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									THE GENERAL COUNCIL OF THE BAR
             AND
 THE CRIMINAL BAR ASSOCIATION




   COMMONS CONSIDERATION OF
    THE CRIMINAL JUSTICE BILL

 BAR COUNCIL BRIEFING ON THE BILL
AS AMENDED IN STANDING COMMITTEE




           MARCH 2003
                          CONTENTS

                                                          Page
                                                         Number

Contents                                                   2

Introduction                                               3

Part 5: Disclosure                                         4

Part 7: Trials on Indictment without a Jury                6

Part 10: Retrial for Serious Offences                      8

Part 11: Evidence:                                         12

           Chapter 1: Evidence of Bad Character            12

           Chapter 2: Hearsay Evidence                     17

           Chapter 3: Miscellaneous and Supplemental       21

Part 13: Miscellaneous                                     22

Annex A - Extract From The General Council Of The          24
Bar And Criminal Bar Association‘s Response To The
Criminal Justice White Paper ―Justice For All‖: Double
Jeopardy




                                   2
                                INTRODUCTION
This briefing paper sets out and explains the amendments proposed by the Bar Council
and the Criminal Bar Association to the Criminal Justice Bill as amended in Standing
Committee.

We continue to support many measures in the Bill. But we also continue to have grave
misgivings about a number of provisions which, if implemented in their present form,
will prejudice fair trials and will undermine rather than strengthen public confidence in
the criminal justice system. Our main areas of concern are:

   i)      Part 5: Disclosure. We oppose the requirement of advance defence
           disclosure of certain information about defence witnesses even if their
           evidence is not called.

   ii)     Part 7: Erosion of jury trial. These provisions represent a major departure
           from the fundamental principle that there should be jury trial for all serious
           offences. We recommend that the House remove the majority of the
           provisions of that Part.

   iii)    Part 10: Retrial for serious offences. This Part undermines the fundamental
           principle that there should be finality of verdict. Verdicts should not be
           regarded as provisional. We invite the House to remove the provisions of this
           Part.

   iv)     Part 11 Chapter 1: Evidence of the defendant‟s bad character. The
           clauses as currently drafted would allow convictions to go before a jury
           without leave of a trial judge and without them necessarily being truly
           relevant to an issue in the case. We propose a tightening of the circumstances
           in which evidence of bad character can be admitted, and for most cases a
           requirement that the leave of the court be obtained.

   v)      Part 11 Chapter 2: Hearsay evidence. We are particularly concerned that
           the Bill would allow admission of multiple oral hearsay (―A says that B says
           that C committed an offence‖). We recommend removal of that provision and
           a tightening of other elements of the Bill‘s proposals, including insertion of a
           requirement for leave of the court.

We also invite the House to make amendments to certain provisions of Part 11 Chapter
3 and Part 13

The Bar Council‘s views about the Bill as a whole are set out in greater detail in our
position paper, distributed for the Bill‘s Second Reading. An updated version is available
from the Bar Council on request.




                                             3
                              PART 5: DISCLOSURE

The Bar‟s proposals
We strongly oppose clauses 29 and 30 and recommend their removal from the Bill.

Justification

Clause 29 places an unnecessary burden on the defence which does nothing to improve
the prospect of conviction of the guilty and has a number of deeply undesirable
consequences. Witnesses will be intimidated by the procedure, which will provide a
disincentive to witnesses coming forward and increase the risk of wrongful conviction.
There is scope for police malpractice; it gives rise to a huge potential waste of police
resources, in particular where witnesses are not called; it is a fundamental attack on the
burden of proof; and it adds an extra layer of bureaucracy and forensic dispute.

Clause 30 will engender fear of instruction of experts on the part of innocent defendants,
again increasing the risk of wrongful conviction. Like clause 29, the provision
fundamentally attacks the burden of proof. There has been no consideration of legal
privilege problems, and there is the prospect of emergence of a body of ‗tame‘ experts.
Professor Zander has rightly called the provision a ‗major scandal‘.

Draft amendments

Page 19, line 21, leave out Clause 29

Page 20, line 6, leave out Clause 30

Page 20, line 20 [Clause 31], leave out `30‘ and insert `28‘.

Page 20, line 27 [Clause 31], leave out `5, 6B or 6C‘ and insert `5 or 6B‘.

Page 22, line 23 [Clause 34], leave out `three cases set out in subsections (2), (3) and (4)‘
and insert `two cases set out in subsection (2) and (3)‘.

Page 23, line 11 [Clause 34], leave out lines 11 to 16.

Page 23 [Clause 34], leave out lines 22 to 24.

Page 23, line 31 [Clause 34], leave out lines 31 to 34.


Page 24 [Clause 34], leave out line 3.

