Criminal Practice - WS5 (Case Management and Pre-Trial Hearing)

Question 1

What is the overriding objective in criminal cases?

Answer 1

• That they are dealt with justly
• This includes, acquitting the innocent party and convicting the guilty, dealing with the prosecution and the defence failry and dealing with the case efficiently and expeditiously
• All the persons involved in the conduct of a case must further this overriding objectie by complying with the CrimPR and associated directions.
• The court must further the overriding objective by actively managing the case and the paries to the case must actively assist the court in fulfilling that duty (e.g. through the early identification of issues).

Question 2

What happens following a non-guilty plea to a summary or either-way offence and has consented to a trial in the magistrates court?

Court will give directions as are necesary to prepare for a TRIAL (it is sentencing for a guilty plea).

Answer 2

• Magistrates will fix the date when the defendant’s trial is to take place.
• The magistrates will give a series of directions that the CPS and the defendan’t solicitor must comply with prior to the trial.
• The defendant’s solicitor will obtain evidence from witnesses (other than the defendant) and obtain details of any ‘unused’ material the CPS has which may undermine the case for the prosecution or assist the defence’s case.

Question 3

When does the court give case management directions?

Answer 3

1) Summary offence - usually at the same hearing at which the defendant enters their plea of not guilty
2) Either-way offence - after the plea before venue / allocation hearing or sometimes at a subsequent hearing

Note. The hearing at which case management directions are given is referred to in the Rules as a ‘case management hearing’ although some courts call this a pre-trial revieew.

Question 4

What are case management directions?

Answer 4

• Standard directions although a court may vary them if necessary
• The directions allow the parties 8 weeks to prepare the case for trial
• 14 weeks when expert evidence is required
• The standard form used to record these directions is called the ‘Magistrates Court Trial Preparation Form’

Question 5

What is included in the trial preparation form?

Answer 5

• Records the contact details of the parties to the case
• The evidence which wil be relied upon by the prosecution at trial
• The elements fo the prosecution’s case disputed by the defendant
• Any decisions and directions for effective trial given by the court.

Question 6

Additional Trial Preparation

How do you secure attendence of a witness at trial?

Witnesses who are reluctant to attend court to give evidence at trial

Answer 6

Witnesses who are prepared to give a written statement are sometimes reluctant to attend court to give oral evidence at trial

• A prudent solicitor will secure their attendance by obtaining a witness summons from the magistrates court

The court will issue a witness summons if it is satisfied that
1) The witness can give material evidence in the proceedings and it is in the interests of justice for a summons to be issued
2) The defendants solicitor will usually ask a potential witness to confirm in writing that they will attend court

If a negative response is received, or if, as is much more likely no response is received, the solicitor should then write to the court requesting that it issue a witness summons.
- The court will issue a witness summons requiring the witness to attend the trial.

• The procedural rules which apply when an application for a witness summons are necessary are contained in Part 17 of CrimPR
• A witness summons will not always be necessary, but is practically vital

Question 7

What is the witness and evidence obligations in the Magistrates Court?

Answer 7

1) Parties must provide the details of the witnessess that they intend to call. The obligation applies to both the prosecution and the defence

2) Defence witness - defendant must serve on the CPS a notice setting out the names, addresses, DoB of any witnessess they intend to call to give evidence.
3) Must be done within 14 days of the prosecution complying with the initial duty of disclosure
4) Unlike civil proceedings, there is no requirement for a defendant in a criminal case to serve on the CPS copies of the statements taken from the witnesses whom they intend to call to give evidence at trial
Exception - reports from any expert witnesses whom the defendant wishes to call to give evidence at trial.

(enables the CPS to check whether any defence witnesses have previous convictions, although there is nothing to stop the CPS, via the police, interviewing these witnesses, a code of practice exists which governs the conduct of the interview)

Question 8

When is expert witness required (Magistrates Court)?

Answer 8

• In respect of any technical matter which is outside the comptence of the court
• E.g. from a forensic scientist or a medical expert
• Expert evidence should be obtained asap, although if the defendant’s case is funded by way of representation order, the defendant’s solicitor should obtain prior authority from the LAA to instruct the expert.

