Defence Statements - an Anchor and a Cannon

AuthorsJeffrey Israel, Dominic Thomas

It is a common misconception amongst some practitioners that the service of a defence statement in Crown Court proceedings is a choice, rather than an obligation. This, incorrect, line of thought holds that the service, or not, of a defence statement is somehow a choice akin to whether a suspect should answer questions in interview or, once at trial, whether a defendant should give evidence on their own behalf. At interview or at trial the defendant has a right to silence, albeit not an unfettered right as adverse inferences can be drawn from silence. Although the sanction for a defective or missing defence statement is the same: an adverse inference, the Court will not tell the jury that a defendant had the right not to serve a defence statement, since no such right exists.

The circumstances in which adverse comment can be made are, in full:

when no defence statement is served;
when it is served late;
when it sets out inconsistent defences;
when the defendant puts forward a defence at trial not mentioned in the defence statement;
when the defendant relies on a matter that which ought to have been mentioned but was not mentioned in the defence statement;
when the defendant gives, or calls, alibi evidence without complying with the alibi notification provisions;
when the defendant calls a witness not identified or adequately identified in the notice of defence witnesses.

Even in the Magistrates’ Court, where service of a defence statement is optional, failure to serve a defence statement deprives the defendant of the opportunity to make a s8 application to the Court.

It is worth highlighting the issue of late defence statements, particularly. Able prosecutors will often seek to explore whether the timing of a late defence statement is attributable to the defendant seeking some improper tactical advantage by waiting to co-ordinate with co-defendants or waiting for the product of some other development after stage 1. If the real reason that a defence statement cannot be served by the stage 2 date is that the defence team has been hampered by professional time constraints, by an inability to arrange conferences with the defendant, by a proper complaint that the prosecution has not complied with primary disclosure at stage 1 or by any other event or circumstance for which the defendant is not to blame, the defence team should set this out in writing to the prosecution and the Court in a reasoned request for an extension of time before stage 2 has elapsed, and if necessary go on to argue the point at a hearing. That will serve to protect the defendant from adverse comment.

Note, however, that such an adverse inference cannot by itself found a conviction, nor can it be prayed in aid by the prosecution to defeat a submission of no case to answer. Nor will a short delay in the service of a defence statement relieve the prosecution of its disclosure duties. The defendant cannot be prevented from calling an alibi witness that he has not mentioned in his defence statement, nor can the defendant be deprived of the chance of exploring a line of relevant questioning that does not arise from his defence statement (see T [2017] EWCA Crim 2368). However, ambush of a prosecution witness by adducing material late may have other consequences such as adverse comment, wasted costs (see SVS Solicitors EWCA [2012] Crim 319) or even the derailing of the trial.

The service of a defence statement is a statutory requirement imposed by the Criminal Procedure and Investigations Act (CPIA) 1996. Consequently, practitioners cannot advise their clients not to serve a defence statement – to do so would constitute a breach of professional ethics. The defence statement must comply with the law and therefore must include the particulars of the matters of fact on which an accused intends to rely upon for the purposes of their defence. It follows that defence statements should not be drafted without full and adequate instructions, should cover the matters in issue in sufficient detail, and it is good practice that a defence statement should be signed by the defendant (compare on the one hand problems that arose from an unsigned defence statement in Wheeler (2001) 1 Cr App R 10 and on the other the striking down of a practice that had arisen at Maidstone Crown Court requiring a signature in R (Sullivan ) v Maidstone Crown Court [2002] EWHC Admin 967).