Page 301, line 32 [Schedule 27], leave out `,6C‘




                                             4
Explanatory note

The amendments to clauses 31 and 34 and Schedule 27 are consequential on the removal
of clauses 29 and 30. The small consequential change to punctuation at the end of page
24 line 2 should be effected as a printing change to the Bill.




                                          5
        PART 7: TRIALS ON INDICTMENT WITHOUT A JURY
The Bar‟s proposals

Part 7 (clauses 36 to 43) represents a significant yet unjustified departure from the
fundamental principle that all offences, above a certain level of seriousness, should be
tried by juries. We believe that the whole of Part 7 should be opposed both on grounds of
principle and for strong practical reasons.

Justification

The retention of juries for all serious offences is vital because

   -      juries are at the heart of our healthy democracy and represent public
          participation in the criminal justice system;
   -      they enjoy high public confidence – polling evidence shows over 80% back a
          role for the jury in the justice system wherever possible;
   -      they represent lay validation of verdict;
   -      they bring to a case community values and a greater collective wisdom and
          experience than can be matched by any judge;
   -      they keep the law honest and comprehensible because they oblige lawyers and
          judges to deal with what is right and wrong by the standards of the general
          public as well as by the letter of the law;
   -      juries are perceived by the public to be truly independent.

Juries protect judges from suggestions of bias. If judges are to become fact-finders in
very serious cases, then there is a substantial danger that they will be subjected to
undesirable close scrutiny by the media, which will pressurise and distort their judgement
over time. Public perception of the independence of the judiciary may be eroded as a
result, however much the judiciary strives to be independent. For instance, it is
foreseeable that judge alone acquittals of City figures will lead to grave public disquiet.

Clause 37 represents erosion of jury trial on grounds of expediency. Neither length nor
complexity constitutes a proper justification for this erosion. There is no evidence to
suggest that juries do not follow serious fraud cases. Fraud trials can be improved by
measures that do not involve dispensing with juries. We do not think the solution lies in
amending clause 37 to replace a jury with a panel of accountants as fact-finders in
complex and lengthy fraud trials. Twelve accountants would not be remotely
representative of the community. There is also a risk that they will bring to bear their
own professional views without the parties having an opportunity of cross-examination.

Clauses 38-40 allow the prosecution to apply to dispense with a jury where there is a
danger of jury tampering, yet there is no evidence that jury protection does not work.
Effective jury protection can be achieved in a less expensive and less intrusive way.
Specifically, clause 40 creates the wholly unrealistic expectation that a trial judge, who
has heard untested information on a Public Interest Immunity (―PII‖) basis regarding the



                                              6
danger of jury tampering, would be able to continue with the trial as fact-finder himself
and be able to give the defendant a fair trial. We do not consider that this can be a
credible proposition. Certain elements of clause 40 should, however, be retained. They
helpfully codify the court‘s existing powers in cases of jury tampering.

We propose consequential amendments to clause 41 (appeals) and the consequential
deletion of clauses 42 and 43 and certain Schedule provisions.

Draft amendments

Page 24, line 12, leave out Clause 36

Page 25, line 10, leave out Clause 37

Page 25, line 38, leave out Clause 38

Page 26, line 19, leave out Clause 39

Page 27, line 35 [Clause 40], leave out from `order‘ to end of line 36 and insert `for a
new trial‘.

Page 27, line 39, [Clause 40] leave out subsection (5).

Page 28, line 1, [Clause 40] leave out subsection (6).

Page 28, line 3, [Clause 40] leave out subsection (7).

Page 28, line 7, [Clause 41], leave out `or (5)‘.

Page 28, line 30, leave out Clause 42.

Page 29, line 11, leave out Clause 43.

Page 156, line 29 [Clause 279], leave out from beginning to end on line 31 and insert
`Part 5 extends also to Northern Ireland‘.

Page 302, line 29 [Schedule 27], leave out from end to end of line 14 on page 306.




                                              7
                PART 10: RETRIAL FOR SERIOUS OFFENCES
The Bar‟s proposals

The Bar Council‘s principled opposition to retrial following acquittal is well documented.
We believe the abolition of the double jeopardy rule to be objectionable on a variety of
grounds:

   -       It removes the concept of finality in the trial process;
   -       It could lead to sloppy police investigations and casual prosecutions if the
           chance of a ‗second bite of the cherry‘ were to be introduced;
   -       It could lead to the hounding of acquitted suspects by the media if it believed
           them to be guilty.

We therefore invite MPs to remove clauses 63 to 81 from the Bill. We set out below a
series of amendments to achieve that.

As a fall-back, if the provisions of Part 10 are to remain, we would wish to see improved
safeguards. The alternative set of amendments offered at the end of this section represent
the very minimum necessary.

