What is the nature of the disclosure duty?
Before a criminal trial starts in the Crown Court, the prosecution must disclose to the defence any materials which they have not previously disclosed – regardless of whether it could help or hinder the prosecution’s case. Once this is done, there is a duty on the defence team under the Criminal Procedure and Investigations Act 1996 (CPIA 1996) to submit a defence case statement to the prosecutor and the court.
There is no such duty on the defence in the magistrates’ court (although they may choose to do so); however, the accused must provide details of their witnesses.
Once the defence case statement is submitted, the prosecution and/or investigating officers may wish to make further enquiries based on the information given. This may in turn require the prosecution to make further disclosure to the defence if new material arises.
Subject to some exceptions, the time limit for service of the defence statement and the details of any defence witnesses is 14 days in the magistrates’ court and 28 days in the Crown Court, unless that period is extended by the court.
Purpose of the defence case statement
The aim of defence disclosure is to:
- assist trial management by helping to identify the issues in dispute;
- provide information that the prosecutor needs to identify any material that should be disclosed; and
- prompt reasonable lines of enquiry whether they point to or away from the accused.
Required elements of the defence case statement
The defence case statement must be in writing, signed by the defendant or the defendant’s solicitor and outline:
- the nature of the defence of the accused, including any particular defence upon which they intend 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 they intend to rely in their defence;
- 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 they intend to rely on for that purpose.
Bare denials are not sufficient to comply with the above stated obligations. Therefore, a complete denial of the prosecution’s case or the evidence of their witnesses without any reasoning on the defendant’s side is insufficient (R v Bryant (2005)).
Additional requirements if the defence is an alibi
What is alibi evidence?
Alibi evidence aims to show that due to the presence of the accused at a particular place at a particular time they were not, or were unlikely to have been, at the time and place where the offence is alleged to have been committed.
What are the additional requirements?
If the defence statement discloses an alibi, particulars of alibi must be provided in the statement. Those include the name, address and date of birth of any alibi witness or as many of those details as are known to the accused at the time the statement is given. However, if those are unknown when the statement is made, information must be provided which might be of material assistance in identifying or finding the witness.
Effect of non-compliance
Where there is no defence statement, or it is considered inadequate, the prosecutor should write to the defence indicating that further disclosure may not take place or will be limited and invite them to specify or clarify the defence case. If the defence fails to respond, or refuses to clarify the defence case, the prosecutor can raise the issue at a pre-trial hearing and ask the court to give a statutory warning under s 6E(2) of CPIA 1996.
Problems may arise with a defence statement if the accused:
- fails to give an initial defence statement;
- fails to provide an updated statement;
- supplies any of the above outside the specified time limits;
- sets out inconsistent defences in the defence statement;
- puts forward a defence at trial which was not mentioned in the defence statement;
- relies on a matter which should have been mentioned in the defence case statement;
- gives evidence of alibi or calls a witness to give evidence in support of alibi without having complied with the provisions relating to notification of alibi witnesses.
If inconsistencies arise between the defendant’s evidence in court and information provided in the defence case statement, the defendant may be cross-examined on this without leave of court.
If there are faults in the defence statement, the court, the prosecutor or another defendant may comment on that, and the court may draw such inferences as it thinks proper in deciding whether the defendant is guilty.