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87 Offences “of the same description” or “of the same category” | |
(1) For the purposes of section 85(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 | |
in the same terms; | 5 |
(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 | |
of the same type. | 10 |
(3) Only prosecution evidence is admissible under section 85(1)(d). | |
88 “Matter in issue between the defendant and the prosecution” | |
(1) For the purposes of section 85(1)(e) the matters in issue between the defendant | |
and the prosecution include— | |
(a) the question whether the defendant has a propensity to commit | 15 |
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, | |
except where it is not suggested that the defendant’s case is untruthful | 20 |
in any respect. | |
(2) Only prosecution evidence is admissible under section 85(1)(e). | |
89 “Matter in issue between the defendant and a co-defendant” | |
(1) Evidence which is relevant to the question whether the defendant has a | |
propensity to be untruthful is admissible on that basis under section 85(1)(f) | 25 |
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- | 30 |
examination by the co-defendant, | |
is admissible under section 85(1)(f). | |
90 “Evidence to correct a false impression” | |
(1) For the purposes of section 85(1)(g)— | |
(a) the defendant gives a false impression if he is responsible for the | 35 |
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— | 40 |
(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— | |
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(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, | 5 |
(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 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 | 10 |
adduces evidence of it in the proceedings. | |
(3) A defendant who would otherwise be treated as responsible for the making of | |
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 | 15 |
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. | |
(5) In subsection (4) “conduct” includes appearance or dress. | 20 |
(6) Evidence is admissible under section 85(1)(g) only if it goes no further than is | |
necessary to correct the false impression. | |
(7) Only prosecution evidence is admissible under section 85(1)(g). | |
91 “Attack on another person’s character” | |
(1) For the purposes of section 85(1)(h) a defendant makes an attack on another | 25 |
person’s character if— | |
(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 | 30 |
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. | 35 |
(2) In subsection (1) “evidence attacking the other person’s character” means | |
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 | 40 |
the court, might be viewed with disapproval by a reasonable person; | |
and “imputation about the other person” means an assertion to that effect. | |
(3) Only prosecution evidence is admissible under section 85(1)(h). | |
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92 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 | |
paragraphs (c) to (h) of section 85(1), and | |
(b) the court is satisfied at any time after the close of the case for the | 5 |
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, | 10 |
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 | 15 |
(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. | 20 |
(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 under any of | 25 |
paragraphs (c) to (h) of section 85(1), 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 | |
(ii) the contamination is such that, considering the importance of | 30 |
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 | 35 |
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 | 40 |
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. | |
93 Offences committed by defendant when a child | |
Section 16(2) and (3) of the Children and Young Persons Act 1963 (c. 37) | 45 |
(offences committed by person under 14 disregarded for purposes of evidence | |
relating to previous convictions) shall cease to have effect. | |
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General | |
94 Assumption of truth in assessment of relevance or probative value | |
(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. | 5 |
(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 | |
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. | 10 |
95 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 | 15 |
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 evidence of a person’s bad | |
character; | |
(b) a ruling on whether an item of such evidence is admissible under | 20 |
section 84 or 85 (including a ruling on an application under section | |
85(3)); | |
(c) a ruling under section 92. | |
96 Rules of court | |
(1) Rules of court may make such provision as appears to the appropriate | 25 |
authority to be necessary or expedient for the purposes of this Act; and the | |
appropriate authority is the authority entitled to make the rules. | |
(2) The rules may require a defendant who— | |
(a) proposes to adduce evidence of a co-defendant’s bad character under | |
section 85(1)(f), or | 30 |
(b) proposes to cross-examine a witness with a view to eliciting such | |
evidence, | |
to serve on the co-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 co-defendant may, in such | 35 |
circumstances as may be prescribed, dispense with a requirement imposed by | |
virtue of subsection (2). | |
(4) In considering the exercise of its powers with respect to costs, the court may | |
take into account any failure by a defendant to comply with a requirement | |
imposed by virtue of subsection (2) and not dispensed with by virtue of | 40 |
subsection (3). | |
(5) The rules may— | |
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(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. | |
(6) Nothing in this section prejudices the generality of any enactment conferring | 5 |
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— | 10 |
(a) Crown Court Rules; | |
(b) Criminal Appeal Rules; | |
(c) rules under section 144 of the Magistrates’ Courts Act 1980 | |
(c. 43). | |
97 Interpretation of Chapter 1 | 15 |
(1) In this Chapter— | |