Justification

The rule against double jeopardy states that a person may not be tried for an offence of
which he or she has previously been acquitted or convicted. The Law Commission
recognised that the rule was of ancient origin and rooted in all developed legal systems.
The reasons for it are to be found in many jurisprudential and academic writings. In
particular in a passage cited by the Commission, Mr Justice Black in a US Supreme Court
case [Green] said: ―The underlying idea ……deeply ingrained in at least the Anglo-Saxon
system of jurisprudence, is that the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an alleged offence,
thereby compelling him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity as well as enhancing the possibility
that even though innocent he may be found guilty‖.

It was the view of the Committee of Inquiry into the death of Stephen Lawrence that the
rule should be re-examined. Apart from this reference, neither the Law Commission nor
the Home Affairs Select Committee nor the Government have cited any evidence or
research which demonstrates that the rule is a significant cause of injustice i.e. that
acquitted defendants who are subsequently proved to be guilty are a feature of the current
system. There have been a very few well-publicised cases of ‗confessions‘ by acquitted
defendants, as well as the Lawrence case itself, where, even if the rule is changed, the
prospects of securing convictions may be remote.




                                            8
The case for abolishing so well established a rule has not been made out.

It is often said that a principal reason for change is that modern scientific and forensic
techniques and methods e.g. DNA analysis, means that cases can be subjected to new
methods of examination not available in previous times. It is very important to note that
the proposed reforms do not limit retrials of acquitted defendants to such cases. Fresh
evidence of any kind, fingerprints, photographs, eyewitnesses, documents, may be
sufficient provided it meets the so-called ‗threshold‘ for bringing new proceedings.
Moreover the evidence need not be ‗new‘, arising for the first time post conviction, it
may simply have been undiscovered, albeit available, during the initial investigation.

There are cogent reasons for opposing the proposed reforms. They are set out and clearly
expressed in the Bar Council and CBA‘s Response to the White Paper published in
October 2002 [page 43-44, paragraphs 6a-g] (see Annex A). Three of these are of
particular importance:


          The risk that disappointed prosecutors may wish to reinvestigate cases
           and seek a retrial in high-profile cases in which there has been media
           „campaign‟ or where the Government has an interest in the result of the
           trial. There may well be such pressure from various quarters, [the press,
           victims] that investigators will strive to „come up with something‟ to
           justify bringing a new case.

          In modern society the individual‟s requirement for protection from the
           state is greater than ever and the possibility of abuse of power is no less
           than it was. The Commission‟s view [an „arguable‟ contention (sic)] that
           only the guilty need fear prosecution is, at the very least, naïve and
           discounts both the possibility of improper motives and mistake on the
           part of investigators and others i.e. the acquitted defendant is innocent
           but wrongly believed to be guilty.

          It is very likely that the retrial will be unfair. The Commission
           acknowledged this risk. In any case it is difficult to see how it would be
           kept from the new jury. Once a jury learns it is a retrial sanctioned by
           the High Court, they may find that a clear indicator of guilt.

The proposed safeguards are insufficient. The requirement that the first investigation was
carried out with due diligence will be relatively easy to satisfy. It is probable that except
in cases of gross negligence the court will sanction a new prosecution. Human error and
oversight is unlikely to be a bar. The ‗public interest‘ argument will also be easily met if
it is thought there is a compelling case particularly in the ‗high-profile‘ type case.

It is suggested by the proponents of reform, including the Director of Public
Prosecutions, that only a handful of cases each year will be affected by these changes.
There is no means of forecasting the impact of the abolition of the rule, nor any means of


                                             9
limiting the number of cases in which a retrial is sought. There is thus the real danger
that acquittals will be regarded as „provisional‟ pending any reinvestigation and
retrial.

So far as the European Convention on Human Rights is concerned, although Article 4,
Protocol 7 permits a new evidence exception, only Finland has such a provision.

We consider that the abolition of this long–established and salutary rule of law risks
undermining the validity and finality of verdicts and thus a vital element in the criminal
justice system.

Draft amendments: removal of clauses 63-81

Page 41, line 6, leave out Clause 63

Page 42, line 2, leave out Clause 64

Page 42, line 20, leave out Clause 65

Page 42, line 35, leave out Clause 66

Page 43, line 15, leave out Clause 67

Page 43, line 36, leave out Clause 68

Page 44, line 14, leave out Clause 69

Page 44, line 31, leave out Clause 70

Page 45, line 26, leave out Clause 71

Page 46, line 15, leave out Clause 72

Page 47, line 5, leave out Clause 73

Page 48, line 4, leave out Clause 74

Page 48, line 34, leave out Clause 75

Page 49, line 16, leave out Clause 76

Page 50, line 10, leave out Clause 77

Page 51, line 7, leave out Clause 78

Page 51, line 35, leave out Clause 79



                                            10
Page 52, line 3, leave out Clause 80

Page 52, line 11, leave out Clause 81

Page 156 [Clause 279], leave out line 17.

Page 188, line 1, leave out Schedule 4.


