27 September 2011

Defence Disclosure in the Magistrates' Court

Defence Disclosure in the Magistrates' Court

Most, if not all, cases in the magistrates’ court will be governed by the provisions of the CPIA 1996, as amended by the Criminal Justice Act 2003. These amendments came into force on the 4th April 2005.

When does the duty of disclosure arise?

  1. Section 1 (1) of the CPIA 1996 makes it clear that the provisions of Part I only apply where the defendant has pleaded not guilty, either to a summary-only matter or an either-way matter “in respect of which a court proceeds to summary trial”. Therefore, until a not guilty plea is entered there is no entitlement to disclosure.
  2. It is worth bearing in mind here the terms of the CPIA Code. Para.6.2 states that any material, (i) which may be relevant to an investigation, (ii) which has been retained and (iii) which the disclosure officer believes will not form part of the prosecution case “must be listed on a schedule”, although according to Para.6.6 such a schedule need only be prepared in summary proceedings where “it is likely” that the defendant will plead not guilty. If the defendant enters an unexpected plea of not guilty Para.6.8. provides “the disclosure officer must ensure that a schedule is prepared as soon as reasonably practicable after that happens”.
  3. Once the schedule(s) have been compiled, pursuant to Para.7.1, the disclosure officer must give them to the prosecutor and, pursuant to Para.7.2, draw to his or her attention any retained material “which may satisfy the test for prosecution disclosure”. Thereafter the prosecutor will need to consider the material on the schedules to see whether any of it falls to be disclosed.

When must the duty be complied with?

  1. The initial duty of disclosure in section 3 of the CPIA 1996 must be completed within a time limit set down by section 12. In fact that section does not itself lay down any time limits but it does stipulate that it is for the Secretary of State “to prescribe any regulations for the purposes of”, inter alia, section 3. To date there is no such regulation in force in respect of summary proceedings and so, by virtue of section 13, section 3(8) should be read as if imposing an obligation on the prosecution to comply with its initial duty “as soon as reasonably practicable after” the defendant has pleaded not guilty.
  2. Paragraph 3.1 of the ‘Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the Magistrates’ Court’ (2006) (“the Protocol”) states that “standard directions allow 28 days following plea for initial disclosure to be provided” although the origin of this rule is not stated.

How must the duty be complied with?

  1. Section 3(3) of the CPIA 1996 states that the initial duty of disclosure is complied with where either (i) the prosecutor discloses any prosecution material which has not previously been disclosed to the accused and which satisfies the test for disclosure, or (ii), “give to the accused a written statement that there is no material to disclose”.
  2. If there is no material to disclose, the initial duty is satisfied where the prosecution write to the defendant to make him aware of this. There is no obligation on the prosecution to serve the schedule(s) on the defendant unless, pursuant to section 4, the prosecutor had the schedule before sending the letter, in which case the schedule should accompany the letter. Thus, time for serving a defence statement begins to run from the time the letter is served and not from the time when the schedule(s) are received: DPP v Wood [2006] EWHC 32 (Admin), at para.23.
  3. It is worth noting here that the sending of disclosure material or a letter telling the defendant that there is no material to disclose will be deemed to have been served, if served by first class post, “on the second business day after the day on which it was posted”. For the purposes of defence disclosure, therefore, time begins to run from that date and not the date appearing on the letterhead: Rule 4.10 of the Criminal Procedure Rules 2010.

When should the defence statement be served?

  1. Provision of a defence statement in the magistrates’ court is entirely voluntary and no adverse inference can be drawn from the defendant’s failure to serve one. Section 6 of the CPIA 1996 provides that that section applies where the defendant has pleaded not guilty and the prosecutor complies with its initial duty in section 3 “or purports to comply with it”. Thereafter, the defendant “may give a defence statement to the prosecutor” and if he does so he must also give such a statement to the court.
  2. The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, state that where a defendant chooses to serve a defence statement pursuant to section 6 he should do so within 14 days of the day on which the prosecution complied or purported to comply with its initial duty. Please be aware of regulation 3, which contains a power for the court to extend the time for service of the defence statement but only where the application is made within those 14 days.
  3. What is the status of a defence statement served outside that period? It will still be a defence statement and so the prosecution cannot simply ignore it: see DPP v Wood, para.24 and para.3.10 of the Protocol.
  4. If the defendant voluntarily serves a defence statement outside of the 14 day period and no extension has been sought then section 11 applies by reason of section 11(3)(a). Section 11 will also apply in all the other ways that it would in the Crown Court if the defence statement proved to be deficient. In other words, once the defendant decides to serve a defence statement he no longer has immunity from the rigours of section 11 should any of the matters set out therein arise.

