A Bill to limit the admissibility of evidence of a person’s creative and artistic expression in criminal proceedings, and for connected purposes.

Creative and artistic expression: admissibility in criminal proceedings

1. Evidence of a person’s creative or artistic expression, whether original or derivative, shall not be admissible in evidence against that person or another person in criminal proceedings unless the conditions in subsection (2) are met.
2. The conditions in this subsection are that the court is satisfied to the criminal standard-
   1. the expression has a literal, rather than figurative or fictional, meaning;
   2. where the expression is derivative, the person who created the derivative work intended to adopt the literal meaning of the work as that person’s own thought or statement;
   3. the expression refers to the specific facts of the crime alleged;
   4. the evidence is relevant to an issue of fact that is disputed; and
   5. that it is necessary to admit the evidence as the issue cannot be proven by other evidence.
3. In deciding whether the conditions in subsection (2) are met, the court must have regard to the linguistic and artistic conventions of the expression, the social and cultural context of the expression, and the context in which the expression was created, including (but not limited to)-
   1. the extent to which the expression conforms to the conventions of its genre;
   2. when the expression was created and whether it was created before or after the crime alleged;
   3. where the expression takes the form of written or spoken words, who wrote the words;
   4. where the expression takes the form of lyrics or music, how the creator intended it to sound or be heard by the listener;
   5. where the expression takes the form of a video, the role played by the relevant participant [mere presence is not enough];
   6. where the party making the application seeks to rely on an excerpt from the expression, how that excerpt fits into the broader context of the expression;
   7. whether the expression contains information not readily available to the individual(s) it would be used against.
4. The court shall not make a determination under subsection (2) except on the written or oral evidence of an independent expert who, in the opinion of the court, is suitably qualified to give evidence about the linguistic and artistic conventions and the social and cultural context of the creative or artistic expression.
5. When a court admits evidence of a person’s creative or artistic expression in criminal proceedings under this section, it must redact any part of the evidence in respect of which, in the opinion of the court, its prejudicial effect outweighs its probative value.
6. When a court admits evidence of a person’s creative or artistic expression in a trial on indictment under this section, the judge must give such directions to the jury as they think necessary to ensure that the jury’s consideration of that evidence is not influenced by stereotypes.

Interpretation

In this Act-

"creative or artistic expression" means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols, including but not limited to music, dance, performance art, visual art, poetry, literature, film and other such objects or media;

Creative or artistic expression is “derivative” where it is the work of another person, based on the work of another person, or imitative of the work of another person;

For the purpose of subsection 4, “independent experts” include academic scholars and persons with experience in an industry relevant to the form of expression;

“stereotype” means an assumption about a person’s character, conduct or associations based on their race, ethnicity, class, place of origin, social or cultural background, or preferred genres of creative or artistic expression.

Short title, commencement and extent

1. This Act may be cited as the Criminal Evidence (Creative and Artistic Expression) Act 2023.
2. This Act comes into force on the day on which it is passed.
3. This Act extends to England and Wales only.