Draft amendments: improved safeguards

Page 42, line 38 [Clause 66], after `to' insert `, and could not with reasonable diligence
        have been discovered by,'.

Page 43, line 24 [Clause 67], leave out from `sooner' to `but' in line 25.

Page 48, line 35 [Clause 75], leave out `justice of the peace' and insert `High Court
        judge'.

Page 48, line 38 [Clause 75], leave out `justice' and insert `judge'.




                                              11
                                PART 11: EVIDENCE
CHAPTER 1: EVIDENCE OF BAD CHARACTER

The Bar‟s proposals

The Bar Council has consistently argued against the blanket disclosure of previous
convictions. It has called for a robust but fair regime in which a defendant‘s previous
misconduct will be admissible with the leave of the trial judge if it is truly relevant to an
issue in the trial, but will not be admissible if irrelevant to any issue in the trial.

We propose amendments which:

   -       Subject most categories of evidence of a defendant‘s bad character to a
           requirement of prior leave and a threshold test of relevance to an issue in the
           proceedings;

   -       ensure that the application for leave is governed by the same overarching
           fairness test as the Bill already provides (by Clause 85(3)) for an application
           to exclude;

   -       remove the proposed ―offence of same description/in same category‖ gateway
           for evidence of bad character (Clause 85(1)(d));

   -       improve the Bill‘s provisions about evidence to correct a false impression
           (Clause 90), in particular by (partial) substitution of a test based on the Law
           Commission‘s proposals.

We welcome the amendments to Chapter 1 tabled by Mr. David Kidney MP. But we are
concerned that those would fail to eliminate some of the Bill‘s potential for unfairness.
The substance of Mr. Kidney‘s proposals, and of ours, relates to Clause 85.
Unfortunately, those changes require numerous consequentials in subsequent clauses, and
it has therefore been necessary to prepare a number of amendments which are very
similar, but not quite identical, to those tabled by Mr. Kidney.

Justification

The Bar welcomes the Government‘s desire, through the Bill, to revise and codify the law
to provide a clear framework for the admissibility of all evidence of bad character. Our
proposals, which are designed to contribute to that process, are founded on concern that
wide disclosure without adequate safeguards would:

   -       Prejudice the trial process by switching the focus from the evidence relevant
           to the offence charged to evidence about the defendant‘s previous misconduct,




                                              12
           and by diluting the prosecution burden of proof of conviction beyond all
           reasonable doubt;

   -       Lead to a ‗round up the usual suspects culture‘ when it comes to bringing
           those accused to trial;

   -       Reduce the pressure on the police to gather evidence relevant to the offence
           being tried.

Clause 85(1) creates a wide range of gateways through which evidence of a defendant‘s
bad character may infect a trial. The clause appears to be intended to permit the
admission of evidence of a defendant‘s bad character even though it may have no
relevance to any issue in the case. That is a serious defect in the Bill, which we seek to
correct by adding a threshold test of relevance to a matter in issue.

That defect is compounded by the limited nature of discretion provided by Clause 85(3),
which is exclusionary rather than inclusionary, and does not apply at all where the
evidence is to correct the false impression given by the defendant (Clause 85(1)(c) and
(g)). With regard to the admissibility of evidence of a defendant‘s bad character outside
the central facts (which could arise in relation to any of the categories of evidence
defined in Clause 85(1)(a)-(h)), there are overwhelming arguments for an amendment to
provide that the prosecution must secure the leave of the court before the evidence can be
admitted. The role of an independent judge in deciding whether this sensitive material
should be admitted is vital in maintaining the reality and appearance of fairness. An
overall requirement of leave was included in Clause 2 of the Law Commission‘s draft
Bill. The Government has offered no justification for rejecting that recommendation.

We accept that a more relaxed approach can be taken where all parties to the proceedings
agree to the evidence being admissible or where it is adduced or elicited by the defence;
there is then no need for further judicial intervention on the question of admissibility.
Likewise where the evidence is adduced between co-accused, in which case a prior leave
requirement might hamper one of the co-accused in making out a defence; an
exclusionary discretion is preferable and sufficient.

As regards the proposed gateways for evidence of bad character:

   -       Inclusion of the ―offence of the same description, or of the same category‖
           provision (Clause 85(1)(d)) as a free-standing gateway is highly objectionable.
           If evidence of a previous similar conviction is to be admitted at all, it should
           have to satisfy the threshold test of relevance to an issue and one of the
           specific tests, typically the test of importance of the issue to which the
           evidence is said to relate (Clause 85(1)(e)). We therefore propose removal of
           Clause 85(1)(d) (with the consequential removal of Clause 87). Our proposal
           differs from Mr. Kidney‘s in this respect.




                                            13
   -       Clause 85(1)(f) is too restrictive and risks hampering a co-accused from
           making out a defence. This is another respect in which our proposal differs
           from Mr. Kidney‘s.

