Change 1 Article Choose an article Title and introductory text 1 Extension of powers to stop and search 2 Warrants to enter and search 3 Arrestable offences 4 Bail elsewhere than at police station 5 Drug testing for under-eighteens 6 Use of telephones for review of police detention 7 Limits on period of detention without charge 8 Property of detained persons 9 Taking fingerprints without consent 10 Taking non-intimate samples without consent 11 Codes of practice 12 Amendments related to Part 1 13 Grant and conditions of bail 14 Offences committed on bail 15 Absconding by persons released on bail 16 Appeal to Crown Court 17 Appeals to High Court 18 Appeal by prosecution 19 Drug users: restriction on bail 20 Supplementary amendments to the Bail Act 1976 21 Interpretation of Part 2 22 Conditional cautions 23 The five requirements 23ZA Duty to consult victims 23A Financial penalties 23B Variation of conditions 24 Failure to comply with conditions 24A Arrest for failure to comply 24B Application of PACE provisions 25 Code of practice 26 Assistance of National Probation Service 27 Interpretation of Part 3 28 Charging or release of persons in police detention 29 Instituting proceedings by written charge 30 Further provision about written charges 31 Removal of requirement to substantiate information on oath 32 Initial duty of disclosure by prosecutor 33 Defence disclosure 34 Notification of intention to call defence witnesses 36 Further provisions about defence disclosure 37 Continuing duty of disclosure by prosecutor 38 Application by defence for disclosure 39 Faults in defence disclosure 40 Code of practice for police interviews of witnesses notified by accused 41 Allocation of offences triable either way, and sending cases to Crown Court 42 Mode of trial for certain firearms offences: transitory arrangements 44 Application by prosecution for trial to be conducted without a jury where danger of jury tampering 45 Procedure for applications under sections 43 and section44 46 Discharge of jury because of jury tampering 47 Appeals 48 Further provision about trials without a jury 49 Rules of court 50 Application of Part 7 to Northern Ireland 51 Directions for live links in criminal proceedings 52 Further provision about the effect of live-link directions 52A Further provision about the effect of live-link directions 53 Further provision about live links in magistrates’ courts 53A Requirement to attend court, perjury 54 Warning to jury 55 Rules of court 56 Interpretation of Part 8 57 Introduction 58 General right of appeal in respect of rulings 59 Expedited and non-expedited appeals 60 Continuation of proceedings for offences not affected by ruling 61 Determination of appeal by Court of Appeal 67 Reversal of rulings 68 Appeals to the House of Lords 69 Costs 70 Effect on time limits in relation to preliminary stages 71 Restrictions on reporting 72 Offences in connection with reporting 73 Rules of court 74 Interpretation of Part 9 75 Cases that may be retried 76 Application to Court of Appeal 77 Determination by Court of Appeal 78 New and compelling evidence 79 Interests of justice 80 Procedure and evidence 81 Appeals 82 Restrictions on publication in the interests of justice 83 Offences in connection with publication restrictions 84 Retrial 85 Authorisation of investigations 86 Urgent investigative steps 86A Application of sections 85 and 86 to investigations by the Police Ombudsman 87 Arrest and charge 88 Bail and custody before application 89 Bail and custody before hearing 90 Bail and custody during and after hearing 91 Revocation of bail 92 Functions of the DPP 93 Rules of court 94 Armed Forces: Part 10 95 Interpretation of Part 10 96 Application of Part 10 to Northern Ireland 97 Application of Criminal Appeal Acts to proceedings under Part 10 98 “Bad character” 99 Abolition of common law rules 100 Non-defendant’s bad character 101 Defendant’s bad character 102 “Important explanatory evidence” 103 “Matter in issue between the defendant and the prosecution” 104 “Matter in issue between the defendant and a co-defendant” 105 “Evidence to correct a false impression” 106 “Attack on another person’s character” 107 Stopping the case where evidence contaminated 108 Offences committed by defendant when a child 109 Assumption of truth in assessment of relevance or probative value 110 Court’s duty to give reasons for rulings 111 Rules of court 112 Interpretation of Chapter 1 113 Armed forces 114 Admissibility of hearsay evidence 115 Statements and matters stated 116 Cases where a witness is unavailable 117 Business and other documents 118 Preservation of certain common law categories of admissibility 119 Inconsistent statements 120 Other