Criminal Justice Act 2003

Part 11 – Evidence

44. Chapter 1 deals with the admissibility in criminal proceedings of evidence of a person’s bad character. Under the law as it currently stands, there is an exclusionary rule which prevents the prosecution generally from producing evidence in a trial of a defendant’s previous misconduct. This includes the fact that they have previously been convicted of an offence and any other evidence that might show a disposition in that person to break the law or act in particular way. This rule is an exception to the general principle that all relevant evidence is admissible and is itself subject to a number of exceptions. These include the “similar fact rule”, which allows the prosecution to rely on evidence of a defendant’s previous misconduct as part of its case against him in certain circumstances. There are also statutory exceptions such as section 1(3) of the Criminal Evidence Act 1898, which allows a defendant to be asked questions about his past in cross-examination where he has claimed to be of good character or has himself attacked the character of a prosecution witness or given evidence against a co-defendant. There are, however, no comparable rules governing the introduction of a witness’s previous misconduct, which is therefore admissible provided that it is relevant.

45. This area of the law has been the subject of a comprehensive study by the Law Commission, who published a report of their conclusions and recommendations for reform in October 2001: “Evidence of Bad Character in Criminal Proceedings” (Report No. 273). It was also considered by Sir Robin Auld during his Review of the Criminal Courts, which also reported in October 2001. Both offered substantial criticism of the present rules.

46. The Government’s approach has been closely informed by both reports and was set out in the Criminal Justice White Paper “Justice for All” (Cm 5563, July 2002). The Act’s provisions are intended to provide a comprehensive set of rules for the admissibility of this sort of evidence in respect both of witnesses and defendants. Accordingly, the existing common law rules are abolished and other statute law substantially repealed.

47. Chapter 2 makes further changes to the rules of evidence by reforming the law relating to the admissibility of hearsay evidence in criminal proceedings.

48. The common law rule against the admission of hearsay evidence is generally accepted as meaning that ‘an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted’. This means that only a statement given by a witness orally in court proceedings is admissible as evidence of the facts as they represent them. The main implication of this rule is that witnesses must give oral evidence in court from first-hand knowledge, and may not repeat what other people have told them. For example:

• Written records are inadmissible evidence of the matters they contain;

• Witnesses must give oral evidence and a written statement cannot be a substitute for their personal appearance in the witness box;

• Witnesses must give evidence from first hand knowledge and may not repeat what other people have told them; and

• Previous out of court oral statements made by the witness themselves are inadmissible evidence of the matters they contain.

49. There are several exceptions to this rule, some of which are found in common law and some in statute. Both the common law rule and the way in which the exceptions operate, however, have been the subject of considerable criticism.

50. This area of the law was the subject of a Law Commission Report Evidence in Criminal Proceedings: Hearsay and Related Topics (Report No 245) in 1997, which included 50 recommendations for reform and incorporated a draft Bill. This area of law was again considered by Sir Robin Auld as part of his Review. Sir Robin Auld concluded that we should move away from the strict rule against the admission of hearsay evidence in criminal proceedings, to a more flexible position where we admit such evidence and instead trust fact-finders to assess the weight of the evidence.

51. The provisions in Chapter 2 of Part 11 are intended, so far as necessary, to codify the law relating to the admissibility of out of court statements in criminal proceedings. They aim to simplify the law and to provide greater certainty as to the circumstances when such evidence will be admitted. The main provisions (in Sections 114 and 115) remove the old common law rule against the admission of hearsay evidence and provide that such evidence will be admissible (on behalf of the prosecution and defence) provided certain safeguards are met.

52. Chapter 2 also provides the court with an additional statutory discretion to allow an out of court statement to be admitted as evidence where it would be in the interests of justice to do so. In addition, witness’s previous statements will be more widely admissible at trial (as proof of the facts contained within). Chapter 3 provides that certain witnesses in serious cases may use their video recorded statements in place of their main evidence.