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Chapter 4 - Defence Statements

The Disclosure Referencer

This is a chapter from The Disclosure Referencer (Bloomsbury Professional), which is a practitioner guide on the complex issue of disclosure in criminal proceedings. It brings together all the relevant legislation, codes, rules, regulations, protocols and case law relating to the disclosure of evidence and materials in criminal proceedings in Crown and Magistrates' courts. The book allows the reader to quickly and effectively find the relevant rules, see where the disclosure duties lie and how best those duties can be fulfilled for each type of criminal case, at every stage of the investigation and process. The book follows the course of a criminal investigation from the initial complaint through to the conclusion of the trial, and uses checklists and reference to relevant case law and materials to ensure that the reader fully understands the process.

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Caroline Bradley and Alastair Munt

Chapter 4 Defence statements

Introduction

4.01 Trial by ambush is no longer an acceptable defence trial tactic.[1] The defence need to adopt a proactive 'cards on the table approach'. The defence statement,[2] which is mandatory in the crown court, is a formal document that sets out the accused's defence and the issues with the prosecution case. It can also be used to identify areas of disclosure or reasonable lines of enquiry for the prosecution to consider.

4.02 This chapter deals with:

compulsory disclosure of the defence statement

4.034.09

the contents of the defence statement[3]

4.104.12

defence obligations

generally

4.134.20

privilege against self-incrimination

4.214.25

putting the prosecution to proof

4.264.30

time limits

4.314.32

the updated defence statement

4.334.35

sanctions for faults in the defence statement

4.364.42

administrative sanctions

4.434.48

shopping lists

4.494.51

examples of disclosure requests

4.52

cross service of defence statements

4.534.56

drafting the defence statement

4.574.61

[3] For a copy of a defence statement form for use with CPR 2012, Pt 22 (listed in Consolidated Criminal Practice Direction, Annex D) see Appendix 9.

Compulsory disclosure of defence statement

4.03 Under sections 1(2) and 5(1), CPIA 1996, an accused in a trial on indictment in the crown court must give a defence statement to the court and prosecutor where:

  • 1 the provisions of Part 1, CPIA 1996 apply; and

  • 2 the prosecutor complies or purports to comply with his initial duty of disclosure under section 3(1), CPIA 1996.

4.04 Section 1, CPIA 1996[4] provides that Part 1 applies where:

  • a person pleads not guilty in the magistrates' court or the youth court;

  • a person is charged with an offence for which he is sent for trial;[5]

  • a count charging a person with a summary offence is included in an indictment;[6] and

  • a bill of indictment charging a person with an indictable offence is preferred.[7]

4.05 Where a person is charged with an offence for which he is sent to trial, the accused is not required to serve a defence statement unless:

  • copies of the documents containing the evidence have been served on him;[8] and

  • a notice pursuant to section 51D, Crime and Disorder Act 1998 has been served on him.[9]

4.06 To comply with, or purport to comply[10] with, his initial duty of disclosure under section 3(1), CPIA 1996 the prosecutor must:

  • (a) 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 of assisting the case for the accused,[11] or

  • (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).'

If either of the above conditions is not satisfied the defence are not required to serve a defence statement.

4.07 The defence cannot ignore any failure by the prosecution to provide initial disclosure. Under the CPR 2012, each party must actively assist the court in fulfilling its case management duties[12] in furtherance of the overriding objective.[13] The defence must immediately notify the court and all parties where there is a 'significant' failure in the disclosure process and, if necessary, apply for a direction for disclosure. A failure is 'significant' where it might hinder the court in furthering the overriding objective.[14]

4.08 There is a statutory duty on the prosecutor to serve the non-sensitive schedule (MG6C) in order to comply with his duties of initial disclosure if it is in his possession at the time.[15] A failure by the prosecutor to serve the MG6C will not prevent time beginning to run for the service of the defence statement as the 'schedule is not itself a necessary component of nor the mark of primary [initial] disclosure'.[16] The CPS Disclosure Manual envisages that the MG6C will be served at the time of initial disclosure.[17]

4.09 When the prosecutor complies or purports to comply with his duty of initial disclosure by either disclosing material to the defence or serving a written statement that there is no such material, he must at the same time inform the court officer.[18]

Contents of defence statement[19]

4.10 Section 6A(1)(a)–(d), CPIA 1996[20] provides:

'… a defence statement is a written statement –

  • (a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely,

  • (b) indicating the matters of fact on which he takes issue with the prosecution,

  • (c) setting out, in the case of each such matter, why he takes issue with the prosecution,

  • (ca) [21] setting out the particulars of the matters of fact on which he intends to rely for the purposes of his defence, and

  • (d) indicating any point of law (including any point as to admissibility or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.'

