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(  8  )

 
 

(iii)   

how important it is, in the context of the case as a

 

whole, to prevent the impression mentioned in

 

subsection (5).

 

(7)   

In determining whether the three conditions are met 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 defendant’s attack relates and of those to which

 

the evidence in question (the responding evidence) relates;

 

(b)   

when those events or things are alleged to have happened

 

or existed;

 

(c)   

how important is the defendant’s propensity to be

 

untruthful, and that of the other person, in the context of the

 

prosecution case and of the defence case;

 

(d)   

in a case where this section applies by virtue of subsection

 

(2)(b), whether or not the evidence intended to be elicited is

 

actually given;

 

(e)   

how inaccurate the impression mentioned in subsection (5)

 

would be;

 

(f)   

where the responding evidence is of a spent conviction, the

 

fact that the conviction is spent;

 

(g)   

any risk that admitting the responding evidence would be

 

confusing or misleading, or would unduly prolong the

 

proceedings.

 

(8)   

Only prosecution evidence can fall within this section.

 

82J     

Evidence to correct false impression

 

(1)   

This section applies only where the defendant is responsible for the

 

making of an express or implied assertion which is apt to give the

 

court or jury a false or misleading impression about the defendant.

 

(2)   

Evidence falls within this section if the following two conditions are

 

met.

 

(3)   

The first condition is that the evidence has substantial probative

 

value in correcting the false or misleading impression.

 

(4)   

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 correcting the

 

false or misleading impression,

 

(ii)   

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

 

correct that impression, and

 

(iii)   

how important it is, in the context of the case as a

 

whole, for that impression to be corrected.

 

(5)   

For the purposes of this section, a defendant is responsible for the

 

making of an assertion if—

 

(a)   

the assertion is made by the defendant in the proceedings

 

(whether or not in evidence given by him),


 

(  9  )

 
 

(b)   

the assertion was made 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 evidence of the assertion is given in the proceedings,

 

(c)   

the assertion is made by a witness called by the defendant,

 

(d)   

the assertion is made by any witness in cross-examination in

 

response to a question asked by the defendant and

 

intended, in the opinion of the court, to elicit it, or

 

(e)   

the assertion was made by any person out of court, and the

 

defendant adduces evidence of it in the proceedings.

 

(6)   

Where it appears to the court that a defendant, by means of his

 

conduct (other than the giving of evidence) in the proceedings, is

 

seeking to give the court or jury an impression about himself that is

 

false or misleading, the court may if it appears just to do so treat the

 

defendant as being responsible for the making of an assertion

 

which is apt to give that impression.

 

(7)   

In subsection (6) “conduct” includes appearance or dress.

 

(8)   

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

 

have regard to the following factors (and to any others it considers

 

relevant)—

 

(a)   

the nature of the impression given by the assertion referred

 

to in subsection (1), and how false or misleading that

 

impression is;

 

(b)   

by whom and in what circumstances the assertion is or was

 

made;

 

(c)   

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

 

which the evidence in question (the correcting evidence)

 

relates;

 

(d)   

when those events or things are alleged to have happened

 

or existed;

 

(e)   

where the correcting evidence is of a spent conviction, the

 

fact that the conviction is spent;

 

(f)   

any risk that admitting the correcting evidence would be

 

confusing or misleading, or would unduly prolong the

 

proceedings.

 

(9)   

Where in proceedings before a magistrates’ court—

 

(a)   

the defendant is responsible for the making of an assertion

 

which is apt to give the court a certain impression about the

 

defendant,

 

(b)   

the prosecution allege that the impression is false or

 

misleading, and

 

(c)   

in reliance on this section the prosecution propose to apply

 

for leave under section 82B to adduce or elicit evidence to

 

correct the impression,

 

   

the court must first rule (without being given any details about the

 

evidence) whether, however false or misleading the impression

 

may be, it is unimportant in the context of the case as a whole for it

 

to be corrected; and if the court makes a ruling to that effect, no


 

(  10  )

 
 

evidence can fall within this section in relation to the assertion in

 

question.

 

(10)   

Only prosecution evidence can fall within this section.

 

82K     

Evidence going to an issue between co-defendants

 

(1)   

Evidence falls within this section if it has substantial probative

 

value in relation to a matter which—

 

(a)   

is a matter in issue between the defendant and a co-

 

defendant, and

 

(b)   

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

 

whole.

 

(2)   

For the purposes of this section, evidence is not to be treated as

 

having the probative value mentioned in subsection (1) by virtue of

 

its relevance to the question whether the defendant has a

 

propensity to be untruthful unless the nature or conduct of his

 

defence is such as to undermine the co-defendant’s defence.