“bad character” is to be read in accordance with section 82; | |
“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 | 20 |
with an offence in those proceedings; and “co-defendant”, in relation to | |
a defendant, means a person charged with an offence in the same | |
proceedings; | |
“important matter” means a matter of substantial importance in the | |
context of the case as a whole; | 25 |
“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; | |
“probative value”, and “relevant” (in relation to an item of evidence), are | 30 |
to be read in accordance with section 94; | |
“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) Where a defendant is charged with two or more offences in the same criminal | 35 |
proceedings, this Chapter 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. | |
98 Armed forces | |
Schedule 5 (armed forces) has effect. | 40 |
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Chapter 2 | |
Hearsay evidence | |
Hearsay: main provisions | |
99 Admissibility of hearsay evidence | |
(1) In criminal proceedings a statement not made in oral evidence in the | 5 |
proceedings is admissible as evidence of any matter stated if, but only if— | |
(a) any provision of this Chapter or any other statutory provision makes it | |
admissible, | |
(b) any rule of law preserved by section 103 makes it admissible, | |
(c) all parties to the proceedings agree to it being admissible, or | 10 |
(d) the court is satisfied that, despite the difficulties there may be in | |
challenging the statement, it would not be contrary to the interests of | |
justice for it to be admissible. | |
(2) In deciding whether a statement not made in oral evidence should be admitted | |
under subsection (1)(d), the court must have regard to the following factors | 15 |
(and to any others it considers relevant)— | |
(a) how much probative value the statement has (assuming it to be true) in | |
relation to a matter in issue in the proceedings, or how valuable it is for | |
the understanding of other evidence in the case; | |
(b) what other evidence has been, or can be, given on the matter or | 20 |
evidence mentioned in paragraph (a); | |
(c) how important the matter or evidence mentioned in paragraph (a) is in | |
the context of the case as a whole; | |
(d) the circumstances in which the statement was made; | |
(e) how reliable the maker of the statement appears to be; | 25 |
(f) how reliable the evidence of the making of the statement appears to be; | |
(g) whether oral evidence of the matter stated can be given and, if not, why | |
it cannot; | |
(h) the amount of difficulty involved in challenging the statement; | |
(i) the extent to which that difficulty would be likely to prejudice the party | 30 |
facing it. | |
(3) Nothing in this Chapter affects the exclusion of evidence of a statement on | |
grounds other than the fact that it is a statement not made in oral evidence in | |
the proceedings. | |
100 Statements and matters stated | 35 |
(1) In this Chapter references to a statement or to a matter stated are to be read as | |
follows. | |
(2) A statement is any representation of fact or opinion made by a person by | |
whatever means; and it includes a representation made in a sketch, photofit or | |
other pictorial form. | 40 |
(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, | |
or one of the purposes, of the person making the statement appears to the court | |
to have been— | |
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(a) to cause another person to believe the matter, or | |
(b) to cause another person to act or a machine to operate on the basis that | |
the matter is as stated. | |
Principal categories of admissibility | |
101 Cases where a witness is unavailable | 5 |
(1) In criminal proceedings a statement not made in oral evidence in the | |
proceedings is admissible as evidence of any matter stated if— | |
(a) oral evidence given in the proceedings by the person who made the | |
statement would be admissible as evidence of that matter, | |
(b) the person who made the statement (the relevant person) is identified | 10 |
to the court’s satisfaction, and | |
(c) any of the five conditions mentioned in subsection (2) is satisfied. | |
(2) The conditions are— | |
(a) that the relevant person is dead; | |
(b) that the relevant person is unfit to be a witness because of his bodily or | 15 |
mental condition; | |
(c) that the relevant person is outside the United Kingdom and it is not | |
reasonably practicable to secure his attendance; | |
(d) that the relevant person cannot be found although such steps as it is | |
reasonably practicable to take to find him have been taken; | 20 |
(e) that through fear the relevant person does not give (or does not | |
continue to give) oral evidence in the proceedings, either at all or in | |
connection with the subject matter of the statement, and the court gives | |
leave for the statement to be given in evidence. | |
(3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for | 25 |
example) includes fear of the death or injury of another person or of financial | |
loss. | |
(4) Leave may be given under subsection (2)(e) only if the court considers that the | |
statement ought to be admitted in the interests of justice, having regard— | |
(a) to the statement’s contents, | 30 |
(b) to any risk that its admission or exclusion will result in unfairness to | |
any party to the proceedings (and in particular to how difficult it will | |
be to challenge the statement if the relevant person does not give oral | |
evidence), | |
(c) in appropriate cases, to the fact that a direction under section 19 of the | 35 |
Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures | |
for the giving of evidence by fearful witnesses etc) could be made in | |
relation to the relevant person, and | |
(d) to any other relevant circumstances. | |
(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied | 40 |
is to be treated as not satisfied if it is shown that the circumstances described | |
in that paragraph are caused— | |
(a) by the person in support of whose case it is sought to give the statement | |
in evidence, or | |
(b) by a person acting on his behalf, | 45 |
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