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Evidence: Admitting Evidence Under Sections 9 and 10 Criminal Justice Act 1967

Principle

Sections 9 and 10 Criminal Justice Act 1967 provide for evidence to be tendered by way of written statement or formal admission.

References in this guidance to a section number are to the Criminal Justice Act 1967 unless otherwise specified.

Part 27 of the Criminal Procedure Rules 2010 governs the use of sections 9 and 10.

Used properly the provisions of sections 9 and 10 have the following potential benefits:

  • witnesses can be spared the inconvenience of unnecessary attendance at court;
  • evidence can be presented simply and clearly;
  • trials can be shortened;
  • costs can be saved.

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Guidance

Section 9

In any criminal proceedings (other than committal proceedings) section 9 provides that a written statement is admissible in evidence to the same extent as oral evidence.

Section 5B Magistrates' Court Act 1980 makes similar provisions for committal proceedings.

Requirements

The use of the provision requires compliance with certain formalities set out in section 9(2):

  • the statement must be signed by the witness;
  • there must be a declaration of truthfulness;
  • the statement must be served properly on other parties; and
  • there must be no objections to the tendering of the statement in evidence.

There are further conditions in section 9(3) concerning:

  • witnesses who are under 18;
  • witnesses who cannot read;
  • provision of copies of exhibits.

It remains open to the party serving the statement to call the witness to give oral evidence instead of its being read (section 9(4)(a)). The court may of its own motion, or on application from any party to the proceedings, require the witness to attend (section 9(4)(b)).

A statement must be read aloud in court to be admissible under section 9, unless the court directs that an oral account may be given instead ( section 9(6)).

Scope

Evidence in a statement read in accordance with the provisions of section 9 is not conclusive evidence. It is evidence only to the same extent as if the maker had given orally the evidence contained in the statement. (Lister v Quaife [1982] 75 Cr App R313).

A party who has agreed a section 9 statement may therefore comment on the value or significance of the evidence in the statement.

Statements taken abroad

Statements taken in Scotland and Northern Ireland can be read in the same way as statements taken in England and Wales, provided all the provisions of section 9 have been complied with. (See section 46(1) Criminal Justice Act 1972).

Section 9 does not apply to witness statements taken outside the United Kingdom, but the defence could be invited to admit the contents of such statements in accordance with section 10.

Editing statements

All editing of witness statements should be carried out in accordance with Consolidated Criminal Practice Direction Part III.24. It should always be done by a Crown Prosecutor, not by a police officer.

The Practice Direction envisages two types of statements:

  • composite statements which combine two or more earlier statements from a witness;
  • single statements.

If a composite statement is prepared, make sure that it complies with the provisions of section 9 and that it is signed afresh by the witness. The prosecutor must disclose to the defence, as unused material, copies of the statements combined in the composite statement, unless there are grounds for withholding disclosure. Refer to the Disclosure Manual for further guidance.

The prosecutor can edit the evidence in a single witness statement in one of two ways:

  • by marking a copy in some way to show the passages on which the prosecution does not seek to rely;
  • by obtaining a new statement, omitting any inadmissible, prejudicial or irrelevant material.

If prosecutors edit by marking, they must mark a copy not the original. The prosecutor can deal with the relevant sections of the statement in the following ways:

  • lightly strike through;
  • bracket;
  • lightly strike through and bracket

The prosecutor should make sure that the original wording can still be read. If it is completely obliterated, the copy served on the defence/court is no longer a copy of the original statement.

Include the following words on the frontispiece or index to the bundle of statements:

"The prosecution does not propose to adduce evidence of those passages of the attached copy statements which have been struck out and/or bracketed (nor will it seek to do so at the trial unless a notice of further evidence is served)."

If prosecutors prepare a new statement they must disclose to the defence as unused material a copy of the earlier statement, unless there are grounds for withholding disclosure. Refer to the Disclosure Manual for further guidance.

Prosecutors will find guidance as to when it is preferable to obtain a fresh statement, rather than edit by marking, set out in Part III.24 of the Consolidated Practice Direction.

