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Criminal Justice Bill


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

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 123   Depositions

In Schedule 3 to the Crime and Disorder Act 1998 (c. 37), sub-paragraph (4) of

paragraph 5 is omitted (power of the court to overrule an objection to a

deposition being read as evidence by virtue of that paragraph).

 124   Evidence at retrial

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For paragraphs 1 and 1A of Schedule 2 to the Criminal Appeal Act 1968 (c. 19)

(oral evidence and use of transcripts etc at retrials under that Act) there is

substituted—

“Evidence

        1               (1)                Evidence given at a retrial must be given orally if it was given orally

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at the original trial, unless—

                    (a)                   section 109 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

unavailable); or

                    (b)                   the witness is unavailable to give evidence, otherwise than as

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mentioned in subsection (2) of that section, and section

107(1)(d) of that Act applies (admission of hearsay evidence

under residual discretion).

                       (2)                Paragraph 5 of Schedule 3 to the Crime and Disorder Act 1998 (use

of depositions) does not apply at a retrial to a deposition read as

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evidence at the original trial.”

General

 125   Rules of court

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

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

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appropriate authority is the authority entitled to make the rules.

     (2)    The rules may make provision about the procedure to be followed and other

conditions to be fulfilled by a party proposing to tender a statement in

evidence under any provision of this Chapter.

     (3)    The rules may require a party proposing to tender the evidence to serve on

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each party to the proceedings such notice, and such particulars of or relating to

the evidence, as may be prescribed.

     (4)    The rules may provide that the evidence is to be treated as admissible by

agreement of the parties if—

           (a)           a notice has been served in accordance with provision made under

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subsection (3), and

           (b)           no counter-notice in the prescribed form objecting to the admission of

the evidence has been served by a party.

     (5)    If a party proposing to tender evidence fails to comply with a prescribed

requirement applicable to it—

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           (a)           the evidence is not admissible except with the court’s leave;

 

 

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

    80

 

           (b)           where leave is given the court or jury may draw such inferences from

the failure as appear proper;

           (c)           the failure may be taken into account by the court in considering the

exercise of its powers with respect to costs.

     (6)    In considering whether or how to exercise any of its powers under subsection

5

(5) the court shall have regard to whether there is any justification for the

failure to comply with the requirement.

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

under subsection (5)(b).

     (8)    Rules under this section may—

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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.

     (9)    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.

     (10)   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).

 126   Proof of statements in documents

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Where a statement in a document is admissible as evidence in criminal

proceedings, the statement may be proved by producing either—

           (a)           the document, or

           (b)           (whether or not the document exists) a copy of the document or of the

material part of it,

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            authenticated in whatever way the court may approve.

 127   Interpretation of Chapter 2

     (1)    In this Chapter—

                    “copy”, in relation to a document, means anything on to which

information recorded in the document has been copied, by whatever

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means and whether directly or indirectly;

                    “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

with an offence in those proceedings;

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                    “document” means anything in which information of any description is

recorded;

                    “oral evidence” includes evidence which, by reason of any disability,

disorder or other impairment, a person called as a witness gives in

writing or by signs or by way of any device;

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Criminal Justice Bill
Part 11 — Evidence
Chapter 3 — Miscellaneous and supplemental

    81

 

                    “statutory provision” means any provision contained in, or in an

instrument made under, this or any other Act, including any Act

passed after this Act.

     (2)    Section 108 (statements and matters stated) contains other general

interpretative provisions.

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     (3)    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.

 128   Armed forces

Schedule 6 (hearsay evidence: armed forces) has effect.

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 129   Repeals etc

     (1)           In the Criminal Justice Act 1988 (c. 33), the following provisions (which are to

some extent superseded by provisions of this Chapter) are repealed—

           (a)           Part II and Schedule 2 (which relate to documentary evidence);

           (b)           in Schedule 13, paragraphs 2 to 5 (which relate to documentary

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evidence in service courts etc).

     (2)    In consequence of the repeal by subsection (1) above of section 25 of the

Criminal Justice Act 1988, section 3 of the Criminal Justice (International Co-

operation) Act 1990 (c. 5) is amended as follows—

           (a)           in subsection (8) for “section 25 of the Criminal Justice Act 1988” there

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is substituted “Article 5 of the Criminal Justice (Evidence, Etc.)

(Northern Ireland) Order 1988”;

           (b)           in subsection (10) the words from “and” to the end are omitted.

