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You are here: BAILII >> Databases >> The Law Commission >> Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(APPENDIX B) (19 June 1997) URL: http://www.bailii.org/ew/other/EWLC/1997/245(APPENDIX_B).html Cite as: [1997] EWLC 245(APPENDIX B) |
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EXTRACTS FROM RELEVANT LEGISLATION
3 How far witnesses may be discredited by the party producing
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
4 As to proof of contradictory statements of adverse witness
If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
5 Cross-examinations as to previous statements in writing
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.
3 Mode of proof of entries in bankers books
Subject to the provisions of this Act, a copy of any entry in a bankers book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded.
4 Proof that book is a bankers book
A copy of an entry in a bankers book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits.
Where the proceedings concerned are proceedings before a magistrates court inquiring into an offence as examining justices, this section shall have effect with the omission of the words "orally or".
10 Interpretation of Part I
(1) In this Part of this Act
"computer" has the meaning assigned by section 5 of this Act; "document" includes, in addition to a document in writing
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(d) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom;
"film" includes a microfilm;
"statement" includes any representation of fact, whether made in words or otherwise.
(2) In this Part of this Act any reference to a copy of a document includes
(a) in the case of a document falling within paragraph (c) but not (d) of the definition of "document" in the foregoing subsection, a transcript of the sounds or other data embodied therein;
(b) in the case of a document falling within paragraph (d) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not;
(c) in the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and
(d) in the case of a document not falling within the said paragraph (d) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not, and any reference to a copy of the material part of a document shall be construed accordingly.
Schedule 2: Procedural and other provisions applicable on order for retrial
1. On a retrial, paragraphs 1 and 2 of Schedule 2 to the Criminal Procedure and Investigations Act 1996 (use of written statements and depositions) shall not apply to any written statement or deposition read as evidence at the original trial; but a transcript of the record of the evidence given by any witness at the original trial may, with the leave of the judge, be read as evidence
(a) by agreement between the prosecution and the defence; or
(b) if the judge is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or to secure his attendance have been made without success,
and in either case may be so read without further proof, if verified in accordance with rules of court.
1A. Subject to paragraph 1 above, evidence given orally at the original trial must be given orally at the retrial.
69 Evidence from computer records
(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer;
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents; and
(c) that any relevant conditions specified in rules of court under subsection (2) below are satisfied.
(2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required.
71 Microfilm copies
In any proceedings the contents of a document may (whether or not the document is still in existence) be proved by the production of an enlargement of a microfilm copy of that document or of the material part of it, authenticated in such manner as the court may approve.
Where the proceedings concerned are proceedings before a magistrates court inquiring into an offence as examining justices this section shall have effect with the omission of the words "authenticated in such manner as the court may approve".
72 Part VII supplementary
(1) In this Part of this Act
"copy" and "statement" have the same meanings as in Part I of the Civil Evidence Act 1968;
(2) Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.
76 Confessions
(1) In any proceedings a confession made by an accused person may be given in evidence against him 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 the prosecution 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 against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
(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) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an accused person.
(8) In this section "oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
(9) Where the proceedings mentioned in subsection (1) above are proceedings before a magistrates court inquiring into an offence as examining justices this section shall have effect with the omission of
(a) in subsection (1) the words "and is not excluded by the court in pursuance of this section", and
(b) subsections (2) to (6) and (8).
78 Exclusion of unfair evidence
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, 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.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
(3) This section shall not apply in the case of proceedings before a magistrates court inquiring into an offence as examining justices.
118 General interpretation
(1) In this Act
"document" has the same meaning as in Part I of the Civil Evidence Act 1968;
8. In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above, a certificate
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) dealing with any of the matters mentioned in subsection (1) of section 69 above; and
(d) purporting to be signed by a person occupying a responsible position in relation to the operation of the computer,
shall be evidence of anything stated in it; and for the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given of anything of which evidence could be given by a certificate under that paragraph; but the preceding provisions of this paragraph shall not apply where the court is a magistrates court inquiring into an offence as examining justices.
