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Criminal Justice Bill


Criminal Justice Bill
Part 9 — Retrial for serious offences

55

 

83      

Interpretation of Part 9

(1)   

In this Part—

“the 1984 Act” means the Police and Criminal Evidence Act 1984 (c. 60),

“acquittal” and related expressions are to be read in accordance with

section 63(7),

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“customs and excise officer” means an officer as defined by section 1(1) of

the Customs and Excise Management Act 1979 (c. 2), or a person to

whom section 8(2) of that Act applies,

“new evidence” is to be read in accordance with section 66(2),

“officer”, except in section 71, means an officer of a police force or a

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customs and excise officer,

“police force” has the meaning given by section 3(3) of the Prosecution of

Offences Act 1985 (c. 23),

“prosecutor” means an individual or body charged with duties to conduct

criminal prosecutions,

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“qualifying offence” has the meaning given by section 63(8).

(2)   

Subject to rules of court made under section 53(1) of the Supreme Court Act

1981 (c. 54) (power by rules to distribute business of Court of Appeal between

its civil and criminal divisions)—

(a)   

the jurisdiction of the Court of Appeal under this Part is to be exercised

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by the criminal division of that court, and

(b)   

references in this Part to the Court of Appeal are to be construed as

references to that division.

(3)   

References in this Part to an officer of a specified rank or above are, in the case

of a customs and excise officer, references to an officer of such description as—

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(a)   

appears to the Commissioners of Customs and Excise to comprise

officers of equivalent rank or above, and

(b)   

is specified by the Commissioners for the purposes of the provision

concerned.

84      

Application of Part 9 to Northern Ireland

30

(1)   

In its application to Northern Ireland this Part is to have effect subject to the

modifications in this section.

(2)   

In sections 63(1)(a) and (b), 64(2)(a), 67(3) and 73(2)(a) for “England and Wales”

substitute “Northern Ireland”.

(3)   

For section 63(2)(c) substitute—

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“(c)   

in respect of which, in proceedings where he has been found to

be unfit to be tried in accordance with Article 49 of the Mental

Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)), a

finding has been made that he did the act or made the omission

charged against him.”

40

(4)   

In section 63(8) for “Part 1” substitute “Part 2”.

(5)   

In section 69(1) for “Criminal Appeal Act 1968 (c. 19)” substitute “Criminal

Appeal (Northern Ireland) Act 1980 (c. 47)”.

(6)   

In section 69(2)—

(a)   

for “33” substitute “31”, and

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Criminal Justice Bill
Part 9 — Retrial for serious offences

56

 

(b)   

for “An” substitute “Subject to the provisions of this Part of this Act,

an”.

(7)   

In section 69(4)—

(a)   

for “34(2)” substitute “32(2)”, and

(b)   

for “33(1B)” substitute “31(1B)”.

5

(8)   

In section 70(10) after “enactment” in each place insert “(including any

provision of Northern Ireland legislation)”.

(9)   

In section 72(1) and (2) for “preferred” substitute “presented”.

(10)   

Section 72(6) has effect—

(a)   

as if any reference to a provision of Part 10 were a reference to any

10

corresponding provision contained in an Order in Council to which

section 306(1) applies, at any time when such corresponding provision

is in force;

(b)   

at any other time, with the omission of the words from “unless” to the

end.

15

(11)   

After section 72(6) insert—

“(6A)   

Article 29 of the Legal Aid, Advice and Assistance (Northern Ireland)

Order 1981 (S.I. 1981/228 (N.I. 8)) applies in the case of a person who is

to be tried in accordance with subsection (1) as if—

(a)   

he had been returned for trial for the offence in question, and

20

(b)   

the reference in paragraph (2)(a) of that Article to a magistrates’

court included a reference to the Court of Appeal.”

(12)   

In section 75

(a)   

in subsection (3), for “Part 4 of the 1984 Act” substitute “Part 5 of the

Police and Criminal Evidence (Northern Ireland) Order 1989 (S. I.

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1989/1341 (N. I. 12)) (“the 1989 Order”)”,

(b)   

in paragraph (b) of that subsection, for “section 34(7) of that Act”

substitute “Article 35(8) of that Order”,

(c)   

in subsection (6)—

(i)   

for the words from the beginning to “40(8) of that Act)”

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substitute “Article 38 of that Order (including any provision of

that Article as applied by Article 41(8) of that Order)”,

(ii)   

for “subsection” in each place substitute “paragraph”,

(iii)   

in paragraph (e), for “subsections (7A), (7B) and (8)” substitute

“paragraph (8)”, and

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(iv)   

in paragraph (f), in the inserted paragraph (10A) omit “above”,

(d)   

for subsection (7) substitute—

“(7)   

Article 41 of that Order has effect as if in paragraphs (8) and (9)

of that Article after “(6)” there were inserted “and (10A).”,

(e)   

in subsection (8)—

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(i)   

for “Section 42 of that Act” substitute “Article 43 of that Order”,

and

(ii)   

for “subsection (1) of that section” substitute “paragraph (1) of

that Article”.

