Criminal Justice Act 2003, section 120

Other previous statements of witnesses

Part 11 Evidence

(1)This section applies where a person (the witness) is called to give evidence in criminal proceedings.

(2)If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.

(3)A statement made by the witness in a document—

(a)which is used by him to refresh his memory while giving evidence,

(b)on which he is cross-examined, and

(c)which as a consequence is received in evidence in the proceedings,

is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

(4)A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—

(a)any of the following three conditions is satisfied, and

(b)while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.

(5)The first condition is that the statement identifies or describes a person, object or place.

(6)The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings.

(7)The third condition is that—

(a)the witness claims to be a person against whom an offence has been committed,

(b)the offence is one to which the proceedings relate,

(c)the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,

(d)F146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)the complaint was not made as a result of a threat or a promise, and

(f)before the statement is adduced the witness gives oral evidence in connection with its subject matter.

(8)For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.

Definitions used in section 120 3

criminal proceedings

“criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

Defined in s.134(1) · see it in the full Act
oral evidence

“oral evidence” includes evidence which, by reason of any disability, disorder or other impairment, a person called as a witness gives in writing or by signs or by way of any device;

Defined in s.134(1) · see it in the full Act
document

“document” means anything in which information of any description is recorded;

Defined in s.134(1) · see it in the full Act

Cases considering section 120 31

REGINA v BQC

[2021] EWCA Crim 1944 · 17 December 2021Interprets

A prior statement admitted to rebut fabrication becomes evidence of the truth of its contents. Its admission is governed by the hearsay regime and must be approached with care. (see paras [50]-[54])

Hollings v R.

[2020] EWCA Crim 1363 · 23 October 2020Limits

The court construed section 120 as creating more than one gateway for admitting a witness’s previous statement. It rejected the contention that admission under section 120(2) also required compliance with sections 120(4) and 120(7). (see paras [61]-[63]) The court applied section 120(2) to admit an earlier statement that rebutted an allegation of recent fabrication. Once admitted through that gateway, the statement was evidence of the truth of its contents. (see paras [61]-[63]) The court held that the requirements in section 120(4) are not a universal precondition where a previous statement is admitted through the separate section 120(2) gateway. (see paras [61]-[63]) The court rejected the contention that the witness confirmation required by section 120(4)(b) had to be established before an earlier statement could be admitted under section 120(2). (see paras [61]-[63]) The court held that the complaint route in section 120(7) is an alternative gateway and need not be satisfied where the statement is admitted under section 120(2). (see paras [61]-[63])

Hodge, R. v

[2018] EWCA Crim 2501 · 24 October 2018Disapplies

For the purposes of the application, the court accepted that the provision applied to a defendant who gave evidence. The applicant’s earlier statements, if accepted, could therefore be substantive evidence of the sexual assault he alleged. (see paras [26]-[28]) The court held that the recent-complaint route in this provision was unavailable because the statutory condition in section 120(7)(b) was not met. (see para [25]) The court applied this condition and found that it was not satisfied because the relevant offence was not one to which the proceedings related. That prevented reliance on section 120(4). (see para [25])

11 more judgments, and what each says about section 120, are in the case-law panel in the full Act.

Explanatory note

415.This section makes other previous statements admissible as evidence of the truth of their contents (not merely to bolster the credibility of the witness’s oral evidence) in the following circumstances:

  • Subsection (2) applies to statements which are admitted to rebut a suggestion that the witness's oral evidence is untrue;

  • Subsection (3) applies to the situation where a witness is “refreshing his memory” from a written document. If he is cross-examined on the document and it is received in evidence, the statement will be evidence of any matter contained within it;

  • Subsections (4) - (7) provide that a previous statement will be admissible as evidence of the facts contained within it provided the witness states that he made the statement and believes it to be true and one of the following conditions is met:

All the explanatory notes for the Act

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F146S. 120(7)(d) omitted (1.2.2010) by virtue of and repealed (6.4.2010) by Coroners and Justice Act 2009 (c. 25), ss. 112, 182(5), Sch. 23 Pt. 3; S.I. 2010/145, art. 2(2), Sch.; S.I. 2010/816, art. 2, Sch.

Commencement

  1. I75S. 120 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)