Chapter 3

Miscellaneous and supplemental

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 130   Evidence by video recording

     (1)    This section applies where—

           (a)           a person is called as a witness in proceedings for an offence triable only

on indictment, or for a prescribed offence triable either way,

           (b)           the person claims to have witnessed (whether visually or in any other

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way)—

                  (i)                 events alleged by the prosecution to include conduct

constituting the offence or part of the offence, or

                  (ii)                events closely connected with such events,

           (c)           he has previously given an account of the events in question (whether

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in response to questions asked or otherwise),

           (d)           the account was given at a time when those events were fresh in the

person’s memory (or would have been, assuming the truth of the claim

mentioned in paragraph (b)),

           (e)           a video recording was made of the account,

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Criminal Justice Bill
Part 11 — Evidence
Chapter 3 — Miscellaneous and supplemental

    82

 

           (f)           the court has made a direction that the recording should be admitted as

evidence in chief of the witness, and the direction has not been

rescinded, and

           (g)           the recording is played in the proceedings in accordance with the

direction.

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     (2)    If, or to the extent that, the witness in his oral evidence in the proceedings

asserts the truth of the statements made by him in the recorded account, they

shall be treated as if made by him in that evidence.

     (3)    A direction under subsection (1)(f)—

           (a)           may not be made in relation to a recorded account given by the

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defendant;

           (b)           may be made only if it appears to the court that—

                  (i)                 the witness’s recollection of the events in question is likely to

have been significantly better when he gave the recorded

account than it will be when he gives oral evidence in the

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proceedings, and

                  (ii)                it is in the interests of justice for the recording to be admitted,

having regard in particular to the matters mentioned in

subsection (4).

     (4)    Those matters are—

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           (a)           the interval between the time of the events in question and the time

when the recorded account was made;

           (b)           any other factors that might affect the reliability of what the witness

said in that account;

           (c)           the quality of the recording;

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           (d)           any views of the witness as to whether his evidence in chief should be

given orally or by means of the recording.

     (5)    For the purposes of subsection (2) it does not matter if the statements in the

recorded account were not made on oath.

     (6)    In this section “prescribed” means of a description specified in an order made

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by the Secretary of State.

 131   Video evidence: further provisions

     (1)    Where a video recording is admitted under section 130, the witness may not

give evidence in chief otherwise than by means of the recording as to any

matter which, in the opinion of the court, has been dealt with adequately in the

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recorded account.

     (2)    The reference in subsection (1)(f) of section 130 to the admission of a recording

includes a reference to the admission of part of the recording; and references in

that section and this one to the video recording or to the witness’s recorded

account shall, where appropriate, be read accordingly.

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     (3)    In considering whether any part of a recording should be not admitted under

section 130, the court must consider—

           (a)           whether admitting that part would carry a risk of prejudice to the

defendant, and

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 3 — Miscellaneous and supplemental

    83

 

           (b)           if so, whether the interests of justice nevertheless require it to be

admitted in view of the desirability of showing the whole, or

substantially the whole, of the recorded interview.

     (4)    A court may not make a direction under section 130(1)(f) in relation to any

proceedings unless—

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           (a)           the Secretary of State has notified the court that arrangements can be

made, in the area in which it appears to the court that the proceedings

will take place, for implementing directions under that section, and

           (b)           the notice has not been withdrawn.

     (5)    Nothing in section 130 affects the admissibility of any video recording which

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would be admissible apart from that section.

 132   Use of documents to refresh memory

     (1)    A person giving oral evidence in criminal proceedings about any matter may,

at any stage in the course of doing so, refresh his memory of it from a document

made or verified by him at an earlier time if—

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           (a)           he states in his oral evidence that the document records his recollection

of the matter at that earlier time, and

           (b)           his recollection of the matter is likely to have been significantly better

at that time than it is at the time of his oral evidence.

     (2)    Where—

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           (a)           a person giving oral evidence in criminal proceedings about any matter

has previously given an oral account, of which a sound recording was

made, and he states in that evidence that the account represented his

recollection of the matter at that time,

           (b)           his recollection of the matter is likely to have been significantly better

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at the time of the previous account than it is at the time of his oral

evidence, and

           (c)           a transcript has been made of the sound recording,

            he may, at any stage in the course of giving his evidence, refresh his memory

of the matter from that transcript.

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 133   Interpretation of Chapter 3

In this Chapter—

                      “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;

                      “document” means anything in which information of any description is

recorded, but not including any recording of sounds or moving images;

                      “oral evidence” includes evidence which, by reason of any disability,

disorder or other impairment, a person called as a witness gives in

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writing or by signs or by way of any device;

                      “video recording” means any recording, on any medium, from which a

moving image may by any means be produced, and includes the

accompanying sound-track.

 

 

 
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