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Admitting Evidence Under Sections 9 and 10 Criminal Justice Act 1967

Updated 2 August 2018|Legal Guidance

Principle

Sections 9 and 10 Criminal Justice Act 1967 (CJA) 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 CJA, unless otherwise specified.

The Criminal Procedure Rules govern the use of Sections 9 and 10 and make specific reference to written statements and admissions. The response of a party to the use of Sections 9 and 10 is subject to the general requirement in Part One of the Rules to prepare and conduct the case efficiently and expeditiously.

Used properly, the provisions of Sections 9 and 10 have the following 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

Section 9

In any criminal proceedings, Section 9 provides that a written statement is admissible in evidence to the same extent as oral evidence.

Requirements

The use of the provision requires compliance with certain formalities set out in Section 9(2) and the Criminal Procedure Rules:

  • The statement must be signed by the witness.
  • There must be a declaration of truthfulness.
  • The statement must be served properly on other parties (unless agreed before or during the hearing).
  • There must be no objections to the tendering of the statement in evidence.
  • The statement must contain the witness' age at the beginning of the document, if they are under 18.

If the witness cannot read the statement, a signed declaration by the person who read the statement to the witness must be provided.

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. R. 313).

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 the Criminal Practice Direction, which can be accessed here. It should always be done by a Crown Prosecutor, not by a police officer.

The Practice Direction envisages two types of statements:

  • Single statements.
  • Composite statements which combine two or more earlier statements from a witness.

If a composite statement is prepared, Prosecutors must 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 a way which indicates the passages on which the Prosecution does not seek to rely;
  • By obtaining a new statement, omitting any inadmissible, prejudicial or irrelevant material, applying the procedure for composite statements above.

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.

The Prosecutor should 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 the Practice Direction.

Using written statements

Service of notice

A notice must be served in accordance with Section 9(2), to give the other parties an opportunity to object to the admission of the evidence in writing.

This does not apply if a statement has been agreed before or during the hearing. In such circumstances, it should not be served again with a Section 9 notice as this may create unnecessary work and it could also result in a routine, automatic objection to a Section 9 notice. This would lead to having to warn a witness already agreed in Court.

Tendering the statement

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

It remains open to the party serving the statement to call the witness to give oral evidence, rather than it 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)).

Challenging defence refusal to agree

If the Defendant refuses to agree the statement of a witness, whose evidence you consider does not go to the issue they have identified, seek the views of the Court. The prosecutor has a duty under the Criminal Procedure Rules to inform the court at once of a failure to prepare or of conducting a case in a way that might hinder the Court in furthering the overriding objective.

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 the Criminal Procedure Rules.

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.

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.

The merits of each are detailed below 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.

S9 Statements

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. R. 313).

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.

Defence 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.

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.

S10 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 a witness statement read out to them.

Prosecutors should consider using them in a number of circumstances, including:

  • 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.
  • Cases involving fraud.
  • Proving convictions.

Prosecutors should not use Section 10 admissions 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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