Clause 88 contemplates that propensity alone can justify the admission of prosecution
evidence of a defendant‘s bad character. That is highly objectionable. The Law
Commission made no such recommendation. The test must be one of relevance and it
must be rigorously applied – not least because otherwise, police will undoubtedly focus
investigations on suspects with previous convictions. The real culprit, not investigated, is
thereby liable to escape. We propose deletion of Clause 88.

Clause 90(2)(b) is objectionable and should be removed. Consideration must be given to
the potential unfairness of draconian consequences for a suspect under investigation,
whether represented or not, who may give a false or misleading impression in the heat of
the moment. To render evidence of previous misconduct admissible in these
circumstances, stemming from comments and/or statements made, outside the trial
context, is an extreme and unjust measure. The test we propose to govern admission of
evidence under Clause 90 is based on clause 10(2)-(4) of the Law Commission‘s draft
Bill. It incorporates the elements of test in Clause 90(6), which on its own would be an
inadequate safeguard.

Clause 94 underlines the fact that neither the Bill nor its Explanatory Notes confronts the
question of the form in which bad character evidence is to be served nor, indeed, how the
court can best regulate this body of information and evidence during the trial. Clear
guidance is required. We do not propose an amendment at this stage, but emphasise that
the clearest and most comprehensive framework for judicial direction/comment will have
to be available at the time these provisions come into force.

Clause 96 produces imbalance by enabling obligations, and sanctions, to be imposed on a
co-defendant but not the prosecution. We propose amendments to redress the balance.

Draft amendments to Part 11 Chapter 1

Page 54, line 13, [Clause 85], after `admissible‘ insert `without leave of the court‘.

Page 54 [Clause 85], leave out lines 15 to 27 and insert `or
                  (b) it is relevant to a matter in issue between the defendant and a co-
                       defendant.

             (1A) In criminal proceedings evidence of the defendant‘s bad character is
                  admissible with leave of the court if, but only if, it is relevant to a
                  matter in issue in the proceedings and—

                       (a) 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,



                                             14
                       (b) it is important explanatory evidence,
                       (c) it has substantial probative value in relation to an matter in
                           issue between the defendant and the prosecution,
                       (d) it is evidence to correct a false impression given by the
                           defendant, or
                       (e) the defendant has made an attack on another person‘s
                           character.

Page 54, line 29 [Clause 85], leave out `(d), (e) or (h)‘ and insert `(b) or (1A)(b), (c), (d)
or (e)‘.

Page 54, line 29 [Clause 85], at end insert `application for leave to admit it, or an‘.

Page 54, line 33 [Clause 85], after `to‘ insert `admit evidence under subsection (1A) or
to‘.

Page 55, line 1, leave out Clause 87

Page 55, line 13 [Clause 88], leave out subsection (1).

Page 55, line 22 [Clause 88], leave out `(1)(e)‘ and insert `(1A)(c)‘.

Page 55, line 34 [Clause 90], leave out `(1)(g)‘ and insert `(1A)(d)‘.

Page 55, line 43 [Clause 90], leave out paragraph (b).

Page 56, line 21 [Clause 90], leave out `(1)(g)‘ and insert `(1A)(d)‘.

Page 56, line 23 [Clause 90], leave out from `section‘ to end of line 40 and insert
`(1A)(d) only if the following two conditions are met.‘.

Page 56, line 23 [Clause 90], at end insert—

       `(6A) The first condition is that the evidence is of substantial probative value in
             correcting the false impression and goes no further than is necessary to
             correct it.

       (6B)    The second condition is that the court is satisfied—

               (a)     that the admission of the evidence carries no risk of prejudice to
                       the defendant, or
               (b)     that taking account of the risk of prejudice, the admission of the
                       evidence would nevertheless be fair, having regard (among other
                       things) to—
                       (i)     how much probative value the evidence has in correcting
                               the false impression;



                                              15
                       (ii)    what other evidence has been, or can be, given to correct
                               that impression;
                       (iii)   how important it is, in the context of the case as a whole,
                               for that impression to be corrected.‘

Page 56, line 25 [Clause 91], leave out `(1)(h)‘ and insert `(1A)(e)‘.

Page 56, line 43 [Clause 91], leave out `(1)(h)‘ and insert `(1A)(e)‘.

Page 57, line 3 [Clause 92], leave out from `under‘ to `and‘ in line 4 and insert `under
paragraph (b) of section 85(1) or any of paragraphs (b) to (e) of section 85(1A)‘.

Page 57, line 25 [Clause 92], leave out from `under‘ to `and‘ in line 26 and insert `under
paragraph (b) of section 85(1) or any of paragraphs (b) to (e) of section 85(1A)‘.