Rochford [2010] EWCA Crim 1928 remains the starting-point for practitioners. Whilst the Court of Appeal deprecated the suggestion that a failure to serve a defence statement amounted to a contempt of court, the judgment set out a number of clear principles. In particular, that a lawyer could not properly advise a defendant not to file a defence statement as it was not open to a lawyer to advise their client to disobey a statutory obligation. Even if a defendant had no positive case to advance at trial the Court made it clear that a defence statement would be required:

What is the duty of the lawyer if the defendant has no positive case to advance at trial but declines to plead guilty? That is a realistic (if rare) practical possibility. It may occur. It may occur in at least two situations. It might happen that a defendant within the cloak of privilege confides in his lawyer that he is in fact guilty of the offence charged but refuses to plead guilty. He cannot be prevented from taking that course and his instructions to his lawyer are covered by privilege. He is entitled in those circumstances to sit through the trial and to see whether the Crown can prove the case or not. What he is not entitled to do is to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it. A less extreme but equally possible example is the defendant who refuses to give instructions either at all or on specific points. That too can occur. In neither of those situations can it possibly be the obligation of the defendant to put into his defence statement an admission of guilt or a refusal to give instructions. What are the lawyers to do? It seems to us that we can give an answer only in general terms because it would be unhelpful for us to attempt the impossible task of foreseeing every factual scenario that might occur in future. They will have to be dealt with as they arise, case by case. But in general terms our answer is this. The defence statement must say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it. But it must also say that he advances no positive case because if he is going to advance a positive case that must appear in the defence statement and notice of it must be given.

These observations have been incorporated into the guidance issued to counsel by the BSB:

“You must not advise a defendant not to serve a defence statement nor to omit something which the statute requires to be included. The statutory duties must be explained as well as the consequences which follow from non-compliance. You cannot, and should not, draft a defence statement without adequate instructions. These should take the form of a signed proof of evidence or a note of instructions taken in conference. Such a note should also be signed by the defendant.”

A defence statement must set out the case for the defence in terms and do so with necessary detail. There are no short cuts to this exercise. Withnell [2013] EWCA Crim 161 a defence statement had stated that the defendant relied upon his answers during a long police interview. The Court did not approve: “Incorporating several hundred pages of interview transcript in this way does not constitute proper compliance with the requirement to serve a Defence Statement not least because it is not conducive to a ready understanding of the case which a defendant is going to advance.”

In this sense, defence statements are an anchor, fixing the defendant’s case firmly in the Court’s mind.

One aspect of defence statements not well understood is if and when the document may itself be copied for the jury. Section 6E of the CPIA permits a copy of a defence statement to be provided to the jury if, but only if, in the view of the judge, it would “help the jury to understand the case or to resolve any issue in the case”. In the ordinary case, recitation of the relevant parts of the defence statement in cross-examination of the defendant will suffice without the jury needing a copy of the document or being permitted to retain it. The defence statement is not itself evidence, although it may inform the jury in its assessment of any adverse comment contended for by the prosecution and permitted by the judge.

One of the benefits of a fully compliant defence statement, of course, is that a disclosure review on the part of the prosecution must follow. Only a properly focussed defence statement will trigger a thorough review and consequent disclosure of further material. But it follows that if the defendant fails to serve an adequate defence statement and the relevant issues remain uncertain, the prosecution cannot fairly be criticised for a lack of disclosure. A mere denial that is then followed by a number of detailed requests for disclosure does not prompt secondary disclosure in the way that many defence practitioners would like it to (see R v H and C [2004] UKHL 3, a significant case examining the relationship between defence statements and disclosure by the prosecution). The focus of defence practitioners should therefore be on the adequacy of the defence statement and the obligations it may force on the prosecution. Whilst the prosecution is always under an obligation to disclose material helpful to the defence regardless, it is the disclosure review that follows service of a defence statement that will most often provoke helpful revelations. The CPIA requires the Crown to consider information raised in the defence statement and to disclose any material that undermines its case or assists the defence. Moreover, behind the prosecution the police is obliged to follow up “reasonable lines of enquiry” thrown up by a defence statement. (The CPS Disclosure Manual states that 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.”) Often, whether or not material has the quality of undermining/assisting and whether or not lines of enquiry are reasonable will not be apparent unless the defence case is clearly formulated. A failure on the part of the prosecution to comply with these provisions of the CPIA has founded many a successful defence case, either before the judge or the jury. Properly understood and properly produced a defence statement serves the defence not only as an anchor but also as a cannon.