Chapter 15: Defence Disclosure
- Statutory requirements
- Review of defence statements
- Defence statements: CPS procedure
- Defence statements: police actions and certification
- Defence statements: further CPS actions for additional revealed material
- Notification of intention to call defence witnesses
- Faults in defence compliance
- Seeking inferences at trial
- Responding to defence requests for time limit extension
15.1. In proceedings before the Crown court, where the prosecutor has provided initial disclosure, or purported to, the accused must serve a defence statement on the prosecutor and the court. The accused must also provide details of any witnesses he or she intends to call at the trial.
15.2. In the magistrates' court, the accused is not obliged to serve a defence statement but may choose to do so, in which case the statutory provisions apply. However, it is a mandatory requirement for the accused to provide details of his or her witnesses
15.3. Following service of initial disclosure by the prosecution, the time limit for service of the defence statement and service of the details of any defence witnesses is 14 days in the magistrates' court and 28 days in the Crown Court, unless that period has been extended by the court: Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (in force from 28 February 2011). For cases in which Part 1 of the CPIA 1996 applied prior to 28 February 2011, the 1997 and 2010 Regulations apply, which provide for a time limit of 14 days for both the Crown Court and the magistrates court. Part 1 applies when there is a not guilty plea in the magistrates' court or when a case is committed/transferred/sent etc to the Crown Court: see section 1(1) and (2) CPIA 1996.
15.4. The date of receipt of anything which purports to be a defence statement provided under either section 5 (Crown court) or section 6 (magistrates' court) of the CPIA 1996 or the details of defence witnesses should be recorded on the disclosure record sheet. It should be acknowledged in writing to the accused and brought to the attention of the prosecutor as soon as possible.
15.5. Defence disclosure:
- assists in the management of the trial by helping to identify the issues in dispute
- provides information that the prosecutor needs to identify any material that should be disclosed and
- prompts reasonable lines of enquiry whether they point to or away from the accused.
15.6. In the defence statement, the accused should:
- set out the nature of the defence, including any particular defences on which the accused intends to rely
- indicate the matters of fact on which the accused takes issue with the prosecution
- outline, in the case of each such matter, why the accused takes issue with the prosecution
- set out particulars of matters of fact on which he intends to rely for the purposes of his defence
- indicate any point of law (including any point as to the admissibility of evidence or an abuse of process) which the accused wishes to take, and any authority on which he or she intends to rely for that purpose, and
- comply with any regulations made by the Secretary of State as to the details of matters that are to be included in defence statements.
15.7. If the defence statement discloses an alibi the accused must give particulars of the alibi in the statement, including:
- the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given, and
- any information in the accused's possession which might be of material assistance in identifying or finding any such witness if the above details are not known to the accused when the statement is given.
15.8. 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 alleged to have been committed at the time of its alleged commission.
15.9. Where an accused's solicitor purports to give a defence statement on behalf of he accused, the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.
15.10. Prosecutors should be open, alert and responsive to requests for disclosure of material where the request is supported by a comprehensive defence statement. Prosecutors should bear in mind that in R v H and C the House of Lords deprecated defence statements which make "general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good."
15.11. Prosecutors should also be proactive in identifying inadequate defence statements. It is not sufficient for the accused only to describe his defence in widely worded, ambiguous or limited terms, such as, self-defence, mistaken identity alibi or consent. An adequate statament must:
(i) where the defence differs from the facts on which the prosecution is based state, those differences and the reasons for them, in the defence statement; and
(ii) set out particulars of fact on which thehe defendant intends to rely on in his/her defence.
This will ensure that the prosecution has a proper opportunity of investigating the facts giving rise to any differences.
15.12. Where there is no defence statement, or it is considered inadequate, the prosecutor should write to the defence (a specimen letter is set out at Annex C4a) indicating that further disclosure may not take place or will be limited (as appropriate) and inviting them to specify or clarify the defence case. Where the defence fails to respond, or refuses to clarify the defence case, the prosecutor should consider raising the issue at a pre-trial hearing to invite the court to give a statutory warning under section 6E(2) of the CPIA 1996.
