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Criminal Justice Bill


Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

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 89    “Evidence to correct a false impression”

     (1)    For the purposes of section 84(1)(g)—

           (a)           the defendant gives a false impression if he is responsible for the

making of an express or implied assertion which is apt to give the court

or jury a false or misleading impression about the defendant;

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           (b)           evidence to correct such an impression is evidence which has probative

value in correcting it.

     (2)    A defendant is treated as being responsible for the making of an assertion if—

           (a)           the assertion is made by the defendant in the proceedings (whether or

not in evidence given by him),

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           (b)           the assertion was made by the defendant—

                  (i)                 on being questioned under caution, before charge, about the

offence with which he is charged, or

                  (ii)                on being charged with the offence or officially informed that he

might be prosecuted for it,

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                         and evidence of the assertion is given in the proceedings,

           (c)           the assertion is made by a witness called by the defendant,

           (d)           the assertion is made by any witness in cross-examination in response

to a question asked by the defendant that is intended to elicit it, or is

likely to do so, or

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           (e)           the assertion was made by any person out of court, and the defendant

adduces evidence of it in the proceedings.

     (3)    A defendant who would otherwise be treated as responsible for the making of

an assertion shall not be so treated if, or to the extent that, he withdraws it or

disassociates himself from it.

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     (4)    Where it appears to the court that a defendant, by means of his conduct (other

than the giving of evidence) in the proceedings, is seeking to give the court or

jury an impression about himself that is false or misleading, the court may if it

appears just to do so treat the defendant as being responsible for the making of

an assertion which is apt to give that impression.

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     (5)    In subsection (4) “conduct” includes appearance or dress.

     (6)    Evidence is admissible under section 84(1)(g) only if it goes no further than is

necessary to correct the false impression.

     (7)    Only prosecution evidence is admissible under section 84(1)(g).

 90    “Attack on another person’s character”

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     (1)    For the purposes of section 84(1)(h) a defendant makes an attack on another

person’s character if—

           (a)           he adduces evidence attacking the other person’s character,

           (b)           he (or any legal representative appointed under section 38(4) of the

Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine

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a witness in his interests) asks questions in cross-examination that are

intended to elicit such evidence, or are likely to do so, or

           (c)           evidence is given of an imputation about the other person made by the

defendant—

                  (i)                 on being questioned under caution, before charge, about the

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offence with which he is charged, or

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

    59

 

                  (ii)                on being charged with the offence or officially informed that he

might be prosecuted for it.

     (2)    In subsection (1) “evidence attacking the other person’s character” means

evidence to the effect that the other person—

           (a)           has committed an offence (whether a different offence from the one

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with which the defendant is charged or the same one), or

           (b)           has behaved, or is disposed to behave, in a way that, in the opinion of

the court, might be viewed with disapproval by a reasonable person;

            and “imputation about the other person” means an assertion to that effect.

     (3)    Only prosecution evidence is admissible under section 84(1)(h).

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 91    Stopping the case where evidence contaminated

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

           (a)           evidence of his bad character has been admitted under any of

paragraphs (c) to (h) of section 84(1), and

           (b)           the court is satisfied at any time after the close of the case for the

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prosecution that—

                  (i)                 the evidence is contaminated, and

                  (ii)                the contamination is such that, considering the importance of

the evidence to the case against the defendant, his conviction of

the offence would be unsafe,

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                   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

offence, and

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           (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)(b) in respect of it.

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     (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,

           (b)           evidence of the person’s bad character has been admitted under any of

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paragraphs (c) to (h) of section 84(1), and

           (c)           the court is satisfied at any time after the close of the case for the

prosecution that—

                  (i)                 the evidence is contaminated, and

                  (ii)                the contamination is such that, considering the importance of

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the evidence 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.

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

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

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

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     (5)    For the purposes of this section a person’s evidence is contaminated where—

           (a)           as a result of an agreement or understanding between the person and

one or more others, or

           (b)           as a result of the person being aware of anything alleged by one or more

others whose evidence may be, or has been, given in the proceedings,

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                   the evidence is false or misleading in any respect, or is different from what it

would otherwise have been.

 92    Offences committed by defendant when a child

Section 16(2) and (3) of the Children and Young Persons Act 1963 (c. 37)

(offences committed by person under 14 disregarded for purposes of evidence

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relating to previous convictions) shall cease to have effect.

General

 93    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

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the assumption that it is true.

     (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

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to be true.

 94    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;

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           (b)           if it is a magistrates’ court, it must cause the ruling and the reasons for

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;

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           (b)           a ruling on whether an item of such evidence is admissible under

section 83 or 84 (including a ruling on an application under section

84(3));

           (c)           a ruling under section 91.

 95    Rules of court

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

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

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section 84(1)(f), or

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

    61

 

           (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—

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

circumstances;

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

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

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

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

prejudices any general provision of it.

     (7)    In this section—

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                    “prescribed” means prescribed by rules of court;

                    “rules of court” means—

                  (a)                 Crown Court Rules;

                  (b)                 Criminal Appeal Rules;

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

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(c. 43).

 96    Interpretation of Chapter 1

     (1)    In this Chapter—

                    “bad character” is to be read in accordance with section 81;

                    “criminal proceedings” means criminal proceedings in relation to which

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the strict rules of evidence apply;

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

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;

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

context of the case as a whole;

                    “misconduct” means—

                  (a)                 the commission of an offence, or

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

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viewed with disapproval by a reasonable person;

                    “offence” includes a service offence;

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

to be read in accordance with section 93;

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 2 — Hearsay evidence

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                    “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;

                    “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

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Act 1957 (c. 53);

                    “written charge” has the same meaning as in section 27 and also includes

an information.

     (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

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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—

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

(c. 23), or

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

character.

 97    Armed forces

Schedule 5 (armed forces) has effect.

Chapter 2

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Hearsay evidence

Hearsay: main provisions

 98    Statements and matters stated

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

follows.

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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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 99    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—

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 2 — Hearsay evidence

    63

 

           (a)           oral evidence given in the proceedings by the person who made the

statement would be admissible as evidence of that matter,

           (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.

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     (2)    The conditions are—

           (a)           that the relevant person is dead;

           (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

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reasonably practicable to secure his attendance;

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

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

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connection with the subject matter of the statement, and the court gives

leave for the statement to be given in evidence.

     (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.

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     (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—

           (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

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be to challenge the statement if the relevant person does not give oral

evidence),

           (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

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relation to the relevant person, and

           (d)           to any other relevant circumstances.

     (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—

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           (a)           by the person in support of whose case it is sought to give the statement

in evidence, or

           (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).

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 100   Business and other documents

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

evidence of any matter stated if—

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

evidence of that matter,

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

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 2 — Hearsay evidence

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

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

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other occupation, or as the holder of a paid or unpaid office,

           (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

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

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.

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

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

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

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 99(2) is satisfied

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(absence of relevant person etc), or

           (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).

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

to that effect under subsection (7).

     (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—

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           (a)           its contents,

           (b)           the source of the information contained in it,

           (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

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concerned was created or received.

 101   Preservation of certain common law categories of admissibility

     (1)    The following rules of law are preserved.

Public information etc

        1                Any rule of law under which in criminal proceedings—

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