings an expert

witness may draw on the body of expertise relevant to his field.

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     (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.

 112   Inconsistent statements

     (1)    If in criminal proceedings a person gives oral evidence and—

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           (a)           he admits making a previous inconsistent statement, or

           (b)           a previous inconsistent statement made by him is proved by virtue of

section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),

            the statement is admissible as evidence of any matter stated of which oral

evidence by him would be admissible.

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