4.11 Where a defence statement is served, details of an alibi must also be provided. Section 6A(2), CPIA 1996 provides:

'A defence statement that discloses an alibi must give particulars of it, including –

  • (a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of his alibi, or as many of those details as are known to the accused when the defence statement is given;

  • (b) any information in the accused's possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.'

4.12 Evidence in support of an alibi is 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 to have been committed at the time of its alleged commission.[22]

Defence obligations

Generally

4.13 What the accused is required to disclose by section 6A, CPIA 1996 is what is going to happen at the trial.[23] Where the accused advances a positive case there must be compliance with the statutory obligations, clearly set out in section 6A, or the accused is at risk of the sanctions available under section 11, CPIA 1996.[24]

4.14 The accused is not required to disclose confidential discussions with his advocate nor is he obliged to incriminate himself if he does not want to. The fundamental rights of legal professional privilege and the accused's privilege against self-incrimination have not been taken away by section 6A, CPIA 1996.[25]

4.15 The accused is under a statutory obligation to serve a defence statement and his lawyers must not advise him against doing so. In R v Rochford[26] Hughes LJ stated:

'Can the lawyer properly advise an accused not to file a defence statement? The answer to that is "No". The obligation to file a defence statement is a statutory obligation on the accused. It is not open to a lawyer to advise his client to disobey the client's statutory obligation. It is as simple as that.' (para 22)

4.16 The accused equally cannot be advised to omit something from the defence statement which section 6A, CPIA 1996 requires. In R v Rochford[27] Hughes LJ stated:

'… the lawyer's duty is first of all never to advise either the absence of a defence statement or the omission from it of something which section 6A requires to be there because of the way the trial is going to be conducted. The lawyer's duty is not to give the accused advice on what to do. The lawyer's duty is to explain the statutory obligation that he has and to explain the consequences which follow from disobedience of it.' (para 25)

4.17 Where the accused admits guilt to his lawyer within the cloak of legal privilege but refuses to plead guilty he cannot be prevented from this course of action. He is entitled to sit through the trial to see whether the prosecution can prove the case or not. He is not under an obligation to declare an admission of guilt in his defence statement.[28] Likewise, an accused who refuses to give instructions either at all or on specific points is not obliged to declare his refusal to answer questions in his defence statement.[29]

4.18 In R v Rochford[30] Hughes LJ laid down general guidance where the accused advances no positive case:

'The defence statement must say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it. But it must also say that he advances no positive case because if he is going to advance a positive case that must appear in the defence statement and notice of it must be given. Unless the requirement is that the statement is made but no positive case is advanced it would be open to defendants simply to ignore sections 5(5) and 6A.' (para 24)

4.19 The CPR 2012 require 'a cards on the table' approach and a rigorous examination of each case is required at a plea and case management hearing (PCMH) in which there is a not guilty plea.[31] It is therefore necessary that:

'A typed defence statement must be served before the PCMH. If there is no defence statement by the time of the PCMH, then a judge will usually require the trial advocate to see that such a statement is provided and not proceed with the PCMH until that is done. In the ordinary case the trial advocate will be required to do that at court and the PCMH resumed later in the day to avoid delay and further costs to the public purse.'[32] (para 34)

4.20 Where an accused's solicitor purports to give a defence statement on behalf of the accused the defence statement shall, unless the contrary is proven, be deemed to be given with the authority of the accused.[33] Although it is good practice for the defence statement to be signed by the accused,[34] a court has no power to order that a defence statement be signed.[35] A judge can require an accused where a statement is unsigned to satisfy him that the document really is his statement.[36]

Privilege against self-incrimination

4.21 The privilege against self-incrimination cannot be used to justify non-compliance with the disclosure requirements under the CPIA 1996. In R v Rochford[37] Hughes LJ, in considering the disclosure that an accused is required to give in a defence statement, said:

