On 1 April 1997 the new disclosure provisions of the Criminal Procedure and Investigations Act 1996 come into force.

The provisions will apply to all criminal cases and affect all criminal practitioners.

A written defence disclosure statement by the accused will be compulsory in Crown Court cases and in this article, abridged from Active Defence to be published by the Law Society at the end of March 1997, Roger Ede gives some advice on how this may be approached.1 The accused can choose not to make a defence statement at all, but an adverse inference may be drawn from a failure to give a defence statement in the Crown Court if the prosecutor has made primary disclosure.

There is no obligation to make a defence statement in a summary trial.

It can be argued that a person who simply puts the prosecution to proof, calling no evidence, is not raising a defence and an adverse inference should not be drawn if a defence statement is not made.You need to consider how detailed the statement should be and what information it should contain.

To prevent an adverse inference being drawn it must at least:-- set out the nature of the accused's defence in general terms eg, accident, self-defence, consent, no dishonest intent, no appropriation, abandoned goods, claim of right, mistaken identification, alibi.-- indicate the matters on which the accused takes issue with the prosecution, eg, 'I didn't do what he claims I did' and-- set out in respect of each matter the reason why the accused takes issue eg, 'he could not have seen what he claims to have'.The statement must not contain inconsistent defences; it must not be different from the defence to be put forward at trial (you need to ensure that the accused's defence is sustainable through to trial and that instructions will not be changed, or the trial advocate wish to adopt a different approach); and must contain details of an alibi and alibi witnesses (who should be interviewed by the defence before their details are given).You are only entitled to receive secondary disclosure from the prosecutor of material which might assist the defence case and then only if you disclose that case in a defence statement.

The amount of detail that a defence statement should give will be determined by whether you can identify an item, or items, of unused material which may be of assistance from the schedule or from your own investigations.

You should be able to indicate to the prosecutor material on the schedule which you specifically request to be disclosed.

Read the schedule, identify the material listed, indicate which material you request to be disclosed and give reasons why you believe that the material you request might reasonably be expected to assist the defence disclosed by the accused.An informal approach to the prosecutor on the telephone may help guide you about the existence of unused material which may help you, and the information you will have to give in your defence statement to obtain it.

You may find that a prosecutor who is unconvinced by your requests for disclosure would sooner copy the material to you than go to the trouble and expense of defending an application to the court for its disclosure.

If the prosecutor is not prepared to disclose the material to you, the court will have a copy of your defence statement when considering an application for disclosure by you or an application for a non-disclosure order by the prosecutor.2 To tease out any unused material which may help the accused with a defence, the broader the defence disclosed (and the more general terms in which it is described), the wider the range of documents that you can legitimately lay some claim to, but the strength of the claim in relation to individual documents may be weaker.A broad approach is less likely to suggest a weakness in the prosecution case which the prosecutor may then attempt to plug by further investigation.

A broad disclosure with limited detailed information may, after the prosecutor has responded to it, need to be more focused with fuller details being given.

You may also choose to give information:-- to persuade the prosecutor that the accused has a good answer to the charge and that the case should be discontinued-- or to allow the police to confirm a genuine alibi-- or to persuade the prosecutor to substitute alternative lesser charges to which the accused will plead guilty.Whatever your purpose, the statement must be in writing -- and in time.It is important to know whether sensitive material exists which the prosecutor does not feel obliged to disclose or about which the court makes an ex-parte non-disclosure order.

This may help you to decide whether to carry out your own investigations in relation to it.

A defence statement which is sufficiently focused on the possibility of the existence of such material, may persuade the prosecutor that the material meets the test for disclosure and cause him or her to apply to the court for non-disclosure of the material, whilst at the same time providing the court with a sufficient understanding of the defence case, if you make an application to the court, to persuade the court to order its disclosure.Ask the prosecutor whether:-- a sensitive schedule has been prepared-- the prosecutor has been informed separately of the existence of material deemed to be too sensitive to be included in a schedule-- the prosecutor has been informed separately of information about any prosecution witness's previous convictions (including spent convictions) or disciplinary matters relating to a police officerIf the answer to any of these questions is 'yes', ask whether the prosecutor has decided that he or she is not under a duty to disclose any of it? If the prosecutor has decided that he or she is under a duty to disclose it, has, or will, the court be asked to order its non-disclosure? The prosecutor may choose not to reply to these questions.Beware of preventing the accused from running a viable line of defence.

Listen to and respect the accused's instructions.

Don't close off the opportunity to run a defence based upon the accused's instructions just because for tactical reasons you think that another and different defence is more likely to succeed.

By not referring to the original defence in the written statement you may exclude the possibility of receiving information from the prosecution which will enable you to build it into a viable defence.Disclosing the accused's defence involves disclosing the accused's confidential communications with you.

Before a defence written statement can be given, the accused must give his or her consent:-- ensure that you have correctly recorded the accused's instructions to you-- decide what advice you will give the accused about making a statement and its contents-- explain to the accused the reasons for your advice and the likely consequences of not taking that advice-- ask the accused to check and agree the defence written statement and to sign a copy of it (for you to retain) to that ef fect.3 Should the defence statement be drafted by the litigator or the trial advocate? If the case is complex or the litigator can not be sure what defence will run at trial, the trial advocate shoulddraft it.

Once the defence has been committed to paper, there is not only a danger that the accused may change his or her instructions, a change of trial advocate could bring about a different approach to how the defence case should be run.When, within the prescribed time period (likely to be 14 days after primary disclosure has been made, capable of extension on application) should the defence statement be made? This will depend upon whether you have received your client's instructions and the defence investigations have been completed.

If the purpose of the statement is offensive -- to obtain unused material or persuade the prosecutor to discontinue the proceedings because of the accused's explanation -- there is an advantage in making the statement early, so that there is time for the defence to raise any issues (preferably at the PDH) about the failure of the prosecutor to make adequate secondary disclosure or for the police to conduct further investigations which produce evidence pointing away from the accused.If the purpose of the statement is primarily defensive -- to avoid an inference being made -- then it is better made later, leaving less time for the police to re-interview prosecution witnesses or for the prosecution to amend its case in the light of the comments made on the prosecution case in the defence statement.

There is a real risk in such circumstances of the police officer putting the contents of the defence statement to prosecution witnesses, alerting them to the line of cross-examination which will be conducted by the defence at trial and rehearsing the witnesses for that.DIAGRAM -- GIVING A DEFENCE STATEMENT (This diagram cannot be reproduced on the database.

Please see the original)