Question 9

What are the disclosure obligations - witness (Magistrates Court)?

Answer 9

If the defendant’s solicitor wishes to call an expert to give evidence at trial
- Must serve a copy of the expert’s report on the CPS in advance of trial
- An expert witness is unlikely to require a witness summons, although the defendant’s solicitor must check the expert’s availability to attend trial so that the trial can be fixed on a date when the expert is available to attend court.

Question 10

Do all witnesses need to attend trial (Magistrates court)?

Answer 10

Section 9 of the CJA 1967 provides that a written statement from a witness will be admissible at trial (as opposed to the witness having to come to the court to give evidence) provided that:

a) It is signed and dated
b) It contains the following declaration:
This statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.

c) a copy has been served before the hearing on the other parties in the case
d) none of the other parties has objected within 7 days

Question 11

When can a s9 witness statement declaration be used?

Answer 11

• Only contains matters which would be admissible if the witness had given oral evidence at court.
• Only be used for evidence which is not in dispute (although the CPS routinely serves the statement of all prosecution witnesses in the form of a s9 statement).
• If the party receiving the statement wishes to challenge the admissibility of anything said in the statement, or to cross-examine the maker of the statement, it should object in writing within 7 days.
• Although the CPS is more likely to rely on the s9 procedure, either party in criminal proceedings is entitled to use it.

Question 12

What documentary evidence can be used at trial?

Answer 12

• Plans, photographs of the place where the alleged crime occured.
• Any plans or photographs should be verified by a witness statement from the person who prepared the plan or took the photographs.

Question 13

When can the defence obtain unused material from the CPS (Magistrates court)?

Answer 13

When police investigate an alleged offence, they will compile a large amount of documentary evidence (witness statements, business records, CCTV footage, forensic evidence, analysis of mobile phone data)

• Remaining material the CPS has in its possession but which it does not propose to rely upon at trial is ‘unused material’ - e.g. a statement taken from a witness whom the police initially think may help the prosecution case, but who in fact does not say anything that assists the case against the defendant.

Question 14

What are the magistrates courts standard directions?

Answer 14

1) Service of evidence and disclosure
- The court may direct that the prosecution must serve further evidence by a certain date, or must comply with their initial duty of disclosure by a certain date. The disclosure of unused material will be relevant here
2) Witnesses and evidence
3) Expert evidence
4) Securing attendance
5) Special measures, including intermediaries

Question 15

What are the Transforming Summary Justice points?

used by practioner’s who work in magistrates court, e.g. Sharon

In addition to giving case management directions, magistrates courts will also expect the characteristics outlined in the TSJ to be applied by all practioner’s who work in magistrates court.

Answer 15

1) Early and effective case preparation
2) Disclosure of Unused Material
3) Clear expectations of effectiveness at first hearing
4) Clear expectations of trial readiness.

Question 16

What is meant by ‘early and effective case preparation’ (TSJ)?

Answer 16

• To promote early engagement between defence, prosecution and court
• To allow defence solicitors sufficient time to prepare the case
• For the CPS to ensure file ownership at this stage – i.e., that there are allocated
  lawyers for [anticipated not guilty] cases, for review, early decision making
• For the CPS to include contact details of the allocated lawyer in the case within the
  IDPC to enable the defence to directly contact the prosecutor
• For IDPC to be published onto Common Platform a minimum of 5 days before the
  first hearing

Question 17

What is meant by disclosure of unused material requirements in TSJ?

Answer 17

• Disclosure requirements to be complied with by police in accordance with [the]
  Attorney General’s Guidelines;
• In [anticipated not guilty] cases, early provision of unused material within the IDPC.

Question 18

What is meant by clear expectations of effectiveness at first hearing?

Answer 18

In Not Guilty plea cases, for all parties to ensure that there is:
* robust case progression; with clear identification of trial issues;
* clear indication of witness requirements;
* remote support and participation of police staff and other investigative bodies,
to enable issues to be dealt with in real time, rather than to have to adjourn;
* availability of and facilities for the defence to view multi-media evidence, to be
provided at court;
* use of indications of sentence (Goodyear directions) in appropriate cases.