 

(3)   

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

 

section, the court must have regard to the factors listed in section

 

82B(2) (and to any others it considers relevant).

 

(4)   

Only evidence—

 

(a)   

which is to be (or has been) adduced by the co-defendant, or

 

(b)   

which a witness is to be invited to give (or has given) in

 

cross-examination by the co-defendant,

 

can fall within this section.

 

82L     

Trying more than one offence together

 

(1)   

In section 5 of the Indictments Act 1915 (c. 90) (orders for separate

 

trial etc) insert after subsection (2)—

 

“(2A)   

Where—

 

(a)   

a person is charged with more than one offence in

 

the same indictment,

 

(b)   

the prosecution propose to adduce evidence which

 

is admissible in relation to one of the offences but

 

which, in relation to another, is evidence of the

 

person’s bad character and is inadmissible, and

 

(c)   

the person applies before trial for an order that the

 

offences mentioned in paragraph (b) above be tried

 

separately,

 

   

the court shall grant the application unless satisfied that

 

trying the offences together would not prevent the

 

defendant having a fair trial.

 

(2B)   

The reference in subsection (2A) above to evidence of the

 

person’s bad character shall be read in accordance with


 

(  11  )

 
 

section 82A of the Police and Criminal Evidence Act 1984

 

(c. 60).”

 

(2)   

In subsection (3) of that section, after “before trial” insert “(in a case

 

not falling within subsection (2A) above)”.

 

(3)   

Where in proceedings before a magistrates’ court—

 

(a)   

it is proposed that the defendant be tried for two or more

 

offences together,

 

(b)   

the prosecution propose to adduce evidence which is

 

admissible in relation to one of the offences but which, in

 

relation to another, is evidence of the person’s bad character

 

and is inadmissible, and

 

(c)   

the defendant objects before trial to the offences mentioned

 

in paragraph (b) being tried together,

 

the court may order those offences to be tried together only if

 

satisfied that doing so would not prevent the defendant having a

 

fair trial.

 

82M     

Stopping the case where evidence contaminated

 

(1)   

If on a defendant’s trial on indictment for an offence—

 

(a)   

evidence of his bad character has been admitted with leave

 

under section 82B, and

 

(b)   

the court is satisfied at any time after the close of the case for

 

the prosecution that—

 

(i)   

the evidence is contaminated, and

 

(ii)   

the contamination is such that, considering the

 

importance of the evidence 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.

 

(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 offence,

 

   

the defendant may not be found guilty of that other offence if the

 

court is satisfied as mentioned in subsection (1)(b) in respect of it.

 

(3)   

If—

 

(a)   

a jury is required to determine under section 4A(2) of the

 

Criminal Procedure (Insanity) Act 1964 (c. 84) whether a

 

person charged on an indictment with an offence did the act

 

or made the omission charged,

 

(b)   

evidence of the person’s bad character has been admitted

 

with leave under section 82B, and

 

(c)   

the court is satisfied at any time after the close of the case for

 

the prosecution that—

 

(i)   

the evidence is contaminated, and


 

(  12  )

 
 

(ii)   

the contamination is such that, considering the

 

importance of the evidence to the case against the

 

person, a finding that he did the act or made the

 

omission 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

 

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.

 

(5)   

For the purposes of this section, a person’s evidence is

 

contaminated where—

 

(a)   

as a result of an agreement or understanding between the

 

person and one or more others, or

 

(b)   

as a result of the person being aware of anything alleged by

 

one or more others who are, or could be, witnesses in the

 

proceedings,

 

   

the evidence is false or misleading in any respect, or is different

 

from what it would otherwise have been.

 

82N     

Assumption of truth in assessment of probative value

 

(1)   

Subject to subsection (2), a reference in this Act to the probative

 

value of evidence is a reference to its probative value on the

 

assumption that it is true.

 

(2)   

In assessing the probative value of an item of evidence for any

 

purpose of this Act, a court need not assume that the evidence is

 

true if it appears, on the basis of any material before the court

 

(including any evidence it decides to hear on the matter), that no

 

court or jury could reasonably find it to be true.

 

82O     

Court’s duty to give reasons for rulings

 

(1)   

Where the court makes a relevant ruling—

 

(a)   

it must state in open court (but in the absence of the jury, if

 

there is one) its reasons for the ruling;

 

(b)   

if it is a magistrates’ court, it must cause the ruling and the

 

reasons for it to be entered in the register of the court’s

 

proceedings.

 

(2)   

In this section “relevant ruling” means—

 

(a)   

a ruling on whether an item of evidence is admissible only

 

with leave under section 82B;

 

(b)   

a decision whether to give leave under that section;

 

(c)   

a ruling under section 82M.