(13)   

For section 76(1) substitute—

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“(1)   

In relation to a person charged in accordance with section 75(4)—

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

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(a)   

Article 39 of the 1989 Order (including any provision of that

Article as applied by Article 41(10) of that Order) has effect as if,

in paragraph (1), for “either on bail or without bail” there were

substituted “on bail”,

(b)   

Article 48 of that Order has effect as if for paragraphs (1) to (11)

5

there were substituted—

“(1)   

A person who is released on bail shall be subject to a

duty to appear before the Crown Court at such place as

the custody officer may appoint and at such time, not

later than 24 hours after the person is released, as that

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officer may appoint.

(2)   

The custody officer may require a person who is to be

released on bail to enter into a recognisance conditioned

upon his subsequent appearance before the Crown

Court in accordance with paragraph (1).

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(3)   

A recognisance under paragraph (2) may be taken

before the custody officer.”, and

(c)   

Article 132A of the Magistrates Courts (Northern Ireland)

Order 1981 (S.I. 1981/1675 (N.I. 26)) does not apply.

(14)   

In section 76(2)—

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(a)   

for paragraph (b) substitute—

“(b)   

detained in a place of safety in pursuance of

arrangements made under Article 39(6) of the 1989

Order,”, and

(b)   

for “section 46 of the 1984 Act” substitute “Article 47 of the 1989 Order”.

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(15)   

In section 77(6) for “section 81(5) of the Supreme Court Act 1981” substitute

“section 51(8) of the Judicature (Northern Ireland) Act 1978 (c. 23)”.

(16)   

For section 78(4) substitute—

“(4)   

The court may at any time, as it sees fit, vary the conditions of bail

granted under this section.”

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(17)   

In section 80(1) for the words from the beginning to “does” substitute “Sections

30(4) and 36 of the Justice (Northern Ireland) Act 2002 (c. 26) do”.

(18)   

Until the coming into force of section 36 of that Act of 2002 the reference to that

section in subsection (10) is to be read as a reference to Article 4(8) of the

Prosecution of Offences (Northern Ireland) Order 1972 (S.I. 1972/538 (N.I. 1)).

35

(19)   

In section 81(2) for “the Criminal Appeal Rules and the Crown Court Rules”

substitute “rules under section 55 of the Judicature (Northern Ireland) Act 1978

and Crown Court Rules”.

(20)   

In section 81(3) after “enactment” insert “(including any provision of Northern

Ireland legislation)”.

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(21)   

In section 83(1) for the definition of “police force” substitute—

   

““police force” means—

(a)   

the Police Service of Northern Ireland or the Police

Service of Northern Ireland Reserve,

(b)   

the Ministry of Defence Police,

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

58

 

(c)   

any body of constables appointed under Article 19 of the

Airports (Northern Ireland) Order 1994 (S.I. 1994/426

(N.I. 1)), or

(d)   

any body of special constables appointed in Northern

Ireland under section 79 of the Harbours, Docks and

5

Piers Clauses Act 1847 (c. 27) or section 57 of the Civil

Aviation Act 1982 (c. 16),”.

(22)   

Omit section 83(2).

85      

Application of Criminal Appeal Acts to proceedings under Part 9

Subject to the provisions of this Part, the Secretary of State may make an order

10

containing provision, in relation to proceedings before the Court of Appeal

under this Part, which corresponds to any provision, in relation to appeals or

other proceedings before that court, which is contained in the Criminal Appeal

Act 1968 (c. 19) or the Criminal Appeal (Northern Ireland) Act 1980 (c. 47)

(subject to any specified modifications).

15

Part 10

Evidence

Chapter 1

Evidence of bad character

86      

Evidence of bad character

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(1)   

The Police and Criminal Evidence Act 1984 (c. 60) (“the 1984 Act”) is amended

as follows.

(2)   

After section 82 of the 1984 Act (Part VIII—interpretation) insert—

(3)   

               

“PART VIII A

25

        

                 EVIDENCE OF BAD CHARACTER

Bad character evidence generally

82A     

Bad character

References in this Part to evidence of a person’s bad character are

references to evidence which shows that—

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(a)   

he has committed an offence, or

(b)   

he has behaved, or is disposed to behave, in a way that, in the

opinion of the court, would be viewed with disapproval by a

reasonable person.

82B     

Requirement of leave

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(1)   

In criminal proceedings, evidence of a person’s bad character is

admissible only with leave of the court, unless the evidence—

 

 

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

59

 

(a)   

has to do with the alleged facts of the offence with which the

defendant is charged, or

(b)   

is evidence of misconduct in connection with the investigation

or prosecution of that offence.

(2)   

This section does not apply in relation to an item of evidence if—

5

(a)   

all parties to the proceedings agree to the evidence being

admissible, or

(b)   

in the case of evidence of the defendant’s bad character, the

evidence is adduced by the defendant himself or is given in

answer to a question asked by him in cross-examination and

10

intended to elicit it.

Persons other than defendants

82C     

Non-defendant’s bad character

In the case of evidence of the bad character of a person other than the

defendant, the court is not to give leave under section 82B unless the

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evidence falls within section 82D or 82E.