15.13. Section 6A of the CPIA 1996 means that the defence is required to set out any positive assertions to be relied on, namely the details of the actual defence. Where further details are provided late, and substantial additional costs are incurred (for example, where a trial has been adjourned or witnesses inconvenienced) an application for a wasted costs order against the accused should be considered in appropriate cases.
15.14. A copy of the defence statement should be sent immediately to the lead disclosure officer using the memo at Annex C3. At the same time, the prosecutor should draw the attention of the disclosure officer to any key issues raised by the defence statement. The disclosure record sheet should be noted with the date of dispatch. Where appropriate, the prosecutor should give advice to the disclosure officer in writing as to the sort of material to look for, particularly in relation to legal issues raised by the defence. Some of these issues may be known to the prosecutor as a result of matters mentioned by the defence during the progress for the case, for example, at bail hearings or committal proceedings. Such information should be communicated in the memo at Annex C3 or separately.
15.15. Advice to the disclosure officer may include:
- guidance on what material might have to be disclosed
- advice on whether any further lines of enquiry need to be followed (for example where an alibi has been given)
- suggestions on what to look for when reviewing the unused material
- suggestions on whether an alibi witness be interviewed
- the appropriate use of a defence statement in conducting further enquiries, particularly when this necessitates additional enquiries of prosecution witnesses.
15.16. Again, it may be necessary to ask for copies of items listed on the schedule(s) or to inspect material. This should be done in consultation with the disclosure officer, who may be able to help identify material which should be disclosed.
15.17. The defence statement gives a valuable opportunity for the prosecution to confirm or rebut defence allegations and it is likely to point the prosecution to other lines of inquiry, for example, the investigation of an alibi, or where forensic expert evidence is involved. The disclosure officer should inform any deputy disclosure officer and the officer in charge of the investigation and copy the defence statement to him or her, together with any advice provided by the prosecutor, if appropriate.
15.18. Further investigation in these circumstances should be considered. Evidence obtained as a result of inquiring into a defence statement may be used as part of the prosecution case or to rebut the defence.
15.19. An investigator should not show a defence statement to a non-expert witness. The extent to which the detail of a defence statement is made known to a witness will depend upon the extent to which it is necessary to clarify the issues disputed by the defence, assist the prosecutor to identify any further disclosable material and/or to identify any further reasonable lines of enquiry. The officer should seek guidance from the prosecutor if there is any doubt as how the defence statement should be used in conducting further enquiries. Guidance is likely to be required if a police officer is the victim in the instant case.
15.20. In any event, following receipt of a defence statement, the disclosure officer should promptly look again at the retained material and must draw the attention of the prosecutor to any material that satisfies the disclosure test. Both sensitive and non-sensitive material must be considered.
15.21. Whenever enquiries are carried out in response to the defence statement, the disclosure officer (or deputy) in consultation with the officer in charge of the investigation should always notify the prosecutor of the results of those enquiries. This should be done on an MG20, and given to the prosecutor together with any additional schedules as appropriate and a further MG6E. If no enquiries were made, the disclosure officer should explain why.
15.22. If there is no material that the disclosure officer believes satisfies the test, the disclosure officer should endorse the second MG6E in the following terms: 'I have considered the defence statement and further reviewed all the retained relevant material made available to me and there is nothing to the best of my knowledge and belief which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.'
15.23. The disclosure officer should ensure that it is clear that the MG6E has been completed in response to a defence statement. The disclosure officer and or each deputy must sign and date an MG6E. If material was previously referred to on an MG6E, it does not have to be listed again.
15.24. Any items that satisfy the disclosure test should be referred to by quoting the item number from the schedule(s). If material identified has not previously been supplied to the prosecutor, a copy should be forwarded by the disclosure officer, except where the material is considered to be too sensitive to copy and arrangements are to be made for the prosecutor to inspect the material.
15.25. The prosecutor must consider whether any further prosecution material supplied by the police satisfies the disclosure test. In considering afresh the disclosure schedules at this stage, the prosecutor must be proactive in identifying disclosable material. The prosecutor should also consider whether material that has not been included on the MG6E ought nevertheless to be disclosed.
15.26. The prosecutor should inspect, view or listen to any further material that he/she, or the disclosure officer, considers might satisfy the disclosure test.
