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Criminal Justice Bill


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

    73

 

     (2)    If in criminal proceedings evidence of an inconsistent statement by any person

is given under section 117(2)(c), the statement is admissible as evidence of any

matter stated in it of which oral evidence by that person would be admissible.

 113   Other previous statements of witnesses

     (1)    This section applies where a person (the witness) is called to give evidence in

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criminal proceedings.

     (2)    If a previous statement by the witness is admitted as evidence to rebut a

suggestion that his oral evidence has been fabricated, that statement is

admissible as evidence of any matter stated of which oral evidence by the

witness would be admissible.

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     (3)    A statement made by the witness in a document—

           (a)           which is used by him to refresh his memory while giving evidence,

           (b)           on which he is cross-examined, and

           (c)           which as a consequence is received in evidence in the proceedings,

            is admissible as evidence of any matter stated of which oral evidence by him

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would be admissible.

     (4)    A previous statement by the witness is admissible as evidence of any matter

stated of which oral evidence by him would be admissible, if—

           (a)           any of the following three conditions is satisfied, and

           (b)           while giving evidence the witness indicates that to the best of his belief

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he made the statement, and that to the best of his belief it states the

truth.

     (5)    The first condition is that the statement identifies or describes a person, object

or place.

     (6)    The second condition is that the statement was made by the witness when the

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matters stated were fresh in his memory but he does not remember them, and

cannot reasonably be expected to remember them, well enough to give oral

evidence of them in the proceedings.

     (7)    The third condition is that—

           (a)           the witness claims to be a person against whom an offence has been

30

committed,

           (b)           the offence is one to which the proceedings relate,

           (c)           the statement consists of a complaint made by the witness (whether to

a person in authority or not) about conduct which would, if proved,

constitute the offence or part of the offence,

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           (d)           the complaint was made as soon as could reasonably be expected after

the alleged conduct,

           (e)           the complaint was not made as a result of a threat or a promise, and

           (f)           before the statement is adduced the witness gives oral evidence in

connection with its subject matter.

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     (8)    For the purposes of subsection (7) the fact that the complaint was elicited (for

example, by a leading question) is irrelevant unless a threat or a promise was

involved.

 

 

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

    74

 

Supplementary

 114   Multiple hearsay

     (1)    If there is a series of statements not made in oral evidence (such as “A said that

B said that C shot the deceased”) sections 107 and 109 to 113 apply as follows.

     (2)    If a statement—

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           (a)           is relied on as evidence of a matter stated in it, and

           (b)           is admissible for that purpose only under section 109 or a rule

preserved by section 111,

            the fact that the statement was made must be proved by evidence admissible

otherwise than under section 109.

10

     (3)    Otherwise—

           (a)           sections 107 and 109 to 113 apply to the admissibility of each statement,

and

           (b)           different statements may be admissible under different sections (or

different provisions of the same section).

15

 115   Documents produced as exhibits

     (1)    This section applies if on a trial before a judge and jury for an offence—

           (a)           a statement made in a document is admitted in evidence under section

112 or 113, and

           (b)           the document or a copy of it is produced as an exhibit.

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     (2)    The exhibit must not accompany the jury when they retire to consider their

verdict unless—

           (a)           the court considers it appropriate, or

           (b)           all the parties to the proceedings agree that it should accompany the

jury.

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 116   Capability to make statement

     (1)           Nothing in section 109, 112 or 113 makes a statement admissible as evidence if

it was made by a person who did not have the required capability at the time

when he made the statement.

     (2)    Nothing in section 110 makes a statement admissible as evidence if any person

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who, in order for the requirements of section 110(2) to be satisfied, must at any

time have supplied or received the information concerned or created or

received the document or part concerned—

           (a)           did not have the required capability at that time, or

           (b)           cannot be identified but cannot reasonably be assumed to have had the

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required capability at that time.

     (3)    For the purposes of this section a person has the required capability if he is

capable of—

           (a)           understanding questions put to him about the matters stated, and

           (b)           giving answers to such questions which can be understood.

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     (4)    Where by reason of this section there is an issue as to whether a person had the

required capability when he made a statement—

 

 

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

    75

 

           (a)           proceedings held for the determination of the issue must take place in

the absence of the jury (if there is one);

           (b)           in determining the issue the court may receive expert evidence and

evidence from any person to whom the statement in question was

made;

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           (c)           the burden of proof on the issue lies on the party seeking to adduce the

statement, and the standard of proof is the balance of probabilities.

