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. Therefore, a complete denial of the prosecution’s case or the evidence of their witnesses without any reasoning on the defendant’s side would be insufficient.
How is the statement verified?
It is good practice for the defence case statement to be signed by the defendant. A judge has no power to issue a practice direction effectively forcing the accused to sign the statement. However, where a statement is unsigned, the judge may ask the defendant to confirm the document is in fact his statement in order to establish that he has complied with his obligation.
Additional requirements if the defence is an alibi
What is alibi evidence?
Alibi evidence has been defined as evidence tending to show that due to the presence of the accused at a particular place at a particular time he was not, or was 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 finding the witness.
What is the effect of non-compliance with the provisions?
There are a number of ways in which an accused could be subject to sanctions. Those apply if the defendant:
Fails to give 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.
In case such differences are seen in the course of the trial, the defendant may be cross-examined upon the distinctions between his defence at trial and his statement. This is done without the need for the leave of court to be obtained.
If any or a number of those have been established, such could be further brought to the jury’s attention by the court commenting upon that failure.
Following considerations of the jury, they may draw whatever inference appears proper in deciding whether the accused is guilty of the offence.