'Do legal professional privilege and the defendant's privilege against self-incrimination survive section 6A?[38] The answer to that is "Yes". What the defendant is required to disclose by section 6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial. Nor is he obliged to incriminate himself if he does not want to. Those are fundamental rights and they have certainly not been taken away by section 6A …'

4.22 A deficiency in the prosecution case that could give the accused an advantage must be identified in the defence statement even though it gives the prosecution the opportunity to rectify it. As Stanley Burton LJ stated in Malcolm v DPP:[39]

'Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules …' (para 31)

4.23 His Lordship further stated:

'A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.' (para 34)

4.24 Where the accused has a defence but he refuses to allow his legal representative to disclose it, there is a positive duty under rule 1.2(1)(c), CPR 2012 to notify the court. It is then for the court to decide how to proceed. The legal representative must not make himself complicit in a manipulation of the court process.[40] The Law Society Practice Note states:[41]

'It is essential to appreciate that the purpose of Rule 1.2(1)(c) is to enable the court to control the preparation process and avoid ineffective and wasted hearings.

When something goes wrong because of a failure of a defendant to co-operate with you the court should be made aware of this and if you fail to keep the court informed, you risk breaching your duty to the court under the provisions of the Rules.'

4.25 Where issues are not raised at an early stage and unnecessary costs are incurred as a result, the court can impose a costs order[42] (see Chapter 11).

Putting the prosecution to proof

4.26 Where an accused has no positive case to assert he is entitled to require the prosecution to prove its case but he must make his position clear to the court (see 4.18). It is no longer sufficient to simply record on the defence statement that the prosecution are put to 'strict proof'.[43] The accused must state that he does not intend to assert a positive case. If he subsequently asserts a positive case at trial, it is likely that sanction will follow. A judge cannot require counsel to reveal his instructions if no positive case is going to be made. In R v Rochford[44] Hughes LJ stated:

'The judge was entitled to ask, and indeed to ask insistently and trenchantly. He was not, however, entitled to require counsel to reveal his instructions if no positive case was going to be made in any of the ways which we have identified or any other. From a position of ignorance the judge was not in a position to know, any more than we are at this stage, whether there had been a breach of section 6A or not. Only time will tell as the trial, which has not yet begun, proceeds.' (para 17)

4.27 Where the prosecution is simply being put to proof by the accused and no positive case is asserted, the accused may lose his right to determine which witnesses will be called. The 'Stop Delaying Justice' initiative[45] states that in those circumstances the choice of witness:

'… would remain an issue for the CPS. They would be charged with deciding what evidence they wish to call and how. They may … decide not to call a witness where the defence will not accept them section 9, if they feel they can conduct the trial without them.'

4.28 If the evidence of a particular witness is not in dispute, it may more readily be admitted into evidence under the hearsay provisions of section 114, Criminal Justice Act 2003. In R v Ishmael Adams,[46] where a witness could not be located on the day of trial and his statement could not be read under the provisions of section 116, Criminal Justice Act 2003 (witness unavailable)[47] it was admitted under section 114. Hughes LJ, in giving judgment, stated:[48]

'… the true issue in the case was not possession but intent to supply [drugs] … it was plainly in the interests of justice for the uncontentious matter of possession to be proved by the Crown by the admission of the edited witness statement … To hold otherwise would not be to do justice; it would rather be to afford a defendant an escape on purely technical grounds … There is no question of relieving the Crown of the duty of proving the essential elements of the case. The question is not whether it is for the Crown to prove it, but how the Crown shall be permitted to prove it. If parts of the Crown's evidence are in dispute, it is quite likely that it will not be in the interests of justice to permit those parts to be proved by the reading of a hearsay statement when the witness cannot be cross-examined and properly challenged. But if parts of the Crown's case are not in dispute then it is plainly in the interests of justice that those parts shall be permitted to be proved by them by means of the hearsay statement as in this case.' (para 19)

4.29 It is unclear whether the provisions of section 114, Criminal Justice Act 2003 may be deployed to prevent witnesses being called simply to see if they turn up.[49]

4.30 If it becomes clear that there is a positive case to assert, not previously identified to the court, an adjournment may be necessary. If costs are incurred as a result, the court may impose a costs order[50] (see Chapter 11).

