Criminal Justice Act 2003

Part 11E+WEvidence

Chapter 1E+WEvidence of bad character

IntroductoryE+W

98“Bad character”E+W

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(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.

99Abolition of common law rulesE+W

(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 118(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.

Persons other than defendantsE+W

100Non-defendant’s bad characterE+W

(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,

(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.

(2)For the purposes of subsection (1)(a) 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

(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 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—

(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 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

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

DefendantsE+W

101Defendant’s bad characterE+W

(1)In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—

(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,

(d)it is relevant to an important matter in issue between the defendant and the prosecution,

(e)it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

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

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

(2)Sections 102 to 106 contain provision supplementing subsection (1).

(3)The court must not admit evidence under subsection (1)(d) or (g) 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 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.

102“Important explanatory evidence”E+W

For the purposes of section 101(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

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

103“Matter in issue between the defendant and the prosecution”E+W

(1)For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

(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, except where it is not suggested that the defendant’s case is untruthful in any respect.

(2)Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—

(a)an offence of the same description as the one with which he is charged, or

(b)an offence of the same category as the one with which he is charged.

(3)Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4)For the purposes of subsection (2)—

(a)two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be 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.

(5)A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(6)Only prosecution evidence is admissible under section 101(1)(d).

[F1(7)Where—

(a)a defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and

(b)the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the trial for the offence with which the defendant is now charged (“the current offence”),

subsection (8) applies for the purpose of determining if the previous offence and the current offence are of the same description or category.

(8)For the purposes of subsection (2)—

(a)the previous offence is of the same description as the current offence if the corresponding offence is of that same description, as set out in subsection (4)(a);

(b)the previous offence is of the same category as the current offence if the current offence and the corresponding offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).

(9)For the purposes of subsection (10) “foreign service offence” means an offence which—

(a)was the subject of proceedings under the service law of a country outside the United Kingdom, and

(b)would constitute an offence under the law of England and Wales or a service offence (“the corresponding domestic offence”) if it were done in England and Wales by a member of Her Majesty's forces at the time of the trial for the offence with which the defendant is now charged (“the current offence”).

(10)Where a defendant has been found guilty of a foreign service offence (“the previous service offence”), for the purposes of subsection (2)—

(a)the previous service offence is an offence of the same description as the current offence if the corresponding domestic offence is of that same description, as set out in subsection (4)(a);

(b)the previous service offence is an offence of the same category as the current offence if the current offence and the corresponding domestic offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).

(11)In this section—

• “Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006;

• “service law”, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country.]

104“Matter in issue between the defendant and a co-defendant”E+W

(1)Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) 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-examination by the co-defendant,

is admissible under section 101(1)(e).

105“Evidence to correct a false impression”E+W

(1)For the purposes of section 101(1)(f)—

(a)the defendant gives a false impression if he 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;

(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—

(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

(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 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 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 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 101(1)(f) only if it goes no further than is necessary to correct the false impression.

(7)Only prosecution evidence is admissible under section 101(1)(f).

106“Attack on another person’s character”E+W

(1)For the purposes of section 101(1)(g) a defendant makes an attack on another person’s character if—

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

(b)he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in his interests) 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—

(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 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 reprehensible way;

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

(3)Only prosecution evidence is admissible under section 101(1)(g).

107Stopping the case where evidence contaminatedE+W

(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 (g) of section 101(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 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 under any of paragraphs (c) to (g) of section 101(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 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 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.

108Offences committed by defendant when a childE+W

(1)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.

(2)In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless—

(a)both of the offences are triable only on indictment, and

(b)the court is satisfied that the interests of justice require the evidence to be admissible.

[F2(2A)Subsection (2B) applies where—

(a)the defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and

(b)the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the proceedings for the offence with which the defendant is now charged.

(2B)For the purposes of subsection (2), the previous offence is to be regarded as triable only on indictment if the corresponding offence is so triable.]

(3)Subsection (2) applies in addition to section 101.

GeneralE+W

109Assumption of truth in assessment of relevance or probative valueE+W

(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 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.

110Court’s duty to give reasons for rulingsE+W

(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 evidence of a person’s bad character;

(b)a ruling on whether an item of such evidence is admissible under section 100 or 101 (including a ruling on an application under section 101(3));

(c)a ruling under section 107.

111Rules of courtE+W

(1)Rules of court may make such provision as appears to the appropriate 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, and, where the party in question is the prosecution, must, contain provision requiring a party who—

(a)proposes to adduce evidence of a defendant’s bad character, 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)In considering the exercise of its powers with respect to costs, the court may take into account any failure by a party to comply with a requirement imposed by virtue of subsection (2) and not dispensed with by virtue of subsection (3).

(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;

(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.

[F3(7)In this section “prescribed” means prescribed by rules of court.]

112Interpretation of Chapter 1E+W

(1)In this Chapter—

• “bad character” is to be read in accordance with section 98;

• “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 “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;

• “misconduct” means the commission of an offence or other reprehensible behaviour;

• “offence” includes a service offence;

• “probative value”, and “relevant” (in relation to an item of evidence), are to be read in accordance with section 109;

• “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;

• [F4“service offence” has the same meaning as in the Armed Forces Act 2006;]

• “written charge” has the same meaning as in section 29 and also includes an information.