 

82P     

Rules of court

 

(1)   

Rules of court may make such provision as appears to the

 

appropriate authority to be necessary or expedient for the purposes


 

(  13  )

 
 

of this Act; and the appropriate authority is the authority entitled to

 

make the rules.

 

(2)   

The rules may require a party who—

 

(a)   

proposes to adduce evidence of a defendant’s bad character

 

that is admissible only with leave under section 82B, or

 

(b)   

proposes to cross-examine a witness with a view to eliciting

 

such evidence,

 

   

to serve on the defendant such notice, and such particulars of or

 

relating to the evidence, as may be prescribed.

 

(3)   

The rules may provide that the court or the defendant may, in such

 

circumstances as may be prescribed, dispense with a requirement

 

imposed by virtue of subsection (2).

 

(4)   

If a party fails to comply with a requirement that has been imposed

 

in relation to an item of evidence by virtue of subsection (2) (and not

 

dispensed with by virtue of subsection (3)) the court may take the

 

failure into account—

 

(a)   

in deciding whether to grant leave under section 82B; and

 

(b)   

where leave is given, in considering the exercise of its

 

powers with respect to costs.

 

(5)   

The rules may—

 

(a)   

limit the application of any provision of the rules to

 

prescribed circumstances;

 

(b)   

subject any provision of the rules to prescribed exceptions;

 

and

 

(c)   

make different provision for different cases or

 

circumstances.

 

(6)   

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.

 

(7)   

In this section—

 

   

“prescribed” means prescribed by rules of court;

 

   

“rules of court” means—

 

(a)   

Crown Court Rules;

 

(b)   

Criminal Appeal Rules; and

 

(c)   

rules under section 144 of the Magistrates’ Courts

 

Act 1980 (c. 43).

 

82Q     

Interpretation

 

(1)   

In this Chapter—

 

   

“bad character” is to be read in accordance with section 82A;

 

   

“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; and


 

(  14  )

 
 

“co-defendant”, in relation to a defendant, means a person

 

charged with an offence in the same proceedings;

 

   

“misconduct” means—

 

(a)   

the commission of an offence, or

 

(b)   

behaviour of a kind that, in the opinion of the court,

 

might be viewed with disapproval by a reasonable

 

person;

 

   

“prejudice”, in relation to an item of evidence and a defendant,

 

is to be read in accordance with subsection (2);

 

   

“probative value” is to be read in accordance with section 82N;

 

   

“prosecution evidence” means evidence which is to be (or has

 

been) adduced by the prosecution, or which a witness is to

 

be invited to give (or has given) in cross-examination by the

 

prosecution.

 

(2)   

For the purposes of this Act, evidence carries a risk of prejudice to

 

a defendant where—

 

(a)   

there is a risk that the court or jury would attach undue

 

weight to the evidence, or

 

(b)   

the nature of the matters with which the evidence deals is

 

such as to give rise to a risk that the court or jury would find

 

the defendant guilty without being satisfied that he was.

 

(3)   

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

 

same criminal proceedings, this Act has effect as if each offence

 

were charged in separate proceedings; and references to the offence

 

with which the defendant is charged are to be read accordingly.

 

82R Minor and consequential amendments

 

(1)   

In section 6 of the Criminal Procedure Act 1865 (c. 18) (witness’s

 

conviction for offence may be proved if not admitted)—

 

(a)   

for “A witness may be” substitute “If, upon a witness being

 

lawfully”;

 

(b)   

omit “and upon being so questioned, if”.

 

(2)   

In section 1(2) of the Criminal Evidence Act 1898 (c. 36) (restriction

 

of privilege against self-incrimination where defendant gives

 

evidence) at the beginning insert “Subject to section 6 of the

 

Criminal Evidence Act 2001 (inadmissibility of evidence of

 

defendant’s bad character)”.

 

(3)   

In section 16(2) of the Children and Young Persons Act 1963 (c. 37)

 

(offences committed by person under 14 disregarded for purposes

 

of evidence relating to previous convictions) for the words from

 

“notwithstanding” to the end substitute “even though the Criminal

 

Justice and Police Act 2001 (c. 16) would not prevent the question

 

from being asked”.

 

82S     

Repeals

 

(1)   

The common law rules governing the admissibility of evidence of

 

bad character in criminal proceedings are abolished.

 

(2)   

The rules referred to in subsection (1) include any rule under which,

 

as an exception to the inadmissibility of hearsay evidence, evidence

 

of a person’s reputation is admissible for the purpose of proving his


 
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