Time limits

4.31 The accused must give a defence statement within 28 days for trials in the crown court from when the prosecutor complies or purports to comply with his initial duty to disclose.[51] The 28-day period applies to investigations commencing on or after 28 February 2011. In cases of any complexity, this time limit will often be too short, as it does not afford the defence sufficient time to assimilate the material and take an adequate proof of evidence from the accused.

4.32 The accused can apply for an extension of days in which to serve the defence statement. The court will only make an order if it is satisfied that it would be unreasonable to require the defence to comply within the specified time period.[52] The application must be made by the accused before the expiry of the time limit, specify the grounds and state the number of days of extension required.[53] There is no limit to the number of applications that can be made.[54]

Updated defence statement

4.33 Section 6B,[55] CPIA 1996 is not yet in force and, until implemented, the court has no power to order the service of an updated defence statement. When in force, section 6B(1), CPIA 1996 will impose a duty upon the defence to update the prosecution as to the defence case either by the service of an 'updated defence statement' or by the provision of a written statement to the effect that there are no changes to be made to the defence statement as initially served.

4.34 An updated defence statement must comply with the requirements imposed by section 6A, CPIA 1996 by reference to the state of affairs at the time when the statement is given.[56] Section 6B(5) and (6), CPIA 1996 allows the court to order the service of the updated defence statement on other co-accused either of its own motion or on the application of any party.

4.35 Additional prosecution evidence and unused material, which has significance to an accused's case, is regularly served after his initial defence statement. Section 6B, CPIA 1996 will give the defence an opportunity to update their defence or provide further information that will allow the prosecutor to make informed decisions on disclosure or advise on further lines of enquiry.

Sanctions for faults in defence statement

4.36 Section 11, CPIA 1996 provides the sanctions for failing to comply with the statutory duty to (i) file a defence statement, and (ii) include those things which are required by section 6A, CPIA 1996. It is not open to the court to add an additional extra-statutory sanction of punishment for contempt of court.[57] The fact that a defence statement is served late does not prevent sanctions applying pursuant to section 11, CPIA 1996.[58]

4.37 Section 11(2), CPIA 1996 identifies nine triggers which will put the accused at risk of the sanction.[59] These are:

  • (a) the accused fails to give an initial defence statement;

  • (b) the accused is late in giving an initial defence statement;

  • (c) not applicable (section 6B updated defence statements is not yet in force);

  • (d) not applicable (section 6B updated defence statements is not yet in force);

  • (e) the accused sets out inconsistent defences in his defence statement; or

  • (f) at his trial the accused –

    • (i) puts forward a defence which was not mentioned in his defence statement or was different from any defence set out in that statement,

    • (ii) relies on a matter which, in breach of the requirements imposed by or under section 6A,[60] was not mentioned in the defence statement,

    • (iii) adduces evidence in support of an alibi without having given particulars of the alibi in his defence statement, or

    • (iv) calls a witness to give evidence in support of an alibi without having complied with section 6A(2)(a) or (b)[61] as regards the witness in his defence statement.

4.38 The consequence of any of the above faults is that, unless the fault involves failing to mention a point of law, the court or any party (i.e. prosecution or co-accused) may make such comment as appears appropriate and the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.[62]

4.39 Where the accused puts forward a defence which is different from any defence set out in his defence statement, before deciding or in deciding to do anything the court shall have regard to (a) the extent of the differences in the defence, and (b) whether there is any justification for it.[63]

4.40 If the fault involves reliance on a point of law (including any point on admissibility of evidence or abuse of process), which was not mentioned in the defence statement, leave of the court is required before another party can make comment.[64]

4.41 Where no defence statement has been served or the defence statement is lacking specificity or otherwise does not meet the requirements of section 6A, CPIA 1996, the prosecutor should send a letter to the defence pointing this out. If the position is not resolved satisfactorily, the prosecutor should consider raising the issue at a hearing for directions to enable the court to give a warning or appropriate directions.[65] Section 6E, CPIA 1996 states that the judge, at a pre-trial hearing, shall warn an accused if it appears to him that the accused has not fully complied with the statutory requirements relating to a defence statement so that there is a possibility of comment being made or inferences drawn.[66]

4.42 Leave is not required for a party to cross-examine an accused on the differences between his defence and defence statement.[67]

Administrative sanctions

4.43 Rule 3.5(6), CPR 2012 provides that if a party fails to comply with a rule or a direction:

'the court may –

  • (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;

  • (b) exercise its power to make a costs order; and

  • (c) impose such other sanctions as may be appropriate.'