 117   Credibility

     (1)    This section applies if in criminal proceedings—

           (a)           a statement not made in oral evidence in the proceedings is admitted as

10

evidence of a matter stated, and

           (b)           the maker of the statement does not give oral evidence in connection

with the subject matter of the statement.

     (2)    In such a case—

           (a)           any evidence which (if he had given such evidence) would have been

15

admissible as relevant to his credibility as a witness is so admissible in

the proceedings;

           (b)           evidence may with the court’s leave be given of any matter which (if he

had given such evidence) could have been put to him in cross-

examination as relevant to his credibility as a witness but of which

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evidence could not have been adduced by the cross-examining party;

           (c)           evidence tending to prove that he made (at whatever time) any other

statement inconsistent with the statement admitted as evidence is

admissible for the purpose of showing that he contradicted himself.

     (3)    If as a result of evidence admitted under this section an allegation is made

25

against the maker of a statement, the court may permit a party to lead

additional evidence of such description as the court may specify for the

purposes of denying or answering the allegation.

     (4)    In the case of a statement in a document which is admitted as evidence under

section 110 each person who, in order for the statement to be admissible, must

30

have supplied or received the information concerned or created or received the

document or part concerned is to be treated as the maker of the statement for

the purposes of subsections (1) to (3) above.

 118   Stopping the case where evidence is unconvincing

     (1)    If on a defendant’s trial before a judge and jury for an offence the court is

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satisfied at any time after the close of the case for the prosecution that—

           (a)           the case against the defendant is based wholly or partly on a statement

not made in oral evidence in the proceedings, and

           (b)           the evidence provided by the statement is so unconvincing that,

considering its importance to the case against the defendant, his

40

conviction of the offence would be unsafe,

                   the court must either direct the jury to acquit the defendant of the offence or, if

it considers that there ought to be a retrial, discharge the jury.

     (2)    Where—

           (a)           a jury is directed under subsection (1) to acquit a defendant of an

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offence, and

 

 

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

    76

 

           (b)           the circumstances are such that, apart from this subsection, the

defendant could if acquitted of that offence be found guilty of another

offence,

                   the defendant may not be found guilty of that other offence if the court is

satisfied as mentioned in subsection (1) in respect of it.

5

     (3)    If—

           (a)           a jury is required to determine under section 4A(2) of the Criminal

Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an

indictment with an offence did the act or made the omission charged,

and

10

           (b)           the court is satisfied as mentioned in subsection (1) above at any time

after the close of the case for the prosecution that—

                  (i)                 the case against the defendant is based wholly or partly on a

statement not made in oral evidence in the proceedings, and

                  (ii)                the evidence provided by the statement is so unconvincing that,

15

considering its importance to the case against the person, a

finding that he did the act or made the omission would be

unsafe,

                   the court must either direct the jury to acquit the defendant of the offence or, if

it considers that there ought to be a rehearing, discharge the jury.

20

     (4)    This section does not prejudice any other power a court may have to direct a

jury to acquit a person of an offence or to discharge a jury.

 119   Court’s general discretion to exclude evidence

     (1)    In criminal proceedings the court may refuse to admit a statement as evidence

of a matter stated if—

25

           (a)           the statement was made otherwise than in oral evidence in the

proceedings, and

           (b)           the court is satisfied that the case for excluding the statement, taking

account of the danger that to admit it would result in undue waste of

time, substantially outweighs the case for admitting it, taking account

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of the value of the evidence.

     (2)    Nothing in this Chapter prejudices—

           (a)           any power of a court to exclude evidence under section 78 of the Police

and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence),

or

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           (b)           any other power of a court to exclude evidence at its discretion

(whether by preventing questions from being put or otherwise).

Miscellaneous

 120   Expert evidence: preparatory work

     (1)    This section applies if—

40

           (a)           a statement has been prepared for the purposes of criminal

proceedings,

           (b)           the person who prepared the statement had or may reasonably be

supposed to have had personal knowledge of the matters stated,

 

 

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

    77

 

           (c)           notice is given under the appropriate rules that another person (the

expert) will in evidence given in the proceedings orally or under section

9 of the Criminal Justice Act 1967 (c. 80) base an opinion or inference on

the statement, and

           (d)           the notice gives the name of the person who prepared the statement

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and the nature of the matters stated.

