Unit 2 Defence Statements Flashcards
What should a Defence Statement include? (4)
• 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).
‘Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law’.
If the case is tried summarily, is a defence statement required?
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
What profession is the disclosure officer usually of?
Police officer
Statutory test for determining whether unused material should be revealed to the defence
In determining whether unused material should be revealed to the defence as part of the disclosure process, as noted above, the statutory test is whether it might reasonably be considered capable of:
a. undermining the case for the prosecution against the accused; or
b. assisting the case for the accused.
It is important to emphasise that the test is an objective one and is to be approached impartially.
Disclosure exception under CPIA section 3
However, material must not be disclosed under s. 3 if a court has concluded that it is not in the public interest that it be disclosed (s. 3(6)).
Disclosure rule under CPIA section 4
Where the prosecutor has been given a schedule of unused material by a police officer under the CPIA Code (see D9.12), he must serve that schedule on the accused when he makes disclosure of unused material under s. 3.
What impact does filing a defence statement have on disclosure?
If an accused has served a defence statement (see D9.29) and the prosecution have complied, purported to comply, or failed to comply, with the procedure for further disclosure (see D9.24), an accused may apply under the CPIA 1996, s. 8, for an order for disclosure of material which should have been disclosed to him under s. 7A.
When must the accused serve a 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.
What is a defence statement and what should it include?
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 are set out in s. 6A of the CPIA 1996 and include:
o the nature of the accused’s defence, including any particular defences upon which the accused intends to rely;
o the matters of fact on which the accused takes issue with the prosecution, with the reasons why;
o 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
The difference between the duty of disclosure on the prosecution and defence
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).
What details must be disclosed of an alibi witness?
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.
What is IDP?
• Initial Disclosure Prosecution
o All the prosecution witness statements that they are going to use to prove their case
o Given to the defence prior to the first hearing
o Automatically received by the defence
Are unused material and defence disclosure automatically received by the other party?
Unused material – no
Defence disclosure – no (Defence have to disclose any relevant documents, regardless of whether it points towards or away from the defendant)
Are previous convictions admissible?
Jury do not see the document – prima facie a defendant’s previous convictions are inadmissible. Only relevant convictions, e.g. bad character applications or precursor crimes can be brought into evidence on permission from the courts.
Initial duty of the prosecutor to disclose (s3 CPIA 1996 – commit to memory)
(s.3(1) CPIA 1996) “The prosecutor must disclose to the accused, any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or assisting the case for the accused…”
