Using memory refreshing documents in criminal trials

Related Sector: Expert Witness, , Investigations

Section 139 Criminal Justice Act 2003 allows a witness to refresh their memory from any document provided certain conditions are satisfied.These are that:

• The document was made or verified by him at an earlier time.
• The witness states in  oral evidence that the document records his recollection of the matter at that earlier time, and
• 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.

In the unreported case of R. v Campbell (Iain) Court of Appeal (Criminal Division), 27 November 2015, the Court of Appeal ruled that:

• A judge has a discretion to intervene and suggest a witness refreshes their memory from the document
• The witness doesn't have to ask to see it
• The document doesn't replace the oral evidence of the witness

Under s.139 a witness can ask to refresh their memory from the document, but in this case the trial judge didn't wait for this. This case is a reminder that giving evidence in criminal proceedings is not always simply a test of memory.