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Criminal Justice Bill


Criminal Justice Bill
Part 10 — Retrial for serious offences

    49

 

     (5)    Subsections (1) and (2) are subject to section 4 of the Bail Act 1976 (c. 63) and

section 25 of the Criminal Justice and Public Order Act 1994 (c. 33).

Part 10: supplementary

 78    Functions of the DPP

     (1)    Section 1(7) of the Prosecution of Offences Act 1985 (c. 23) (DPP’s functions

5

exercisable by Crown Prosecutor) does not apply to the provisions of this Part

other than section 72(2)(a).

     (2)    In the absence of the Director of Public Prosecutions, his functions under those

provisions may be exercised by a person authorised by him.

     (3)    An authorisation under subsection (2)—

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           (a)           may relate to a specified person or to persons of a specified description,

and

           (b)           may be general or relate to a specified function or specified

circumstances.

 79    Rules of Court

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     (1)    Rules of court may make such provision as appears to the authority making

them to be necessary or expedient for the purposes of this Part.

     (2)    Without limiting subsection (1), the Criminal Appeal Rules and the Crown

Court Rules may in particular make provision as to procedures to be applied

in connection with sections 63 to 68, 71 and 75 to 77.

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     (3)    Nothing in this section is to be taken as affecting the generality of any

enactment conferring power to make rules of court.

 80    Interpretation of Part 10

     (1)    In this Part—

                      “acquittal” and related expressions are to be read in accordance with

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section 62(7),

                      “new evidence” is to be read in accordance with section 65(2),

                      “officer”, subject to section 70(6), means an officer of a police force,

                      “police force” has the meaning given by section 3(3) of the Prosecution of

Offences Act 1985 (c. 23),

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                      “programme service” has the meaning given by section 69(7),

                      “prosecutor” means an individual or body charged with duties to conduct

criminal prosecutions,

                      “publication” has the meaning given by section 69(7),

                      “qualifying offence” has the meaning given by section 62(8),

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                      “relevant programme” has the meaning given by section 69(7).

     (2)    Subject to rules of court made under section 53(1) of the Supreme Court Act

1981 (c. 54) (power by rules to distribute business of Court of Appeal between

its civil and criminal divisions)—

           (a)           the jurisdiction of the Court of Appeal under this Part is to be exercised

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by the criminal division of that court, and

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

    50

 

           (b)           references in this Part to the Court of Appeal are to be construed as

references to that division.

Part 11

Evidence

Chapter 1

5

Evidence of bad character

Introductory

 81    “Bad character”

     (1)    For the purposes of this Chapter, evidence of a person’s bad character is

evidence which shows or tends to show that—

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           (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, might be viewed with disapproval by a reasonable person.

     (2)    But references in the Chapter to evidence of a person’s bad character do not

apply to evidence which—

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           (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.

 82    Abolition of common law rules

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     (1)    The common law rules governing the admissibility of evidence of bad

character in criminal proceedings are abolished.

     (2)    Subsection (1) is subject to section 102(1) in so far as it preserves the rule under

which in criminal proceedings a person’s reputation is admissible for the

purposes of proving his bad character.

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Persons other than defendants

 83    Non-defendant’s bad character

     (1)    In criminal proceedings evidence of the bad character of a person other than

the defendant is admissible if and only if—

           (a)           it is important explanatory evidence,

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           (b)           it has substantial probative value in relation to a matter which—

                  (i)                 is a matter in issue in the proceedings, and

                  (ii)                is of substantial importance in the context of the case as a whole,

                         or

           (c)           all parties to the proceedings agree to the evidence being admissible.

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     (2)    For the purposes of subsection (1)(a) evidence is important explanatory

evidence if—

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

    51

 

           (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.

     (3)    In assessing the probative value of evidence for the purposes of subsection

(1)(b) the court must have regard to the following factors (and to any others it

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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—

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                  (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

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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

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                  (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.

     (4)    Except where subsection (1)(c) applies, evidence of the bad character of a

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person other than the defendant must not be given without leave of the court.

Defendants

 84    Defendant’s bad character

     (1)    In criminal proceedings evidence of the defendant’s bad character is

admissible if, but only if—

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           (a)           all parties to the proceedings agree to the evidence being admissible,

           (b)           the evidence is adduced by the defendant himself or is given in answer

to a question asked by him in cross-examination and intended to elicit

it,

           (c)           it is important explanatory evidence,

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           (d)           it is evidence of the defendant’s conviction for an offence of the same

description, or of the same category, as the one with which he is

charged,

           (e)           it is relevant to an important matter in issue between the defendant and

the prosecution,

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           (f)           it has substantial probative value in relation to an important matter in

issue between the defendant and a co-defendant,

           (g)           it is evidence to correct a false impression given by the defendant, or

           (h)           the defendant has made an attack on another person’s character.

     (2)    Sections 85 to 90 contain provision supplementing subsection (1).

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Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

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     (3)    The court must not admit evidence under subsection (1)(d), (e) or (h) if, on an

application by the defendant to exclude it, it appears to the court that the

admission of the evidence would have such an adverse effect on the fairness of

the proceedings that the court ought not to admit it.

     (4)    On an application to exclude evidence under subsection (3) the court must

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have regard, in particular, to the length of time between the matters to which

that evidence relates and the matters which form the subject of the offence

charged.

     (5)    Nothing in this Chapter affects the exclusion of evidence on grounds other

than the fact that it is evidence of the defendant’s bad character.