In cases to be sent to the Crown Court, for all parties to ensure that there is:
* an understanding that to obtain maximum credit for plea it is essential that, for either way offences, a guilty plea is entered at the Magistrates’ Court;
* an understanding that for indictable only offences, that there is an unambiguous indication of guilty plea recorded on the BCM form

Question 19

What is a plea and trial preparation hearing?

Answer 19

A PTPH must be held in every criminal case sent to the crown court

• The PTPH is a pre-trial hearing designed to set the date for trial
• Identify so far as can be determined at that stage, the issues for trial
• Provide a timetable for the necessary pre-trial preparation and give appropriate directions for an effective trial
• Make provision for any further pre-trial case management hearing.

Question 20

How is the case sent straight to Crown Court (i.e. if it is triable only on indictment and cannot be tried in the magistrates court)?

Answer 20

• Magistrates will set a date for the PTPH at the Crown Court
• Or a date for a preliminary hearing in the Crown Court (if such hearing is necessary) and will remand the defendant either on bail or in custody to appear at the Crown Court
• Unless a preliminary hearing is to take place at the Crown Court, the magistrates court will also give a set of standard case management directions for the CPS and the defendant’s solicitors - they must comply prior to the PTPH taking place
• The magistrates will give the defendant a notice specifying the offences for which they have been sent for trial and the Crown Court at which they are to be tried.
• A copy of the notice will also be sent to the relevant Crown Court.

Question 21

What are linked summary offences?

Answer 21

• A defendant who is sent for trial in respect of either-way offence may also be charged with another offence that is summary-only.
• If the summary-only offence is common assault, taking a conveyance without consent, driving whilst disqualified or criminal damage

The defendant may be tried for these offences at the Crown Court if the offence is founded on the same facts as a either-way offence or is part of a series of offences of the similar or same character.

Question 22

When will preliminary hearings take place?

Answer 22

• The CrimPR contain standard case management directions that the magistrates court will issue when a case is sent for trial to the Crown Court.
• In some limited circumstances, when an offence triable only on indictment is sent for trial, a preliminary hearing may take place at the Crown Court.

If such a preliminary hearing is needed, any directions necessary will be given by the judge at this hearing.

A preliminary hearing will take place for an offence triable only on indictment if:
a) there are case management issues which the Crown Court needs to resolve
b) the trial is likely to exceed four weeks
c) it is desirable to set an early trial date
d) the defendant is under 18 years of age
e) there is likely to be a guilty plea and the **defendant could be sentenced at the preliminary hearing. **
A preliminary hearing must take place within 10 business days on the date which the magistrates send the case to the Crown Court.

Question 23

When do PTPH take place?

Answer 23

• For those cases where a preliminary hearing is not required, the first hearing in the Crown Court will be a PTPH.
• Purpose of a PTPH is to enable the defendant to enter their plea and if the defendant is pleading not guilty, to enable the judge to give further case management directions for the CPS and the defendant’s solicitor to comply prior to trial
• Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take place within 20 business days after sending

Question 24

Explain the process of a PTPH?

Answer 24

1) Arraignment
2) Guilty Pleas
3) Indication of sentence
4) Non guilty pleas
5) Listing the case for trial
6) Change of plea

Question 25

What is arraignment?

PTPH

Answer 25

At the start of the PTPH the defendant will be ‘arraigned’.
* Charges on the indictment will be read to defendant who will either plead guilty or not guilty. Defendant is asked to enter a plea in respect of each of those charges - e.g. guilty / not guilty.

