Chapter 5: Miscellaneous
Section 111: Effect of admission of video recording
532.Section 111 repeals section 138(1) of the 2003 Act. The repealed subsection provides that where an eyewitness’s video recorded evidence in chief has been admitted as evidence under section 137 of that Act, the eyewitness cannot give further evidence in chief about a matter which, in the opinion of the court, is adequately covered in the recording.
Section 112: Admissibility of evidence of previous complaints
533.Section 120 of the 2003 Act provides for the admission of certain previous statements of witnesses and is part of the code on hearsay evidence set out in that Act.
534.A previous statement will be admissible as evidence of the facts contained within it as if it were oral evidence provided the witness who made it is called to give evidence in the relevant proceedings, states that he or she made the previous statement and believes it to be true, and one of the following also applies:
section 120(5) – the statement describes or identifies a person, place or thing:
section 120(6) – the statement was made when matters were fresh in the witness’s memory and he or she cannot reasonably be expected to remember the matters stated;
section 120(7) – the statement consists of a complaint by the victim of the alleged offence which satisfies various requirements including the requirement that it was made as soon as could reasonably be expected after the alleged conduct.
535.Section 112 amends section 120(7) of the 2003 Act so as to remove the requirement that “the complaint was made as soon as could reasonably be expected after the alleged conduct”. Provided the other criteria for admissibility set out in section 120(7) are met, such complaints will be admissible regardless of when they were made.
Section 113: Powers in respect of offenders who assist investigations and prosecutions
536.The 2005 Act creates a statutory framework to clarify and strengthen common law provisions that provide for immunity and sentence reductions for defendants who co-operate in the investigation and prosecution of others who may have committed criminal offences. Section 71 of that Act confers on a “specified prosecutor” (as defined in section 71(4)) power to grant a person immunity from prosecution. Section 72 of the 2005 Act confers on specified prosecutors power to give an undertaking that any information which a person provides will not be used against that person in any criminal proceedings, or proceedings under Part 5 of the Proceeds of Crime Act 2002 (POCA), which are brought in England and Wales or Northern Ireland. Section 73 of the 2005 Act gives specified prosecutors power to enter into a written agreement with a defendant, for the defendant to provide assistance in relation to an offence and provides for the court to take into account the assistance given or offered when determining the sentence to impose on the defendant. There is also a power in section 74 for specified prosecutors to refer a case back to the court where a defendant benefits from a sentence reduction but then reneges on the agreement to provide assistance.
537.Subsections (2) and (5) of section 113 amend section 71(1) and section 72(1) of the 2005 Act to provide that these provisions can only be used for the investigation or prosecution of serious criminal offences. While a person who assists the authorities under these powers can be offered immunity or a restricted use undertaking or sentence reduction agreement for any offence, the assistance must be in relation to the investigation or prosecution of an offence that is capable of being tried in the Crown Court (that is it is either an indictable offence or triable either way).
538.Subsection (3) amends section 71 of the 2005 Act by adding the FSA and the Secretary of State for BIS to the list of “specified prosecutors” who can use the powers set out in sections 71 to 74 of the 2005 Act.
539.Subsection (4) adds new subsections (6A) to (6C) to section 71 of the 2005 Act. New subsection (6C) provides that the power of the FSA and BIS to grant immunity from prosecution under section 71 in any case is subject to the consent of the Attorney General. This reflects the fact that the other “specified prosecutors” under the 2005 Act are superintended by the Attorney General and the Attorney General is consulted before any grant of immunity is made by a superintended prosecutor. The requirement that the FSA and BIS obtain the Attorney General’s consent before granting immunity under section 71 is aimed at putting FSA and BIS in a comparable position to the other “specified prosecutors” when granting immunity under section 71 of the 2005 Act.
540.New subsection (6A) provides that the FSA and BIS may delegate the powers in sections 71 to 74 of the 2005 Act within their respective organisations only to one prosecutor (or a nominated deputy in that person’s absence). New subsection (6B) disapplies the normal arrangements for discharging the functions of the FSA in order to ensure that these powers are delegated only in the circumstances set out in new subsection (6A).