(2)Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) 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.

(3)Nothing in this Chapter affects the exclusion of evidence—

(a)under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18) against a party impeaching the credit of his own witness by general evidence of bad character,

(b)under section 41 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (restriction on evidence or questions about complainant’s sexual history), or

(c)on grounds other than the fact that it is evidence of a person’s bad character.

113Armed forcesE+W

Schedule 6 (armed forces) has effect.

Chapter 2E+WHearsay evidence

Hearsay: main provisionsE+W

114Admissibility of hearsay evidenceE+W

(1)In criminal proceedings a statement not made in oral evidence in the 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 118 makes it admissible,

(c)all parties to the proceedings agree to it being admissible, or

(d)the court is satisfied that it is in 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 (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 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;

(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 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.

115Statements and matters statedE+W

(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.

(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—

(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 admissibilityE+W

116Cases where a witness is unavailableE+W

(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 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 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;

(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 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,

(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 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 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,

in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).

117Business and other documentsE+W

(1)In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if—

(a)oral evidence given in the proceedings would be admissible as evidence of that matter,

(b)the requirements of subsection (2) are satisfied, and

(c)the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

(2)The requirements of this subsection are satisfied if—

(a)the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

(b)the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

(c)each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

(3)The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.

(4)The additional requirements of subsection (5) must be satisfied if the statement—

(a)was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but

[F5(b)was not obtained pursuant to—

(i)a request under section 7 of the Crime (International Co-operation) Act 2003,

(ii)an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988,F6...

(iii)F7..., [F8or

(iv)an overseas production order under the Crime (Overseas Production Orders) Act 2019,]

(all of which relate to overseas evidence)]

(5)The requirements of this subsection are satisfied if—

(a)any of the five conditions mentioned in section 116(2) is satisfied (absence of relevant person etc), or

(b)the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

(6)A statement is not admissible under this section if the court makes a direction to that effect under subsection (7).

(7)The court may make a direction under this subsection if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of—

(a)its contents,

(b)the source of the information contained in it,

(c)the way in which or the circumstances in which the information was supplied or received, or

(d)the way in which or the circumstances in which the document concerned was created or received.

118Preservation of certain common law categories of admissibilityE+W

(1)The following rules of law are preserved.

Public information etc

1   Any rule of law under which in criminal proceedings—

(a)published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,

(b)public documents (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them,

(c)records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) are admissible as evidence of facts stated in them, or

(d)evidence relating to a person’s age or date or place of birth may be given by a person without personal knowledge of the matter.

Reputation as to character

2   Any rule of law under which in criminal proceedings evidence of a person’s reputation is admissible for the purpose of proving his good or bad character.

Note

The rule is preserved only so far as it allows the court to treat such evidence as proving the matter concerned.

Reputation or family tradition

3   Any rule of law under which in criminal proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving—

(a)pedigree or the existence of a marriage,

(b)the existence of any public or general right, or

(c)the identity of any person or thing.

Note

The rule is preserved only so far as it allows the court to treat such evidence as proving or disproving the matter concerned.

Res gestae

4   Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

(a)the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,

(b)the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or

(c)the statement relates to a physical sensation or a mental state (such as intention or emotion).

Confessions etc

5   Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings.

Admissions by agents etc

6   Any rule of law under which in criminal proceedings—

(a)an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or

(b)a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.

Common enterprise

7   Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.

Expert evidence

8   Any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field.

(2)With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished.

119Inconsistent statementsE+W

(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.

120Other previous statements of witnessesE+W

(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)F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

SupplementaryE+W

121Additional requirement for admissibility of multiple hearsayE+W

(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.

122Documents produced as exhibitsE+W

(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.

123Capability to make statementE+W

(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.

124CredibilityE+W

(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.

125Stopping the case where evidence is unconvincingE+W

(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.

126Court’s general discretion to exclude evidenceE+W

(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).

MiscellaneousE+W

127Expert evidence: preparatory work.E+W

(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 [F10Criminal Procedure Rules made by virtue of]—

(a)F11. . . section 81 of the Police and Criminal Evidence Act 1984 (advance notice of expert evidence in Crown Court), or

(b)F12. . . section 20(3) of the Criminal Procedure and Investigations Act 1996 (c. 25) (advance notice of expert evidence in magistrates' courts).

128ConfessionsE+W

(1)In the Police and Criminal Evidence Act 1984 (c. 60) the following section is inserted after section 76—

“76AConfessions may be given in evidence for co-accused

(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.

129Representations other than by a personE+W

(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.

130DepositionsE+W

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).

131Evidence at retrialE+W

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.”

GeneralE+W

132Rules of courtE+W

(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.

[F13(10)In this section “prescribed” means prescribed by rules of court]

133Proof of statements in documentsE+W

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.

134Interpretation of Chapter 2E+W

(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.

135Armed forcesE+W

Schedule 7 (hearsay evidence: armed forces) has effect.

136Repeals etcE+W

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).

Chapter 3E+WMiscellaneous and supplemental

139Use of documents to refresh memoryE+W

(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.

140Interpretation of Chapter 3E+W

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.

141SavingE+W

No provision of this Part has effect in relation to criminal proceedings begun before the commencement of that provision.