What is the nature of the disclosure duty?
Prior to the commencement of a criminal trial the prosecution are under a duty to disclose to the defence materials upon which they intend to rely in the course of the trial. In addition, they need to disclose all others which could undermine their case. Following that disclosure taking place, the defence become subject to a duty to give a defence case statement to the prosecutor and the court.
Nevertheless, the two types of disclosure are very different mainly because there is no obligation on the defence to disclose any materials which they do not wish to use.
Further, it is important to note that while the prosecution have to comply with their disclosure without any express time limits, the defence is given 14 days from prosecution disclosure to satisfy their obligation.
The dilemmas over the defence’s duty
The justification for that obligation on the defence has been causing difficulties to academics for a number of years. Mainly questions have arisen in relation to the principle that every man is innocent until proven guilty and that following the defendant does not need to prove anything but the prosecution have to show he is guilty.
Nevertheless, the limits of the duty have proven that it is in compliance with all human rights principles in question.
The elements of the defence case statement
The content of the defence case statement is currently governed by Criminal Procedure and Investigations Act 1996. There it is made clear that the statement must be in writing and contain the prescribed following information:
The nature of the defence of the accused, including any particular defence upon which he intends to rely;
The matters of fact on which the accused takes issue with the prosecution;
Why the accused takes issue with the prosecution;
Particulars of the matters of fact on which he intends to rely for the purpose of his defence;
The statement indicates any point of law (including those as to admissibility of evidence or abuse of process) which the accused wishes to take, and any authority on which he intends to rely on for that purpose.
Those requirements have received some judicial consideration which has established that bare denials are not sufficient to comply with the above stated obligations.
For more information on:
- How is the statement verified?
- Additional requirements if the defence is an alibi
- What is alibi evidence?
- What are the additional requirements?
- What is the effect of non-compliance with the provisions?