541.Subsection (7) introduces a new section 75B which provides the Attorney General with the power to issue guidance to all the “specified prosecutors” on the use of the powers set out at sections 71 to 74 of the 2005 Act.
Section 114: Bail: assessment of risk of committing an offence causing injury
542.Section 114 amends Schedule 1 to the Bail Act 1976.
543.Subsection (2) provides that a defendant who is charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk that, if released on bail, he or she would commit an offence that would be likely to cause physical or mental injury to another person.
544.Subsection (3)(a) provides that, in deciding whether it is of the opinion that there is no such significant risk, the court must have regard to any relevant considerations in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976.
545.Subsection (3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. It provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.
Section 115: Bail decisions in murder cases to be made by a Crown Court judge
546.Section 115 provides that a person who is charged with murder (including one charged with murder and other offences – subsection (6)) may not be granted bail except by a judge of the Crown Court. The power of magistrates to consider bail in murder cases, whether at the first hearing or after a breach of an existing bail condition, is thus removed.
547.Subsection (3) provides that where a person charged with murder appears, or is brought before, a magistrates’ court, a bail decision must be made by a judge of the Crown Court as soon as reasonably practicable, and in any event within 48 hours (excluding public holidays – subsection (7)) beginning with the day after the person’s appearance in the magistrates’ court.
548.Subsection (4) provides that the person must if necessary be committed in custody to the Crown Court to enable a bail decision to be made, and subsection (5) that it is immaterial whether he or she is at the same time sent for trial or remanded following adjournment of proceedings under section 52 of the Crime and Disorder Act 1998. That section generally requires a defendant charged with an offence only triable in the Crown Court to be sent by the magistrates’ court to the Crown Court forthwith.
Section 116: Indictment of offenders
549.The need for section 116 arises from the decision of the House of Lords in R v Clarke, R v McDaid [2008] UKHL 8. Under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (the 1933 Act), a bill of indictment becomes an indictment upon which a trial on indictment may proceed only once the bill has been signed by a proper officer of the court. Where a trial proceeds without a bill of indictment having been signed, the House of Lords confirmed in these cases that those proceedings and any subsequent conviction and sentence will be invalid as signature of the bill of indictment is a necessary prerequisite to the Crown Court obtaining jurisdiction to try the case.
550.Section 116 removes from section 2 of the 1933 Act the requirement that a bill of indictment be signed by the proper officer of the court with the result that the bill becomes an indictment on being preferred (subsection (1)(a) and (b)). Subsection (1)(c) inserts into section 2 of the 1933 Act three new subsections which provide that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial proper, that is, when the jury has been sworn. (For this purpose a preparatory hearing does not mark the start of trial.)
551.Subsection (1)(d) and (2) make consequential amendments.
552.Paragraph 26 of Schedule 22 provides that, for the purposes of any proceedings before a court after the Act is passed, the amendments are deemed always to have had effect. They apply even if the proceedings (including appeals) have begun before the Act was passed.
Section 117: Detention of persons under section 41 of the Terrorism Act 2000
553.Section 117 provides powers for further scrutiny of the treatment of terrorist suspects detained under section 41 of the Terrorism Act 2000.
554.Subsections (1) to (3) amend section 36 of the Terrorism Act 2006 (review of terrorism legislation) to clarify that the independent reviewer of terrorism legislation may review and report on the treatment of persons detained under section 41 of the Terrorism Act 2000 for more than 48 hours.
555.Subections (4) to (8) amend section 51 of the Police Reform Act 2002 (independent custody visitors for places of detention).
556.Subsection (5) provides that all police authorities must, in the arrangements they make regarding visits to detainees by independent custody visitors, require independent custody visitors who visit a person detained under section 41 of the Terrorism Act 2000 (“a suspected terrorist detainee”) to prepare and submit a report on that visit; and the arrangements must also ensure that a copy of that report is sent to the independent reviewer of terrorism legislation.
557.Subsection (6) gives independent custody visitors the authority to listen to or view any audio or video recordings made of police interviews with a suspected terrorist detainee. Subsection (7) provides the police with the power to refuse, in certain circumstances, an independent custody visitor access to such recordings, whether in part or whole.
