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Criminal Justice Bill


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

73

 

91      

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 96(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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92      

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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(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

40

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

74

 

(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.

5

Supplementary

93      

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 88 to 92 apply as follows.

(2)   

If a statement—

10

(a)   

is relied on as evidence of a matter stated in it, and

(b)   

is admissible for that purpose only under section 88 or a rule preserved

by section 90,

   

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

otherwise than under section 88.

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(3)   

Otherwise—

(a)   

sections 107 and 88 to 92 apply to the admissibility of each statement,

and

(b)   

different statements may be admissible under different sections (or

different provisions of the same section).

20

94      

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

91 or 92, and

(b)   

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

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(2)   

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

verdict unless—

(a)   

the court considers it appropriate, or

(b)   

all the parties to the proceedings agree that it should accompany the

jury.

30

95      

Capability to make statement

(1)   

Nothing in section 88, 91 or 92 makes a statement admissible as evidence if it

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

when he made the statement.

(2)   

Nothing in section 89 makes a statement admissible as evidence if any person

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who, in order for the requirements of section 89(2) to be satisfied, must at any

time have supplied or received the information concerned or created or

received the document or part concerned—

(a)   

did not have the required capability at that time, or

(b)   

cannot be identified but cannot reasonably be assumed to have had the

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required capability at that time.

 

 

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

75

 

(3)   

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

capable of—

(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

5

required capability when he made a statement—

(a)   

proceedings held for the determination of the issue must take place in

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

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made;

(c)   

the burden of proof on the issue lies on the party seeking to adduce the

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

96      

Credibility

(1)   

This section applies if in criminal proceedings—

15

(a)   

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

evidence of a matter stated, and

(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—

20

(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 89 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.

97      

Stopping the case where evidence is unconvincing

40

(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

 

 

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

76

 

(b)   

the evidence provided by the statement is so unconvincing that,

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.

5

(2)   

Where—

(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

10

offence,

   

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

15

Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an

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—

20

(i)   

the case against the defendant is based wholly or partly on a

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

finding that he did the act or made the omission would be

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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

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

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98      

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

proceedings, and

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(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.

(2)   

Nothing in this Chapter prejudices—

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(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

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

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