4.44 The danger of breaching the Criminal Procedure Rules and the inherent conflict between the client/solicitor privilege and a solicitor's duty to the court is illustrated in R v SVS Solicitors.[68] In this case the solicitors objected to the admission of hearsay evidence but failed to comply with the Criminal Procedure Rules[69] in that they did not give their reasons for the objection or disclose their defence case.[70] A prosecution witness (Mr Amoako) was flown from Australia for the trial but ultimately not called to give evidence. The Court of Appeal upheld a wasted costs order against the solicitors. Field J in giving judgment stated:

'24. … No application setting out the grounds of objection to the admission of Mr Amoako's statement was served within the stipulated time or at all. This in our judgment, as the judge found, was a clear breach of CPR 34.3(2)(d). The judge was entitled to conclude that a cross-application setting out that part of Nseki's case [defendant] that he had to put to Mr Amoako should have been served or, if the client refused to sanction this step, the appellant firm should have ceased to act for him. The appellant's failure to take either of these steps was not a mere error of judgment. The defendant Nseki was manifestly seeking to manipulate the court's process. By insisting on the appearance of Mr Amoako without disclosing the defence case that was to be put to the witness, the appellant firm made itself complicit in the manipulation being practised by their client. The judge was entitled to hold that the failure to comply with the rule was deliberate and that it was a serious breach. He was also entitled to find that the appellant's conduct was improper, unreasonable and negligent, for the reasons he gave.'

4.45 The impact of R v SVS[71] is significant. The Law Society have issued an updated practice note advising solicitors to inform the court if their clients prevent them complying with their obligations under the Criminal Procedure Rules:

'… a failure to do so, could be interpreted by the court as a manipulation of its process, and as improper, unreasonable or negligent conduct, could give rise to a Wasted Costs Order being made against the solicitor.'[72]

4.46 It must be borne in mind that the primary object of a wasted costs order is not to punish but to compensate. As the costs order can be regarded as having a penal element when it is ordered against a non-party, a mere mistake by a legal representative (or his employee) is not sufficient to justify an order; there must be a more serious error.[73]

4.47 For a wasted costs order to be made, the normal civil standard of proof applies but if the allegation is one of serious misconduct or crime, clear evidence will be required to meet the standard.[74] The procedure to be used is set out in rule 76.9, CPR 2012.

4.48 In relation to sanctions other than costs, where a party seeks to call an alibi witness not previously identified in the defence statement, a refusal to allow that witness to be called is likely to be regarded as a step too far and one that would require primary legislative sanction.[75] Different considerations apply to expert evidence: Part 34, CPR 2012 applies.[76]

Shopping lists

4.49 Instructions permitting, the defence statement should be detailed, comprehensive and tailored to the issues in the case. The use of formulaic generalized 'shopping lists' is to be deprecated. Under the guidance available[77] there is scope for focused and reasoned defence requests for disclosure linked to a comprehensive defence statement to which the prosecution must respond.

4.50 The trial process is not well served if the defence make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up. The more detail a defence statement contains the more likely it is that the prosecutor will make an informed decision about disclosure and whether to advise the investigator to undertake further lines of enquiry.[78] The prosecution can identify further material under their continuing duty to disclose under section 7A, CPIA 1996 and the need for an application under section 8, CPIA 1996 (a section 8 application) may be eliminated, or at least, the areas of dispute narrowed.

4.51 A detailed defence statement assists not only the court in the management of the trial by focusing on the issues in dispute but also adds weight to defence submissions of prosecution failings in the disclosure process. In practice the defence frequently serve requests for disclosure upon the prosecution within the body of the defence statement. It is submitted that such requests are compliant with a party's duties under Parts 1 and 3, CPR 2012.

Examples of disclosure requests

4.52 Listed below are examples of defence disclosure requests. Requests for disclosure must not be used indiscriminately and must be relevant and tailored to the issues in the case.