10. Any person who in a certificate tendered under paragraph 8 above in a magistrates court, the Crown Court or the Court of Appeal makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable
(a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;
(b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum (as defined in section 74 of the Criminal Justice Act 1982) or to both.
11. In estimating the weight, if any, to be attached to a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular
(a) to the question whether or not the information which the information contained in the statement reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied to it, contemporaneously with the occurrence or existence of the facts dealt with in that information; and
(b) to the question whether or not any person concerned with the supply of information to that computer, or with the operation of that computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent the facts.
12. For the purposes of paragraph 11 above information shall be taken to be supplied to a computer whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment.
14. For the purpose of deciding whether or not a statement is so admissible the court may draw any reasonable inference
(a) from the circumstances in which the statement was made or otherwise came into being; or
(b) from any other circumstances, including the form and contents of the document in which the statement is contained.
15. Provision may be made by rules of court for supplementing the provisions of section 68 or 69 above or this Schedule.
23 First-hand hearsay
(1) Subject
(a) to subsection (4) below;
(b) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1968 (evidence given orally at original trial to be given orally at retrial); and
(c) to section 69 of the Police and Criminal Evidence Act 1984 (evidence from computer records),
a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if
(i) the requirements of one of the paragraphs of subsection (2) below are satisfied; or
(ii) the requirements of subsection (3) below are satisfied.
(2) The requirements mentioned in subsection (1)(i) above are
(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;
(b) that
(i) the person who made the statement is outside the United Kingdom; and
(ii) it is not reasonably practicable to secure his attendance; or
(c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.
(3) The requirements mentioned in subsection (1)(ii) above are
(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and
(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.
(4) Subsection (1) above does not render admissible a confession made by an accused person that would not be admissible under section 76 of the Police and Criminal Evidence Act 1984.
(5) This section shall not apply to proceedings before a magistrates court inquiring into an offence as examining justices.
24 Business etc documents
(1) Subject
(a) to subsections (3) and (4) below;
(b) to paragraph 1A of Schedule 2 to the Criminal Appeal Act 1968; and
(c) to section 69 of the Police and Criminal Evidence Act 1984,
a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied
(i) the document 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; and
(ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.
(2) Subsection (1) above applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it
(a) in the course of a trade, business, profession or other occupation; or
(b) as the holder of a paid or unpaid office.
(3) Subsection (1) above does not render admissible a confession made by an accused person that would not be admissible under section 76 of the Police and Criminal Evidence Act 1984.
(4) A statement prepared otherwise than in accordance with section 3 of the Criminal Justice (International Co-operation) Act 1990 or an order under paragraph 6 of Schedule 13 to this Act or under section 30 or 31 below for the purposes
(a) of pending or contemplated criminal proceedings; or
(b) of a criminal investigation,
shall not be admissible by virtue of subsection (1) above unless
(i) the requirements of one of the paragraphs of subsection (2) of section 23 above are satisfied; or
(ii) the requirements of subsection (3) of that section are satisfied; or
(iii)the person who made the statement cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement.
(5) This section shall not apply to proceedings before a magistrates court inquiring into an offence as examining justices.
25 Principles to be followed by court
(1) If, having regard to all the circumstances
(a) the Crown Court
(i) on a trial on indictment;
(ii) on an appeal from a magistrates court;
(iii)on the hearing of an application under section 6 of the Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates court to Crown Court); or
(iv) on the hearing of an application under paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (applications for dismissal of charges in certain cases involving children transferred from magistrates court to Crown Court); or
(b) the criminal division of the Court of Appeal; or
(c) a magistrates court on a trial of an information,
is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.
(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard
(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;
(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;
(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.
26 Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations
Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, otherwise than in accordance with section 3 of the Criminal Justice (International Co-operation) Act 1990 or an order under paragraph 6 of Schedule 13 to this Act or under section 30 or 31 below, for the purposes
(a) of pending or contemplated criminal proceedings; or
(b) of a criminal investigation,
the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard
(i) to the contents of the statement;
(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and
(iii)to any other circumstances that appear to the court to be relevant.
