House of Lords - Explanatory Note
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Clause 108: Statements made and matters stated

363.     This clause defines the type of statements which will be covered by Chapter 2. Under subsection (3), a statement is one to which this Chapter applies if it is the purpose of the person making the statement to:

  • cause the hearer to believe that the matter stated is true or to act on the basis that it is true; or

  • cause a machine to do so.

364.     The common law rule against the admission of hearsay evidence also prevented the admission of statements where the maker did not intend to communicate any information at all. Clause 108 therefore changes this position and will not prevent the admission of such evidence. Equally, where the assertion relates to a failure to record an event, sometimes known as negative hearsay, it will not be covered by Chapter 2 if it was not the purpose of the person who failed to record the event to cause anyone to believe that the event did not occur.

365.     Subsection (2) preserves the present position whereby statements which are not based on human input fall outside the ambit of the hearsay rule. Tapes, films or photographs which directly record the commission of an offence and documents produced by machines which automatically record a process or event or perform calculations will not therefore be covered by Chapter 2.

     Clause 109: Cases where a witness is unavailable

366.     This clause sets out a series of categories under which first-hand hearsay evidence, whether oral or documentary, will be admissible, provided that the witness is unavailable to testify for a specified reason. The new provisions will be available to the prosecution and the defence.

367.     A statement will be admissible under this clause (subject to the additional conditions explained below) if the person who made it is:

???????????????     Dead (subsection (2)(a));

???????????????     Ill (subsection (2)(b));

???????????????     Absent abroad (subsection (2)(c));

???????????????     Disappeared (subsection (2)(d)); or

???????????????     In fear (subsection (2)(e)).

368.     Subsections 2(e) and (4) make specific provision for the admissibility, with leave of the court, of statements of witnesses who are too frightened to testify (or to continue testifying) provided the interests of justice do not dictate otherwise. In considering the interests of justice, the court should have regard to what was said in the statement; any risk of unfairness to other parties in the case; to the fact that special measures directions may be made in relation to a witness under Part II of the Youth Justice and Criminal Evidence Act 1999; and to any other relevant circumstances (subsection (4)). Subsection (3) provides that "fear" must be widely construed.

369.     There are a number of other conditions which apply to the admissibility of evidence under clause 109. A statement can only be adduced as truth of any matter stated if:

-     the witness's oral evidence would have been admissible itself (subsection (1)(a)); and

-     the person who made the statement is identified to the court's satisfaction. This will enable the opposing party to challenge the absent witness's credibility under clause 117 (subsection (1)(b))

370.     Additionally, even if all the relevant conditions mentioned above are satisfied, the evidence will not be allowed if a party, or someone acting on his behalf, causes the unavailability of the declarant. This is intended to focus attention on cases where a party acts with the intention of preventing a witness from giving evidence. It is up to the party opposing admission to prove this to the court.

371.     The court also retains its existing statutory and common law discretions to exclude unfair or prejudicial evidence.

     Clause 110: Business and other documents

372.     This clause provides for the admissibility of statements in documentary records provided certain conditions are met. These considerations are (subsection (2)):

  • the document was created or received by a person in the course of a trade, business, profession or as the holder of a paid or unpaid office; and

  • the person who supplied the information in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the statement; and

  • each person through whom the information was supplied received the information in the course of a trade, business, profession or as the holder of a paid or unpaid office.

373.     Subsection (2) therefore reflects the current position relating to business and other documents in section 24 (1)(c)(ii) and section 24(2) of the Criminal Justice Act 1988. However, in the case of documents prepared for the purpose of criminal investigations or proceedings, the statement will only be admissible if the supplier of the information is unavailable or cannot reasonably be expected to recall any of the matters dealt with in the statement.

374.     Even if a statement in a documentary record meets the conditions as set out in this clause, the evidence will not be allowed if it is considered unreliable. Subsections (6) and (7) permit the court to direct that the statement shall not be admissible where there is reason to doubt its reliability on the basis of its contents, source of information, mode of supply and circumstances of creation or reception.

Clause 111: Preservation of common law categories of admissibility

375.     This clause preserves a number of important common law exceptions to the old rule against the admission of hearsay evidence. The preservation of these rules means that in the specified circumstances, an out of court statement will be admissible as evidence of any matters stated in it. Many of these rules were also preserved under the corresponding civil evidence provisions in section 7 of the Civil Evidence Act 1995. The common law rules preserved in paragraphs (1) to (8) are as follows:

  • 'public information' will be admissible. This includes published works; public documents; records of certain courts, treaties, Crown grants, pardons and commission; evidence relating to a person's age or date of birth;

  • 'reputation as to character' will be admissible as evidence of a person's good or bad character;

  • 'reputation or family tradition' will be admissible as evidence to prove or disprove pedigree or the existence of marriage; a public or general right or the identity of a person or thing.

