Background Part 3 - Criminal evidence, investigations and procedure
30.On 18 June 2008 the House of Lords gave judgment in R v Davies [2008] UKHL 36. The case concerned the use of anonymous witnesses and the judgment cast doubt on what the common law had been thought to allow. The Government introduced the Bill that became the Criminal Evidence (Witness Anonymity) Act 2008 and it received Royal Assent on 21 July 2008. The Act makes provision about evidence given by anonymous witnesses. During the passage of the Bill, it was amended so as to provide for the expiry of the power to make witness anonymity orders on 31 December 2009, subject to being extended by order. This amendment became section 14 of the Act. The Justice Secretary undertook to review the provisions of the Act and legislate anew (Hansard col. 516; 26 June 2008). Chapter 2 of Part 3 of this Act replaces sections 1 to 9 of the CEWAA.
31.In June 2007, the Government published Improving the criminal trial process for young witnesses: a consultation paper The Government response to the consultation was published in February 2009 (http://www.justice.gov.uk/publications/young-witness-consultation.htm) The proposals in this consultation paper form the basis of the proposed changes in sections 98 to 103 to the existing provision about the special measures a court may order so as to help young witnesses give evidence.
32.In the Policing Green Paper From the neighbourhood to the national: Policing our communities together, published in July 2008 (http://police.homeoffice.gov.uk/police-reform/policegp/), the Government announced that it intended to remove a defendant’s consent as to whether or not to attend a virtual court, where the participants are in a different location but are joined by live video link. Sections 106 to 110 give effect to this proposal.
33.The law on admissibility of hearsay and out of court statements was comprehensively reviewed by the Law Commission in 2007 (Evidence in criminal proceedings: hearsay and related topics, published in July 2007, http://www.lawcom.gov.uk/docs/lc245.pdf). The law of evidence was also considered by Sir Robin Auld in Review of the Criminal Courts of England and Wales (2001) (http://www.criminal-courts-review.org.uk/). Both recommended that the law on hearsay should be simplified and that as much relevant evidence as is available should be able to be heard and considered. These recommendations were taken forward in the White Paper Justice for all published in July 2002 (http://www.cjsonline.gov.uk/downloads/application/pdf/CJS%20White%20Paper%20-%20Justice%20For%20All.pdf).
34.A limited exception to the hearsay rule at common law had developed in relation to sexual offences. Where a complainant gave evidence, it was possible for the court to hear evidence as to the original complaint made by the victim provided the complaint was made spontaneously and at the first reasonable opportunity. The Law Commission recommended that evidence of recent complaint should not be limited to sexual offences. The Law Commission recommendations on recent complaint and other circumstances where previous consistent statements of witnesses are admissible led to section 120 of the Criminal Justice Act 2003 (the 2003 Act). Section 120 made a previous complaint by a victim of an alleged offence admissible subject to certain requirements, including a requirement that it was made as soon as could reasonably be expected after the conduct in question. Section 120 applies to all offences and is not limited to sexual offences.
35.The Consultation Paper Convicting Rapists and Protecting Victims – Justice for Victims of Rape (Spring 2006) sought views on whether the law on previous complaints as set out in section 120 of the 2003 Act should be amended (http://www.cjsonline.org/downloads/application/pdf/Rape_consultation.pdf). In particular, it asked whether the requirement for a previous complaint to have been made “as soon as could reasonably be expected after the conduct in question” should be removed. There is evidence that in cases of rape and other serious sexual offences, victims often delay telling anyone of the offence because of feelings of shame, degradation and humiliation.
36.The Government concluded in its Convicting Rapists and Protecting Victims – Justice for Victims of Rape: Response to Consultation (November 2007, http://www.cjsonline.gov.uk/downloads/application/pdf/Response%20to%20rape%20consultation.pdf) that the requirement for a previous complaint to have been made “as soon as could reasonably be expected after the conduct in question” should be removed and that this change should affect all offences. Making a general change is consistent with the provision as it currently stands (section 120(7) of the 2003 Act does not distinguish between types of offences) and reflects the fact there are other offences, such as those arising from domestic violence, where factors similar to those applying to sexual offences may cause victims to delay telling anyone about the offence.
37.On 17 June 2008, the Government published a consultation paper Bail and Murder.The Government response to the consultation was published in February 2009 (http://www.justice.gov.uk/publications/cp1108.htm).