When should the defence notify the existence of defence witnesses?

  1. Section 6C now obliges defendants to give the names and contact details of any witnesses “he intends to call” at trial and this must be done within the time limit set down for service of a defence statement if it is not done in the defence statement itself, which typically it will be. This is mandatory and not discretionary and so section 6C must be complied with in summary proceedings whether the defence intend to serve a defence statement or not. If the defendant calls witnesses at trial who have not been named in a notice then the prosecution are entitled to make appropriate comment upon that failure: section 6E(2).
  2. On the 1st May 2010, the ‘Code of Practice for Arranging and Conducting Interviews Notified by the Accused’ came into force and provides guidance to police officers wishing to conduct interviews with “proposed witnesses whose details are disclosed to the prosecution by an accused person pursuant to the disclosure provisions in Part I of the Act”. This Code requires the police to notify the defendant’s solicitors when they propose to interview a defence witness and the defendant’s solicitor is entitled to be present during the interview, although he or she is not permitted to intervene in questioning.
  3. Note here that the Code only applies once section 6C has been complied with. It follows that where a defendant mentions witnesses in his interview the police can still question them in the usual way without the protections afforded to the defendant under the Code. Early service of a notice pursuant to this section could extend that protection to those witnesses much sooner thereby reducing the risk of the witness being ‘nobbled’ by a zealous investigator keen to impugn what he perceives to be a fabricated defence.
  4. One issue that arises, however, is whether the protection of the Code extends to those defence witnesses who are being interviewed because they are suspects. If it did then it would be rather easy for the defendant to extend the protections of the Code to anyone he wants by simply including them in a notice whether he has any intention of calling them as witnesses or (there being no sanction in the CPIA itself for a failure to call a witness named in a notice as opposed to the calling of a witness not named in a notice). If it did not then it would be just as easy for the police to interview a defence witness as a suspect by claiming that because they did not believe the defence being advanced they had reasonable grounds to suspect that the defence witness might be attempting to pervert the course of justice by supporting the defendant’s false account and hence he or she could be arrested on suspicion of committing that offence. This issue has yet to be resolved.

What must the prosecution do once they have received a defence statement?

  1. Obviously, the prosecutor must review the unused material in accordance with section 7. Whether there is further material to disclose or not, that disclosure or a letter stating that there is no further disclosure must be served as soon as reasonably practicable.

What if the defendant believes that disclosure is incomplete?

  1. Where the prosecutor has complied or purported to comply with section 7A(5) but the accused “has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been” he may apply to the court for an order requiring the prosecutor to disclose it to him: section 8.
  2. The Protocol clearly states that no section 8 application should be entertained in the absence of a defence statement (para.3.15) but this can work obvious injustice. Suppose for example that the prosecution comply or purport to comply with its initial duty of disclosure and in so doing serve the schedule under section 4. Suppose further that that schedule does not list items of material that it is obvious from the evidence must be in existence and which seem to be relevant to the investigation. If the defence want to see that material do they have to first serve a defence statement? In other words, is it legitimate that the defence should be forced to serve a defence statement simply in order to force the prosecution to do its job?
  3. The answer may lie in Annex B of the Protocol, which makes it clear that “proper listing of material on the unused schedule and appropriate scrutiny of it by the prosecutor is vital to the proper implementation of the statutory scheme” [para. iv]. That same paragraph goes on to list the sorts of items the prosecutor might expect to see in a straightforward case, and these include the records of any 999 calls, unused CCTV footage, previous convictions of prosecution witnesses and incident report books of officers not intended to give evidence at trial. Where it is obvious to prosecutors that material of this sought does not appear on the schedule but should, they must ensure that the schedule is returned to the disclosure officer to be amended.
  4. What this means is that where the schedule is deficient because it does not include items that clearly exist and which should be on there, the remedy for the defence may be to seek the stay the case as an abuse of process for the prosecution’s failure to comply with its obligations to gather, retain and scrutinise unused material in accordance with the CPIA and the Protocol: see R v Togher [2001] 1 Cr.App.R. 457.

Paul Jarvis