2.7 Disclosure - defence Flashcards
What does the defence have to disclose?
Section 5(5) Criminal Procedure and Investigations Act 1996 Where this section applies, the accused must give a Defence Statement to the court and the prosecutor.
[??]
Also, a Notice of Intention to Call Defence Witnesses. (Except alibi witnesses named in the Defence Statement.
What is the difference between a defence statement and a proof of evidence?
A proof of evidence is a privileged document which is only shared between the client and his legal advisers.
A defence statement is required by s.5 CPIA to be shared with the prosecution.
What is the biggest difference between the prosecution duty of disclosure and the defence duty of disclosure?
There is no duty on the defence to serve material which might be helpful to the prosecution
What must a defence statement contain?
Section 6A Criminal Procedure and Investigations Act 1996
(1)
(a) the nature of the defence
(b) the disputed matters of fact
(c) why he takes issue with those matters
(d) the particulars of matters of fact on which D will rely
(e) any point of law to be taken with authority
(2) Particulars of any alibi including
(a) details of witnesses
(b) any information to help find witnesses
When must a defence statement be served in the Crown Court?
CrimPR 15.4(2)
In the Crown Court, within 28 days of when the prosecution purports to comply with its duty of disclosure.
What if D is unable to provide a defence statement in time?
CrimPR 15.9
This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.
When must a defence statement be served in the Magistrates Court?
Section 6 CPIA
In the Magistrates Court, a defence statement is not compulsory.
[REF??]
However, the deadline is 14 days from purported initial disclosure.
What must the defendant do if it wishes to call witnesses?
Section 6C(1) CPIA The accused must give to the court and the prosecutor a notice indicating whether he intends to call any persons (other than himself) as witnesses at his trial... identifying the witness by name, address and date of birth or any information to locate and identify the witness.
Alibi witnesses should be included in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses.
When must notice of intention to call witnesses be given?
The Notice of Intention to Call Defence Witnesses must be given within 14 days (magistrates’ court) and 28 days (Crown Court) of the prosecution complying or purporting to comply with initial disclosure.
What happens if D fails in its disclosure?
(Lateness, deficiency in statement, relying on evidence at trial not in the defence statement, fails to give notice to witnesses…)
Section 11(5) CPIA The court or jury may draw such adverse inferences as appear proper against the defendant although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.
In addition, the court, prosecution or co-defendant may comment on it.
Comment and adverse inferences are the only available sanctions.
What can the judge do to ensure that the defendant discloses properly?
Section 6E(2) CPIA A judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.
What should the prosecution do to ensure the defendant discloses?
Attorney General’s Guidelines 33
Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’
What are the consequences for the defendant of exercising its right not to serve a defence statement in the Magistrates Court?
If a defence statement is not served in the magistrates’ court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA.
No adverse inferences can be drawn unless the defendant elects to serve a defence statement but the statement is in some way faulty.
What are the consequences for the defendant of exercising its right not to serve a defence statement in the Crown Court?
If a defence statement is not served in the magistrates’ court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA. The trial can still go ahead.
Adverse inferences can be drawn and the court, prosecution or co-defendant may comment under s. 11 CPIA.
