Disclosure Manual: Chapter 15 - Defence Disclosure

In proceedings before the Crown Court, where the prosecutor has provided, or purported to provide, initial disclosure, the accused must serve a defence statement on the prosecutor and the court.

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. If one is not provided, the court does not have the power to hear an application for further prosecution disclosure under section 8 of the CPIA.

Section 34 of the Criminal Justice Act 2003 inserted section 6C in the CPIA. 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, or transferred to the Crown Court for trial.

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.

The judge's aim, apart from seeking to hold the prosecution to its duty of giving initial disclosure and insisting on defence engagement, must be to drive the case as expeditiously as possible towards the stage where a defence statement is required, the issues can be crystallised, and questions of further disclosure dealt with on a reasoned and informed basis pursuant to sections 7A and 8 of the CPIA (see para 47 R v R and Others [2015] EWCA Crim 1941).

Applicable time limits

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.

For cases in which Part 1 of the CPIA applied prior to 28 February 2011, the 1997 and 2010 Regulations apply. In these circumstances a time limit of 14 days applies for both. Part 1 applies when there is a not guilty plea in the magistrates' court, or when a case is sent to the Crown Court as per section 1(1) and (2) CPIA 1996.

Receipt should be acknowledged in writing to the accused and brought to the attention of the prosecutor as soon as possible. The date should be recorded on the Disclosure Record Sheet (DRS). Consideration should be given to updating the DMD in light of any issues raised.

Statutory requirements

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.

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.

Where an accused's solicitor purports to give a defence statement on behalf of the accused, the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.

Review of defence statements

Prosecutors must:

• review defence statements on receipt, and prior to sending to the police, to assess whether they are adequate; this enables guidance to be provided to the officer on action(s) to be taken. A copy of the action plan should be sent to the prosecution advocate and the DRS should be updated.
• be 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 [2004] UKHL 3 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" 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 defence statement must - 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 set out particulars of fact on which the 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.

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 (as appropriate) and inviting them to specify or clarify the defence case (see para 126 AGs Guidelines). Where the defence fails to respond, or refuses to clarify the defence case, prosecutors should challenge this in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate defence statement from the defence. If the defence still fails to comply, the prosecutor should consider further pursuing the issue and inviting the court to give a statutory warning under section 6E(2) of the CPIA.

Section 6A of the CPIA states 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. See case of SVS Solicitors [2012] EWCA Crim 319.

Defence statements: CPS procedure

Once it has been reviewed by the prosecutor, the defence statement should be reviewed by the prosecutor and sent to the disclosure officer and/or investigator as soon as reasonably practical. The prosecutor should draw the attention of the disclosure officer to any key issues raised within the defence statement, and actions that should be taken.

The prosecutor should give advice to the disclosure officer as to the sort of material to look for, particularly in relation to legal issues raised by the defence.

Advice to the disclosure officer may include:

• guidance on what material might have to be disclosed;
• advice on whether any further reasonable 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, and;
• the re-review of any material previously determined to be not relevant.

Defence statements: police actions and certification

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 is potentially capable of meeting the disclosure test. Both sensitive and non-sensitive material must be considered, including material previously determined to be not relevant.

An investigator should not show a defence statement to a non-expert witness. 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. 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 notify the prosecutor of the results on an MG20, with any additional schedules as appropriate and a further MG6E. If no enquiries were made, the disclosure officer should explain why.

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."

Any items that satisfy the disclosure test should be identified by item number and a copy sent with the MG6E (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).

Defence statements: further actions for additional revealed material

The prosecutor must consider whether any further prosecution material supplied by the police satisfies the disclosure test following the same principles and processes as before.

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. It is important to keep in mind the continuing duty of disclosure as a defence statement which may not at first sight assist 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 gives evidence, for example where there is a cut-throat defence and an accused departs from his defence statement.

Notification of intention to call defence witnesses

The defence requirement under section 6C of the CPIA as set out above 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. 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.

The CPIA Code of Practice for arranging and conducting interviews of witnesses notified by the accused deals with interviewing witnesses in these circumstances.

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. Previous convictions should be obtained and if appropriate, bad character considered.

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.

For further guidance about this please refer to the CPS legal guidance Interviewing witnesses for the other side.

Faults in defence compliance

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 at trial. When considering whether there are faults in disclosure by the accused, the prosecutor should refer to section 11 of the CPIA, as amended.

Pursuant to section 11, 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 previously given particulars in the defence statement, or;
• calls an alibi witness of whom the required details have not been supplied.

Leave of the court is not required for the prosecutor to cross examine on the contents (see R v Tibbs (2000) 2 Cr App R 309) however it 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).

Seeking inferences at trial

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. The prosecution advocate must take account of the overall circumstances and reasons put forward when deciding whether to seek an inference under section 11(5) of the CPIA.

Responding to defence requests for a time limit extension

As above, if a defence statement is required or is to be given, a 14 or 28-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. 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.

The Criminal Procedure Rules at Part 15 require that the defence should make a written application for an 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.

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.

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 properly carry out its duty to re-review prosecution material and deal with any subsequent applications.