previous statements of witnesses 121 Additional requirement for admissibility of multiple hearsay 122 Documents produced as exhibits 123 Capability to make statement 124 Credibility 125 Stopping the case where evidence is unconvincing 126 Court’s general discretion to exclude evidence 127 Expert evidence: preparatory work. 128 Confessions 129 Representations other than by a person 130 Depositions 131 Evidence at retrial 132 Rules of court 133 Proof of statements in documents 134 Interpretation of Chapter 2 135 Armed forces 136 Repeals etc 139 Use of documents to refresh memory 140 Interpretation of Chapter 3 141 Saving 143 Determining the seriousness of an offence 144 Reduction in sentences for guilty pleas 145 Increase in sentences for racial or religious aggravation 146 Increase in sentences for aggravation related to disability, sexual orientation or transgender identity 147 Meaning of “community sentence” etc. 148 Restrictions on imposing community sentences 149 Passing of community sentence on offender remanded in custody 150 Community sentence not available where sentence fixed by law etc. 150A Community order available only for offences punishable with imprisonment or for persistent offenders previously fined 152 General restrictions on imposing discretionary custodial sentences 153 Length of discretionary custodial sentences: general provision 157 Additional requirements in case of mentally disordered offender 158 Meaning of “pre-sentence report” 159 Disclosure of pre-sentence reports 160 Other reports of local probation boards , providers of probation services and members of youth offending teams 161 Pre-sentence drug testing 161A Court’s duty to order payment of surcharge 161B Amount of surcharge 162 Powers to order statement as to offender’s financial circumstances 163 General power of Crown Court to fine offender convicted on indictment 164 Fixing of fines 165 Remission of fines 167 The Sentencing Guidelines Council 168 Sentencing Guidelines Council: supplementary provisions 169 The Sentencing Advisory Panel 170 Guidelines relating to sentencing and allocation 171 Functions of Sentencing Advisory Panel in relation to guidelines 172 Duty of court to have regard to sentencing guidelines 173 Annual report by Council 174 Duty to give reasons for and to explain effect of sentence 175 Duty to publish information about sentencing 177 Community orders 178 Power to provide for court review of community orders 179 Breach, revocation or amendment of community order 181 Prison sentences of less than 12 months 182 Licence conditions 183 Intermittent custody 184 Restrictions on power to make intermittent custody order 185 Intermittent custody: licence conditions 186 Further provisions relating to intermittent custody 187 Revocation or amendment of order 188 Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland 190 Imposition of requirements by suspended sentence order 191 Power to provide for review of suspended sentence order 192 Periodic reviews of suspended sentence order 193 Breach, revocation or amendment of suspended sentence order, and effect of further conviction 194 Transfer of suspended sentence orders to Scotland or Northern Ireland 195 Interpretation of Chapter 3 196 Meaning of “relevant order” etc 197 Meaning of “the responsible officer” 198 Duties of responsible officer 199 Unpaid work requirement 200 Obligations of person subject to unpaid work requirement 200A Rehabilitation activity requirement 201 Activity requirement 202 Programme requirement 203 Prohibited activity requirement 204 Curfew requirement 205 Exclusion requirement 206 Residence requirement 206A Foreign travel prohibition requirement 207 Mental health treatment requirement 208 Mental health treatment at place other than that specified in order 209 Drug rehabilitation requirement 210 Drug rehabilitation requirement: provision for review by court 211 Periodic review of drug rehabilitation requirement 212 Alcohol treatment requirement 212A Alcohol abstinence and monitoring requirement 213 Supervision requirement 214 Attendance centre requirement 215 Electronic monitoring requirement 215A Data from electronic monitoring: code of practice 216 Local justice area to be specified in relevant order 217 Requirement to avoid conflict with religious beliefs, etc 218 Availability of arrangements in local area 219 Provision of copies of relevant orders 220 Duty of offender to keep in touch with responsible officer 221 Provision of attendance centres 223 Power to amend limits 224 Meaning of “specified offence” etc. 224A Life sentence for second listed offence 225 Life sentence ... for serious offences 226 Detention for life ... for serious offences committed