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Criminal Justice Bill


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

    72

 

           (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

on his behalf.

           (6)           Subsection (5) above applies—

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                  (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

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

part of the confession.

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

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

to torture).”

     (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

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

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

 112   Representations other than by a person

     (1)    Where a representation of any fact—

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

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           (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

fact unless it is proved that the information was accurate.

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

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mechanical device has been properly set or calibrated.

 113   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).

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 114   Evidence at retrial

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

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

at the original trial, unless—

                    (a)                   section 99 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

unavailable); or

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

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

 

 

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

    73

 

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

evidence at the original trial.”

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General

 115   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

appropriate authority is the authority entitled to make the rules.

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     (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

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

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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

subsection (3), and

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           (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—

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

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           (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

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(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—

 

 

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

    74

 

                    “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).

 116   Proof of statements in documents

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

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

material part of it,

            authenticated in whatever way the court may approve.

 117   Interpretation of Chapter 2

     (1)    In this Chapter—

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

information recorded in the document has been copied, by whatever

means and whether directly or indirectly;

                    “criminal proceedings” means criminal proceedings in relation to which

the strict rules of evidence apply;

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

with an offence in those proceedings;

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

recorded;

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

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

writing or by signs or by way of any device;

                    “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.

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     (2)    Section 98 (statements and matters stated) contains other general interpretative

provisions.

     (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.

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 118   Armed forces

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

 119   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—

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

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

evidence in service courts etc).

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 3 — Miscellaneous and supplemental

    75

 

     (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

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

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(Northern Ireland) Order 1988”;

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

Chapter 3

Miscellaneous and supplemental

 120   Evidence by video recording

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     (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

way)—

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                  (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

in response to questions asked or otherwise),

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           (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,

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

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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.

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

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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

defendant;

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           (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

proceedings, and

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                  (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—

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

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when the recorded account was made;

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 3 — Miscellaneous and supplemental

    76

 

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

said in that account;

           (c)           the quality of the recording;

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

given orally or by means of the recording.

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     (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

by the Secretary of State.

 121   Video evidence: further provisions

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     (1)    Where a video recording is admitted under section 120, 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

recorded account.

     (2)    The reference in subsection (1)(f) of section 120 to the admission of a recording

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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.

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

section 120, the court must consider—

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

defendant, and

           (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.

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     (4)    A court may not make a direction under section 120(1)(f) in relation to any

proceedings unless—

           (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

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           (b)           the notice has not been withdrawn.

     (5)    Nothing in section 120 affects the admissibility of any video recording which

would be admissible apart from that section.

 122   Use of documents to refresh memory

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

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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—

           (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

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

     (2)    Where—

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

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

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

    77

 

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

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

evidence, and

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           (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.

 123   Interpretation of Chapter 3

In this Chapter—

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                      “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;

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

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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

writing or by signs or by way of any device;

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

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

accompanying sound-track.

 124   Saving

No provision of this Part has effect in relation to criminal proceedings begun

before the commencement of that provision.

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Part 11

Sentencing

Chapter 1

General provisions about sentencing

Matters to be taken into account in sentencing

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 125   Purposes of sentencing

     (1)    Any court dealing with an offender in respect of his offence must have regard

to the following purposes of sentencing—

           (a)           the punishment of offenders,

           (b)           the reduction of crime (including its reduction by deterrence),

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           (c)           the reform and rehabilitation of offenders,

           (d)           the protection of the public, and

           (e)           the making of reparation by offenders to persons affected by their

offences.

     (2)    Subsection (1) does not apply—

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Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

    78

 

           (a)           in relation to an offender who is aged under 18 at the time of conviction,

           (b)           to an offence the sentence for which is fixed by law,

           (c)           to an offence the sentence for which falls to be imposed under section

51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain

firearms offences), under subsection (2) of section 110 or 111 of the

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Sentencing Act (required custodial sentences) or under any of sections

207 to 210 of this Act (dangerous offenders), or

           (d)           in relation to the making under Part 3 of the Mental Health Act 1983

(c. 20) of a hospital order (with or without a restriction order), an

interim hospital order, a hospital direction or a limitation direction.

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     (3)    In this Chapter “sentence”, in relation to an offence, includes any order made

by a court when dealing with the offender in respect of his offence; and

“sentencing” is to be construed accordingly.

 126   Determining the seriousness of an offence

     (1)    In considering the seriousness of any offence, the court must consider the

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offender’s culpability in committing the offence and any harm which the

offence caused, was intended to cause or might forseeably have caused.

     (2)    In considering the seriousness of an offence (“the current offence”) committed

by an offender who has one or more previous convictions, the court must treat

each previous conviction as an aggravating factor if (in the case of that

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conviction) the court considers that it can reasonably be so treated having

regard, in particular, to—

           (a)           the nature of the offence to which the conviction relates and its

relevance to the current offence, and

           (b)           the time that has elapsed since the conviction.

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     (3)    In considering the seriousness of any offence committed while the offender

was on bail, the court must treat the fact that it was committed in those

circumstances as an aggravating factor.

     (4)    Any reference in subsection (2) to a previous conviction is to be read as a

reference to—

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           (a)           a previous conviction by a court in the United Kingdom, or

           (b)           a previous finding of guilt in service disciplinary proceedings.

     (5)    Subsections (2) and (4) do not prevent the court from treating a previous

conviction by a court outside the United Kingdom as an aggravating factor in

any case where the court considers it appropriate to do so.

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 127   Reduction in sentences for guilty pleas

     (1)    In determining what sentence to pass on an offender who has pleaded guilty

to an offence in proceedings before that or another court, a court must take into

account—

           (a)           the stage in the proceedings for the offence at which the offender

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indicated his intention to plead guilty, and

           (b)           the circumstances in which this indication was given.

     (2)    In the case of an offence the sentence for which falls to be imposed under

subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that

subsection prevents the court, after taking into account any matter referred to

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