Admitting Evidence under Sections 9 And 10 Criminal Justice Act 1967
Updated 28/03/08
Principle
Witnesses, whether for the prosecution or for the defence, should not be required to attend court unless it is unavoidable. Their evidence should be presented at court in a form which is most easily understood.
Used properly the provisions of Sections 9 and 10 Criminal Justice Act 1967 have the following benefits:
- witnesses can be spared inconvenience;
- evidence can be presented more clearly;
- trials can be shortened;
- costs can be saved;
- the criminal justice system as a whole can run more effectively.
Guidance
Section 9 Criminal Justice Act 1967 (The Act) (Archbold, 10-50)
Section 9 of the Act provides that if the conditions in that section are satisfied, a written statement can be admissible in evidence in the same way as oral evidence.
The use of statements under Section 9 of the Act in the magistrates court is governed by Rule 70 of the Magistrates' Courts Rules 1981 (Stones Justices Manual 1-6013).
Even where a statement has been served under Section 9 of the Act and all the conditions are satisfied, it remains open to the parties serving the statement to call a witness to give oral evidence. The court may of its own motion, or on application from any party to the proceedings, require the witness to attend.
A statement admissible under Section 9 of the Act must be read aloud in court, unless the justices direct that an oral account may be given instead.
Whilst proper use of the Act has considerable benefits you should be selective in the use of the procedure.
There will be cases when it will be in the interests of justice to call a witness to give oral evidence even though the evidence is unlikely to be substantially challenged. The oral evidence of a witness may be more compelling than the reading of a statement. You will need to balance the likely value of oral testimony against the inconvenience occasioned to the witness by attending court.
If the evidence of a witness is central to the issues in the case you may decide that it is better to call that witness to give oral evidence (Lister v Quaife [1982] 75 Cr App R313).
Evidence in a statement read in accordance with the provisions of Section 9 of the Act is not conclusive evidence. It is evidence in the case just as if, and only to the extent as if, the makers of the statements had already given orally given the evidence contained in their statements. (Lister v Quaife [1982] 75 Cr App R313). Comment can be made by the party who has agreed a Section 9 statement about the value or significance of the evidence in it.
Normally, you should only rely on statements under Section 9 of the Act in simple, straightforward cases, unless the evidence is of a formal nature and/or is unlikely to be disputed.
You should be realistic and should not use the provisions of Section 9 of the Act without warning the witness to attend, where the evidence is unlikely to be accepted.
You should consider using the provisions of Section 9 of the Act where the evidence is, for example:
- formal, such as the statements of plan drawers, photographers and statements providing evidence of continuity;
- of analysis in drugs cases;
- of an owner with no knowledge of the circumstances of the taking of a vehicle, to prove taking without consent;
- a doctor's statement in excess alcohol cases, to prove the taking of a specimen;
- to prove the presence of a witness at a taped recorded interview.
In order to avoid witnesses having to be warned and then de-warned at short notice, you must make decisions promptly as to whether prosecution evidence can be served under Section 9 of the Act.
Statements served under the provisions of Section 9 of the Act 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. You 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.
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 of the Act have been complied with, see Section 46(1) Criminal Justice Act 1972 (Archbold, 10-23).
Section 9 of the Act does not apply to witness statements taken outside the United Kingdom. The defence could be invited to admit the contents of such statements in accordance with Section 10 of the Act <refer to Section 10 Criminal Justice Act 1967, below in this section>.
Editing of Witness Statements
All editing of witness statements should be carried out in accordance with Practice Direction (Crime: Evidence by written statements) 1986 (Archbold 4-283). 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 of the Act and that it is signed afresh by the witness. You must disclose to the defence, as unused material, copies of the statements combined in the composite one, unless there are grounds for withholding disclosure <refer to disclosure of unused material elsewhere in this guidance>.
You 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 you edit by marking, you must mark a copy not the original. You can:
- lightly strike through;
- bracket;
- lightly strike through and bracket
the offending sections of the statement.
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 you prepare a new statement you must disclose to the defence as unused material a copy of the earlier statement, unless there are grounds for withholding disclosure <refer to disclosure of unused material, elsewhere in this guidance>.
You 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 (Archbold 4-285).
Section 10 Criminal Justice Act 1967 (Archbold 10-7)
Section 10 of the Act provides for proof by formal admission in criminal trials. Unlike a statement admitted under Section 9 of the Act, an admission under Section 10 of the Act, is conclusive evidence. An admission under Section 10 of the Act made before the proceedings must be in writing; if it is made orally during the proceedings it must be written down in accordance with Rule 71 Magistrates Courts Rules 1981. (Stones Justices Manual 1-6014).
Admissions under Section 10 of the Act must relate to facts. Expressions of opinion, speculation and comment, should be avoided.
There is no reason why documents or other exhibits, provided they are clearly identified and that copies are appended, should not be referred to in admissions under Section 10 of the Act. If evidence is inadmissible, an admission under Section 10 of the Act will not make it admissible.
Cases such as cheque and credit cards frauds are often ideally suited for admissions under Section 10 of the Act. You 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 of the Act where the detailed content of a witness statement might be important. You 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.
Committal Proceedings
Admissions under Section 10 of the Act may be used in committal proceedings as they would fall within Section 5E Magistrates Court Act 1980 <refer to Sending indictable only cases to the Crown Court and Committal Proceedings, elsewhere in this guidance>.
A Section 10 admission should not be referred to in a witness statement as an exhibit.
Relationship between Sections 9 and 10 of the Act
In many cases, you may be able to use the provisions of either Section 9 or Section 10 of the Act. If time permits the procedure under Section 9 of the Act has the following advantages:
- the evidence is already available in statement form, avoiding the need for difficult drafting:
- disclosure of the statement may still be required even if the provisions of Section 10 of the Act are used.
On the other hand, magistrates and juries may often find it easier to understand evidence presented to them in an agreed admission, rather than in the form of witness statements.
Each procedure has its own value and you 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 counsel may include a request to advise on the appropriate procedure and to draft suitable admissions <refer to Crown Court Case Preparation Manual>.