15.27. Once the prosecutor has decided whether there is material that should be disclosed at this stage, a letter will be sent to the defence (see Annex C4). The disclosure officer will be sent a copy of the letter, which will contain details of any items that require disclosure.
15.28. Where, following receipt of the defence statement, the prosecutor is satisfied that no further material requires disclosure, he or she must certify this to the defence. Specimen letter C5 has been prepared for this purpose.
15.29. The defence statement of one accused may be disclosable to co-accused in the same prosecution. A defence statement should be supplied to co-accused if it satisfies the disclosure test. If a defence statement satisfies, or possibly satisfies, the disclosure test but contains sensitive material, reference should be made to the guidance stated elsewhere on sensitive material. It is important to keep in mind the continuing duty of disclosure. A defence statement which may not at first sight help a co-accused may meet the disclosure test once the co-accused's defence statement is received. A duty to disclose may also arise when the accused give evidence, for example where there is a cut-throat defence and an accused departs from his defence statement.
15.30.Material should not be disclosed under this continuing duty if the court, upon application of the prosecutor has ordered that it is not in the public interest to disclose it or if disclosure of this material is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000, which deals with intercepts.
15.31. Section 34 of the Criminal Justice Act 2003 inserts section 6C in the CPIA 1996. It requires the accused to give the prosecutor and the court advance details (i.e. name, address and date of birth) of any witnesses he or she intends to call at trial. It applies in any case in which the accused pleads not guilty in the magistrates' court, or any case which is sent, committed or transferred to the Crown Court for trial on or after 1 May 2010. This requirement is mandatory in both the Crown Court and the magistrates.
15.32. The accused disclosure is triggered by initial disclosure by the prosecution. The time limit under the Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010 (in force from 1 May) is 14 days in both the Crown Court and the magistrates' court, subject to it being extended on application by the court. This mirrors the time limit for the service of the defence statement.
15.33. The defence requirement under section 6C CPIA 1996 is in addition to the defence requirement to provide details of alibi. The defence must provide the details of any witnesses irrespective of the reason why they are calling them at trial. In Crown Court cases the defence must disclose details of an alibi in the defence statement (section 6A). In the magistrates' court, under section 6A cpia 1996 there is no requirement to give details of an alibi unless the defence serve a defence statement. However, under section 6C the defence will have to serve details of witnesses they intend to call whether or not they provide an alibi defence.
15.34. The defence must notify the court and the prosecutor of the details of any witnesses. The prosecutor must forward the details of any witnesses to the police as quickly as possible so that a decision can be made whether to seek to interview any of the witnesses.
15.35. A Code of Practice has been issued under section 21A of the CPIA 1996 which sets out guidance that police and other investigators must follow if they arrange or conduct interviews of proposed witnesses whose details are disclosed by the defence under section 6C. The Code of Practice for arranging and conducting interviews of witnesses notified by the accused can be found at: http://www.opsi.gov.uk/acts/acts1996/related/ukpgacop_19960025_en.pdf
15.36. In brief, under the Interviewing of Witnesses Code of Practice, if the police wish to interview a witness, before any interview they must, obtain the consent of the witness to be interviewed and advise the witness that he/she is not obliged to attend. If they do decide to be interviewed
- He/she is entitled to be accompanied by a solicitor; and
- a record of the interview will be made.
In addition the police must notify the accused or his/her legal representative whether or not the witness consented to the interview, and if so, whether the witness also consented to having the defendant's solicitor present.
15.37. The identity of the person conducting the interview must be recorded and he/she have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge the functions effectively. That person must not conduct the interview if that is likely to result in a conflict of interest, e.g. if that person is the victim of the alleged crime which is subject of the proceedings. If there is any doubt advice from a senior officer should be sought. If that doubt continues, the advice of a prosecutor must be sought.
15.38. If the witness has indicated that he/she wishes to appoint a solicitor to be present, that solicitor must be permitted to attend. The accused's solicitor may only attend the interview if the witness has consented to his/her presence and only as an observer. If the witness is under 18 or is mentally disordered or otherwise mentally vulnerable he or she must be interviewed in the presence of an appropriate person.
15.39. A recording of the interview must be made and a copy given to the witness within a reasonable time of the interview and if the witness consents a copy should be provided to the accused or his/her solicitor.