by those under 18 226A Extended sentence for certain violent, sexual or terrorism offences: persons 18 or over 226B Extended sentence for certain violent, sexual or terrorism offences: persons under 18 227 Extended sentence for certain violent or sexual offences: persons 18 or over 228 Extended sentence for certain violent or sexual offences: persons under 18 230 Imprisonment or detention for public protection: release on licence 232 Certificates of convictions for purposes of sections 225 and 227 232A Certificates of conviction 233 Offences under service law 234 Determination of day when offence committed 235 Detention under sections 226, 226B and 228 236 Conversion of sentences of detention into sentences of imprisonment 237 Meaning of “fixed-term prisoner” etc 237A Public protection decisions 237B Relevant provisions of this Chapter and corresponding purposes 238 Power of court to recommend licence conditions for certain prisoners 239 The Parole Board 240 Crediting of periods of remand in custody: terms of imprisonment and detention 240ZA Time remanded in custody to count as time served: terms of imprisonment or detention and detention and training orders 240A Time remanded on bail to count towards time served: terms of imprisonment or detention and detention and training orders 241 Effect of section 240ZA or direction under section 240A or under section 325 of the Sentencing Code on release on licence 242 Interpretation of sections 240ZA, 240A and 241 243 Persons extradited to the United Kingdom 243A Duty to release certain prisoners serving less than 12 months 244 Duty to release prisoners not subject to special provision for release 244ZA Release on licence of certain violent or sexual offenders 244ZB Referral of high-risk offenders to Parole Board in place of automatic release 244ZC Proceedings following reference under section 244ZB 244A Release on licence of prisoners serving sentence under section 278 of the Sentencing Code etc 245 Restrictions on operation of section 244(1) in relation to intermittent custody prisoners 246 Power to release prisoners on licence before required to do so 246A Release on licence of prisoners serving extended sentence under section 254, 266 or 279 of the Sentencing Code etc 246B Manslaughter: prisoner's non-disclosure of information 246C Indecent images: prisoner's non-disclosure of information 247 Release on licence of prisoner serving extended sentence under section 227 or 228 247A Restricted eligibility for release on licence of terrorist prisoners 248 Power to release prisoners on compassionate grounds 249 Duration of licence 250 Licence conditions 250A Driving prohibition condition 250B Public event attendance prohibition condition 250C Drinking establishment entry prohibition condition 250D Restriction zone condition 251 Licence conditions on re-release of prisoner serving sentence of less than 12 months 252 Duty to comply with licence conditions 253 Curfew condition to be included in licence under section 246, 255B or 255C 254 Recall of prisoners while on licence 255 Recall of prisoners released early under section 246 255ZA Offence of remaining unlawfully at large after recall 255A Further release after recall: introductory 255B Automatic release : relevant young offenders 255BA Automatic release: other offenders 255C Prisoners excluded from automatic release under section 255B or 255BA 256 Review by the Board 256A Further review 256AZA Release after recall where further sentence being served 256AZB Power to change test for release following recall 256AZBA Referral of release decisions to High Court 256AZBB Specified offences 256AZBC Powers of the High Court 256AZC Release at direction of Parole Board: timing 256AA Supervision after end of sentence of prisoners serving less than 2 years 256AB Supervision requirements under section 256AA 256AC Breach of supervision requirements imposed under section 256AA 256B Supervision after release of certain young offenders serving less than 12 months 256C Breach of supervision requirements imposed under section 256B 256D Drug testing requirements 256E Drug appointment requirements 257 Additional days for disciplinary offences 258 Early release of fine defaulters and contemnors 259 Persons liable to removal from the United Kingdom 260 Early removal of prisoners liable to removal from United Kingdom 261 Removal under section 260 and subsequent return to UK: effect on sentence 262 Prisoners liable to removal from United Kingdom: modifications of Criminal Justice Act 1991 263 Concurrent terms 264 Consecutive terms 264A Consecutive terms: intermittent custody 264AA Consecutive terms: detention and training orders 264B Consecutive terms: