Statutory Provisions

Question 1

S. 9 Criminal Justice Act 1967

Answer 1

Rule that allows evidence of evidence to be adduced in the form of written statements, provided all parties agree that it should be admitted.

Question 2

S. 10 Criminal Justice Act 1967

Answer 2

Rule that allows formal admissions/agreed facts to be admitted (must be reduced to writing by the parties)

Question 3

S. 139 Criminal Justice Act 2003

Answer 3

The rule allows a witness to refresh their memory when giving oral evidence, provided that 3 requirements are satisfied:

1. the document which the witness seeks to use to refresh their memory must have been made or verified by the witness at an earlier time;
2. the states in his oral evidence that the document records his recollection of the matter at that earlier time; and
3. 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.

• The same rule applies to transcripts of sound recordings - i.e. he can refresh his memory using the transcript when giving evidence. BUT important to remember that a witness cannot use anything other than a document (in the strict sense) or a transcript of a sound recording (e.g. can’t look at a video to refresh memory).
• N.B. this applies to any occasion on which the witness might give evidence (i.e. examination in chief, cross-examination, re-examination)

Question 4

S. 114 Criminal Justice Act 2003

Answer 4

(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) statutory exceptions
• (b) common law exceptions preserved in s.118
• (c) agreement of the parties
• (d) interests of justice

Question 5

S. 114(1)(d) Criminal Justice Act 2003

Answer 5

This section contains the interests of justice gateway for hearsay evidence

Question 6

S. 115 Criminal Justice Act 2003

Answer 6

(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

Question 7

S. 116 Criminal Justice Act 2003

Answer 7

Gateway for admissibility of hearsay evidence where W is unavailable

First-hand hearsay statement is admissible as evidence of any matter stated if:

1. it would be admissible if it were given in oral evidence by W,
   -> E.g. excludes bad character evidence inadmissible under Part 11
2. relevant person is identified (cannot apply to anon Ws) and
3. either the relevant person:

• (a) dead
• (b) unfit to be a W b/c of bodily/mental condition
• (c) outside the UK and not reasonably practicable to secure attendance
• (d) cannot be found (despite such steps taken as reasonably practicable)
• (e) does not give evidence through fear

But not if any of these circumstances are caused by person attempting to adduce evidence

Question 8

S. 117 Criminal Justice Act 2003

Answer 8

Gateway for admissibility of hearsay evidence where evidence is contained in a business document

A statement contained in a doc is admissible if:

(1) it would be admissible as oral evidence

(2) the doc was created/received by a person in the course of their business / holding of office

(3) the person who supplied the info in the statement (relevant person) had or may reasonably be supposed to have had personal knowledge of the matter and

(4) each person (if any) between relevant person and creator of document received the info in the course of business / holding of office (basically, if the info was passed through a chain of people before reaching the person who created the doc, all of these people must have been acting in the course of their business/trade)

N.B. just because the section provides for the possibility that the maker of doc is not the same as the person who provided the info does NOT mean that s. 117 can only apply where these are separate people (there could be only one person).

Question 9

S. 118 Criminal Justice Act 2003

Answer 9

Retention of common law gateways for admissibility of hearsay evidence

These are:

• Public information
• Reputation as to character
• Reputation or family tradition
• Res gestae
• Confessions
• Admissions by agents
• Common enterprise
• Expert evidence

Question 10

S. 124 Criminal Justice Act 2003

Answer 10

Provides rules for the opposing party to introduce evidence to attack the credibility of hearsay evidence. In short: the opposing party can put into evidence anything that they could have put to W in CE in order to challenge their credibility

• Even if W’s answers to those things in CE would have been final
• Even if it tends to prove W made an inconsistent statement

Court may permit the other party to give rebutting evidence.

The section applies only if the maker of the statement does not give oral evidence in connection with the matter

Question 11

S. 98 Criminal Justice Act 2003

Answer 11

Definition of bad character

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.

Question 12

S. 100 Criminal Justice Act 2003

Answer 12

Gateways for admissibility of bad character evidence of non-Ds:

• (a) important explanatory evidence
• (b) substantial probative value in relation to a matter which: (i) is a matter in issue in the proceedings, and (ii) of substantial importance in context of case as a whole, or
• (c) all parties to the proceedings agree to the evidence being admissible.

Leave of the court required for (a) and (b)

Question 13

S. 101(1) Criminal Justice Act 2003

Answer 13

Gateways for admissibility of bad character evidence of Ds:

• (a) all parties agree to the evidence being admissible
• (b) evidence adduced by D or given in answer to a Q asked by him in CE intended to elicit it
• (c) it is important explanatory evidence
• (d) it is relevant to an important matter in issue between D and P
• (e) it has substantial probative value in relation to an important matter in issue between D and a co-D
• (f) it is evidence to correct a false impression given by D, or
• (g) D has made an attack on another person’s character

Mnemonic device:

(A) Agreement,
(B) Blurts it out,
(C) Context,
(D) Done it before
(E) `E did it
(F) False Impression
(G) Gets at the Witness

Question 14

S. 101(3) Criminal Justice Act 2003

Answer 14

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.

Question 15

S. 34 Criminal Justice and Public Order Act 1994

Answer 15

1. This section states the general rule that such inferences as appear proper may be drawn from D’s silence, if D failed to mention a fact and later seeks to rely on it in their defence, if D could have reasonably been expected to mention either (a) before charge, on being questioned under caution by investigator or (b) on being charged or officially informed that he might be prosecuted.
2. The section also contains the rule that no inferences can be drawn until A has had an opportunity to consult solicitor

Question 16

S. 35 Criminal Justice and Public Order Act 1994

Answer 16

1. Contains the rule that D must be informed (at the end of P’s evidence) of his right to give evidence on his own behalf
2. Also contains the rule that if D fails to testify (without good cause), the jury/judge can draw such inferences as appear proper
3. Finally, states that D must be told that adverse inferences can be drawn if he refuses to testify

Question 17

ss. 36 & 37 Criminal Justice and Public Order Act 1994

Answer 17

Allows for such inferences to be drawn as appears proper, if:

1. the accused is arrested;
2. a constable (not necessarily the arresting officer) reasonably believes that the object, substance or mark on the person/clothing place (s.36), or the presence of the accused at the relevant place at or about the time of the offence (s. 37), may be attributable to the accused’s participation in a crime;
3. the constable informs the accused of his belief and requests an explanation of the matter in question;
4. the constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request. (A Special warning should be given prior – C10.10 and C10.11)
5. A fails to account for the object/mark (etc) or his presence

Basically we’re talking about situations where (1) where A is found with incriminating evidence or (2) A is found at the scene of the crime and where A might be asked what’s going on outside of a formal interview involving caution (although according to the PACE codes A should really be taken to a station to be formally interviewed). Despite the informality of the situation, inferences may be drawn about A’s silence.

Question 18

s. 76 PACE

Answer 18

Contains the rules on the admissibility and the exclusion of confessions.

1. Admissible if

• (a) relevant to matter in issue and
• (b) not excluded by court

2. Must be excluded if

• (a) obtained by oppression or
• (b) anything was said or done at time likely to render it unreliable
• P must prove no oppression and not unreliable BRD if: (a) D applies to exclude it under s.76 or (b) court requires proof of its own motion

Question 19

s. 78 PACE

Answer 19

• General power to exclude evidence if admitting would have “such adverse effect on fairness of the proceedings that court ought not to admit it”
• Applies to all P evidence