This section shall not apply to proceedings before a magistrates court inquiring into an offence as examining justices.
27 Proof of statements contained in documents
Where a statement contained in a document is admissible as evidence in criminal proceedings, it may be proved
(a) by the production of that document; or
(b) (whether or not that document is still in existence) by the production of a copy of that document, or of the material part of it,
authenticated in such manner as the court may approve; and it is immaterial for the purposes of this subsection how many removes there are between a copy and the original.
This section shall not apply to proceedings before a magistrates court inquiring into an offence as examining justices.
28 Documentary evidence supplementary
(1) Nothing in this Part of this Act shall prejudice
(a) the admissibility of a statement not made by a person while giving oral evidence in court which is admissible otherwise than by virtue of this Part of this Act; or
(b) any power of a court to exclude at its discretion a statement admissible by virtue of this Part of this Act.
(2) Schedule 2 to this Act shall have effect for the purpose of supplementing this Part of this Act.
Part III: Other provisions about evidence in criminal proceedings
30 Expert reports
(1) An expert report shall be admissible as evidence in criminal proceedings, whether or not the person making it attends to give oral evidence in those proceedings.
(2) If it is proposed that the person making the report shall not give oral evidence, the report shall only be admissible with the leave of the court.
(3) For the purpose of determining whether to give leave the court shall have regard
(a) to the contents of the report;
(b) to the reasons why it is proposed that the person making the report shall not give oral evidence;
(c) to any risk, having regard in particular to whether it is likely to be possible to controvert statements in the report if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and
(d) to any other circumstances that appear to the court to be relevant.
(4) An expert report, when admitted, shall be evidence of any fact or opinion of which the person making it could have given oral evidence.
(4A) Where the proceedings mentioned in subsection (1) above are proceedings before a magistrates court inquiring into an offence as examining justices this section shall have effect with the omission of
(a) in subsection (1) the words "whether or not the person making it attends to give oral evidence in those proceedings", and
(b) subsections (2) to (4).
(5) In this section "expert report" means a written report by a person dealing wholly or mainly with matters on which he is (or would if living be) qualified to give expert evidence.
31 Form of evidence and glossaries
For the purpose of helping members of juries to understand complicated issues of fact or technical terms Crown Court Rules may make provision
(a) as to the furnishing of evidence in any form, notwithstanding the existence of admissible material from which the evidence to be given in that form would be derived; and
(b) as to the furnishing of glossaries for such purposes as may be specified,
in any case where the court gives leave for, or requires, evidence or a glossary to be so furnished.
32 Evidence through television link
(1) A person other than the accused may give evidence through a live television link in proceedings to which subsection (1A) below applies if
(a) the witness is outside the United Kingdom; or
(b) the witness is a child, or is to be cross-examined following the admission under section 32A below of a video recording of testimony from him, and the offence is one to which subsection (2) below applies,
but evidence may not be so given without the leave of the court.
(1A) This subsection applies
(a) to trials on indictment, appeals to the criminal division of the Court of Appeal and hearings of references under [section 17 of the Criminal Appeal Act 1968];(1) and
(b) to proceedings in youth courts [and appeals to the Crown Court arising out of such proceedings].(2)
(2) This subsection applies
(a) to an offence which involves an assault on, or injury or a threat of injury to, a person;
(b) to an offence under section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16);
(c) to an offence under the Sexual Offences Act 1956, the Indecency with Children Act 1960, the Sexual Offences Act 1967, section 54 of the Criminal Law Act 1977 or the Protection of Children Act 1978; and
(d) to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a), (b) or (c) above.
(3) A statement made on oath by a witness outside the United Kingdom and given in evidence through a link by virtue of this section shall be treated for the purposes of section 1 of the Perjury Act 1911 as having been made in the proceedings in which it is given in evidence.