• If the **defendant pleads guilty **to some counts, but not guilty to others, the jury will not be told about the counts to which a guilty plea has already been entered (so they are not in any way prejudiced against the defendant)
• Sometimes it will be agreed that a defendant charged with several counts will agree with the CPS to plead guilty to certain counts if the CPS does not proceed with the other counts. If this happens at the arraignment, the CPS will offer no evidence in respect of these other counts and **the judge will order that a verdict of not guilty be entered. **
• The CPS will also offer no evidence at the arraignment if, since the case was sent for trial, further evidence has become available which leads it to conclude that there is no longer reasonable prospect of securing a conviction. In this case, the judge will order a non-guilty verdict be entered and the defendant will be formally discharged.
• As an alternative to offering no evidence, the CPS may ask that the count ‘lie on the court file’- may happen when there are several counts on the indictment and the CPS evidence in respect of each count is strong. If the defendant is prepared to plead guilty to the more serious counts, the CPS may agree to lesser counts being left on the file. In such a case a not guilty verdict will not be entered and (in theory) with the leave of the court, the CPS may be allowed to re-open the case at a later date.

Question 26

What are guilty pleas at the PTPH?

Answer 26

• Where a guilty plea is entered at the PTPH, the court should ordinarily proceed to sentencing on the same day (immediately).
• Sentencing may be adjourned to a later date if pre-sentence reports, such as medical reports or **reports from probation service are required **
• Judge may also adjourn the case if the defendant pleads guilty but disputes specific factual allegations made by the prosecution witness (separate hearing called a Newton hearing’ will be necessary to determine the factual basis on which the defendant will be sentenced.

Question 27

What is the indication of sentence (Goodyear indication) and the impact it as at PTPH?

Answer 27

• A judge is permitted to give a defendant an advance indication of the likely sentence they would receive if they were to enter a guilty plea at that stage
• The defendant must specifically ask for such an indication
• If the judge gives an indication and the defendant then enters into a guilty plea, the indication given to the judge will be binding.

Question 28

What are non guilty pleas at PTPH?

Answer 28

• If the defendant pleads not guilty at the PTPH, the judge will often consider if any further directions are necessary to prepare the case for trial (over and above those given by the magistrates court when the case was send to Crown Court)
• To determine whether further directions may be necessary, the judge will require the prosecution and defence advocates present at the PTPH to be in a position to supply the following information

1) A summary of the issues in the case
2) Details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial
3) Whether the transcript or the defendant’s police station interview requires editing
4) Whether a defence statement has been served and if so, whether there is any issue as to the adequacy of the statement
5) Whether the prosecution will be serving any additional evidence
6) Whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution
7) whether any expert evidence is to be called and if so, whether any additional directions are needed in respect of this
8) Whether any further directions are necessary concerning hearsay or bad character evidence
9) Whether special measures are required for any witnesses
10) Any facts which can be formally admitted
11) Any points of the law or issues concerning admissibility of evidence which are likely to arise at trial
12) Dates of availability to attend trial or the witnesses and the advocates

Question 29

What is meant by listing the case for trial at the PTPH?

Answer 29

• At the PTPH the judge will give any further case management directions that are necessary in light of the above information disclosed by the parties
• Will then either fix a date for the defendant’s trial or place the case on the ‘warned list’, if the Crown Court will contact the defendant’s solicitor to let them know that the case has been listed for trial shortly before the date when the trial is due to start
• At the conlcusion of the PTPH the defendant will either be released on bail, remanded in custody pending his trial.

Question 30

What is a change of plea at the PTPH?

Answer 30

• A defendant who initially enters a not guilty plea may, at the discretion of the judge, change this to a guilty plea at any time before the jury return their verdict
• This is likely ho happen if a defendant admitted their guilt but pleaded not guilty in hope that a successful submission of no case to answer could be made at the end of the prosecution case but before the defendant needed to give evidence.
• If the submission is unsuccessful, the defendant will change his plea to guilty.
• A defendant may also change their plea to guilty during the trial if the judge makes a ruling on a point of law or the admissibility of a piece of evidence which deprives the defendant of a defence on which they wanted to rely.

Question 31

Are there furthr case management hearings?

FCMH

Answer 31

Generally there are no further case management hearings following the PTPH. Ordinarily the next hearing would be the trial itself. However, the court may conduct FCMH where

1) It is necessary to conduct such a hearing in order to give directions for an effective trial
2) Such a hearing is required to set out ground rules for the conduct of the questioning of a witness or defendant.

