Proving the identity of the driver Where the court is satisfied that the accused was served with a notice under section 172 of the Road Traffic Act 1988 (RTA 1988) and the court has received a statement from the accused confirming that they were the driver, the magistrates will accept that statement as proof of the identity of the driver. Where there is no such statement, either because RTA 1988, s 172 notice was not satisfactorily served in accordance with the Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909, Pt 4 or because the offence is not one to which section 172 applies, the magistrates will consider evidence such as details of the registered keeper given to police during questioning or details on the police national database. See: Creed v Scott [1976] RTR 485 (not reported by LexisNexis®) and DPP v Bayliff [2003] EWHC 539 (Admin) (not reported by LexisNexis®). Details of the driver given to the police can be proof of identity. It does not matter if a driver’s licence is produced to prove the name and address

This Practice Note looks at the admissibility of expert evidence under CPR Part 35 and the Civil Evidence Act 1972 (CEA 1972). In particular, it considers whether evidence is admissible, the courts’ approach as to whether expert evidence is ‘reasonably required to resolve the proceedings’ so as to grant permission to adduce that expert evidence under CPR 35.1 and the problems that may be caused in a split trial scenario. Note that when instructing experts, you are expected to have regard to: • all relevant CPR Rules and Practice Directions • the Guidance for the instruction of experts in civil claims (the Guidance). The Guidance replaced the 'Protocol for the Instruction of Experts to give Evidence in Civil Claims', which had been annexed to CPR PD 35, on 1 December 2014 • Practice Direction Pre-Action Conduct and Protocols, para 7 and the provisions of any specific protocol applicable to the claim (for examples, the Professional Negligence Pre-Action Protocol, para 11 and the Pre-Action Protocol for Disease and Illness claims, para 9) This Practice Note provides

Dispute Resolution analysis: Is a conviction in a foreign court acceptable in subsequent English proceedings as proof of the facts on which the conviction was based? Joel Donovan QC, barrister at Cloisters, who appeared for the claimant, considers Daley v Bakiyev.

This Practice Note considers what constitutes hearsay evidence, when it might be admissible and how to make an application to introduce hearsay evidence. Hearsay evidence is a particularly important aspect of a criminal trial as it can impact the fairness of proceedings. The Practice Note also sets out what the court should consider when deciding whether or not to allow or exclude hearsay evidence. How to identify hearsay The definition of hearsay is contained in the Criminal Justice Act 2003 (CJA 2003). The essence of hearsay evidence is that it is a second-hand account of a relevant matter. It comprises of four essential elements. There must be: • a statement • made out of court • relied on for the truth of the matter stated, and • the purpose of the maker of the statement is to cause another to believe or act on the facts stated A statement Under CJA 2003 a statement is broadly defined as any representation of fact or opinion by whatever means. This means that the representation could

Statements in business and other documents Section 117 of the Criminal Justice Act 2003 (CJA 2003) governs the admissibility of: • business records, and • documents prepared for pending or contemplated criminal proceedings or for a criminal investigation Under the statutory regime, the statement must be contained in a document or part of a document. Oral statements (or gestures) are therefore not admissible under CJA 2003, s 117. See Practice Note: Admissibility of hearsay evidence. The term 'statement' is defined in CJA 2003. It includes any representation of fact or opinion by a person. CJA 2003, expressly provides that statements contained in a document are only admissible if oral evidence about the matter would be admissible in the proceedings. Therefore if the evidence is inadmissible by other rules of evidence the evidence cannot be admitted under CJA 2003, s 117. In R v AEB, the Court of Appeal ruled that a spreadsheet provided by Apple was raw data and not hearsay evidence, as it was automatically generated by

This Practice Note deals with the common law exceptions for admitting hearsay as evidence in criminal proceedings which are expressly preserved by section 118(1) of the Criminal Justice Act 2003 (CJA 2003). Preserved categories of admissibility The law on hearsay is set out in the CJA 2003. See further Practice Note: Admissibility of hearsay evidence in criminal proceedings. Several common law exceptions to the rule against hearsay, however, are expressly preserved by CJA 2003, s 118. The common law exceptions are • public information • reputation as to character • reputation and family tradition • res gestae • confessions • admissions by agents • common enterprise • expert evidence Notice to introduce hearsay evidence admissible under one of the common law exceptions is not required under Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909, Pt 20. Public information Under CJA 2003, s 118, 'public information', is defined as: • published works dealing with matters of a public nature, eg histories, scientific works, dictionaries and maps • public documents, eg public registers