(3A) Where, in the case of any proceedings before a youth court
(a) leave is given by virtue of subsection (1)(b) above for evidence to be given through a television link; and
(b) suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which the court can (apart from this subsection) lawfully sit,
the court may sit for the purposes of the whole or any part of those proceedings at any place at which such facilities are available and which has been appointed for the purposes of this subsection by the justices acting for the petty sessions area for which the court acts.
(3B) A place appointed under subsection (3A) above may be outside the petty sessions area for which it is appointed; but it shall be deemed to be in that area for the purpose of the jurisdiction of the justices acting for that area.
[(3C) Where
(a) the court gives leave for a person to give evidence through a live television link, and
(b) the leave is given by virtue of subsection (1)(b) above,
then, subject to subsection (3D) below, the person concerned may not give evidence otherwise than through a live television link.
(3D) In a case falling within subsection (3C) above the court may give permission for the person to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.
(3E) Permission may be given under subsection (3D) above
(a) on an application by a party to the case, or
(b) of the courts own motion;
but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given by virtue of subsection (1)(b) above.](3)
(4) Without prejudice to the generality of any enactment conferring power to make rules to which this subsection applies, such rules may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this section.
(5) The rules to which subsection (4) above applies are
(a) Crown Court Rules; and
(b) Criminal Appeal Rules.
32A Video recordings of testimony from child witnesses
(1) This section applies in relation to the following proceedings, namely
(a) trials on indictment for any offence to which section 32(2) above applies;
(b) appeals to the criminal division of the Court of Appeal and hearings of references under [section 17 of the Criminal Appeal Act 1968](4) in respect of any such offence; and
(c) proceedings in youth courts for any such offence [and appeals to the Crown Court arising out of such proceedings].(5)
(2) In any such proceedings a video recording of an interview which
(a) is conducted between an adult and a child who is not the accused or one of the accused ("the child witness"); and
(b) relates to any matter in issue in the proceedings,
may, with the leave of the court, be given in evidence in so far as it is not excluded by the court under subsection (3) below.
(3) Where a video recording is tendered in evidence under this section, the court shall (subject to the exercise of any power of the court to exclude evidence which is otherwise admissible) give leave under subsection (2) above unless
(a) it appears that the child witness will not be available for cross-examination;
(b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or
(c) the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted;
and where the court gives such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded.
(4) In considering whether any part of a recording ought to be excluded under subsection (3) above, the court shall consider whether any prejudice to the accused, or one of the accused, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.
(5) Where a video recording is admitted under this section
(a) the child witness shall be called by the party who tendered it in evidence;
(b) that witness shall not be examined in chief on any matter which, in the opinion of the court, has been dealt with adequately in his recorded testimony.
(6) Where a video recording is given in evidence under this section, any statement made by the child witness which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony; and accordingly
(a) any such statement shall be admissible evidence of any fact of which such testimony from him would be admissible;
(b) no such statement shall be capable of corroborating any other evidence given by him;
and in estimating the weight, if any, to be attached to such a statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn (as to its accuracy or otherwise).
[(6A)Where the court gives leave under subsection (2) above the child witness shall not give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording; but this is subject to subsection (6B) below.
(6B) In a case falling within subsection (6A) above the court may give permission for the child witness to give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.
(6C) Permission may be given under subsection (6B) above
(a) on an application by a party to the case, or
(b) of the courts own motion;
but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given under subsection (2) above.
(6D) For the purposes of subsections (6A) and (6B) above evidence is relevant evidence if
(a) it is evidence in chief on behalf of the party who tendered the video recording, and
(b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under subsection (3) above.](6)
(7) In this section "child" means a person who
(a) in the case of an offence falling within section 32(2)(a) or (b) above, is under fourteen years of age or, if he was under that age when the video recording was made, is under fifteen years of age; or
(b) in the case of an offence falling within section 32(2)(c) above, is under seventeen years of age or, if he was under that age when the video recording was made, is under eighteen years of age.
(8) Any reference in subsection (7) above to an offence falling within paragraph (a), (b) or (c) of section 32(2) above includes a reference to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within that paragraph.
(9) In this section
"statement" includes any representation of fact, whether made in words or otherwise;
"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.
