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Criminal Justice Bill

Criminal Justice Bill
Part 11 — Evidence
Chapter 2 — Hearsay evidence




        1               (1)                Evidence given at a retrial must be given orally if it was given orally

at the original trial, unless—

                    (a)                   section 101 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is


unavailable); or

                    (b)                   the witness is unavailable to give evidence, otherwise than as

mentioned in subsection (2) of that section, and section

99(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.”


 117   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 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—



Criminal Justice Bill
Part 11 — Evidence
Chapter 2 — Hearsay evidence



           (a)           limit the application of any provision of the rules to prescribed


           (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—


                  (a)                 Crown Court Rules;

                  (b)                 Criminal Appeal Rules;

                  (c)                 rules under section 144 of the Magistrates’ Courts Act 1980

(c. 43).

 118   Proof of statements in documents


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.

 119   Interpretation of Chapter 2

     (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


                    “oral evidence” includes evidence which, by reason of a defect of speech

or hearing, a person called as a witness gives in writing or by signs;

                    “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 100 (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




Criminal Justice Bill
Part 11 — Evidence
Chapter 3 — Miscellaneous and supplemental



 120   Armed forces

Schedule 6 (hearsay evidence: armed forces) has effect.

 121   Repeals etc

     (1)           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 II 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).

     (2)    In consequence of the repeal by subsection (1) above of section 25 of the

Criminal Justice Act 1988, section 3 of the Criminal Justice (International Co-


operation) Act 1990 (c. 5) is amended as follows—

           (a)           in subsection (8) for “section 25 of the Criminal Justice Act 1988” there

is substituted “Article 5 of the Criminal Justice (Evidence, Etc.)

(Northern Ireland) Order 1988”;

           (b)           in subsection (10) the words from “and” to the end are omitted.


Chapter 3

Miscellaneous and supplemental

 122   Evidence by video recording

     (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


                  (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


     (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




Criminal Justice Bill
Part 11 — Evidence
Chapter 3 — Miscellaneous and supplemental



           (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.


 123   Video evidence: further provisions

     (1)    Where a video recording is admitted under section 122, 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 122 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 122, 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 122(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 122 affects the admissibility of any video recording which

would be admissible apart from that section.



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