  • Please provide the defence with copies of unused items (insert numbers) from the MG6C (give date and reference number).

  • Has the complainant made previous false allegations against any other person? If so, please disclose copies of the relevant documentation.

  • Please disclose the date, time, circumstances and any contemporaneous notes or record of every occasion when the complainant has given an account of the allegation.

  • Has the complainant made any application to the CICA[79] or to any other agency for compensation? If so, please disclose details of the application including any account given of the alleged facts. Does the complainant intend to make any such application? Has the complainant received any advice from the police as to when and in what circumstances they might make such claims?

  • Has the complainant received any counselling for the effects of the alleged offence? If so, provide details of when and by whom. Please supply all relevant documentation.

  • Please provide copies of all notes and records of any contact the police have had with any civilian prosecution witnesses.

  • Please confirm that all relevant entries in police notebooks have been read for disclosure purposes and are accurately and sufficiently described on the MG6C.

  • Please give details of any investigations regarding contamination or collusion between the complainants.

  • Has a major incident police book or equivalent record of actions or decisions been maintained and, if so, has it been reviewed for disclosure purposes?

  • As far as the officer in the case, investigators or disclosure officers are aware, has there been any failure to record relevant material, such as a first complaint of witnesses, or has any relevant material been lost?

  • Please confirm that the reviewing lawyer and/or prosecuting advocate has read the MG6D and the material described therein and satisfied himself that such material is properly categorized as sensitive as opposed to non-sensitive.

  • Was any decision made as to what complainants should be told of the complaints of others? If so, please disclose full details.

  • Please identify the disclosure officer and the date of his appointment.

  • Please confirm that the disclosure officer has been trained under an 'appropriate training regime' in accordance with paragraph 14, Disclosure Protocol and, if so, when?

  • Please disclose copies of all police press releases and police copies of media broadcasts.

Cross service of defence statements

4.53 The CPIA 1996 requires the accused to serve his defence statement on the court and the prosecutor,[80] not upon a co-accused. It is for the prosecutor to decide, and keep under review, whether the defence statement of one co-accused satisfies the test for disclosure to another, subject to issues of public interest immunity.[81]

4.54 Good practice would be for the prosecution to give the accused notice of any intention to disclose his defence statement to a co-accused, so that any issues of privilege, sensitivity, relevance and editing can be raised.

4.55 If the judge is of the opinion that seeing a copy of a defence statement would help the jury to understand the case or to resolve any issue in the case,[82] he may direct that the jury be given a copy of any defence statement, edited if necessary, to exclude inadmissible evidence.[83] The defence statement itself is not evidence, all it can ever do is to refer to matters which may become the subject of evidence.[84] It is sensible to take any defence statement(s) from the jury when they retire to deliberate.[85]

4.56 The direction to provide the jury with a copy of the defence statement may be made on the judge's own motion or on the application of any party.[86] In order to challenge on appeal a judge's decision to put a defence statement before the jury, the appellant would need to show that the judge's opinion was an unreasonable one that no judge could properly have reached.[87]

Drafting the defence statement

4.57 The Bar Standards Committee (BSC) warns counsel that there is no halfway house when accepting instructions to draft a defence statement and that the professional obligations are considerable. Where counsel accepts the brief for trial, his legal aid fee will be deemed to include all necessary preparation including the settling of a defence statement.[88]

4.58 In their guidance[89] the BSC advises that when settling a defence statement counsel should recognize the crucial importance of obtaining all prosecution statements and documentary exhibits, a signed proof of evidence from the lay client (of sufficient detail to address properly the necessary issues) and statements from other material witnesses.

4.59 Counsel should ensure that the lay client realises the importance of the defence statement and the potential adverse consequences of an inaccurate or inadequate statement. There should be a proper informed approval of the draft by the lay client given the risks of professional embarrassment (should the lay client seek to disown the statement during cross examination).

4.60 Counsel ought to insist upon a written acknowledgement from the lay client that:

  • he understands the importance of the accuracy of the defence statement; and

  • he has had an opportunity of considering the contents of the defence statement carefully and approves it.

4.61 A conference may be necessary to ensure compliance with these fundamentals or, depending on the case, a written advice accompanying the defence statement may suffice.