(10) A magistrates court inquiring into an offence as examining justices under section 6 of the Magistrates Courts Act 1980 may consider any video recording as respects which leave under subsection (2) above is to be sought at the trial.
(11) Without prejudice to the generality of any enactment conferring power to make rules of court, such rules may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this section.
(12) Nothing in this section shall prejudice the admissibility of any video recording which would be admissible apart from this section.
1. Where a statement is admitted as evidence in criminal proceedings by virtue of Part II of this Act
(a) any evidence which, if the person making the statement had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
(b) evidence may, with the leave of the court, be given of any matter which, if that person had been called as a witness, 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; and
(c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
2. A statement which is given in evidence by virtue of Part II of this Act shall not be capable of corroborating evidence given by the person making it.
3. In estimating the weight, if any, to be attached to such a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
4. Without prejudice to the generality of any enactment conferring power to make them
(a) Crown Court Rules;
(b) Criminal Appeal Rules; and
(c) rules under section 144 of the Magistrates Courts Act 1980,
may make such provision as appears to the authority making any of them to be necessary or expedient for the purposes of Part II of this Act.
5. (1) In Part II of this Act
"document" means anything in which information of any description is recorded;
"copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly; and
"statement" means any representation of fact, however made.
(2) For the purposes of Part II of this Act evidence which, by reason of a defect of speech or hearing, a person called as a witness gives in writing or by signs shall be treated as given orally.
6. In Part II of this Act "confession" has the meaning assigned to it by section 82 of the Police and Criminal Evidence Act 1984.
3 Overseas evidence for use in United Kingdom
(1) Where on an application made in accordance with subsection (2) below it appears to a justice of the peace or a judge
(a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed; and
(b) that proceedings in respect of the offence have been instituted or that the offence is being investigated,
he may issue a letter ("a letter of request") requesting assistance in obtaining outside the United Kingdom such evidence as is specified in the letter for use in the proceedings or investigation.
(2) An application under subsection (1) above may be made by a prosecuting authority or, if proceedings have been instituted, by the person charged in those proceedings.
(3) A prosecuting authority which is for the time being designated for the purposes of this section by an order made by the Secretary of State by statutory instrument may itself issue a letter of request if
(a) it is satisfied as to the matters mentioned in subsection (1)(a) above; and
(b) the offence in question is being investigated or the authority has instituted proceedings in respect of it.
(4) Subject to subsection (5) below, a letter of request shall be sent to the Secretary of State for transmission either
(a) to a court or tribunal specified in the letter and exercising jurisdiction in the place where the evidence is to be obtained; or
(b) to any authority recognised by the government of the country or territory in question as the appropriate authority for receiving requests for assistance of the kind to which this section applies.
(5) In cases of urgency a letter of request may be sent direct to such a court or tribunal as is mentioned in subsection (4)(a) above.
(6) In this section "evidence" includes documents and other articles.
(7) Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (4)(b) above be used for any purpose other than that specified in the letter; and when any document or other article obtained pursuant to a letter of request is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to such an authority unless that authority indicates that the document or article need not be returned.
(8) In exercising the discretion conferred by section 25 of the Criminal Justice Act 1988 (exclusion of evidence otherwise admissible) in relation to a statement contained in evidence taken pursuant to a letter of request the court shall have regard
(a) to whether it was possible to challenge the statement by questioning the person who made it; and
(b) if proceedings have been instituted, to whether the local law allowed the parties to the proceedings to be legally represented when the evidence was being taken.
1 Admissibility of hearsay evidence
(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
(2) In this Act
(a) "hearsay" means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and
(b) references to hearsay include hearsay of whatever degree.
(3) Nothing in this Act affects the admissibility of evidence admissible apart from this section.
(4) The provisions of sections 2 to 6 (safeguards and supplementary provisions relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this section, notwithstanding that it may also be admissible by virtue of this section.