  • 'res gestae' will be admissible (this rule is explained below);

  • 'confessions' will be admissible as long as they fulfil the requirements of sections 76 and 78 of the Police and Criminal Evidence Act 1984;

  • 'admissions by agents' will be admissible against the defendant as evidence of any fact stated.

  • The rule of 'common enterprise' is preserved. This means that a statement made by a party to a common enterprise will be admissible against another party to the enterprise as evidence of any matter stated. For example, if it is independently proven that A and B are involved in a joint enterprise to rob a jewellers, any incriminating statements made by A will also be admissible against B.

  • The rule of 'expert evidence' is preserved. This permits an expert to give evidence of any relevant matter which form part of his professional expertise (although not acquired through personal experience) and to draw upon technical information widely used by members of the expert's profession.

376.     Paragraph (4) preserves the common law rule known as "res gestae". The justification for this exception is that reported words which are very closely connected to a relevant event are reliable accounts and should therefore be admissible in certain circumstances. Such statement may be admitted if one of the following conditions is met:

  • the statement is made by a person who was so emotionally overpowered by an event that the possibility that he was lying can be disregarded;

  • the statement accompanied an act which can properly be evaluated as evidence only if considered together with the statement. For example, if the act doesn't make sense without the statement; or

  • the statement relates to a physical sensation or mental state, such as an intention or emotion.

Clause 112: Inconsistent statements.

377.     This clause clarifies the relationship between hearsay evidence and previous inconsistent statements. It provides that if a witness admits that he has made a previous inconsistent statement or it has been proved that he made such an inconsistent statement, it is not only evidence which undermines his 'credibility' (as someone who makes inconsistent statements) but it is also evidence of the truth of its contents.

378.     Subsection (2) envisages the following type of situation. A makes a statement to the police that B told her that he was 'outside the jewellers at midday on Monday'. A does not testify at trial but her statement is admitted under clause 109. As explained below, clause 117 provides that evidence can be admitted in this type of situation in relation to the credibility of A. Subsection (2)(c) of clause 117 provides that evidence can be admitted to prove that A had made another statement inconsistent with this statement (for example, A had said earlier that she did not see B on Monday at all). Clause 112(2) provides that if there is such an inconsistent statement, it not only goes to the credibility of A, but it is also admissible as to the truth of its contents (that A did not see B on Monday).

Clause 113: Other previous statements by witnesses

379.     This clause makes other previous statements admissible as evidence of the truth of their contents (not merely to bolster the credibility of the witness's oral evidence) in the following circumstances:

  • ???Subsection (2) applies to statements which are admitted to rebut a suggestion that the witness's oral evidence is untrue;

  • ???Subsection (3) applies to the situation where a witness is "refreshing his memory" from a written document. If he is cross-examined on the document and it is received in evidence, the statement will be evidence of any matter contained within it;

  • ???Subsections (4) - (7) provide that a previous statement will be admissible as evidence of the facts contained within it provided the witness states that he made the statement and believes it to be true and one of the following conditions is met:

  • The statement describes or identifies a person, place or thing (which includes objects such as a car registration number) ; or

  • The statement was made when the incident was fresh in the witness's memory and he cannot reasonably be expected to remember the matters stated. The intention is that where a witness has to rely on another person, or a document, or both to fill in details which he or she can no longer remember, this fact should go to the weight of the evidence, but should not make it inadmissible; or

  • The statement consists of a complaint by a victim of the alleged offence which was made as soon as could reasonably be expected after the conduct in question. This extends the common law rule known as 'recent complaint'. The rule used to be confined only to sexual offences, but now is designed to apply to all offences, so long as the complaint was voluntary and the witness gives oral evidence in connection to the matter.

Clause 114: Multiple hearsay

380.     This clause sets out the approach which the courts should take to multiple hearsay. "Multiple hearsay" is where information passes through more than one person before it is recorded. It is described in clause 114 as where "A said that B said that C shot the deceased".

381.     Where a witness has no personal knowledge of the facts stated, clause 109(1)(a) will usually prevent his statement from being admitted, even if he is unavailable to testify. If, however, the witness could have given oral evidence of the facts stated, because, although the evidence would have been hearsay, a hearsay exception would have applied, clause 114 determines whether his hearsay statement should be admissible. For example, if B makes a statement to A; A in turn makes a statement about what B said, but dies before the trial, should A's statement be admissible?