15.40. The requirement by the accused to provide the details of a witness, without interviewing the witness, will be sufficient to make enquiries as to whether that witness has any previous convictions and to consider any application for the admission of that witness's bad character. However, the purpose of section 6C CPIA 1996 and the Interviewing of Witnesses Code of Practice is not confined only to bad character, but also allows the police to interview the witness with their consent about the circumstances of the case and what evidence they propose to give at trial.
15.41. There is no requirement for the defence to supply any statement from the witness to the investigator or the prosecutor before the interview. The investigator and the prosecutor are unlikely to know what evidence the witness may give. In deciding whether to seek to interview any witness the investigator should take into account all the circumstances of the case. For example, the investigator may wish to interview a witness where that witness is likely to give evidence of alibi in a trial in the magistrates' court.
15.42. Where an accused fails to comply with the requirements to provide details of any witness the sanctions are the same as for a failure to comply with a defence statement.
15.43. The prosecutor should at all times consider the way in which the defence are fulfilling or purporting to fulfil their obligations in relation to disclosure to see whether there is a fault or faults in disclosure by the accused. Such fault or faults may attract an adverse inference under section 11 of the CPIA 1996 at trial. To assist the court in deciding whether to allow comment to be made or whether the jury should be allowed to draw inferences, the prosecutor should put the contents of the defence statement to the accused in cross-examination to elicit the differences between it and the actual defence relied upon and any justification for those differences. Leave of the court is not required for the prosecutor to do this, see R v Tibbs (2000) 2 Cr App R 309.
15.44. When considering whether there are faults in disclosure by the accused the prosecutor should to refer to section 11 of the CPIA 1996 as amended.
15.45. Pursuant to section 11 of the Act, the prosecutor should remember that the court and any other party may make such comment as appears appropriate and the court or the jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence where the accused is required to provide a defence statement and
- fails to do so
- does so out of time
- sets out inconsistent defences in the defence statement or
- at trial
- puts forward a defence not mentioned in or different from that in the defence statement
- relies on a matter which should have been mentioned in the defence statement but was not
- adduces alibi evidence not having previously given particulars in the defence statement or
- calls an alibi witness of whom the required details have not been supplied.
15.46. Leave of the court is necessary before comment can be made where the accused seeks to rely on a matter which should have been mentioned in the defence statement but was not and that matter is a point of law (whether on admissibility, abuse of process, an authority or otherwise).
15.47. It should be noted that a court or jury must consider what inference would be appropriate in the course of their deliberations as to whether the accused is guilty of an offence. Where there are differences between an accused's defence at trial and that set out in the defence statement, the court or jury will have to consider the extent of the difference, and any justification for it. Clearly, where the difference is very minor, or where there is a particularly clear and plausible explanation for the fault, it is unlikely that the court or jury would draw an inference consistent with guilt, or find it of assistance in determining the verdict. The prosecution advocate must therefore take account of these matters when deciding whether to seek an inference under section 11(5) of the CPIA 1996.
15.48. If a defence statement is required or is to be given, a 14-day time limit applies from the time when the prosecution complies with or purports to comply with the duty to make initial disclosure. The defence must apply for an extension before the time limit has expired.
15.49. The court will not grant an extension unless it is satisfied that the accused cannot reasonably give a defence statement within the specified time. There is no limit to the number of applications that may be made.
15.50. The Criminal Procedure Rules at Part 22 require that the defence should make written application for extension to the appropriate officer of the court), and at the same time, serve a copy of the notice upon the prosecutor). The prosecutor then has 14 days from service of the notice to make written representations to the court. The court will consider representations and may require a hearing, although there is no obligation for a court to hear oral representations.
15.51. The prosecutor should respond to any application to extend the time limit for the service of a defence statement. The response should assist the court with any pertinent observations or other relevant points.
15.52. Factors relevant to the reasonableness of the defence application and whether to oppose it are:
- the amount of material served as part of the prosecution case and as unused material
- the complexity of the issues
- the timing of service of material upon the defence, and
- the time the prosecution would have left, before trial, to carry properly out its duty to re-review prosecution material and deal with any subsequent applications.