supplementary 265 Restriction on consecutive sentences for released prisoners 267 Alteration by order of relevant proportion of sentence 267A Application of Chapter 6 to pre-4 April 2005 cases 267B Modification of Chapter 6 in certain transitional cases 267C Fixed-term prisoners also serving life sentence 268 Interpretation of Chapter 6 269 Determination of minimum term in relation to mandatory life sentence 270 Duty to give reasons 271 Appeals 272 Review of minimum term on a reference by Attorney General 273 Life prisoners transferred to England and Wales 274 Further provisions about references relating to transferred life prisoners 275 Duty to release certain life prisoners 276 Mandatory life sentences: transitional cases 277 Interpretation of Chapter 7 278 Deferment of sentence 279 Drug treatment and testing requirement in action plan order or supervision order 281 Alteration of penalties for other summary offences 282 Increase in maximum term that may be imposed on summary conviction of offence triable either way 283 Enabling powers: power to alter maximum penalties 284 Increase in penalties for drug-related offences 285 Increase in penalties for certain driving-related offences 286 Increase in penalties for offences under section 174 of Road Traffic Act 1988 287 Minimum sentence for certain firearms offences 288 Certain firearms offences to be triable only on indictment 289 Power to sentence young offender to detention in respect of certain firearms offences: England and Wales 290 Power to sentence young offender to detention in respect of certain firearms offences: Scotland 291 Power by order to exclude application of minimum sentence to those under 18 292 Sentencing for firearms offences in Northern Ireland 293 Increase in penalty for offences relating to importation or exportation of certain firearms 294 Duration of directions under Mental Health Act 1983 in relation to offenders 295 Access to Parole Board for certain patients serving prison sentences 296 Duration of directions under Mental Health (Northern Ireland) Order 1986 in relation to offenders 297 Access to Sentence Review Commissioners and Life Sentence Review Commissioners for certain Northern Ireland patients 299 Disqualification from working with children 300 Power to impose unpaid work requirement curfew requirement or attendance centre requirement on fine defaulter 301 Fine defaulters: driving disqualification 302 Execution of process between England and Wales and Scotland 303 Sentencing: repeals 304 Amendments relating to sentencing 305 Interpretation of Part 12 306 Limit on period of detention without charge of suspected terrorists 307 Enforcement of regulations implementing EU legislation on endangered species 308 Non-appearance of defendant: plea of guilty 309 Preparatory hearings for serious offences not involving fraud 310 Preparatory hearings to deal with severance and joinder of charges 311 Reporting restrictions for preparatory hearings 312 Awards of costs 313 Extension of investigations by Criminal Cases Review Commission in England and Wales 314 Extension of investigations by Criminal Cases Review Commission in Northern Ireland 315 Appeals following reference by Criminal Cases Review Commission 316 Power to substitute conviction of alternative offence on appeal in England and Wales 317 Power to substitute conviction of alternative offence on appeal in Northern Ireland 318 Substitution of conviction on different charge on appeal from court-martial 319 Appeals against sentences in England and Wales 320 Offence of outraging public decency triable either way 321 Jury service 322 Individual support orders 323 Individual support orders: consequential amendments 324 Parenting orders and referral orders 325 Arrangements for assessing etc risks posed by certain offenders 326 Review of arrangements 327 Section 325: interpretation 327A Disclosure of information about convictions etc. of child sex offenders to members of the public 327B Section 327A: interpretation 328 Criminal record certificates: amendments of Part 5 of Police Act 1997 329 Civil proceedings for trespass to the person brought by offender 330 Orders and rules 330A Orders: Northern Ireland 331 Further minor and consequential amendments 332 Repeals 333 Supplementary and consequential provision, etc. 334 Provision for Northern Ireland 335 Expenses 336 Commencement 337 Extent 338 Channel Islands and Isle of Man 339 Short title SCHEDULE 1 Amendments related to Part 1 SCHEDULE 2 Charging or release of persons in police detention SCHEDULE 3 Allocation of cases triable either way, and sending cases to the Crown Court etc SCHEDULE 3A Prohibitions and limitations on use of live links SCHEDULE 5 