Advance Information
This Guidance was last updated on 12th December 2007.
Principle
A defendant charged with an either way offence is entitled to receive details of the prosecution case before deciding whether to elect trial at Crown Court or to consent to summary trial, or, if s/he is under 18, before being put to plea.
The court may not proceed to determine mode of trial unless the defence have been given advance information, or have waived their right to it.
The provision of advance information is now regulated by Part 21 of the Criminal Procedure Rules 2005 (the Rules), which came into force in April 4th 2005. These replaced the Magistrates' Courts (Advance Information) Rules 1985 <Archbold 12-115> and require the prosecution to serve on the defendant or his/her solicitor the evidence upon which the prosecution proposes to rely, or a summary thereof.
The principle has been extended to cover summary trials and cautions. <Refer to Summary Only Offences, later in this section>
Guidance
Case Review
When reviewing the case you should decide what material is to be served as advance information.
You should bear in mind that your decision not to call a witness at a summary trial of an either way offence will be fettered if the statement of that witness or part of it has been served as advance information. Accordingly decisions must be made at this stage as to whether each witness statement is to constitute used or unused material (R v Haringey JJ.s ex parte DPP (1996 Queens Bench Reports 351 p.357)).
Material to be supplied
When providing advance information the Rules stipulate that you must supply either:
- The parts of every written statement upon which you intend to rely, or
- A summary of the facts and matters of which you intend to adduce evidence.
It is CPS practice that, when available, you should provide written statements, or parts thereof.
You must also supply a copy of any other document, or documents, if they are to be relied on. If a copy cannot be supplied the defence must be allowed to inspect the original or a copy.
The Rules require only the service of that evidence upon which the prosecution proposes to rely. Different principles apply to the early service of unused material.
Summary Only Offences
Although the Rules do not strictly apply to summary only offences, Paragraph 57 of the Attorney-General's Guidelines 2005 on Disclosure of Information in Criminal Proceedings stipulates that the prosecution should provide to the defence all evidence upon which the prosecution proposes to rely in a summary trial.
Police Caution
The Divisional Court, DPP v Ara [2002] 1 Cr. App. R. 16 has ruled that a defendant is entitled to receive disclosure of material necessary to enable his/her legal advisors to assess the prosecution case and give informed advice as to whether to consent.
Withholding Information
There is a discretion to withhold some or all of the evidence if you consider that full disclosure would lead to a witness being intimidated or some other interference with the course of justice. If a decision is made to withhold information the defence must be notified in writing and the file endorsed with the reasons. <Archbold 12-116>
Procedure
The reviewer needs to record clear instructions as to what material should be provided. The advance information package should then be prepared in accordance with the reviewer's instructions.
Timing of Provision of Advance Information
Advance information should be served on the defence on the first of the following events:
- A request by the defendant or his/her solicitor,
- Notification by the court that legal aid has been granted, or
- First court appearance by a defendant on bail.
A request for advance information may be made by a defendant or his/her legal representative orally or in writing.
A record must be made on the file when advance information has been provided. The date of provision and the recipient should be noted.
Non-Compliance
If advance information has been requested and has not been supplied, the court is compelled to adjourn the proceedings until it is. The court need not adjourn the proceedings if it is satisfied that the defence will not be substantially prejudiced by the non-compliance. <Archbold 12-117>
Non-compliance by itself would not constitute an abuse of process entitling the court to stay proceedings. <Archbold 12-118>
Useful Links
<Archbold 12-115>
<Archbold 12-118>
R v Haringey JJs ex. p. DPP 1996 Queens Bench p.351
AGs Guidelines Para. 43
DPP v Ara [2002] 1 Cr. App. R. 16
<Archbold 12-116>
<Archbold 12-117>
<Archbold 12-118>