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 85    “Important explanatory evidence”

For the purposes of section 84(1)(c) evidence is important explanatory evidence

if—

           (a)           without it, the court or jury would find it impossible or difficult

properly to understand other evidence in the case, and

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           (b)           its value for understanding the case as a whole is substantial.

 86    Offences “of the same description” or “of the same category”

     (1)    For the purposes of section 84(1)(d)—

           (a)           two offences are of the same description as each other if the statement

of the offence in an information or indictment would, in each case, be

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in the same terms;

           (b)           two offences are of the same category as each other if they belong to the

same category of offences prescribed for the purposes of this section by

an order made by the Secretary of State.

     (2)    A category prescribed by an order under this section must consist of offences

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of the same type.

     (3)    Only prosecution evidence is admissible under section 84(1)(d).

 87    “Matter in issue between the defendant and the prosecution”

     (1)    For the purposes of section 84(1)(e) the matters in issue between the defendant

and the prosecution include—

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           (a)           the question whether the defendant has a propensity to commit

offences of the kind with which he is charged, except where his having

such a propensity makes it no more likely that he is guilty of the

offence;

           (b)           the question whether the defendant has a propensity to be untruthful,

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except where it is not suggested that the defendant’s case is untruthful

in any respect.

     (2)    Only prosecution evidence is admissible under section 84(1)(e).

 88    “Matter in issue between the defendant and a co-defendant”

     (1)    Evidence which is relevant to the question whether the defendant has a

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propensity to be untruthful is admissible on that basis under section 84(1)(f)

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

    53

 

     (1)    only if the nature or conduct of his defence is such as to undermine the co-

defendant’s defence.

     (2)    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-

5

examination by the co-defendant,

            is admissible under section 84(1)(f).

 89    “Evidence to correct a false impression”

     (1)    For the purposes of section 84(1)(g)—

           (a)           the defendant gives a false impression if he is responsible for the

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

or jury a false or misleading impression about the defendant;

           (b)           evidence to correct such an impression is evidence which has probative

value in correcting it.

     (2)    A defendant is treated as being responsible for the making of an assertion if—

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           (a)           the assertion is made by the defendant in the proceedings (whether or

not in evidence given by him),

           (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

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                  (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

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to a question asked by the defendant that is intended to elicit it, or is

likely to do so, or

           (e)           the assertion was made by any person out of court, and the defendant

adduces evidence of it in the proceedings.

     (3)    A defendant who would otherwise be treated as responsible for the making of

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an assertion shall not be so treated if, or to the extent that, he withdraws it or

disassociates himself from it.

     (4)    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

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appears just to do so treat the defendant as being responsible for the making of

an assertion which is apt to give that impression.

     (5)    In subsection (4) “conduct” includes appearance or dress.

     (6)    Evidence is admissible under section 84(1)(g) only if it goes no further than is

necessary to correct the false impression.

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     (7)    Only prosecution evidence is admissible under section 84(1)(g).

 90    “Attack on another person’s character”

     (1)    For the purposes of section 84(1)(h) a defendant makes an attack on another

person’s character if—

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

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           (a)           he adduces evidence attacking the other person’s character,

           (b)           he asks questions in cross-examination that are intended to elicit such

evidence, or are likely to do so, or

           (c)           evidence is given of an imputation about the other person made by the

defendant—

5

                  (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.

     (2)    In subsection (1) “evidence attacking the other person’s character” means

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evidence to the effect that the other person—

           (a)           has committed an offence (whether a different offence from the one

with which the defendant is charged or the same one), or

           (b)           has behaved, or is disposed to behave, in a way that, in the opinion of

the court, might be viewed with disapproval by a reasonable person;

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            and “imputation about the other person” means an assertion to that effect.

     (3)    Only prosecution evidence is admissible under section 84(1)(h).

 91    Stopping the case where evidence contaminated

     (1)    If on a defendant’s trial before a judge and jury for an offence—

           (a)           evidence of his bad character has been admitted under any of

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paragraphs (c) to (h) of section 84(1), 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

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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—

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           (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,

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                   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

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indictment with an offence did the act or made the omission charged,

           (b)           evidence of the person’s bad character has been admitted under any of

paragraphs (c) to (h) of section 84(1), and

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

prosecution that—

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                  (i)                 the evidence is contaminated, and

 

 

Criminal Justice Bill
Part 11 — Evidence
Chapter 1 — Evidence of bad character

    55

 

                  (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.

5

     (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

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           (b)           as a result of the person being aware of anything alleged by one or more

others whose evidence may be, or has been, given in the proceedings,

                   the evidence is false or misleading in any respect, or is different from what it

would otherwise have been.

 92    Offences committed by defendant when a child

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Section 16(2) and (3) 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) shall cease to have effect.

General

 93    Assumption of truth in assessment of relevance or probative value

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     (1)    Subject to subsection (2), a reference in this Chapter to the relevance or

probative value of evidence is a reference to its relevance or probative value on

the assumption that it is true.

     (2)    In assessing the relevance or probative value of an item of evidence for any

purpose of this Chapter, a court need not assume that the evidence is true if it

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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.

 94    Court’s duty to give reasons for rulings

     (1)    Where the court makes a relevant ruling—

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           (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—

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           (a)           a ruling on whether an item of evidence is evidence of a person’s bad

character;

           (b)           a ruling on whether an item of such evidence is admissible under

section 83 or 84 (including a ruling on an application under section

84(3));

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           (c)           a ruling under section 91.

 

 

 
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