Question 32

What is a ground rules hearing?

An example of a situation where the court will request further case management hearings

Answer 32

• A ground rules hearing is designed to establish the most appropriate way for vulnerable witnesses to give their best evidence.
• The hearing will address the management of questions to witnesses at trial, including the restrictions on the type and nature of questions to be asked, and whether any reasonable adjustments are required - e.g. whether the witness could give evidence bia a live link.

Question 33

What happens at the conclusion of a PTPH?

Answer 33

The defendant will either be
1) Remanded into custody
2) Released on bail pending trial.

Question 34

What is disclosure?

Answer 34

In criminal proceedings, disclosure refers to the legal duties imposed on the parties to a criminal case to provide evidence or information to the other side.

• Both the prosecution and defence possess legal duties relating to disclosure and those duties vary according to the type of case being dealt with and the court within which it is heard.

• To supplement the statutory provisions in CPIA 1996 - there is also a ‘Judicial Protocol on the Disclosure of Unused Material in Criminal Cases and Attorney-General’s guidlines on disclosure’ and ‘National Disclosure Improvement Plan’ produced jointly by the police and the CPS - set out the principles to be applied in relation to case management, and the consequences if there is a failure by the prosecution or defence to comply with their disclosure obligations.

Question 35

What disclosure does the prosecution need to provide?

Answer 35

• All evidence that they rely upon in the case.
• This is evidence that the prosecution will use in order to prove the defendant is guilty.
• Any prosecution material which has not been previously disclosed to the defendant
• Any material which might reasonably be considered capable or of assisting the case for the defendant (unused material)
• If there is no material to disclose - prosecution must give the defendant a written statement stating such.
• Prosecution must also inform the court of any disclosure

Question 36

What disclosure will the defence need to provide?

Answer 36

• May be under an obligation to disclosure information regarding their case (e.g. the defence that they intend to run)
• The obligation on the defendant depends on the court where the case is tried.

Question 37

What is unused material? (Disclosure requirement for the prosecution)

Answer 37

Unused materials could be
- statements from the witnesses whom the CPS does not intend to call to give evidence at the trial.
-They have to retain this material and in the event of the defendant entering a non guilty plea , the CPS must disclose any such material to the defendant if the material satisfies this test set out in s.3 **‘might be reasonably considered capbable of undermining the case for the prosecution..or of assisting the case for the accused
Examples of this include
a) Records of the first description of a suspect given to the police by a potential eyewitness if that description differs from that of the defendant
b) any information provided by the defendant which indicates an innocent explanation for the offence
c) Material casting doubt on the reliability of a witness (e.g. previous convictions)
d) Material casting doubt on the reliability of a confesion and
e) Any statements from witnesses which appear to support the defendant’s account.

Example:
Mahmood is charged with assaulting Selim. Mahmood denies the offence and claims that
Selim threw the first punch, and that he was acting only in self- defence. The CPS serves on
Mahmood’s solicitor several statements from eyewitnesses who state that Mahmood threw
the first punch. The CPS also has a statement from another witness who says that Selim threw the first punch. The CPS does not intend to rely on evidence from this witness at trial, but it is under an obligation to serve a copy of the statement on Mahmood’s solicitor.
The statement undermines the prosecution case that Mahmood threw the first punch and
assists Mahmood’s case that he was acting in self- defence after being attacked.

Question 38

What are the time limits as to when the prosecution must make initial disclosure of any unused materials in their possession which satisfies the test in s.3?

Answer 38

• CPS usually sends the defendant’s solicitor a schedule of all the non-sensitive unused material in its possession together with copies of any items on the schedule which satisfy the test in s.3
• **The duty to disclosre on the CPS is ongoing ** and so the CPS must apply this test to any further material if it receives after making initial disclosure.
• CPS must also consider the need to make further disclosure in light of any information received from the defence about the nature of the defence
• If the defendant’s solicitor considers that the disclosure made by the CPS is incomplete, they will request disclosure of any ‘missing’ items when drafting the defence statement
• Should the CPS refuse to supply to the defendant’s solicitor items which the solicitor has requested, the solicitor may apply to the court to request the specific disclosure of such items under s8(2) of CPIA 1996.
• Such an application may be made only if the defendant has provided a defence statement.