The statutory conditions Hearsay evidence may be admitted under one or more of the statutory gateways of admissibility contained in the Criminal Justice Act 2003 (CJA 2003). See Practice Note: Admissibility of hearsay evidence in criminal proceedings. One of the gateways of admissibility is 'the interests of justice' under CJA 2003, s 114(1)(d). In deciding whether or not to admit hearsay in the interests of justice, the court must have regard to the following factors: • the probative value of the statement • the other evidence in the case • how important the evidence is in the context of the case as a whole • the circumstances in which the statement was made • how reliable the maker of the statement appears to be • how reliable the evidence of the making of the statement appears to be • whether oral evidence of the matter can be given, and, if not, why not • the difficulty involved in challenging the statement • any prejudice caused to a party by the admission

This Practice Note describes the statutory conditions which must exist to admit a statement of an unavailable witness in criminal proceedings in England and Wales in accordance with section 116 of the Criminal Justice Act 2003 (CJA 2003). For general information on the admissibility of hearsay in criminal proceedings, see Practice Note: Admissibility of hearsay evidence in criminal proceedings. The statutory conditions CJA 2003, s 116 governs the admissibility of hearsay evidence in circumstances where the maker of the statement is ‘unavailable’ to give evidence. The statement of an unavailable witness is only admissible as evidence of any matter stated if the following conditions are satisfied: • the evidence would be admissible as oral evidence in the proceedings, if the witness had been available to attend court • the person who made the statement is identified to the court's satisfaction, and • the maker of the statement falls within one of the categories of unavailable witnesses. These are: ◦ that the person is dead ◦ that the person is unfit

• Is the statement 'hearsay' within the meaning of the CJA 2003? Hearsay is ◦ a statement made by a person (but not a machine), including in a sketch, photofit, or other pictorial form ◦ out of court ◦ relied on for the truth of any matter stated, and ◦ the purpose of the maker of the statement was to cause another person to believe or act, or machine to operate, on the basis that the matter stated was true • If yes, can

Admissibility of non-defendant's bad character Evidence of bad character is generally inadmissible against a person other than the accused in criminal proceedings. However, the Criminal Justice Act 2003 (CJA 2003) permits such evidence in three situations. These are where the evidence: • is important explanatory evidence • has substantial probative value or • all parties agree to the evidence being admitted The statutory provisions govern the admissibility of evidence of bad character of all witnesses, irrespective of whether they are witnesses for the prosecution or the defence or whether they give evidence or not. Section 6 of the Criminal Procedure Act 1865 (CPA 1865) allows for the cross-examination of a non-defendant in relation to their criminal history. Where the witness denies or refuses to answer any question in relation to a previous conviction, the questioning party may prove that the witness has a conviction, eg by providing a certificate of the conviction signed by a court officer. Evidence of a non-defendant's 'bad character' must satisfy the definition of 'bad character' as set out

Consent to specimens of blood and urine at the police station The police have the power to request a sample of blood or urine instead of a specimen of breath if one of the circumstances set out in Road Traffic Act 1988 (RTA 1988) exists. See Practice Note: Evidential specimens in road traffic cases. A person who fails to provide the specimen required without a reasonable excuse commits an offence. Blood Under RTA 1988 and the Road Traffic Offenders Act 1988 (RTOA 1988) a blood specimen will be disregarded unless it is taken by a medical practitioner or health care professional with the consent of the person who provided it. In Clarke v Crown Prosecution Service, the issue was raised as to whether consent had to be obtained in the presence of both a police officer and a medical practitioner. However, as the court held that consent in the presence of both had in fact taken place, the court declined to consider whether prior consent, given in

Corporate Crime analysis: The Court of Appeal has considered the admissibility of hearsay statements made by witnessed who are found to be hostile by virtue of a refusal to answer questions, rather than by their having advanced an inconsistent account in oral evidence. At first instance, the recorder had allowed the Crown to adduce the statements of the two hostile witnesses under section 119(1) of the Criminal Justice Act 2003 (CJA 2003). The court held that, as the two witnesses had simply remained silent, neither had admitted making a previous inconsistent statement, nor could it be proved that they had. As a result, their witness statements were not admissible under CJA 2003, s 119(1)(a) or (b). However, the court found that the witness statements were admissible under CJA 2003, s 114(1)(d) and that the provisions relating to hostile witnesses provided a clear route for introducing these statements. Written by Alexandra Scott, barrister at Carmelite Chambers.