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Session 2002 - 03
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Other Bills before Parliament


 

Criminal Justice Bill

commons INSISTence ON disagreeing to CERTAIN lords AMENDMENTS,

commons amendments to words so restored to the bill, and commons

consequential amendmentS

[The page and line references are to HL Bill 69 as first printed for the Lords.]

Clause 41

LORDS AMENDMENT NO. 32

Leave out Clause 41

 

The Commons disagree to this Amendment for the following Reason

32A

Because it should be possible for a defendant to apply for a trial to be conducted without a

 

jury.

The Lords insist on their Amendment to which the Commons have disagreed, for the

 

following Reason

32B

Because it is inappropriate to make provision for applications by the defendant for trials to

 

be conducted without jury.

The Commons insist on their disagreement to this Amendment but propose the following

 

Amendment to the words so restored to the Bill

32C

Page 27, line 40, leave out “must” and insert “may”

Clause 42

LORDS AMENDMENT NO. 33

Leave out Clause 42

 

The Commons disagree to this Amendment but propose the following Amendments to the

 

words so restored to the Bill

33A

Page 28, line 34, after “where” insert “(a)”

33B

Page 28, line 35, at end insert “and

 
HL Bill 12653/2

 

(  2  )

 
 

(b)   

notice has been given under section 51B of the Crime and Disorder

 

Act 1998 (notices in serious or complex fraud cases) in respect of

 

that offence or those offences.”

33C

Page 28, line 39, leave out “both of the following conditions are” and insert “the fol­

 

lowing condition is”

33D

Page 28, line 42, leave out “The first” and insert “That”

33E

Page 29, line 3, leave out subsection (5)

33F

Page 29, line 9, leave out “both of those conditions are” and insert “that condition

 

is”

The Lords disagree to Commons Amendments 33A to 33F, and insist on their Amendment

 

33 to which the Commons have disagreed, for the following Reason

33G

Because it is inappropriate to make provision for prosecution applications for certain

 

complex or lengthy trials to be conducted without jury.

The Commons insist on their disagreement to this Amendment but propose the following

 

Amendments to the words so restored to the Bill

33H

Page 28, line 34, after “where” insert “(a)”

33I

Page 28, line 35, at end insert “and

 

(b)   

notice has been given under section 51B of the Crime and Disorder

 

Act 1998 (notices in serious or complex fraud cases) in respect of

 

that offence or those offences.”

33J

Page 28, line 39, leave out “both of the following two conditions are” and insert

 

“the following condition is”

33K

Page 28, line 39, leave out “must” and insert “may”

33L

Page 28, line 41, at end insert—

 

“(3A)   

The judge must consult the Lord Chief Justice or a judge nominated by him

 

before making such an order.”

33M

Page 28, line 42, leave out “The first” and insert “That”

33N

Page 29, line 3, leave out subsection (5)

33O

Page 29, line 9, leave out “both of those two conditions are” and insert “that

 

condition is”

Clause 43

LORDS AMENDMENT NO. 34

Leave out Clause 43

 

The Commons disagree to this Amendment but propose the following Amendments to the

 

words so restored to the Bill

34A

Page 29, line 26, after second “is” insert “evidence of a”

34B

Page 29, line 37, at end insert—


 

(  3  )

 
 

“(7)   

The following are examples of cases where there may be evidence of a real

 

and present danger that jury tampering would take place—

 

(a)   

a case where the trial is a retrial and the jury in the previous trial

 

was discharged because jury tampering had taken place,

 

(b)   

a case where jury tampering has taken place in previous criminal

 

proceedings involving the defendant or any of the defendants,

 

(c)   

a case where there has been intimidation, or attempted

 

intimidation, of any person who is likely to be a witness in the trial.”

The Lords disagree to Commons Amendments 34A and 34B, and insist on their

 

Amendment 34 to which the Commons have disagreed, for the following Reason

34C

Because it is inappropriate to make provision for prosecution applications for trials to be

 

conducted without jury on the ground of the danger of jury tampering.

The Commons insist on their disagreement to this Amendment but propose the following

 

Amendments to the words so restored to the Bill

34D

Page 29, leave out lines 21 to 23 and insert “both of the following two conditions

 

are fulfilled”

34E

Page 29, line 26, after second “is” insert “evidence of a”

34F

Page 29, line 28, leave out subsection (5)

34G

Page 29, line 33, leave out “third” and insert “second”

34H

Page 29, line 37, at end insert—

 

“(7)   

The following are examples of cases where there may be evidence of a real

 

and present danger that jury tampering would take place—

 

(a)   

a case where the trial is a retrial and the jury in the previous trial

 

was discharged because jury tampering had taken place,

 

(b)   

a case where jury tampering has taken place in previous criminal

 

proceedings involving the defendant or any of the defendants,

 

(c)   

a case where there has been intimidation, or attempted

 

intimidation, of any person who is likely to be a witness in the trial.”

Clause 45

LORDS AMENDMENT NO. 36

Leave out Clause 45

 

The Commons disagree to this Amendment but propose the following Amendments to the

 

words so restored to the Bill

36A

Page 31, line 5, leave out “(or partly because)”

36B

Page 31, line 12, after “jury” insert “if he is satisfied that jury tampering has taken

 

place”

The Lords disagree to Commons Amendments 36A and 36B, and insist on their

 

Amendment 36 to which the Commons have disagreed, for the following Reason

36C

Because it is consequential on the Lords’ insistence on their amendment 34.

The Commons insist on their disagreement to this Amendment but propose the following

 

Amendments to the words so restored to the Bill


 

(  4  )

36D

Page 31, line 5, leave out “(or partly because)”

36E

Page 31, line 12, leave out “must” and insert “may”

36F

Page 31, line 12, after second “jury” insert “if, but only if, he is satisfied—

 

(a)    

that jury tampering has taken place, and

 

(b)   

that to continue the trial without a jury would be fair to the

 

defendant or defendants”

36G

Page 31, leave out lines 19 to 21 and insert “both of the conditions set out in section

 

43 are likely to be fulfilled”

Before Clause 90

LORDS AMENDMENT NO. 114

Insert the following new Clause—

 

“Evidence of bad character

 

(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—

 

“PART VIII A

 

EVIDENCE OF BAD CHARACTER

 

82A     

Bad character

 

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

 

references to evidence which shows that—

 

(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

 

(1)   

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

 

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

 

(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—

 

(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


 

(  5  )

 
 

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

 

intended to elicit it.

 

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 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

 

(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

 

(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 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

 

(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;

 

(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

 

(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.


 

(  6  )

 
 

(3)   

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

 

constituting the offence with which the defendant is charged.

 

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 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 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—

 

(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 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 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 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

 

matter in issue,

 

(ii)   

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

 

that matter, and

 

(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).


 

(  7  )

 
 

(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

 

(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

 

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

 

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—

 

(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 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 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—

 

(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—

 

(i)   

how much probative value it has in showing that the

 

defendant has a propensity to be untruthful,

 

(ii)   

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

 

that matter, and


 
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