(1)A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—
(a)he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
(b)his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
(2)Where—
(a)a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at that time,
(b)his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and
(c)a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.
Cases considering section 139 10
[2022] EWCA Crim 1488 · 11 November 2022Interprets
Section 139 was considered in relation to the later witness statement. The court agreed that Carney could not refer in the witness box to unverified material under that provision, while holding that the evidence could still be admitted (see para [73]).
Section 139(1) did not permit Carney to refresh his memory from notes he had not made or verified when they were created. The court nevertheless held that this did not itself require exclusion, since reliability and methodology remained open to challenge (see paras [54]; [73]-[74]).
[2014] EWCA Crim 1148 · 15 May 2014
The court held that the trial judge correctly applied the statutory requirements governing use of a document to refresh a witness’s memory. His enquiry into verification of the illiterate witness’s statement and the practical value of further investigation was adequate. The ruling was not impugnable (see para [19]).
The court accepted that the trial judge had correctly addressed the conditions in section 139(1) before allowing the earlier statement to be used to refresh memory (see para [19]).
The court upheld the judge’s handling of the issue whether the illiterate witness had verified that the statement recorded his earlier recollection. The inability to pursue further enquiries during the trial did not undermine the ruling (see para [19]).
The court accepted that the judge had correctly addressed the statutory threshold for refreshing memory from an earlier statement before permitting the Crown to proceed (see para [19]).
[2012] EWCA Crim 501 · 15 March 2012
The witness could use her earlier statement to refresh memory because it recorded her recollection at a time when it was likely to have been significantly better. The attempt was permissible but did not succeed in refreshing her memory. (see para [38])
What each judgment says about section 139 is in the case-law panel in the full Act.
443.This section creates a presumption that a witness in criminal proceedings may refresh his memory from a document whilst giving evidence providing that:
he indicates that the document represents his recollection at the time he made it; and
his recollection was likely to be significantly better at the time the document was made (or verified).
443.The fact that the witness has read the statement before coming into the witness box will not affect this presumption.
444.In view of the practical difficulties associated with memory refreshing in the witness box from an audio or video recording, subsection (2) makes provision for a witness to refresh his memory from a transcript of such a recording.