[1] R v Penner [2010] EWCA Crim 1155, per Thomas LJ, para 19; R (on application of DPP) v Chorley Justices.

[2] Often erroneously referred to as the defence case statement; R v Rochford [2010] EWCA Crim 1928, per Hughes LJ, para 1.

[4] This section, as amended by Criminal Justice Act 2003, s 41 and Sch 3, came into force on 18 June 2012 (see SI 2012/1320) and abolishes committal proceedings which used to trigger CPIA 1996, Part 1. All relevant cases are now sent to the crown court under the Crime and Disorder Act 1998. At the time of going to press (November 2012), this section had not been fully implemented in all local justice areas.

[5] Crime and Disorder Act 1998, s 51.

[6] Criminal Justice Act 1988, s 40.

[7] Administration of Justice (Miscellaneous Provisions) Act 1933, s 2(2)(b) or Prosecution of Offences Act 1985, s 22B(3)(a).

[8] CPIA 1996, s 5(3A)(a) and Crime and Disorder Act 1998, Sch 3, para 1.

[9] CPIA 1996, s 5(3A)(b). The notice details the offences for which the accused is sent for trial and the place where he is to be tried.

[10] CPIA 1996, s 5(1)(b).

[11] i.e. prosecution disclosure test.

[12] See CPR 2012, rr 1.2(1)(c), 3.2–3.3.

[13] Which includes dealing with cases 'efficiently and expeditiously; CPR 2012, r 1.1(2)(e).

[14] CPR 2012, r 1.2(1)(c).

[15] CPIA 1996, ss 4(1), (2) and 24.

[16] DPP v Wood and McGillicuddy [2006] EWHC 32 (Admin), per Mr Justice Ouseley, para 23.

[17] CPS Disclosure Manual, paras 12.35–12.36.

[18] CPR 2012, r 22.2.

[19] For a copy of a defence statement form for use with CPR 2012, Pt 22 (listed in Consolidated Criminal Practice Direction, Annex D) see Appendix 9.

[20] As inserted by Criminal Justice Act, s 33.

[21] As inserted by Criminal Justice and Immigration Act 2008, s 60.

[22] CPIA 1996, s 6A(3).

[23] R v Rochford [2010] EWCA Crim 1928, per Hughes LJ, para 21.

[24] R v Patrick Malcolm [2011] EWCA Crim 2069; R v Rochford [2010] EWCA Crim1928, per Hughes LJ, paras 16, 24.

[25] R v Rochford [2010] EWCA Crim 1928, per Hughes LJ, para 21; see the reasoning in the context of the Criminal Procedure Rules in R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin).

[26] [2010] EWCA Crim 1928.

[27] [2010] EWCA Crim 1928. See also R v Essa [2009] EWCA Crim 43, para 18.

[28] R v Rochford [2010] EWCA Crim 1928, per Hughes LJ, para 24.

[29] R v Rochford [2010] EWCA Crim 1928, per Hughes LJ, para 24.

[30] R v Rochford [2010] EWCA Crim 1928. See R v Wayne Patrick Malcolm [2011] EWCA Crim 2069.

[31] R v Alan Newell [2012] EWCA Crim 650, per Sir John Thomas P, para 32.

[32] R v Alan Newell [2012] EWCA Crim 650, per Sir John Thomas P.

[33] CPIA 1996, s 6E(1); Attorney General's Guidelines on Disclosure (2005), para 16.

[34] R v Wheeler [2001] 1 Cr App R 10, per Potter LJ, paras 52–53.

[35] R (on the application of Sullivan) v Maidstone Crown Court [2002] EWHC 967, Kennedy LJ, para 17.

[36] R v Alan Newell [2012] EWCA Crim 650, per Sir John Thomas P, para 32.

[37] [2010] EWCA Crim 1928, para 21.

[38] CPIA 1996 (contents required to be included in a defence statement).

[39] [2007] EWHC 363 (Admin).

[40] See R v SVS Solicitors [2012] EWCA Crim 319.

[41] Law Society Practice Note, Criminal Procedure Rules 2011 (5 April 2012), para 5.4.

[42] Costs in Criminal Cases (General) Regulations 1986 and Prosecution of Offences Act 1985, ss 19 and 19A.