Page 58, line 27 [Clause 96], at end insert—

       `(1A) The rules may require the prosecution, where it proposes to seek the
             admission of evidence to which this Chapter applies, to serve on the
             defence such notice, and such particulars of or relating to the evidence, as
             may be prescribed.

       (1B)    The rules may provide that the court or the defence may, in such
               circumstances as may be prescribed, dispense with a requirement imposed
               by virtue of subsection (2).‘

Page 58, line 39 [Clause 96], after `by‘ insert `the prosecution to comply with a
      requirement imposed by virtue of subsection (1A) and not dispensed with by
      virtue of subsection (1B), or‘.

Page 154, line 18 [Clause 272], leave out line 18.

We recommend support for amendments nos. 34, 36, 41, 42 and 50 in the name of David
Kidney as well as his proposal to transfer Clause 89 to end of line 38 on page 54.




                                             16
CHAPTER 2: HEARSAY EVIDENCE

The Bar‟s position

The attempt to codify the complex rules of hearsay evidence in criminal proceedings is
welcomed, but there are many provisions in this part of the Bill which would produce
injustice.

The general effect of our proposed amendments is to:

   -       prevent the admission of multiple oral hearsay by amending Clause 106(1)
           and removing Clause 106(3);

   -       revise Clause 99(1) and (2) to ensure that hearsay evidence made generally
           admissible by a provision of Chapter 2 or of other legislation is admitted only
           where the court is satisfied that, despite the difficulty inherent in challenging
           the evidence, its admission would not be unjust;

   -       ensure, by an addition to Clause 99(2), that the admission of the evidence
           would not produce a conviction based substantially on hearsay;

   -       clarify the range of circumstances in which hearsay evidence may be
           admissible, in particular by refining the definition of ―fear‖ in Clause 101(3),
           making clear that Clause 106(2) applies absent multiple hearsay, and
           removing one of the cases in which the previous statement of a witness is
           admissible as evidence (Clause 105(4) to (8)) (but we seek to preserve an
           existing rule to similar but more acceptable effect by adding it to the rules
           listed in Clause 103(1)).

Justification

The Criminal Justice Bill rationalises the old common law, restates the statutory
provisions of Sections 23-26 of the Criminal Justice Act 1988, extends the law on
previous inconsistent and inconsistent statements and adds a great deal more, notably
making recent complaints admissible as the truth of the facts stated in them.

But there are many provisions in this part of the Bill which are unjust or inconsistent. It
should be remembered that there are weaknesses in using hearsay evidence. It is not the
best evidence. Direct, oral evidence is better. Hearsay may be inaccurate or mistaken or
manufactured. It is difficult to challenge, sometimes difficult to assess. It is not tested on
oath. It will always be second best. Therefore it should only be admitted in criminal
proceedings where it is just to let it in.

For Clause 99, we argue that a firmer exclusionary rule would be better. It would keep
out hearsay unless allowed strictly in the interests of justice.




                                              17
In Clause 99(1)(a), coupled with Clauses 101 and 102, ―the interests of justice test‖ has
wrongly been dispensed with in favour of a new general test to exclude hearsay evidence,
the ―waste of time test‖ (Clause 111(1)). A quality of evidence test would be more just.

Clause 99(1)(d) provides the trial judge with a very wide catch all discretion to admit
hearsay evidence. This is undoubtedly a weakness in the Bill. The discretion is too wide
and it fits uncomfortably with the preceding specific provisions. Why have specific
provisions if they can be circumvented by the use of the judge‘s discretion? Conversely,
why enact (by Clause 99(2)) a set of carefully framed criteria based on the quality of the
evidence if they are only relevant to the residual discretionary category of hearsay created
by Clause 99(1)(d)? We think the fair and logical course is to ensure that those criteria,
together with the ―interests of justice‖ test proposed by Clause 99(1)(d), apply to the
admission of every category of hearsay, unless the parties agree to the admission of
evidence.

There are circumstances in which use of hearsay evidence would infringe Articles 6(1)
and 6(3)(d) of the European Convention of Human Rights, provisions which guarantee
the right to examine witnesses called against an accused. Cases such as Unterpertinger v
Austria (1986) 13 EHRR 175, Kostowski v Netherlands (1989) 12 EHRR 434 and Saidi v
France (1993) 17 EHRR 251 illustrate the reluctance of the Strasbourg Court to
recognise the legitimacy of convictions obtained wholly or substantially through the use
of evidence which the defendant was unable effectively to test. We propose an
amendment to Clause 99(2) to ensure that the provisions are operated compatibly with
the Convention

Clause 101(3), on witnesses not giving evidence ―through fear‖, is much wider than the
former provisions. ―Fear‖ is defined unnecessarily widely and includes fear of ―financial
loss‖. Since ―fear‖ is usually proved indirectly, by police hearsay evidence (a problem
we seek to address by amendment to Clause 106(2)), it should be given a strict, narrow
meaning, before evidence can be given. The reluctant witness must truly be in fear.

