Criminal Justice Act 2003: Key Reforms, Cases and Practical ...

Introduction

The Criminal Justice Act 2003 reshaped criminal justice in England and Wales. It overhauled the rules on hearsay and bad character evidence, reworked sentencing and release on licence, enabled prosecution appeals against terminating rulings, and introduced retrials for serious offences after an acquittal where there is new and compelling evidence. It also created conditional cautions to deal with low-level offending without court proceedings.

Many provisions have since been amended, but the Act still frames how evidence is admitted, how sentences are set and managed, and how appeals and parole operate. This guide sets out the core parts you need to understand, with key cases and practical steps for day-to-day use.

What You'll Learn

• The hearsay regime (ss.114–118 CJA 2003) and its safeguards
• How the bad character rules work for defendants and other witnesses
• Sentencing changes: community orders, suspended sentences, dangerous offender provisions, and guilty plea credit
• Release and recall on licence under Part 12, and fairness requirements after Osborn
• Prosecution appeals against terminating rulings and the double jeopardy retrial scheme
• How the Act sits alongside PACE s.78 and YJCEA 1999 s.41 in evidential decisions
• Common case law on these topics and how to apply it in practice

Core Concepts

Hearsay in Criminal Proceedings (ss.114–118)

The Act replaced common law hearsay rules with a statutory scheme:

• General gateways (s.114)

  • Statutory provisions allowing hearsay (including ss.116–118)
  • Agreement of all parties
  • Statements admissible by common law exceptions preserved by s.118 (e.g., res gestae)
  • The “interests of justice” gateway (s.114(1)(d)) with specific factors in s.114(2)

• Specific gateways

  • Unavailable witness (s.116): death, illness, fear, being abroad, cannot be found, or not reasonably practicable to secure attendance
  • Business and other documents (s.117): made by a person with knowledge in the course of business, with reliability checks

• Safeguards

  • Credibility attacks on absent makers (s.124)
  • Stopping the case if the conviction would be based wholly or largely on disputed hearsay and it would be unsafe (s.125)
  • Exclusion where the case for admitting hearsay is outweighed by the risk of unfairness (s.126)
  • PACE s.78 remains available to exclude unfair evidence

Tip: When relying on s.114(1)(d), set out each s.114(2) factor, why other evidence is not available, and the reliability features of the statement.

Bad Character Evidence (ss.98–113)

Bad character means evidence of misconduct other than what is relevant to the facts of the alleged offence (s.98). There are seven gateways for admitting a defendant’s bad character (s.101(1)(a)–(g)), including:

• Agreement of all parties
• Evidence going to an important matter in issue, such as propensity to offend or lie (s.103)
• Correcting a false impression
• Attack on another person’s character

Courts must refuse admission if it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted (s.101(3)), and PACE s.78 also applies. For non-defendants, s.100 allows admission only where it is important explanatory evidence or has substantial probative value on a matter in issue.

Important: YJCEA 1999 s.41 (sexual history) continues to govern the admissibility of a complainant’s sexual history. The bad character provisions do not override s.41.

Tip: If relying on propensity, address whether previous conduct shows a real tendency and whether it is safe and fair to admit (see Hanson).

Sentencing Architecture (Part 12)

The Act reshaped sentencing practice:

• Sentencing guidelines
  • Created the Sentencing Guidelines Council (since replaced by the Sentencing Council under the Coroners and Justice Act 2009). Courts must have regard to guidelines and give reasons for departing.
• Community orders (s.177)
  • A single flexible order for adults with requirements such as unpaid work, curfew, programme, rehabilitation activity, drug/alcohol treatment, mental health treatment, exclusion, residence and activity.
• Suspended sentence orders (s.189)
  • Custodial terms of the permitted length may be suspended with requirements; breach can activate the custodial term unless unjust.
• Dangerous offenders
  • Introduced imprisonment for public protection (IPP) and extended sentences for dangerous offenders. IPP was abolished in 2012, but existing IPP prisoners remain governed by this regime.
• Minimum terms for mandatory life (Schedule 21)
  • Clear starting points for setting minimum terms for murder.
• Credit for guilty pleas (s.144)
  • Courts must take account of the timing and circumstances of a guilty plea.

Release and Recall on Licence (Part 12, Chapter 6)

The Act restructured release and licence:

• Standard determinate sentences: usually release at halfway on licence until sentence end (subject to later legislation altering release points for certain cases).
• Extended sentences and certain serious cases: Parole Board involvement for release decisions based on risk.
• Recall: Secretary of State may recall for breach; the Parole Board then reviews continued detention. After R (Osborn) v Parole Board, fairness may require an oral hearing. In Whiston v Secretary of State for Justice, the Supreme Court explained that Article 5(4) ECHR does not apply to most recalls following automatic release, though common law fairness does.

Tip: For recalls, prepare a focused risk assessment, identify viable alternatives to recall, and request an oral hearing where credibility or risk assessment is disputed.

Prosecution Appeals and Double Jeopardy (Parts 9 and 10)

• Appeals against terminating rulings (ss.58–61)
  • Prosecution may appeal rulings that would result in the case ending. Strict certification and time limits apply.
• Double jeopardy retrials (Part 10)
  • For certain serious offences, a person acquitted may be retried if there is “new and compelling” evidence and it is in the interests of justice. Requires DPP consent and Court of Appeal approval. Used, for example, in the Stephen Lawrence case (Dobson).

