What Do Criminal Defence Solicitors Need to Know About Defence Case Statements?

Defence case statements are a fundamental part of the criminal justice process in the UK. They outline the defence strategy that the accused intends to advance during their trial, and must be submitted to the court and the prosecution to ensure they are able to prepare appropriately. 

At one time, disclosure in criminal trials involved the defence accessing all of the material gathered by investigators and reviewing everything, whether it was relevant to the case the defence intended to build or not. Now, defence case statements have foregone this procedure - the defence must provide the facts and legal precedents they intend to use, and outline the areas in which their case differs from the prosecution’s, including any contradictory facts or conclusions.  All of this is in accordance with section 6A of the Criminal Procedure and Investigations Act 1996. 

Here, the experts at JMW Solicitors will provide advice on what criminal defence solicitors need to consider when preparing defence statements, the laws that determine the requirements for these documents, and the information that solicitors should give to their clients if there are any challenges with regard to compliance.

When must a defence statement be submitted?

For offences tried in the Crown Court, the accused must serve a defence statement within 28 days of the prosecution having complied or purported to comply with initial disclosure under section 3 of the Criminal Procedure and Investigations Act 1996 (CPIA 1996). An extension for the date of service can be made to the court, but only within the 28-day period. Once the 28 days have expired, the court has no power to extend the time for service (section 12, CPIA 1996 and regulation 3, Payment Services Regulations 2009 (SI 2009/209)). 

Unlike in the Crown Court, service of a defence statement in magistrates' court proceedings is voluntary (section 6, CPIA 1996). If one is to be served, it must be within 14 days of section 3 being complied with. 

To ensure a fair and just outcome, as well as aid court processes during trial, the document helps the prosecution prepare their own evidence. It assists by directing attention to any areas of agreement or disagreement and helps ensure that neither the prosecution nor defence are caught off guard during proceedings. 

A defence statement is not evidence in itself. However, there are circumstances in which it may be admitted in evidence (R v Sanghera and another [2012] EWCA Crim 16).

What should a defence case statement include?

A defence case statement should contain all of the following information: 

• Plea: the statement should indicate whether the defendant will plead guilty or not guilty
• Nature of the defence: if the defendant intends to plead not guilty, the defence statement should declare on what grounds they are not guilty. For example, will they argue that the offence was perpetrated by someone else, or that they acted in self-defence?
• Facts and evidence: any relevant facts that will be used in constructing the defence should be referred to in the defence case statement. This should refer to specific evidence that will be used to establish these facts, and any defence witnesses who will provide testimony should also be identified in this section.
• Points of law: if the case will refer to points of law - such as by arguing that the prosecution’s case is insufficient to prove guilt or that a legal requirement has been missed - these must be specified in the document.
• Issues in dispute: areas where the defence’s case differs from the prosecution’s should be clearly identified in the defence statement.
• Any other relevant information: if the defence wants to bring any other information to the attention of the court, or encourage the investigators to pursue other lines of inquiry that may be relevant, this should be included in the defence case document. 

However, there may be circumstances in which the defendant decides to put the prosecution to proof. This means that they intend to say nothing in their defence and require the prosecution to prove their case to a criminal standard. In these situations, even where there is no positive case to advance, you must submit a defence case statement. However, it can simply indicate the following: 

• The defendant does not admit the offence or relevant part of it;
• The defence will not advance any alternative or positive case; and
• The defence calls upon the prosecutor to prove the case.

 In taking this approach, the defendant runs the risk of the court or any other relevant party drawing adverse inferences from their actions (section 11, CPIA 1996).

This will also be the case if the defendant fails to provide a defence statement, fails to mention something in the statement upon which the defence later relies during the trial, or gives testimony during the trial that is inconsistent with the defence statement. (Section 11, CPIA 1996)

What if the defence statement is deficient?

The matter of deficient defence case statements was examined by the Court of Appeal in the case of R. v Malcolm (Wayne Patrick) [2011] EWCA Crim 2069; [2012] Crim. L.R. 238; [2011] 9 WLUK 1 (CA (Crim Div)). 

Three matters had to be considered by the Court of Appeal in this case:  

• the way the trial judge dealt with the fact that the defence statement did not comply with s.6A of the Criminal Procedure and Investigations Act 1996;
• the fact that the judge effectively required the prosecution to call a witness; and
• the number and nature of questions that the judge asked of the witnesses. 

So far as defence statements are concerned, securing compliance with the requirement that a defence statement should contain the detail specified in s.6A is not straightforward. The only sanctions are those set out in s.11(5), namely adverse comment by the prosecution and the judge, as well as the drawing of adverse inferences by the jury. No other sanctions can be deployed. 

For example, it is not a contempt of court to refuse to amend a defective defence statement (Rochford [2010] EWCA Crim 1928; [2011] 1 W.L.R. 534), and it is not open to the court to exclude defence evidence (R. (on the application of Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin); (2010) 174 J.P. 36). If a defendant decides to run the risk of adverse inferences being drawn by the jury, there is little the court can do about it. However, you should advise defendants of how this may affect them at trial.

Faults in defence compliance

Faults in defence compliance may attract an adverse inference at trial. When considering whether there are faults in disclosure by the accused, the prosecutor will refer to section 11 of the CPIA, as amended. 

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 (at all or in time) or is inconsistent in their defence statement. 

Inferences may arise if the defendant: 

• 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 particularised 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 point of law which should have been mentioned in the defence statement (whether on admissibility, abuse of process, an authority or otherwise).

Should a defence statement be signed?