Clause 104 provides for the use of previous inconsistent statements of a witness not
merely in cross-examination as to the credibility of that witness but as evidence that
might prove guilt. In Clause 105 a victim‘s recent complaint (not just in cases of sexual
offences as at present) can be admitted so long as the victim gives oral evidence first.
These provisions are too wide (particularly so in the case of Clause 105 which expressly
provides, by subsection (8), that the evidence is admissible even if leading questions are
asked). Child evidence comes quickly to mind. Even more curiously, if previous
inconsistent or consistent statements are admitted in evidence, the jury cannot retire with
them, unless the court considers it appropriate or all parties agree (Clause 107). Some
evidence appears in this Chapter to be more equal than others.

We therefore urge Members to accept that Clause 104 is objectionable in principle. As
regards evidence of complaints the present common law rule (which allows admission of
evidence of a recent complaint of a sexual offence) strikes the right balance and should
be preserved in place of the provisions of Clause 105(4) to (8).



                                            18
Clause 111 provides the ―Court‘s general discretion to exclude evidence‖ for this Chapter
of the Bill. This Clause is of great significance because, at present, it is the principal
protection for the accused against abuse. But the test provided is a peculiar test. It is
based on an unusual concept in the criminal law, namely that the evidence should be
excluded if its admission would ―result in undue waste of time‖.

A better test would be addressed to the quality of the evidence. If the quality is poor
there would be inevitably a waste of time. If the quality is not poor, does the judge have
a residual discretion to exclude good quality evidence on the basis that its admission
would be a waste of time despite its good quality? To what extent is a ―waste of time‖ an
―undue waste of time‖ as the Bill requires? Is a waste of time the same as a waste of
money? Whose time is being wasted? The test of a waste of time appears therefore to be
not a quality of evidence test nor an interests of justice test, but a time and money test
which is not appropriate in cases involving the liberty of the suspect.

Those are good reasons for providing fair and efficient safeguards in the shape of our
proposed amendments to Clause 99. We also propose a specific amendment to clause
110 to ensure that the ―waste of time‖ test does not hamper the accused in making out a
defence.

Draft amendments to Part 11 Chapter 2

Page 60, line 6 [Clause 99], leave out `admissible‘ and insert `not to be admitted‘.

Page 60, line 6 [Clause 99], leave out `if, but only if‘ and insert `unless‘.

Page 60, line 9 [Clause 99], at end insert `or‘.

Page 60, line 10 [Clause 99] leave out from `admissible‘ to end of line 13 and insert `,
       and the court is satisfied that, despite the difficulties there may be in challenging
       the statement, it would not be contrary to the interests of justice for it to be
       admitted‘.

Page 60, line 15 [Clause 99], leave out `(d)‘ and insert `(a) or (b)‘.

Page 60, line 31 [Clause 99], at end insert `;
       and the court shall in no event admit such a statement if of the opinion that, if the
       statement were admitted, any conviction of the defendant would as a result be
       based wholly or substantially on statements not made in oral evidence in the
       proceedings‘.

Page 61, line 26 [Clause 101], leave out `or of financial loss‘.

Page 64, line 25 [Clause 103], at end insert—




                                              19
               `Recent complaint

               9       Any rule of law under which in criminal proceedings for an
                       offence of a sexual nature, evidence of a recent complaint is
                       admissible as evidence of the facts complained of.‘

Page 64, line 29, leave out Clause 104

Page 65, line 14 [Clause 105], leave out subsections (4) to (8).

Page 65, line 44 [Clause 106], leave out from `deceased)‖‘ to end and insert `only a
       statement by a person to whom the original statement was made is capable of
       admission in criminal proceedings as evidence of a matter stated in the original
       statement (so that a statement by B, but not A, may be admitted as evidence of the
       fact that C shot the deceased).‘

Page 66, line 1 [Clause 106], after `statement‘ insert `not made in oral evidence in the
       proceedings‘.

Page 66, line 7 [Clause 106], leave out subsection (3).

Page 66, line 15 [Clause 107], leave out ‗104 or‘.

Page 66, line 23 [Clause 108], leave out ‗,104‘.

Page 68, line 23 [Clause 111], at end insert `(and, where the statement is tendered by the
       defence, of the impact of its exclusion on the fairness of the trial)‘.

Page 71, line 6 [Clause 116], leave out from `unavailable)‘ to end of line 10.

Consequential amendments to Schedule 6 (hearsay evidence: armed forces)

Page 194, line 17 [Schedule 6], leave out leave out from `unavailable)‘ to end of line 21

Page 194, line 29 [Schedule 6], leave out leave out from `unavailable)‘ to end of line 33

Page 194, line 41 [Schedule 6], leave out leave out from `unavailable)‘ to end of line 45.