     (2)    In evidence given in the proceedings the expert may base an opinion or

inference on the statement.

     (3)    If evidence based on the statement is given under subsection (2) the statement

is to be treated as evidence of what it states.

10

     (4)    This section does not apply if the court, on an application by a party to the

proceedings, orders that it is not in the interests of justice that it should apply.

     (5)    The matters to be considered by the court in deciding whether to make an

order under subsection (4) include—

           (a)           the expense of calling as a witness the person who prepared the

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statement;

           (b)           whether relevant evidence could be given by that person which could

not be given by the expert;

           (c)           whether that person can reasonably be expected to remember the

matters stated well enough to give oral evidence of them.

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     (6)    Subsections (1) to (5) apply to a statement prepared for the purposes of a

criminal investigation as they apply to a statement prepared for the purposes

of criminal proceedings, and in such a case references to the proceedings are to

criminal proceedings arising from the investigation.

     (7)    The appropriate rules are rules made—

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           (a)           under section 81 of the Police and Criminal Evidence Act 1984 (c. 60)

(advance notice of expert evidence in Crown Court), or

           (b)           under section 144 of the Magistrates’ Courts Act 1980 (c. 43) by virtue

of section 20(3) of the Criminal Procedure and Investigations Act 1996

(c. 25) (advance notice of expert evidence in magistrates’ courts).

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 121   Confessions

     (1)    In the Police and Criminal Evidence Act 1984 the following section is inserted

after section 76—

       “76A            Confessions may be given in evidence for co-accused

           (1)           In any proceedings a confession made by an accused person may be

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given in evidence for another person charged in the same proceedings

(a co-accused) in so far as it is relevant to any matter in issue in the

proceedings and is not excluded by the court in pursuance of this

section.

           (2)           If, in any proceedings where a co-accused proposes to give in evidence

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a confession made by an accused person, it is represented to the court

that the confession was or may have been obtained—

                  (a)                 by oppression of the person who made it; or

                  (b)                 in consequence of anything said or done which was likely, in

the circumstances existing at the time, to render unreliable any

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

    78

 

confession which might be made by him in consequence

thereof,

                         the court shall not allow the confession to be given in evidence for the

co-accused except in so far as it is proved to the court on the balance of

probabilities that the confession (notwithstanding that it may be true)

5

was not so obtained.

           (3)           Before allowing a confession made by an accused person to be given in

evidence for a co-accused in any proceedings, the court may of its own

motion require the fact that the confession was not obtained as

mentioned in subsection (2) above to be proved in the proceedings on

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the balance of probabilities.

           (4)           The fact that a confession is wholly or partly excluded in pursuance of

this section shall not affect the admissibility in evidence—

                  (a)                 of any facts discovered as a result of the confession; or

                  (b)                 where the confession is relevant as showing that the accused

15

speaks, writes or expresses himself in a particular way, of so

much of the confession as is necessary to show that he does so.

           (5)           Evidence that a fact to which this subsection applies was discovered as

a result of a statement made by an accused person shall not be

admissible unless evidence of how it was discovered is given by him or

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on his behalf.

           (6)           Subsection (5) above applies—

                  (a)                 to any fact discovered as a result of a confession which is wholly

excluded in pursuance of this section; and

                  (b)                 to any fact discovered as a result of a confession which is partly

25

so excluded, if the fact is discovered as a result of the excluded

part of the confession.

           (7)           In this section “oppression” includes torture, inhuman or degrading

treatment, and the use or threat of violence (whether or not amounting

to torture).”

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     (2)    Subject to subsection (1), nothing in this Chapter makes a confession by a

defendant admissible if it would not be admissible under section 76 of the

Police and Criminal Evidence Act 1984 (c. 60).

     (3)    In subsection (2) “confession” has the meaning given by section 82 of that Act.

 122   Representations other than by a person

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     (1)    Where a representation of any fact—

           (a)           is made otherwise than by a person, but

           (b)           depends for its accuracy on information supplied (directly or

indirectly) by a person,

            the representation is not admissible in criminal proceedings as evidence of the

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fact unless it is proved that the information was accurate.

     (2)    Subsection (1) does not affect the operation of the presumption that a

mechanical device has been properly set or calibrated.

 

 

 
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