382.     Clause 114(2) provides that where the multiple hearsay is relied upon as evidence of a matter stated in it, and B's statement is admissible via clause 109 (cases where a witness is unavailable) or the preserved common law rules in clause 111, the statement of the unavailable declarant, A, must be proved by evidence "admissible other than under" clause 109. In other words, A's statement will only be admissible under clause 109 where B's statement is admissible via clauses 110 (business documents), 112 (inconsistent statements) or 113 (other previous statement of witnesses).

Clause 115: Documents produced as exhibits

383.     This clause provides that if a statement previously made by a witness is admitted in evidence and produced as an exhibit under Clauses 112 or 113, the jury should not take the exhibit with them when they retire to the jury room, unless the court considers it appropriate or all the parties agree that it should accompany them.

Clause 116: Capability to make statement

384.     This clause provides that an out of court statement cannot be admitted under Clauses 109, 112 or 113 if the person who made the statement was not legally capable of making a statement at the time the statement was made. A statement may not be admitted under Clause 110 if any person who supplied or received the information or created or received the document did not have the required capability or, where that person cannot be identified, cannot reasonably be assumed to have had the required capability. Under Subsection (2) a person is deemed to have the required capability for the purposes of this clause, if he could understand questions put to him and give answers which could be understood. This clause reflects the test for witness competence to give evidence in criminal proceedings under section 53 of the Youth Justice and Criminal Evidence Act 1999.

Clause 117: Credibility

385.     This clause makes provision for challenges to the credibility of the maker of a hearsay statement who does not give oral evidence in person in the proceedings. If such hearsay statement is admitted as evidence of a matter stated clause 117 provides certain rights for the person against whom hearsay evidence has been admitted to produce, in specified circumstances, evidence to discredit the maker of the statement or to show that he has contradicted himself. Clause 117 thus provides a replacement for the corresponding provisions in section 28(2) and paragraph 1 of Schedule 2 to the CJA 1988.

Clause 118: Stopping the case where evidence is unconvincing

386.     Subsection (1) imposes a duty on the court to stop a case and either direct the jury to acquit the defendant, or discharge the jury, if the case against him or her is based wholly or partly on an out of court statement which is so unconvincing that, considering its importance to the case, a conviction would be unsafe. This issue only arises in relation to jury trials (and by virtue of paragraph 4 of Schedule 7 to service courts) because in other cases, the finders of fact would be bound to dismiss a case in these circumstances, or order a retrial if appropriate.

387.     Similarly, subsection (2) imposes a corresponding duty on the court to direct the jury to acquit of any other offence not charged, of which they could convict by was of an alternative to the offence charged, if the judge is satisfied that a conviction would be unsafe. Subsection (3) extends the duty to cases under the Criminal Procedure (Insanity) Act 1964 where a jury is required to determine whether a defendant, who is deemed unfit to plead, did the act (or made the omission) charged.

Clause 119: Court's general discretion to exclude evidence

388.     This clause provides a further discretion to exclude superfluous out of court statements if the court is satisfied that the value of the evidence is substantially outweighed by the undue waste of time which its admission would cause. Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence.

Clause 120: Expert evidence: preparatory work

389.     This clause seeks to address the problem which arises where information relied upon by an expert witness is outside the personal experience of the expert (for example work undertaken by an assistant) and cannot be proved by other admissible evidence. The intention is that the advance notice of expert evidence rules will be amended so as to require advance notice of the name of any person who has prepared information on which the expert has relied. It is envisaged that any other party to the proceedings will be able to apply for a direction that any such person must give evidence in person but a direction will only be given if the court is satisfied that it was in the interests of justice.

390.     In cases where no such application is made in respect of any assistant listed, or an application is made but refused, clause 120 will enable the expert witness to base his evidence on any information supplied by that assistant on matters of which that assistant had personal knowledge. Clause 120 applies if:

  • The statement was prepared for the purpose of criminal proceedings;

  • The expert's assistant had or might reasonably be supposed to have had personal knowledge of the matters stated; and

  • A notice has been given under the advance notice rules of the name of a person who has prepared a statement on which it is proposed that the expert witness should base any opinion or inference, and the nature of the matters stated.

391.     Where clause 120(1) applies, the expert may base an opinion or inference on the statement and any information so relied upon will be admissible as evidence of its truth.

392.     Subsections (4) and (5) permit a party to the proceedings to apply for an order that the exception should not apply in the interests of justice. In deciding whether to make such an order, the court may take into account any of the matters mentioned in subsection (5).

Clause 121: Confessions

393.     This clause inserts new section 76A of the Police and Criminal Evidence Act 1984. The position prior to this new section 76A was that whilst the prosecution could not make use of a confession which was in breach of sections 76 or 78 of the Police and Criminal Evidence Act 1984, a co-defendant could use it to undermine another co-defendant's account or to strengthen their own case. Instead, section 76A applies the same rules to confessions adduced by the co-defendant to those adduced by the prosecution under sections 76 and 78 of PACE. That is, the confession will not be allowed if obtained by oppression or is rendered unreliable. 'Oppression' is defined in identical terms to section 76(8) of PACE.

