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Is section 133 Criminal Justice Act 2003 flawed?  

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trewmte
(@trewmte)
Community Legend

Is section 133 Criminal Justice Act 2003 flawed?

The great cases of the 60s, 70s , 80s and 90s saw in the introduction of good quality case law involving audio, computers and mobile telephone evidence. Cases such as R .v. Maqsud Ali (nothing lost in translation), R .v. Mahon (handling evidence), R .v. Robson (genuineness and orginality) etc, many cases included evidence that required authentication and many made reference to s27 Criminal Justice Act 1988 regarding documents containing statements served in evidence requiring to be identified from a source that is/was original, part of an original, or copy of an original no matter how many times removed.

http//www.opsi.gov.uk/ACTS/acts1988/ukpga_19880033_en_4#pt2-l1g27
27 Proof of statements contained in documents
Where a statement contained in a document is admissible as evidence in criminal proceedings, it may be proved—
(a) by the production of that document; or
(b) (whether or not that document is still in existence) by the production of a copy of that document, or of the material part of it, authenticated in such manner as the court may approve;
and it is immaterial for the purposes of this subsection how many removes there are between a copy and the original.

Highlighted, in the text above, are all those passages in s27 that have either changed or have been removed from s133 in the 2003 Act, which appears below.

http//www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_13#pt11-ch2-pb5-l1g133
133 Proof of statements in documents
Where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either—
(a) the document, or
(b) (whether or not the document exists) a copy of the document or of the material part of it, authenticated in whatever way the court may approve.

When reading section 133 CJA 2003 where is states in parenthesis "(whether or not the document exists)" expands the horizons to import much more into its meaning than its predecessor might under s27 CJA 1988 "(whether or not that document is still in existence)" as s133 might suggest that the document or a statement in it may not have needed to exist in the first place.

Thus, in the case of s133 it might open the possibility to make admissible a false or erroneous document created for a specific a purpose and to suggest the original was no longer available, whereas s27 at least required confirmation that there was an original in the first place that could at least be authenticated in such a manner that such a document did exist in the first place.

I am not a lawyer and do not hold out to be one, but I have raised this to a few lawyers who all seem to gather the point I am making and have not rejected outright my comments as folly. It does seem to me, at any rate, if ignorance of the law is no defence, then surely ambiguity is not a defence or a replacement for clarity either; but I could be wrong.

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Posted : 21/08/2009 3:27 am
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