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Criminal Justice Bill


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

    65

 

                    (a)                   published works dealing with matters of a public nature

(such as histories, scientific works, dictionaries and maps) are

admissible as evidence of facts of a public nature stated in

them,

                    (b)                   public documents (such as public registers, and returns made

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under public authority with respect to matters of public

interest) are admissible as evidence of facts stated in them,

                    (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

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                    (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

matter.

Reputation as to character

        2                Any rule of law under which in criminal proceedings evidence of a

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person’s reputation is admissible for the purpose of proving his

good or bad character.

                        Note

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

evidence as proving the matter concerned.

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Reputation or family tradition

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

reputation or family tradition is admissible for the purpose of

proving or disproving—

                    (a)                   pedigree or the existence of a marriage,

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                    (b)                   the existence of any public or general right, or

                    (c)                   the identity of any person or thing.

                        Note

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

evidence as proving or disproving the matter concerned.

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Res gestae

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

admissible as evidence of any matter stated if—

                    (a)                   the statement was made by a person so emotionally

overpowered by an event that the possibility of concoction or

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distortion can be disregarded,

                    (b)                   the statement accompanied an act which can be properly

evaluated as evidence only if considered in conjunction with

the statement, or

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

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(such as intention or emotion).

 

 

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

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Confessions etc

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

statements in criminal proceedings.

Admissions by agents etc

        6                Any rule of law under which in criminal proceedings—

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                    (a)                   an admission made by an agent of a defendant is admissible

against the defendant as evidence of any matter stated, or

                    (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.

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Common enterprise

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

made by a party to a common enterprise is admissible against

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

Expert evidence

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

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

     (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.

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 102   Inconsistent statements

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

           (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),

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

evidence by him would be admissible.

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

is given under section 107(2)(c), the statement is admissible as evidence of any

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

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 103   Other previous statements of witnesses

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

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

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

witness would be admissible.

     (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

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

    67

 

           (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

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—

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

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

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

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or place.

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

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.

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     (7)    The third condition is that—

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

committed,

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

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

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

constitute the offence or part of the offence,

           (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

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

connection with its subject matter.

     (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.

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Supplementary

 104   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 99 to 103 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 99 or a rule preserved

by section 101,

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

otherwise than under section 99.

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     (3)    Otherwise—

           (a)           sections 107 and 99 to 103 apply to the admissibility of each statement,

and

 

 

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

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

different provisions of the same section).

 105   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

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102 or 103, and

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

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

verdict unless—

           (a)           the court considers it appropriate, or

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

jury.

 106   Capability to make statement

     (1)           Nothing in section 99, 102 or 103 makes a statement admissible as evidence if

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

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when he made the statement.

     (2)    Nothing in section 100 makes a statement admissible as evidence if any person

who, in order for the requirements of section 100(2) to be satisfied, must at any

time have supplied or received the information concerned or created or

received the document or part concerned—

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

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

required capability at that time.

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

capable of—

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

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

     (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—

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

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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;

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

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

 107   Credibility

     (1)    This section applies if in criminal proceedings—

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

evidence of a matter stated, and

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           (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—

 

 

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

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

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-

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

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.

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

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

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section 100 each person who, in order for the statement to be admissible, must

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.

 108   Stopping the case where evidence is unconvincing

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

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,

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considering its importance to the case against the defendant, his

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—

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

offence, and

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

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

offence,

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                   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.

     (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

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

and

           (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

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statement not made in oral evidence in the proceedings, and

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

considering its importance to the case against the person, a

 

 

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

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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.

 109   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—

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

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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

of the value of the evidence.

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     (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

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

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

Miscellaneous

 110   Expert evidence: preparatory work

     (1)    This section applies if—

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

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proceedings,

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

supposed to have had personal knowledge of the matters stated,

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

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

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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

and the nature of the matters stated.

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

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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.

     (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.

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     (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

statement;

 

 

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

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           (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.

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

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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—

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

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(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).

 111   Confessions

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     (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

given in evidence for another person charged in the same proceedings

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(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

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

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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

confession which might be made by him in consequence

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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)

was not so obtained.

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           (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

the balance of probabilities.

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           (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

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

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

 

 

 
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