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The Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988

Status:

This is the original version (as it was originally made).

PART IIDOCUMENTARY EVIDENCE IN CRIMINAL PROCEEDINGS

First-hand hearsay

3.—(1) Subject—

(a)to paragraph (4); and

(b)to paragraph 2A of Schedule 1 to the Criminal Appeal (Northern Ireland) Act 1980(1),

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 sub-paragraphs of paragraph (2) are satisfied; or

(ii)the requirements of paragraph (3) are satisfied.

(2) The requirements mentioned in paragraph (1)(i) 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 paragraph (1)(ii) 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) Paragraph (1) does not render admissible a confession made by an accused person that would not otherwise be admissible in law.

Business etc. documents

4.—(1) Subject—

(a)to paragraphs (3) and (4); and

(b)to paragraph 2A of Schedule 1 to the Criminal Appeal (Northern Ireland) Act 1980(2),

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) Paragraph (1) 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) Paragraph (1) does not render admissible a confession made by an accused person that would not otherwise be admissible in law.

(4) A statement prepared otherwise than in accordance with Article 9 or an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988(3) or under Article 10 or 11 for the purposes—

(a)of pending or contemplated criminal proceedings; or

(b)of a criminal investigation,

shall not be admissible by virtue of paragraph (1) unless—

(i)the requirements of one of the sub-paragraphs of paragraph (2) of Article 3 are satisfied; or

(ii)the requirements of paragraph (3) of that Article 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.

Principles to be followed by the court

5.—(1) If, having regard to all the circumstances—

(a)the Crown Court—

(i)on a trial on indictment; or

(ii)on the hearing of an application under Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (application for dismissal of charges of fraud transferred from magistrates' court to Crown Court); or

(b)the Court of Appeal; or

(c)the county court on an appeal from a magistrates' court; or

(d)a magistrates' court in summary proceedings within the meaning of Article 2(3) of the Magistrates' Courts (Northern Ireland) Order 1981(4),

is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 3 or 4 nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.

(2) Without prejudice to the generality of paragraph (1), 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.

Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations

6.  Where a statement which is admissible in criminal proceedings by virtue of Article 3 or 4 appears to the court to have been prepared, otherwise than in accordance with Article 9 or an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988(5) or under Article 10 or 11, 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.

Proof of statements contained in documents

7.  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 Article how many removes there are between a copy and the original.

Documentary evidence—supplementary

8.—(1) Nothing in this Part 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; or

(b)any power of a court to exclude at its discretion a statement admissible by virtue of this Part.

(2) Schedule 1 shall have effect for the purpose of supplementing this Part.

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