Disclosure of unused material and defence statements. The Defence Statement Flashcards
The Defence Statement
By the CPIA 1996, s. 5, once the case is sent to the Crown Court and the prosecution case is served, the accused must give a defence statement to the court and the prosecutor. The defence statement is a written statement setting out the basis on which the case will be defended.
The areas that the statement must cover include:
- the nature of the accused’s defence, including any particular defences upon which the accused intends to rely;
- the matters of fact on which the accused takes issue with the prosecution, with the reasons why;
- particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and
- any points of law which the accused wishes to take, with any authorities relied upon.
It should be stressed that the duty of disclosure imposed on the defence is different to that which is meant by the prosecution ‘duty of disclosure’. In respect of the defence, it is a duty to reveal the case which will be presented at trial (rather than, as in the case of the prosecution, to disclose unused material).
The degree of detail which is currently required by the CPIA 1996 results from a perception among some prosecutors and members of the judiciary that defence lawyers were providing defence statements that were couched in too general terms, so that the intended benefits of their introduction in terms of improved case management were not being realised.
if the accused raises no positive case at all in a defence statement and simply requires the Crown to prove its case, there is no failure to comply with the CPIA 1996, s. 6A, as long as the defence statement makes clear that this is the accused’s position.
Defence statements should not make general and unspecified allegations in order to seek far-reaching disclosure and should not describe the defence in ambiguous or limited terms (such as self-defence, mistaken identity, consent).
It is vital that prosecutors consider defence statements thoroughly and, in the Crown Court, should challenge the lack of or inadequate statements in writing.
Prosecutors must provide the investigator with the defence statement as soon as reasonably practicable after receipt and provide advice on whether there are any further lines of inquiry to be pursued, what to look for when reviewing unused material and what further material may need to be disclosed.
‘Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law’. The Protocol requires judges to examine the defence statement with care to ensure that it complies with the formalities required by the CPIA 1996 and to investigate any failure by the defence to comply with its obligations.
In appropriate circumstances the principle that there must be equality of arms will mean that the prosecution must spell out the inferences that they will be asking the trier of fact to draw from the facts adduced in their evidence, given that the defence are obliged to set out their reasoning for disputing issues of fact in that evidence. It follows that the scope of the defence statement should be viewed in the context of what might reasonably be required of the defence at a stage when they may not be clear about the way in which the prosecution put their case.
Legal professional privilege and the accused’s privilege against self-incrimination are unaffected.
The accused is required to disclose what is going to happen at the trial, but is not required to disclose the confidential discussions with lawyers, nor is the accused obliged to self-incriminate if the accused does not want to.
A lawyer cannot properly advise an accused not to file a defence statement or to omit from it something that is required to be there by s. 6A.
The guidance states that counsel ought not to accept any instructions to draft or settle a defence statement unless given the opportunity and adequate time to gain proper familiarity with the case and to comply with fundamental requirements which are set out in the guidance.
Alibi
If the defence statement discloses an alibi, particulars of alibi must be given under the CPIA 1996, s. 6A(2). The names, addresses and dates of birth (or as much of this information as is known) of any alibi witnesses whom the accused intends to call must be contained within the defence statement. If the accused does not know any of these details, any information in the accused’s possession that might assist in identifying or finding any such witness must be given.
Changes in relation to alibi witnesses, or the later discovery of the information required by statute, must be dealt with by the procedure for updated disclosure when this is in force. Alibi evidence is defined in s. 6A(3) as ‘evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission’.
The statutory obligation to provide the details of the witness is triggered by the accused’s belief that the witness is able to assist; it is not necessary that the witness can give evidence or is willing to do so.
Notification of Details of Defence Witnesses
The defence are under a duty to notify the court and the prosecutor, separately from the defence statement, of any witnesses they intend to call at trial, other than the defendant and any alibi witnesses already notified.
The defence must provide names, addresses, dates of birth or, if any such details are not known, other identifying information.
Notice of intention to call a witness must be given within 14 days (in the case of summary proceedings) and 28 days (in the case of Crown Court proceedings) from the date when the prosecutor complies, or purports to comply, with the duty to disclose under s. 3
Any change in the plans to call witnesses (including a decision not to call a previously notified witness or to call a witness not previously notified) must be dealt with by way of an amended notice to the court and the prosecutor.
These provisions override litigation privilege and legal professional privilege to the extent that such privileges are inconsistent with reasonable requirements for the proper working of the provisions
Defence Statements in Cases Tried Summarily
there is no obligation on the defence to provide a defence statement. However, once the prosecutor has complied (or purported to comply) with the duty to disclose unused material the accused may give the prosecutor and the court a defence statement.
In the absence of a defence statement, the accused cannot make an application for specific disclosure under s. 8, and the court cannot make any orders for disclosure of unused prosecution material.
Where the accused chooses to serve a defence statement this must be done within 14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure.
The court has power to extend this time-limit on the application of the accused.
If the accused provides a defence statement, the requirements in s. 6A as to the contents of the statement apply. The voluntary regime applies to summary trial, whether it is of a summary or an either way offence or even (in the case of a child or young person) of an indictable only offence.
Notwithstanding the absence of a requirement to serve a defence statement, the defence must identify the real issues in a case in accordance with the overriding objective.
Criminal Procedure and Investigations Act 1996, s. 6
(1) This section applies where—
(a) [Part I] applies by virtue of section 1(1), and
(b) the prosecutor complies with section 3 or purports to comply with it.