[43] In Balogun v DPP [2010] EWHC 799 (Admin), Leveson LJ, para 16 stated: 'For my part … I do not accept that the spirit or letter of the Criminal Procedure Rules is complied with by asserting that the Crown is put to "strict proof"…'.

[44] [2010] EWCA Crim 1928. See also R v Essa [2009] EWCA Crim 43, para 18.

[45] 'Stop Delaying Justice', p 11. This initiative was implemented in magistrates' courts with the support of the Senior Presiding Judge (Goldring LJ).

[46] [2007] EWCA Crim 3025.

[47] As such steps as were reasonably practicable had not been taken to locate him.

[48] R v Adams [2007] EWCA Crim 3025.

[49] 'Stop Delaying Justice', p 13.

[50] Costs in Criminal Cases (General) Regulations 1986 and Prosecution of Offences Act 1985, ss 19 and 19A.

[51] CPIA 1996, s 3(3) and Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011.

[52] Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, r 3(2).

[53] Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, r 3(2) and (3).

[54] Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, r 3(4).

[55] As inserted by Criminal Justice Act 2003, s 33.

[56] CPIA 1996, s 6B(3).

[57] R v Rochford [2010] EWCA Crim 1928, per Hughes LJ, para 18.

[58] DPP v Wood; DPP v McGillicuddy [2006] EWHC 32 (Admin).

[59] Seven triggers currently apply as s 6B is not yet in force.

[60] For the text of s 6A see Appendix 1.

[61] For the text of s 6A(2)(a)(b) see Appendix 1.

[62] CPIA 1996, s 11(5).

[63] CPIA 1996, s 11(8).

[64] CPIA 1996, s 11(6).

[65] Attorney General's Guidelines on Disclosure (2005), para 18.

[66] As inserted by Criminal Justice Act 2003, s 36; see also Disclosure Protocol, para 39.

[67] R v Tibbs [2000] 2 Cr App R 309, per Beldam LJ, para 34.

[68] [2012] EWCA Crim 319.

[69] CPR 2010 applied at the relevant time.

[70] As required by CPR 2010, r 34.3 (now incorporated into CPR 2012).

[71] [2012] EWCA Crim 319.

[72] Law Society of England and Wales Practice Note, Criminal Procedure Rules 2011 (5 April 2012).

[73] Practice Direction (Costs in Criminal Proceedings) [2011] 1 Cr App R 13, para 4.2.5(i), (iv), issued by Judge LCJ (30 July 2010).

[74] Practice Direction (Costs in Criminal Proceedings) [2011] 1 Cr App R 13, para 4.2.5(vi).

[75] R (on the application of Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin), per Mitting J, para 37; R v Ullah [2011] EWCA Crim 3275, per Moses LJ, para 13. Both cases were before the introduction of CPR 2011, r 3.5(6).

[76] R v Ensor [2009] EWCA Crim 2519.

[77] Attorney General's Guidelines on Disclosure (2005), para 18; Disclosure Protocol, paras 43–44; CPS Disclosure Manual, para 15.10.

[78] Attorney General's Guidelines on Disclosure (2005), para 15. The essential need for a full and careful defence statement is spelt out in Disclosure Protocol, paras 32–40; see R v H & C [2004] Cr App R 10, per Lord Bingham CJ, para 35.

[79] Criminal Injuries Compensation Authority (also sometimes referred to as the CICB).

[80] CPIA 1996, s 5(5).

[81] R v Cairns [2002] EWCA Crim 2838, per Keene LJ, para 78; CPIA 1996, s 11(5). See also CPS Disclosure Manual, para 15.29.

[82] CPIA 1996, s 6E(5)(b).

[83] CPIA 1996, s 6E(4).

[84] R v Sanghera [2012] EWCA Crim 16, per Aikens LJ, para 51.

[85] R v Sanghera [2012] EWCA Crim 16, per Aikens LJ, para 80.

[86] CPIA 1996, s 6E(5)(a).

[87] R v Sanghera [2012] EWCA Crim 16, per Aikens LJ, para 49.

[88] Bar Standards Board Code of Conduct, r 604(b).

[89] 'The Preparation of Defence Statements', Bar Standards Committee (9 March 2011).

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