5 Competence and credibility
(2) Where in civil proceedings hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness
(a) evidence which if he had been so called would be admissible for the purpose of attacking or supporting his credibility as a witness is admissible for that purpose in the proceedings; and
(b) evidence tending to prove that, whether before or after he made the statement, he made any other statement inconsistent with it is admissible for the purpose of showing that he had contradicted himself.
Provided that evidence may not be given of any matter of which, if he had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party.
1 Statements
(1) Sub-paragraph (2) applies if
(a) a written statement has been admitted in evidence in proceedings before a magistrates court inquiring into an offence as examining justices,
(b) in those proceedings a person has been committed for trial,
(c) for the purposes of section 5A of the Magistrates Courts Act 1980 the statement complied with section 5B of that Act prior to the committal for trial,
(d) the statement purports to be signed by a justice of the peace, and
(e) sub-paragraph (3) does not prevent sub-paragraph (2) applying.
(2) Where this sub-paragraph applies the statement may without further proof be read as evidence on the trial of the accused, whether for the offence for which he was committed for trial or for any other offence arising out of the same transaction or set of circumstances.
(3) Sub-paragraph (2) does not apply if
(a) it is proved that the statement was not signed by the justice by whom it purports to have been signed,
(b) the court of trial at its discretion orders that sub-paragraph (2) shall not apply, or
(c) a party to the proceedings objects to sub-paragraph (2) applying.
(4) If a party to the proceedings objects to sub-paragraph (2) applying the court of trial may order that the objection shall have no effect if the court considers it to be in the interests of justice so to order.
2 Depositions
(1) Sub-paragraph (2) applies if
(a) in pursuance of section 97A of the Magistrates Courts Act 1980 (summons or warrant to have evidence taken as a deposition etc) a person has had his evidence taken as a deposition for the purposes of proceedings before a magistrates court inquiring into an offence as examining justices,
(b) the deposition has been admitted in evidence in those proceedings,
(c) in those proceedings a person has been committed for trial,
(d) for the purposes of section 5A of the Magistrates Courts Act 1980 the deposition complied with section 5C of that Act prior to the committal for trial,
(e) the deposition purports to be signed by the justice before whom it purports to have been taken, and
(f) sub-paragraph (3) does not prevent sub-paragraph (2) applying.
(2) Where this sub-paragraph applies the deposition may without further proof be read as evidence on the trial of the accused, whether for the offence for which he was committed for trial or for any other offence arising out of the same transaction or set of circumstances.
(3) Sub-paragraph (2) does not apply if
(a) it is proved that the deposition was not signed by the justice by whom it purports to have been signed,
(b) the court of trial at its discretion orders that sub-paragraph (2) shall not apply, or
(c) a party to the proceedings objects to sub-paragraph (2) applying.
(4) If a party to the proceedings objects to sub-paragraph (2) applying the court of trial may order that the objection shall have no effect if the court considers it to be in the interests of justice so to order.
(1) The words in square brackets are to be replaced by the words "section 9 of the Criminal Appeal Act 1995" with effect from a day to be appointed: Criminal Appeal Act 1995, s 29(1), Sched 2, para 16.
(2) The words in square brackets are to be replaced by the words ", appeals to the Crown Court arising out of such proceedings and hearings of references under section 11 of the Criminal Appeal Act 1995 so arising" with effect from a day to be appointed: Criminal Appeal Act 1995, s 29(1), Sched 2, para 16.
(3) Inserted by the 1996 Act, s 62(1), with effect from a day to be appointed under s 62(4).
(4) The words in square brackets are to be replaced by the words "section 9 of the Criminal Appeal Act 1995" with effect from a day to be appointed: Criminal Appeal Act 1995, s 29(1), Sched 2, para 16.
(5) The words in square brackets are to be replaced by the words ", appeals to the Crown Court arising out of such proceedings and hearings of references under section 11 of the Criminal Appeal Act 1995 so arising" with effect from a day to be appointed: Criminal Appeal Act 1995, s 29(1), Sched 2, para 16.
(6) Inserted by the 1996 Act, s 62(2), with effect from a day to be appointed under s 62(4).