Question 39

What material 1) must be disclosured and 2) need not be disclosed?

Answer 39

Must be disclosed
- Material which might reasonably be considered capable of being adverse to the prosecution’s case
- Material which might reasonably be considered capable of positively impacting the defendant’s case

Does not need to be disclosed
- Neural material, not affecting either party positively or negatively
- Material which is adverse to the defendant’s case (though of course, you would expect the prosecution to rely on this evidence and thus disclose it in the ordinary course of events).

Question 40

Can the prosecution withhold disclosure of unused material?

Answer 40

Yes. Sensitive items such as
- Material relating to national security or intelligence
- Material relating to the identity of police informants or undercover police officers
- Material revealing techniques and methods relied upon by the police (e.g. covery surveillance techniques used)
- Material relating to child witness (such as material generated by a local authority social services department)

If such material satisfies the test for disclosure to the defence in s3 of CPIA 1996, the CPS can withhold the material only if it is protected by ‘public interest immunity’

Note. It is the decision of the court as to whether disclosure can be avoided on the grounds of public interest immunity.
- CPS must make an application to the court for a finding that it is not obliged to disclose the relevant material. The relevant procedural rules which must be followed when a public interest immunity application is made to the court is set out in Part 15 CrimPR and this type of an application will often be made ex parte (without notice to the defence)
- It is usual, when drafting a defence statement (see below), to ask the CPS if a schedule of sensitive materials has been prepared and, if so, whether the CPS has made any application to the court for an order that it is not obliged to disclose the existence of such material.

Question 41

What are the AG Guidelines on Disclosure?

Answer 41

• Provides a list of considerations that the prosectuion must take into account when determining whether material satisfies the disclosure test.

These considerations include
- The use thea might be made of the material in cross-examination
- The capacity of the material to undermine the reliability ot credibility of a prosecution witness
- The capacity of the material to have a bearing on scientific or medical evidence in the case.

AG Guidelines - provide some examples of materials that ‘likely’ to meet the test for disclosure and include such things as any incident logs relating to the allegation and any material casting doubt on the reliability of a witness (e.g. previous convictions).

Question 42

What are the timeframes for initial disclosure - prosecution?

Answer 42

Magistrates court - prosecution must comply as soon as is reasonably practicable after the defendant pleads not guilty

Crown Court - prosecution must comply as soon as reasonably practiable after the case is committed or transferred for trial, or after the evidence is served where the case is sent for trial, or after a count is added to the indictment.

Continuing duty of disclosure - if following the initial disclosure, further information or evidence becomes available which satisfies the disclosure test then the prosecution must disclose it to the defendant as soon as is reasonably practicable.

Question 43

What happens once the CPS has made its initial disclosure?

Answer 43

The onus switches to the defendant’s solicitor.
- Defendant’s solicitor needs to give notice indicating whether they intend to call any witnesses including details of the witnessess
- And a defence statement

Question 44

What are the requirements of the defence disclosure?

Answer 44

Magistrates court - if defendant enters a non-guilty plea and decides to serve a defence statement - within 10 business days of the CPS making initial disclosure of any unused material it hasDefence statement will be served on the CPS and a copy of the statement sent ot the court.

• **Crown court **- time period is extended to 20 business days from service of any unused material by the CPS
• **Complex case **- 10/20 days is not sufficient, defendant may apply to the court for a longer period within which to serve the defence statement. In a case involving two or more co-accused, s5A of CPIA allows the court to make an order that a copy of the defence statement made by each defendant is to be served on the other defendant’s in the case.

Question 45

When does the defendant have to provide compuslory disclosure ?

