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Criminal Justice Bill


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

77

 

Miscellaneous

99      

Expert evidence: preparatory work

(1)   

This section applies if—

(a)   

a statement has been prepared for the purposes of criminal

proceedings,

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(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

9 of the Criminal Justice Act 1967 (c. 80) base an opinion or inference on

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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

inference on the statement.

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(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.

(5)   

The matters to be considered by the court in deciding whether to make an

20

order under subsection (4) include—

(a)   

the expense of calling as a witness the person who prepared the

statement;

(b)   

whether relevant evidence could be given by that person which could

not be given by the expert;

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(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

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

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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)

(advance notice of expert evidence in Crown Court), or

(b)   

under section 144 of the Magistrates’ Courts Act 1980 (c. 43) by virtue

35

of section 20(3) of the Criminal Procedure and Investigations Act 1996

(c. 25) (advance notice of expert evidence in magistrates’ courts).

100     

Confessions

(1)   

In the Police and Criminal Evidence Act 1984 the following section is inserted

after section 76—

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“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

(a co-accused) in so far as it is relevant to any matter in issue in the

 

 

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

78

 

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

that the confession was or may have been obtained—

5

(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

thereof,

10

   

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.

(3)   

Before allowing a confession made by an accused person to be given in

15

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.

(4)   

The fact that a confession is wholly or partly excluded in pursuance of

20

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

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

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(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—

30

(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

40

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

(3)   

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

101     

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

79

 

(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

5

mechanical device has been properly set or calibrated.

102     

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).

10

103     

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

15

1     (1)  

Evidence given at a retrial must be given orally if it was given orally

at the original trial, unless—

(a)   

section 88 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

unavailable); or

20

(b)   

the witness is unavailable to give evidence, otherwise than as

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

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

25

of depositions) does not apply at a retrial to a deposition read as

evidence at the original trial.”

General

104     

Rules of court

(1)   

Rules of court may make such provision as appears to the appropriate

30

authority to be necessary or expedient for the purposes of this Chapter; and the

appropriate authority is the authority entitled to make the rules.

(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.

35

(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

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—

40

 

 

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

80

 

(a)   

a notice has been served in accordance with provision made under

subsection (3), and

(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

5

requirement applicable to it—

(a)   

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

(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

10

exercise of its powers with respect to costs.

(6)   

In considering whether or how to exercise any of its powers under subsection

(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

15

under subsection (5)(b).

(8)   

Rules under this section may—

(a)   

limit the application of any provision of the rules to prescribed

circumstances;

(b)   

subject any provision of the rules to prescribed exceptions;

20

(c)   

make different provision for different cases or circumstances.

(9)   

Nothing in this section prejudices the generality of any enactment conferring

power to make rules of court; and no particular provision of this section

prejudices any general provision of it.

(10)   

In this section—

25

   

“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

30

(c. 43).

105     

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

35

(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.

106     

Interpretation of Chapter 2

(1)   

In this Chapter—

40

   

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

81

 

   

“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

5

recorded;

   

“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;

   

“statutory provision” means any provision contained in, or in an

10

instrument made under, this or any other Act, including any Act

passed after this Act.

(2)   

Section 87 (statements and matters stated) contains other general interpretative

provisions.

(3)   

Where a defendant is charged with two or more offences in the same criminal

15

proceedings, this Chapter has effect as if each offence were charged in separate

proceedings.

107     

Armed forces

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

108     

Repeals etc

20

In the Criminal Justice Act 1988 (c. 33), the following provisions (which are to

some extent superseded by provisions of this Chapter) are repealed—

(a)   

Part 2 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).

25

Chapter 3

Miscellaneous and supplemental

109     

Evidence by video recording

(1)   

This section applies where—

(a)   

a person is called as a witness in proceedings for an offence triable only

30

on indictment, or for a prescribed offence triable either way,

(b)   

the person claims to have witnessed (whether visually or in any other

way)—

(i)   

events alleged by the prosecution to include conduct

constituting the offence or part of the offence, or

35

(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),

(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

40

mentioned in paragraph (b)),

(e)   

a video recording was made of the account,

 

 

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

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(f)   

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

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.

5

(2)   

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

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

10

defendant;

(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

15

proceedings, and

(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—

20

(a)   

the interval between the time of the events in question and the time

when the recorded account was made;

(b)   

any other factors that might affect the reliability of what the witness

said in that account;

(c)   

the quality of the recording;

25

(d)   

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

given orally or by means of the recording.

(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

30

by the Secretary of State.

110     

Video evidence: further provisions

(1)   

Where a video recording is admitted under section 109, 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

35

recorded account.

(2)   

The reference in subsection (1)(f) of section 109 to the admission of a recording

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.

40

(3)   

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

section 109, the court must consider—

(a)   

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

defendant, and

 

 

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

83

 

(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.

(4)   

A court may not make a direction under section 109(1)(f) in relation to any

proceedings unless—

5

(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

(b)   

the notice has not been withdrawn.

(5)   

Nothing in section 109 affects the admissibility of any video recording which

10

would be admissible apart from that section.

111     

Use of documents to refresh memory

(1)   

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

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—

15

(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

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

(2)   

Where—

20

(a)   

a person giving oral evidence in criminal proceedings about any matter

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

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

25

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

evidence, and

(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.

30

112     

Interpretation of Chapter 3

In this Chapter—

“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

35

with an offence in those proceedings;

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

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

40

writing or by signs or by way of any device;

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

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

accompanying sound-track.

 

 

 
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