                                            20
CHAPTER 3: MISCELLANEOUS AND SUPPLEMENTAL

Clause 124 (use of documents to refresh memory): the Bar‟s proposals and
justification

A person giving oral evidence in criminal proceedings should be allowed to refresh his
memory if the judge is satisfied he had a sufficiently good recollection at the time the
statement was made.

Otherwise, if this clause were to become law, a witness could simply read out matters
probably inserted in a statement in response to leading questions at time when his
memory was poor.

The amendments provide this protection.

Draft amendments to Part 11 Chapter 3

Page 75, line 7 [Clause 124], after `been' insert `substantially reliable at that time and'.

Page 75, line 14 [Clause 124], leave out from `been' to `than' in line 15 and insert
`substantially reliable at the time of the previous account, and significantly better at that
time'.




                                              21
                          PART 13: MISCELLANEOUS

Clause 265 and Schedule 25 (juries): Bar‟s proposals and justification

The Juries Act 1974 currently makes a wide range of persons automatically ineligible for
jury service. Those include holders of offices connected with the administration of
justice.

The Bill entirely removes those categories of ineligibility. The Bar Council welcomes
that change: we have long been on record as wanting to see the end of the middle class
opt-out from jury service. For juries to be effective and representative, they must be
drawn from Society at large and at random. It is, perhaps, ironic that the Bill seeks on the
one hand to ―enforce‖ jury service, while on the other to cut out the jury from the trial
process in a number of instances (Part 7).

There remains a risk, though, that particular individuals closely connected with the
administration of justice - for example, a serving police officer or a retired judge - will
skew the judgment of a jury because other jurors will tend to defer to that person‘s views.
These amendments meet that risk by enabling the appropriate officer to make a judgment
according to stated criteria. The proposed insertion of a new subsection 9(3A) in the
1974 Act ensures that a person who wishes to challenge the appropriate officer‘s decision
(either way) can have the issue resolved by the Crown Court. It would also enable the
appropriate officer to obtain the Court‘s guidance where necessary.

Draft amendments to Part 13

Page 291, line 12 [Schedule 25], leave out `and‘.

Page 291, line 13 [Schedule 25], at end insert `; and

                       `(e)   he does not fall within subsection (4) below.‘.

Page 291, line 17 [Schedule 25], at end insert–

               `(4)    A person falls within this subsection if, in the opinion of the
                       appropriate officer–

                              (a)     that person has a close present or former connection
                                      with the administration of justice, and
                              (b)     as a result other jurors might give that person‘s
                                      views undue weight.‘.

Page 291, line 37 [Schedule 25], at end insert–

               `6A     After section 9(3) (discretionary excusal) there is inserted–



                                            22
―(3A) Crown Court rules shall provide for questions arising in
      relation to the application of section 1(1)(e) to any person
      to be resolved by the court.‖‘.




                    23
                                                                                  ANNEX A

     EXTRACT FROM THE GENERAL COUNCIL OF THE BAR AND
        CRIMINAL BAR ASSOCIATION‟S RESPONSE TO THE
       CRIMINAL JUSTICE WHITE PAPER “JUSTICE FOR ALL”
                                 DOUBLE JEOPARDY


6.      We oppose the abolition of the rule against double jeopardy:

        a.   It is a rule of constitutional importance recognised throughout the common
             law world and applied in virtually all developed legal systems;

        b.   There is a real risk of harassment from the State and press where both
             believe that the acquitted defendant should be retried;

        c.   There is a real risk that disappointed investigators, particularly in high
             profile cases, may well wish immediately to recommence investigations
             after an acquittal, particularly if there is pressure from the media, victims or
             politicians. Those with previous convictions known to the investigating
             officer would also be a target. Officers with a personal animus against an
             accused may wish to pursue him despite an acquittal;

        d.   There is a very serious risk that any new trial will be unfair. The Law
             Commission in its Consultation Paper acknowledged this at 5.49 and 5.50.
             With the Government‘s proposals, any tribunal trying the defendant would
             know that the case had already been to the Court of Appeal and that the
             Court of Appeal was satisfied that there was ―new and compelling
             evidence‖. This is likely to be used in high profile cases and will run the
             risk that a fair, subsequent trial will be impossible;

        e.   In any event the Prosecution will have precise knowledge of the defendant‘s
             case and be able to review and strengthen its own case in the light of that
             knowledge;

        f.   Whilst the Government proposes that fresh evidence should only be taken
             account of where it ―could not reasonably have been available for the first
             trial‖, it is our view that such situations are likely to be commonplace
             because of inadequate investigation in the first place. It is likely that
             prosecutors will be able to satisfy the Court of Appeal that there was ―no
             reason‖ to suspect that that particular witness could give material evidence.

        g.   Abolition of the rule against double jeopardy is liable to encourage
             unreasonable expectations in victims, create media campaigns and rob the
             process of finality.


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