Qualifying offences for purposes of Part 10 SCHEDULE 6 Evidence of bad character: armed forces SCHEDULE 7 Hearsay evidence: armed forces SCHEDULE 15 Specified offences for purposes of sections 244ZA and 325 SCHEDULE 16 SCHEDULE 17 SCHEDULE 18 Release of prisoners serving sentences of imprisonment or detention for public protection SCHEDULE 18B Offences relevant to public protection decisions SCHEDULE 19 The Parole Board: supplementary provisions SCHEDULE 19ZA Offences carrying restricted eligibility of terrorist prisoners for release on licence Schedule 19ZB Offences where offender not eligible for release at the end of the section 255BA automatic release period SCHEDULE 19B Prisoners returning to the UK: Modifications of Chapter 6 of Part 12 SCHEDULE 20A Application of Chapter 6 of Part 12 to pre-4 April 2005 cases SCHEDULE 20B Modifications of Chapter 6 of Part 12 in certain transitional cases SCHEDULE 22 Mandatory life sentences: transitional cases SCHEDULE 24 SCHEDULE 25 Summary offences no longer punishable with imprisonment SCHEDULE 26 Increase in maximum term for certain summary offences SCHEDULE 27 Enabling powers: alteration of maximum penalties etc. SCHEDULE 28 Increase in penalties for drug-related offences SCHEDULE 29 SCHEDULE 30 Disqualification from working with children SCHEDULE 32 Amendments relating to sentencing SCHEDULE 33 Jury service SCHEDULE 34A Child sex offences for purposes of section 327A SCHEDULE 35 Criminal record certificates: amendments of Part 5 of Police Act 1997 SCHEDULE 36 Further minor and consequential amendments SCHEDULE 37 Repeals SCHEDULE 38 Transitory, transitional and saving provisions
What to do with it
As published
123 Capability to make statement
(1) Nothing in section 116, 119 or 120 makes a statement admissible as evidence if it was made by a person who did not have the required capability at the time when he made the statement.
(2) Nothing in section 117 makes a statement admissible as evidence if any person who, in order for the requirements of section 117(2) to be satisfied, must at any time have supplied or received the information concerned or created or received the document or part concerned—
(a) did not have the required capability at that time, or
(b) cannot be identified but cannot reasonably be assumed to have had the required capability at that time.
(3) For the purposes of this section a person has the required capability if he is capable of—
(a) understanding questions put to him about the matters stated, and
(b) giving answers to such questions which can be understood.
(4) Where by reason of this section there is an issue as to whether a person had the required capability when he made a statement—
(a) proceedings held for the determination of the issue must take place in the absence of the jury (if there is one);
(b) in determining the issue the court may receive expert evidence and evidence from any person to whom the statement in question was made;
(c) the burden of proof on the issue lies on the party seeking to adduce the statement, and the standard of proof is the balance of probabilities.
Your wording
Your change, as a redline
123 Capability to make statement
(1) Nothing in section 116, 119 or 120 makes a statement admissible as evidence if it was made by a person who did not have the required capability at the time when he made the statement.
(2) Nothing in section 117 makes a statement admissible as evidence if any person who, in order for the requirements of section 117(2) to be satisfied, must at any time have supplied or received the information concerned or created or received the document or part concerned—
(a) did not have the required capability at that time, or
(b) cannot be identified but cannot reasonably be assumed to have had the required capability at that time.
(3) For the purposes of this section a person has the required capability if he is capable of—
(a) understanding questions put to him about the matters stated, and
(b) giving answers to such questions which can be understood.
(4) Where by reason of this section there is an issue as to whether a person had the required capability when he made a statement—
(a) proceedings held for the determination of the issue must take place in the absence of the jury (if there is one);
(b) in determining the issue the court may receive expert evidence and evidence from any person to whom the statement in question was made;
(c) the burden of proof on the issue lies on the party seeking to adduce the statement, and the standard of proof is the balance of probabilities.
A proposal here is not law. Support on Solon is evidence that people want the change; the official route says what it takes to make it law.