Answer 45

• Defendant facing a trial in the crown court
• Obligation is enforced in the crown court by the court being able to draw adverse inference against the defendant if a defence statement is not provided

For a case in the magistrates court, the defendant’s solicitor should consider serving a defence statement on the CPS only if they think that the CPS will, in the light of all the information disclosed in the statement, be in a position to disclose additional unused material that may assist the defence case. Such a situation is likely to arise only if the defence statement contains additional details about the defence of which the CPS was previously unaware.

It is extremely rare for a defence statement to be served on the prosecution in the magistrates court. This possible advantage of gaining additional disclosure from the CPS is heavily outweighed by the disadvantage of giving away too many details of the defence case to the CPS prior to the trial when there is no obligation to do so.

Question 46

What is inlcuded in the contents of the defence statement?

Answer 46

1) Sets out the nature of the defence, including any particular defences on which the defendant intends to rely (e.g. alibi and self defence)
2) Indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue
3) Sets our particulars of the matter of fact on which the defendant intends to rely for the pruposes of their defence
4)Indicates any points of law (inlcuding any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely on for this purpose
5) In the case of an alibi defence, provides the name, address and date of birth of any alibi witness or as many of these details as are known to the defendant

Question 47

When is the defence under a continuing duty in terms of disclosure?

Answer 47

To update the defence statement if the details to be given change before trial (e.g. a witness comes forward who is able to support an alibi given by the defendant and whose existence was unknown at the time the initial defence statement was prepared.

Question 48

How is the defendant’s approval obtained for a defence statement?

Answer 48

• Defence statement deemed to be given with the authority of the defendant
• A defendant’s solicitor should also ensure that the defendant sees and approves a copy of the defence statement before this is served
• As the defence statement will usaully be drafted by the defendant’s solicitor- usual practice will be for the defendant’s solicitor to sign a copy of the original statement which is served and for the defendant to sign a copy of the statement which will be kept on the solictor’s file.

Question 49

When may the court draw adverse inference (in terms of defendant disclosure?

Answer 49

Defence statements effectively obligatory for defendants pleading not guilty in the crown court, even if they are any faults in disclosure given by the defence. Court may draw any adverse inference from this when determing the defendan’ts guilt

Including:
(a) failing to provide a defence statement at all;
(b) late service of the defence statement;
(c) serving a defence statement that is incomplete;
(d) serving a defence statement which is not consistent with the defence put forward at
trial; and
(e) failing to update a defence statement.

If any of these faults occurs, the courts or with leave, any other party (such as the prosecution or any co-accused) may make such comments as appear appropriate, and the court or jury may draw such inferences as appear proper when deciding whether the defendant is guilty.

Example: Amanda is charged with theft. Her case is sent for trial to the Crown Court. She enters a not guilty plea at the PTPH. Amanda fails to serve a defence statement on the CPS. At her trial Amanda raises the defence of alibi and claims that the prosecution witness who identified her as the person who committed the theft is mistaken. As Amanda failed to serve a defence statement setting out this defence, the trial judge or, with leave, the
prosecution, may comment on this and the jury may draw such inferences as appear proper (which is likely to be an adverse inference).

Javed is charged with unlawful wounding. His case is sent for trial to the Crown Court. At the PTPH he enters a not guilty plea. In his defence statement, Javed claims that
he was not present at the time of the alleged incident and raises the defence of alibi.
At his trial, Javed accepts that he was present at the time of the incident and instead raises the defence of self- defence. As there is a disparity between what was said in his defence statement and the defence he is now raising at trial, the judge or, with leave, the prosecution, may comment on this and the jury may draw such inferences as appear proper (which is likely to be an adverse inference).

Question 50

Can the defence challenge the prosecution failure to provide unused material?

Answer 50

Yes. A defendant who has provided a defence statement to make an application to the court if the CPS has failed to comply with the continuing futy of disclosure in light of the matters contained in the defence statement.

• Defendant may ask the court for an order that the CPS disclose material provided the defendant has reasonable course to believe that there is prosecution material which should have been, but has not been, disclosed.
• The defendant will only be allowed to make such an application if they have set out in detail in their defence statement the material which they consider the CPS has in its possesion which it has not subsequently disclosed.