It is common practice for a defence statement to be signed by the defendant. As a matter of best practice, defence lawyers should also be able to demonstrate that their client understands and agrees with the content. 

The statement cannot always be signed by the defendant. For example, a defendant may not be able to meet their solicitor in person but agree on a statement via email. If a defendant is in custody and contact is limited, it may not be possible to secure the signature. 

There is no requirement under the CPIA 1996 that a defence statement be signed by the defendant. However, an unsigned defence statement will normally attract a written response by the prosecutor that the statement is unsigned and they will often request a signed copy. A failure to provide a signed copy is likely to be raised in court at a pre-trial hearing in serious cases, and an assurance may be sought in open court that the statement is given with the authority of the accused. In the absence of a signed defence statement and in the event of any dispute on the issue, the prosecution is likely to seek to rely on the presumption of the solicitor's authority to give the statement on behalf of the accused (section 6E(1), CPIA 1996).

What amounts to a ‘difference’ between defences for the purposes of defence case statements?

The defence outlined in the defence statement must match the one that is ultimately used in court, and if there are differences, there may be consequences. For example, the finding of such a difference permits the comment and potential drawing of adverse inferences as allowed under the Act. 

There may be arguments as to what amounts to a ‘difference’ between a defence advanced in a defence statement and one advanced at trial. The prosecution may seek to argue that the case put forward in trial is different from that set down in the defence statement, whereas the defence may argue that it is consistent.  

Alternatively, the defence might argue that the ‘difference’ is immaterial or was made in error. In such circumstances, the matter should be raised before the judge in the absence of the jury so as to determine whether any comment can be properly made. 

The judge must consider both the extent of the difference between the defences and whether there is any justification for it. The judge should be asked to identify both the fact of the difference and its materiality when ruling on the issue. 

In Duarte and another v R [2019] EWCA Crim 1466, the Court of Appeal held that the judge was wrong to allow the prosecution to adduce part of the defence case statement to show a change in defence strategy. The judge could only permit the prosecution to adduce the defence statement or part of it where he was of the opinion that the jury seeing a copy of it would help them to understand the case or to resolve any issue in the case (section 6E(5)(b), CPIA).

What if a defence statement is different from a previous statement?

When drafting and advising a defendant on a defence statement, always consider the law relating to previous inconsistent statements. This is particularly important in serious and complex fraud cases, where defendants may have made comments in a variety of circumstances and documents unrelated to the criminal proceedings, for example, parallel civil proceedings, insolvency proceedings or media interviews. 

It is important to ensure that any previous statements made in the context of the criminal proceedings are either consistent with the defence statement or provide a reason why they are different. A defence statement should, for example, address any issues erroneously raised in an interview under the Police and Criminal Evidence Act 1984.

What is the role of the prosecution in considering a defence statement?

The prosecutor will review a defence statement to establish whether it is adequate and will provide guidance to the investigators on action(s) to be taken. 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 should 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. 

The prosecution is encouraged to take a robust approach to disclosure and to defence participation in the process. The attorney general's guidance states: 

“On receipt of a defence statement, disclosure officers must re-review retained unused material and draw to the attention of the prosecutor any material which is potentially capable of meeting the test for disclosure and consider whether any further reasonable lines of inquiry need to be pursued.”  

If the material does not fulfil the disclosure test there is no requirement to disclose it. For this purpose, the parties' respective cases should not be restrictively analysed but must be carefully examined to ascertain the specific facts the prosecution seeks to establish and the specific grounds on which the charges are resisted. 

If there is no material that the disclosure officer believes satisfies the test, they should endorse their case as follows: 

“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.”

What should the defence consider when asking for disclosure?

In R v H and C [2004] UKHL 3 the House of Lords criticised 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.” It is not sufficient for the accused to describe their defence in vaguely 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. It must set out particulars of fact on which the defendant intends to rely. 

From a tactical point of view, defence practitioners can trigger disclosure and additional investigation with a comprehensive defence statement. However, defendants must be advised that the statement will be handed to the case investigators. Therefore, the content of a statement must be supportable, because inconsistencies, discrepancies and shortcomings can be expected to inform the investigators’ approach to the case and the ultimate presentation of the case to a jury. 

Defendants should also bear in mind that their defence statement may be disclosable to a co-accused in the same prosecution. The prosecutor will supply a defence case statement to a co-accused if they think it satisfies the disclosure test. Even if it does not immediately meet the test, it may meet the disclosure test once the co-accused's defence statement is received, or when the accused gives evidence (for example, where there is a cut-throat defence and an accused departs from his defence statement).

How are witness requirements dealt with?

The defence must set out the name, address and date of birth of each witness they intend to call at the trial. If at the time of service of the defence statement this information is not known then there is a continuing duty to provide such information when it does become known (section 6C, CPIA 1996). 

Any witness who is named in the defence statement may be interviewed by police and asked to provide a statement. A code setting out the procedure to be followed by police officers and other persons charged with investigating offences was issued in May 2010 (see Code of Practice for arranging and conducting interviews of witnesses notified by the accused). For example, such a witness may have legal representation for the interview, but if it is the accused's legal representative then their role is limited to that of an observer (paragraph 8.1, Code of Practice).

Conclusion

A defence case statement is a vital part of the criminal justice process and, when managed correctly, can be an opportunity for the defence to secure vital disclosure of evidence from the prosecution. As such, it is important to consider all of the points listed here carefully, to ensure that you prepare your defence statement in accordance with the law, that your client is fully aware of the requirements of the document and how they can help, and that you use the statement to build the strongest possible defence. 

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