82D     

Evidence with explanatory value

Evidence falls within this section if—

(a)   

without it, the court or jury would find it impossible or difficult

properly to understand other evidence in the case, and

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(b)   

its value for understanding the case as a whole is substantial.

82E     

Evidence going to a matter in issue

(1)   

Evidence falls within this section if it has substantial probative value in

relation to a matter which—

(a)   

is a matter in issue in the proceedings, and

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(b)   

is of substantial importance in the context of the case as a whole.

(2)   

In assessing the probative value of evidence for the purposes of this

section, the court must have regard to the following factors (and to any

others it considers relevant)—

(a)   

the nature and number of the events, or other things, to which

30

the evidence relates;

(b)   

when those events or things are alleged to have happened or

existed;

(c)   

where—

(i)   

the evidence is evidence of a person’s misconduct, and

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(ii)   

it is suggested that the evidence has probative value by

reason of similarity between that misconduct and other

alleged misconduct,

   

the nature and extent of the similarities and the dissimilarities

between each of the alleged instances of misconduct;

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(d)   

where—

(i)   

the evidence is evidence of a person’s misconduct,

(ii)   

it is suggested that that person is also responsible for the

misconduct charged, and

 

 

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

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(iii)   

the identity of the person responsible for the misconduct

charged is disputed,

   

the extent to which the evidence shows or tends to show that the

same person was responsible each time.

(3)   

In subsection (2)(d) “misconduct charged” means the misconduct

5

constituting the offence with which the defendant is charged.

Defendants

82F     

Defendant’s bad character

In the case of evidence of the defendant’s bad character, the court is not

to give leave under section 82B, unless the evidence falls within section

10

82G, 82H, 82I, 82J or 82K.

82G     

Evidence with explanatory value

(1)   

Evidence falls within this section if the following three conditions are

met.

(2)   

The first condition is that, without the evidence, the court or jury would

15

find it impossible or difficult properly to understand other evidence in

the case.

(3)   

The second condition is that the value of the evidence for

understanding the case as a whole is substantial.

(4)   

The third condition is that the court is satisfied—

20

(a)   

that, in all the circumstances of the case, the evidence carries no

risk of prejudice to the defendant, or

(b)   

that the value of the evidence for understanding the case as a

whole is such that, taking account of the risk of prejudice, the

interests of justice nevertheless require the evidence to be

25

admissible.

82H     

Evidence going to a matter in issue

(1)   

Evidence falls within this section if the following two conditions are

met.

(2)   

The first condition is that the evidence has substantial probative value

30

in relation to a matter which—

(a)   

is a matter in issue in the proceedings, and

(b)   

is of substantial importance in the context of the case as a whole.

(3)   

The second condition is that the court is satisfied—

(a)   

that, in all the circumstances of the case, the evidence carries no

35

risk of prejudice to the defendant, or

(b)   

that, taking account of the risk of prejudice, the interests of

justice nevertheless require the evidence to be admissible in

view of—

(i)   

how much probative value it has in relation to the

40

matter in issue,

(ii)   

what other evidence has been, or can be, given on that

matter, and

 

 

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

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(iii)   

how important that matter is in the context of the case as

a whole.

(4)   

In determining whether the two conditions are met, the court must

have regard to the factors listed in section 5(2) (and to any others it

considers relevant).

5

(5)   

For the purposes of this section, whether the defendant has a

propensity to be untruthful is not to be regarded as a matter in issue in

the proceedings.

(6)   

Only prosecution evidence can fall within this section.

82I     

Evidence going to credibility

10

(1)   

This section applies only where—

(a)   

the defendant makes an attack on a person’s character, and

(b)   

the effect of the attack is to suggest, or to support a suggestion,

that the person has a propensity to be untruthful.

(2)   

For the purposes of this section, a defendant makes an attack on a

15

person’s character where—

(a)   

he adduces evidence of the person’s bad character, other than—

(i)   

evidence that has to do with the alleged facts of the

offence with which the defendant is charged, or

(ii)   

evidence of misconduct in connection with the

20

investigation or prosecution of that offence,

(b)   

he asks questions in cross-examination that are intended to

elicit evidence of the kind referred to in paragraph (a), or

(c)   

evidence is given of an assertion made about the person by the

defendant—

25

(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,

   

and the assertion is such that, if it were made in evidence, the

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evidence containing the assertion would be evidence of the kind

referred to in paragraph (a).

(3)   

Evidence falls within this section if the following three conditions are

met.

(4)   

The first condition is that the evidence has substantial probative value

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in showing that the defendant has a propensity to be untruthful.

(5)   

The second condition is that, without the evidence, the court or jury

would get an inaccurate impression of the defendant’s propensity to be

untruthful in comparison with that of the other person.

(6)   

The third condition is that the court is satisfied—

40

(a)   

that, in all the circumstances of the case, the evidence carries no

risk of prejudice to the defendant, or

(b)   

that, taking account of the risk of prejudice, the interests of

justice nevertheless require the evidence to be admissible in

view of—

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