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Criminal Justice Bill


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

69

 

Chapter 2

Hearsay evidence

Hearsay: main provisions

87      

Statements and matters stated

(1)   

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

5

follows.

(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,

10

or one of the purposes, of the person making the statement appears to the court

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.

15

Principal categories of admissibility

88      

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—

(a)   

oral evidence given in the proceedings by the person who made the

20

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.

(2)   

The conditions are—

25

(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

reasonably practicable to secure his attendance;

30

(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

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

35

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.

(4)   

Leave may be given under subsection (2)(e) only if the court considers that the

40

statement ought to be admitted in the interests of justice, having regard—

(a)   

to the statement’s contents,

 

 

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

70

 

(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

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

5

Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures

for the giving of evidence by fearful witnesses etc) could be made in

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

10

is to be treated as not satisfied if it is shown that the circumstances described

in that paragraph are caused—

(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,

15

   

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).

89      

Business and other documents

(1)   

In criminal proceedings a statement contained in a document is admissible as

evidence of any matter stated if—

20

(a)   

oral evidence given in the proceedings would be admissible as

evidence of that matter,

(b)   

the requirements of subsection (2) are satisfied, and

(c)   

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

subsection (4) requires them to be.

25

(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

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

(b)   

the person who supplied the information contained in the statement

30

(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

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

the information in the course of a trade, business, profession or other

35

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.

(4)   

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

statement—

40

(a)   

was prepared for the purposes of pending or contemplated criminal

proceedings, or for a criminal investigation, but

(b)   

was not obtained pursuant to a request under section 7 of the Crime

(International Co-operation) Act 2003 (c. 32) or an order under

paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (c. 33)

45

(which relate to overseas evidence).

(5)   

The requirements of this subsection are satisfied if—

 

 

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

71

 

(a)   

any of the five conditions mentioned in section 88(2) is satisfied

(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

5

circumstances).

(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

10

doubtful in view of—

(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

15

(d)   

the way in which or the circumstances in which the document

concerned was created or received.

90      

Preservation of certain common law categories of admissibility

(1)   

The following rules of law are preserved.

Public information etc

20

1          

Any rule of law under which in criminal proceedings—

(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,

25

(b)   

public documents (such as public registers, and returns made

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

30

of facts stated in them, or

(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

35

2          

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

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

40

evidence as proving the matter concerned.

 

 

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

72

 

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,

5

(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.

10

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

15

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

20

(such as intention or emotion).

Confessions etc

5          

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

statements in criminal proceedings.

Admissions by agents etc

25

6          

Any rule of law under which in criminal proceedings—

(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

30

evidence of any matter stated.

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.

35

Expert evidence

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

40

abolished.

 

 

 
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