394.     Unlike the requirements for the prosecution, under section 76A(2), the co-accused would only need to satisfy the court on the balance of probabilities that the confession was not obtained by oppression or in circumstances likely to render it unreliable.

395.     Subsection (4) maintains the rule that the exclusion of a confession does not affect the admissibility of facts discovered as a result of that confession.

Clause 122: Representations other than by a person

396.     This clause provides where a statement generated by a machine is based on information implanted into the machine by a human, the output of the device will only be admissible where it is proved that the information was accurate. Subsection (2) preserves the common law presumption that a mechanical device has been properly set or calibrated.

Clause 123: Depositions

397.     This repeals paragraphs 5 (4) of Schedule 3 of the Crime and Disorder Act 1998 which provides that a judge can overrule an objection to a deposition being read as evidence if he considers it to be in the interests of justice to do so. In future, depositions made under the 1998 Act will only be admissible as evidence under Clause 107.

Clause 124: Evidence at retrial

398.     Clause 124 provides that if a retrial is ordered by the Court of Appeal, evidence must be given orally if it was given that way at the original trial except in certain defined situations, in which case a transcript of the earlier evidence may be used. These exceptions are:

  • A witness is unavailable to give evidence in accordance with clause 109; or

  • A witness is unavailable to give evidence for a reason other than those listed in clause 109 and his evidence is admitted under the residual discretion in clause 107(1)(d).

Clause 126: Proof of statements in documents

399.     This clause corresponds to the position under section 27 of the Criminal Justice Act 1988, whereby a statement in a document can be proved by producing either the original document or an authenticated copy. It is intended to cover all forms of copying including the use of imaging technology.

Clauses 125-129 : Final provisions

400.     Clause 121 gives a power for making rules of court about the provisions in the Act. The intention is that rules of court will govern both the notice and leave procedures under Chapter 2. Subsection (5)(b) provides that the court or jury can, with leave, draw an adverse inference from the failure of a party to comply with the prescribed arrangements. Clause 128 introduces Schedule 6 which makes provision for Chapter 2 to apply to proceedings before courts-martial, Standing Civilian Courts and the Court-Martial Appeal Court, modifying them as necessary.

Clause 129 repeals existing legislation which is superseded or spent by this Bill.

Chapter 3 : Miscellaneous and Supplemental

Clauses 130: Evidence by video recording

401.     This clause permits a video recording of an interview with a witness (other than the defendant), or a part of such a recording, to be admitted as evidence in chief of the witness in a wider range of circumstances than is presently the case. Subsection (1) provides that the court can authorise such a video recording to replace the evidence-in-chief of a witness provided that:

    -     the person claims to be an eye-witness to the offence (or part of it) or to events closely connected to the offence;

    -     the video recording of the statement was taken at a time when events were fresh in the witness's memory; and

    -     the alleged offence can only be tried in the Crown Court or is an either-way offence prescribed by Order of the Secretary of State.

402.     If the recording satisfies these requirements, the court may admit the recording provided that:

    -     the witness's recollection of events is likely to be significantly better at the time he gave the recorded account than by the time of the trial; and

    -     it is in the interests of justice to admit the recording, having regard to whether the recording is an early and reliable account from the witness, the quality is adequate, and any views which the witness may have about using the recording for this purpose.

403.     Under subsection (2) evidence given by a video recording shall be treated as if it was given orally in court in the usual way, providing the witness asserts the truth of it.

Clause 131: Video evidence : further provisions

404.     Where a video recording (or part of one) is admitted under Clause 130 Clause 131 (1) states that the recording should be the final statement of any matters dealt with adequately within the recording for the purpose of the witness's evidence-in-chief.

405.     Subsection (2) allows video recordings to be edited if the interests of justice so require. In determining whether to allow only an edited recording to be used, the court will have to consider whether the parts sought to be excluded are so prejudicial as to outweigh the desirability of using the whole recording.

Clause 132: Use of documents to refresh memory

406.     This clause creates a presumption that a witness in criminal proceedings may refresh his memory from a document whilst giving evidence providing that he:

  • indicates that the document represents his recollection at the time he made it; and

  • his recollection was likely to be significantly better at the time the document was made (or verified).

The fact that the witness has read the statement before coming into the witness box will not affect this presumption.

407.     In view of the practical difficulties associated with memory refreshing in the witness box from an audio or video recording, subsection (2) limits the application of this provision to written documents.

 
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