PART 11 continued CHAPTER 2 continued
(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),
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 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible.
(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 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
(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—
(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 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.
(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 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
(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.
(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—
(a) either of the statements is admissible under section 117, 119 or 120,
(b) all parties to the proceedings so agree, or
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
(2) In this section “hearsay statement” means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.
(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 119 or 120, and
(b) the document or a copy of it is produced as an exhibit.
(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.
(1) Nothing in section 116, 119 or 120 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 117 makes a statement admissible as evidence if any person who, in order for the requirements of section 117(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 required capability at that time.
(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 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 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.
(1) This section applies if in criminal proceedings—
(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—
(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-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.
(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 section 117 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.
(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
(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.
(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) 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, 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—
(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 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.
(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
(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—
(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).
(1) This section applies if—
(a) a statement has been prepared for the purposes of criminal proceedings,
(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 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.
(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 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;
(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 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 (advance notice of expert evidence in Crown Court), or
(b) under section 144 of the Magistrates' Courts Act 1980 (c. 43) by virtue of section 20(3) of the Criminal Procedure and Investigations Act 1996 (c. 25) (advance notice of expert evidence in magistrates' courts).
(1) In the Police and Criminal Evidence Act 1984 (c. 60) the following section is inserted after section 76—
(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 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—
(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,
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 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 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.
(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—
(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.
(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 Police and Criminal Evidence Act 1984 (c. 60).
(3) In subsection (2) “confession” has the meaning given by section 82 of that Act.
(1) Where a representation of any fact—
(a) is made otherwise than by a person, but
(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 mechanical device has been properly set or calibrated.
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).
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—
1 (1) Evidence given at a retrial must be given orally if it was given orally at the original trial, unless—
(a) all the parties to the retrial agree otherwise;
(b) section 116 of the Criminal Justice Act 2003 applies (admissibility of hearsay evidence where a witness is unavailable); or
(c) the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(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 of depositions) does not apply at a retrial to a deposition read as evidence at the original trial.”
(1) Rules of court may make such provision as appears to the appropriate 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.
(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—
(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 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 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 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;
(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—
“prescribed” means prescribed by rules of court;
“rules of court” means—
Crown Court Rules;
Criminal Appeal Rules;
rules under section 144 of the Magistrates' Courts Act 1980 (c. 43).
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
(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.
(1) In this Chapter—
“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 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 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 instrument made under, this or any other Act, including any Act passed after this Act.
(2) Section 115 (statements and matters stated) contains other general interpretative provisions.
(3) Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter has effect as if each offence were charged in separate proceedings.
Schedule 7 (hearsay evidence: armed forces) has effect.
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).
(1) This section applies where—
(a) a person is called as a witness in proceedings for an offence triable only 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
(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 mentioned in paragraph (b)),
(e) a video recording was made of the account,
(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.
(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 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 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—
(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;
(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 by the Secretary of State.
(1) Where a video recording is admitted under section 137, 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 recorded account.
(2) The reference in subsection (1)(f) of section 137 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.
(3) In considering whether any part of a recording should be not admitted under section 137, the court must consider—
(a) whether admitting that part would carry a risk of prejudice to the defendant, and
(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 137(1)(f) in relation to any proceedings unless—
(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 137 affects the admissibility of any video recording which would be admissible apart from that section.
(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—
(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—
(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 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.
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 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 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.
No provision of this Part has effect in relation to criminal proceedings begun before the commencement of that provision.