(2) The accused—
(a) may give a defence statement to the prosecutor, and
(b) if he does so, must also give such a statement to the court.
…
(4) If the accused gives a defence statement under this section he must give it during the period which, by virtue of section 12, is the relevant period for this section.
Defence Statements in Cases Tried in the Crown Court — Time-limits
The defence statement must be served within 28 days of the prosecution’s compliance (or purported compliance) with the duty of initial disclosure.
The defence may apply for an extension, but the application must be made before the deadline expires.
The application must not be granted unless the court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days.
There is no limit to the number of applications that may be made.
Time runs from the date of service of a statement by the prosecution not from service of the scheduled unused material; however, the right to further disclosure is not lost if there is a short delay in serving the defence statement.
The Judicial Disclosure Protocol recognises that there may be some instances when there may be a well-founded defence application to extend the 28-day limit for serving a proper defence statement to enable an appropriate defence statement to be filed.
Extensions will not be granted lightly or as a matter of course. If an extension is sought, the application ought to be accompanied by an appropriate explanation.
There is clearly a burden on defence representatives to embark on detailed preparation soon after receipt of the prosecution case. However, this responsibility cannot be discharged unless the prosecution make timely disclosure of unused material.
‘the defence must have a proper opportunity to review the case papers and consider initial disclosure, with a view to preparing a properly completed defence statement’.
Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (SI 2011 No. 209), regs. 2 and 3
2.—
2.—
(1) The relevant period for sections 5 (compulsory disclosure), section 6 (voluntary disclosure) and section 6C (notification of intention to call defence witnesses) begins with the day on which the prosecutor complies, or purports to comply, with section 3 (initial duty of prosecutor to disclose).
(2) In a case where Part 1 applies by virtue of section 1(1) (application of Part 1 in respect of summary proceedings), the relevant period for section 6 and section 6C expires at the end of 14 days beginning with the first day of the relevant period.
(3) In a case where Part 1 applies by virtue of section 1(2) (application of Part 1 in respect of Crown Court proceedings), the relevant period for section 5 and section 6C expires at the end of 28 days beginning with the first day of the relevant period.
(4) Where the relevant period would expire on a Saturday, Sunday, Christmas Day, Good Friday or any day that under the Banking and Financial Dealings Act 1971 is a bank holiday in England and Wales, the relevant period is treated as expiring on the next day that is not one of those days.
(5) Paragraphs (2) and (3) are subject to regulation 3.
3.—
(1) The court may by order extend (or further extend) the relevant period by so many days as it specifies.
(2) The court may only make such an order—
(a) on an application by the accused; and
(b) if it is satisfied that it would be unreasonable to require the accused to give a defence statement under section 5 or section 6, or give notice under section 6C, as the case may be, within the relevant period.
(3) Such an application must—
(a) be made within the relevant period;
(b) specify the grounds on which it is made; and
(c) state the number of days by which the accused wishes the relevant period to be extended.
(4) There is no limit on the number of applications that may be made under paragraph (2)(a).
Sanctions for Failure in Providing Defence Materials
Section 11 of the CPIA 1996 lays down sanctions for failure in defence disclosure which apply if the accused:
(a) fails to give the initial defence statement required under s. 5 in respect of Crown Court cases;
(b) gives the initial defence statement after the 14-day period during which it must be served in the magistrates’ court or after the 28-day period during which it must be served in the Crown Court
(c) fails to provide an updated statement required under s. 6B(1) or a statement that no updating is necessary under s. 6B(4) (note, however, that s. 6B is not yet in force);
(d) supplies the documents in (c) outside the applicable time-limit;
(e) sets out inconsistent defences in the defence statement;
(f) puts forward a defence at trial that was not mentioned in the defence statement;
(g) relies on a matter that should have been mentioned in the defence statement to comply with s. 6A, but was not;
(h) gives evidence of alibi or call a witness to give evidence in support of alibi without having complied with the provisions relating to notification of alibi witnesses;
(i) calls a witness not included or adequately identified in the notice of defence witnesses.
In the event that any of the issues identified above applies, the court may comment upon the failure in question. Other parties (the prosecution and co-accused) may also comment upon any defect in disclosure, but in certain circumstances such comment requires the leave of the court.
Those circumstances are where the defect that triggers the sanction is a failure to mention a point of law (including failure to mention a point about admissibility of evidence or abuse of process) or authority to be relied on, failure to give notice of or adequately identify a witness, or failure to give such notice in time.
If any of the above deficiencies applies, the court or jury may also draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.
The accused may not, however, be convicted solely on the basis of such an inference.
The wording of s. 11(5)(b) would preclude the use of an inference from defective disclosure to bolster the prosecution case against a submission of no case to answer, since the phrase ‘whether the accused is guilty of the offence concerned’ is not apt to describe the decision which the court has to make on such a submission.
If there is a failure of defence disclosure by breaching any of the requirements of the CPIA 1996, the only sanctions available to the court are those contained in s. 11. Therefore, the court cannot punish by way of contempt of court a failure to comply with its direction to amend (or provide) the defence statement
it cannot rule as inadmissible the evidence of alibi witnesses on the basis that no defence statement had been served providing details of them.
and it cannot decline to allow the accused to put forward matters in cross-examination which go to a relevant issue because the material on which such cross-examination is based is produced at a very late stage with no advance notice.
The appropriate sanction in all these instances is adverse comment and for the court or jury to be able to draw such inferences as may be proper. Where a failure to provide a defence statement results in additional expense for the prosecution, a wasted costs order may be appropriate