Conditional Cautions (Part 3)

Conditional cautions allow an authorised prosecutor to attach conditions to a caution for adults, under a statutory Code of Practice. Conditions aim at rehabilitation or reparation. Breach can lead to charge. Youth conditional cautions were introduced later by the Criminal Justice and Immigration Act 2008.

Expert Evidence and the Act

The Act does not set qualification tests for experts. Control comes from the common law, Criminal Procedure Rules (Part 19), the Criminal Practice Directions, and PACE s.78. Reliability and scope remain live issues, managed through directions, admissibility rulings and case management.

Key Examples or Case Studies

R v Horncastle [2009] UKSC 14

• Context: Whether convictions could stand where important parts of the prosecution case were hearsay.
• What the court decided: The Supreme Court upheld the statutory scheme and confirmed that hearsay can be admitted if the statutory safeguards are met. The court declined to follow the Strasbourg approach in Al‑Khawaja to the extent it was thought not to take full account of domestic safeguards.
• Why it matters: Sets out how to apply ss.114–126. Emphasises the combined effect of credibility attacks, exclusionary powers, and jury directions.

R v Hanson; R v H and Others [2005] EWCA Crim 824

• Context: Prosecutors relied on previous convictions to show propensity.
• What the court decided: Previous convictions can show propensity, but the court must consider similarity, strength, and age of the convictions. Propensity does not automatically prove guilt; the judge must assess fairness (s.101(3)).
• Why it matters: Practical checklist for propensity applications and directions.

R v Dobson [2011] EWCA Crim 1255; retrial and conviction (2012)

• Context: One of the men acquitted in 1996 of the murder of Stephen Lawrence was retried after new and compelling scientific evidence emerged.
• What the court decided: The Court of Appeal quashed the acquittal under Part 10, holding the new evidence met the statutory test and a retrial served the interests of justice.
• Why it matters: Shows the double jeopardy provisions in action and the level of scrutiny applied.

R (Osborn) v Parole Board [2013] UKSC 61; Whiston v Secretary of State for Justice [2014] UKSC 39

• Context: Fairness in parole and recall reviews.
• What the court decided: Osborn confirmed that common law fairness can require an oral hearing. Whiston held that Article 5(4) generally does not apply to recalls after automatic release, but fairness duties remain.
• Why it matters: Sets expectations for recall procedures and when to press for an oral hearing.

Practical Applications

Evidence: hearsay

• Map the gateway: s.116 (unavailable), s.117 (business records), or s.114(1)(d) (interests of justice).
• Address reliability: who made it, when, how, corroboration, and motive to mislead.
• Prepare s.124 material to challenge credibility of absent makers.
• Seek directions on the limits of hearsay and the need for care (s.125).
• Use s.126 and PACE s.78 to exclude where the risk of unfairness outweighs probative value.

Evidence: bad character

• For defendants: identify the exact s.101(1) gateway; if relying on propensity (s.103), show a real tendency and relevance to matters in issue.
• Resist admission via s.101(3) where prejudice outweighs probative value; rely on PACE s.78 as a backstop.
• For non-defendants: ensure s.100 is met (explanatory evidence or substantial probative value).
• In sexual cases, check YJCEA 1999 s.41 before considering any sexual history evidence.

Sentencing

• Start with the relevant guideline; assess culpability, harm, and aggravating/mitigating features.
• Consider whether a community order (s.177) with tailored requirements meets the justice of the case.
• For suspended sentences, ensure the custodial threshold is crossed and explain why suspension is appropriate; set clear requirements.
• Dangerousness: where relevant, consider extended sentences; be alert to IPP legacy cases.
• Apply credit for a guilty plea (s.144) in line with the guideline.

Release and recall

• For standard determinate sentences, expect halfway release on licence (subject to later statutory changes).
• On recall: request an oral hearing where credibility or expert risk assessment is disputed or where the facts are complex (Osborn).
• Prepare focused submissions on risk, compliance history, and alternatives to recall (e.g., varied licence conditions).

Prosecution appeals and double jeopardy

• Terminating rulings: obtain the judge’s certification, serve notice within strict time limits, and consider whether the ruling is truly case-ending.
• Double jeopardy: assess whether evidence is new and compelling; obtain DPP consent and prepare for the interests of justice test in the Court of Appeal.

Conditional cautions

• Check the Code of Practice: evidential sufficiency, suitability, and proportionality of conditions.
• Ensure the offender admits the offence, understands the conditions, and that the outcome is recorded properly.
• For breach, be ready to proceed to charge or vary conditions as permitted.

Summary Checklist

• Hearsay: identify the correct statutory gateway; address reliability and fairness; seek appropriate jury directions.
• Bad character: pick the right gateway; assess probative value vs prejudice; apply s.101(3) and PACE s.78 where needed.
• Sexual cases: never overlook YJCEA 1999 s.41.
• Sentencing: follow the guideline structure; consider community or suspended sentences with tailored requirements; apply plea credit.
• Dangerous offenders: understand extended sentences and IPP legacy management.
• Release and recall: know the licence framework; use Osborn to argue for oral hearings where fairness requires.
• Appeals: use Part 9 for terminating rulings; meet certification and timing rules.
• Double jeopardy: only for serious offences with new and compelling evidence; DPP consent and Court of Appeal approval required.
• Conditional cautions: ensure suitability, proportionality, and compliance with the Code of Practice.
• Record reasons: for admitting/excluding evidence and for sentencing decisions, give clear, structured reasons.

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