Section 10

Section 10 provides for proof by formal admission in criminal trials. Unlike a statement admitted under section 9, an admission under section 10 is conclusive evidence.

Requirements

An admission under section 10 made before the proceedings must be in writing; if it is made orally during the proceedings it must be written down in accordance with Part 27 Criminal Procedure Rules 2010.

Admissions under section 10 should relate to facts. Expressions of opinion, speculation and comment, should be avoided.

Scope

There is no reason why documents or other exhibits should not be referred to in admissions under section 10, provided they are clearly identified and copies are appended.

If evidence is inadmissible, an admission under section 10 will not make it admissible.

Committal proceedings

It is arguable that admissions under section 10 may be used in committal proceedings. Sections 5A(3) and 5E(1) Magistrates' Courts Act 1980 together permit the admission of documents at committal. It is submitted that an admission may be used at committal by treating it as a document within section 5E(1). A document within section 5E may be read aloud to the court or an account of it given orally so that it is a '...fact of which oral evidence may be given...' for the purposes of committal proceedings.

A section 10 admission should not be referred to in a witness statement as an exhibit.

Practical considerations

In many cases, prosecutors may be able to use the provisions of either section 9 or section 10.

Each procedure has its own value and prosecutors should decide which is the more suitable to deal with the evidence under consideration. The procedures are not mutually exclusive. In appropriate cases, both procedures may be used. Instructions to the prosecuting advocate may include a request to advise on the appropriate procedure and to draft suitable admissions.  

Statements

Statements served under the provisions of section 9 by the defence require prompt attention because of the 7 day time limit in which to object to the statement being tendered in evidence.

If time permits, the procedure under section 9 has the following advantages for prosecutors:

  • the evidence is already available in statement form, avoiding the need for potentially difficult drafting:
  • disclosure of the statement may be required even if the provisions of section 10 are used.

Prosecutors should rely on statements served under section 9 only in simple, straightforward cases, unless the evidence is of a formal nature and/or is unlikely to be disputed.

The following are examples where prosecutors should consider using the provisions of section 9:

  • formal evidence, such as the statements of plan drawers, photographers and statements providing evidence of continuity;
  • evidence of analysis in drugs cases;
  • evidence of an owner with no knowledge of the particular circumstances of the offence;
  • a doctor's statement to prove the taking of a specimen in an excess alcohol case;
  • to prove the presence of a witness at a taped recorded interview.

The oral evidence of a witness may, however, be more compelling than the reading of a statement. The prosecutor will need to balance the likely value of oral testimony against the inconvenience occasioned to the witness by attending court.

There will be cases when it will be appropriate to call a witness to give oral evidence even though the evidence is unlikely to be substantially challenged.

If the evidence of a witness is central to the issues in the case the prosecutor may decide that it is better to call that witness to give oral evidence (Lister v Quaife [1982] 75 Cr App R313).

In order to avoid witnesses having to be warned and then de-warned at short notice, the prosecutor must make decisions promptly as to whether prosecution evidence can be served under section 9. Where the evidence is unlikely to be accepted it may nevertheless be prudent to warn the witness to attend.

Witnesses for the defence are entitled to the same consideration as witnesses for the prosecution. Prosecutors should require the attendance of the witnesses only where it is fair to do so and where the interests of justice require it, for example, where the prosecution dispute the evidence contained in the defence statement.

Admissions

Magistrates and juries may sometimes find it easier to understand evidence presented to them in an agreed admission, rather than in the form of witness statements read out to them.

Admissions under section 10 are often helpful in cases such as cheque and credit card frauds. Prosecutors should also consider using them for:

  • proof of age, disqualification or that property is stolen;
  • continuity of evidence;
  • formal evidence of plan drawers and photographers;
  • proof that a witness was present at a tape recorded interview;
  • proving convictions to establish a defendant is a common prostitute;
  • proving convictions for the purpose of section 27 Theft Act 1968.

Do not use admissions under section 10 where the detailed content of a witness statement might be important. Prosecutors must make sure there is sufficient evidence before the court to enable proper sentencing. This means that full witness statements will normally be needed from victims of offences such as robbery, burglary and violence.

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