The Evolution of the Defence Statement
| Author | Chris Taylor |
| DOI | 10.1350/jcla.2010.74.3.635 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
The Evolution of the Defence Statement
Chris Taylor*
Keywords
Disclosure; Procedure; Defence statement; Content; Adverse
inference
More than a decade after its initial implementation, it is clear that the
regime for advance disclosure in criminal cases imposed by the Criminal
Procedure and Investigations Act 1996 (CPIA) remains less than univer-
sally effective. Evidence of this fact can be found in those appeals against
conviction which continue to succeed on the grounds of defective
disclosure.1 Such cases involve the treatment of both sensitive and non-
sensitive unused material and reveal persistent failings in both the
operation and management of the disclosure process.2
One aspect of disclosure under CPIA which has received less atten-
tion, however, is the requirement for defence disclosure imposed by the
Act and implemented by means of the defence statement. As with the
other aspects of the CPIA disclosure regime, the implementation of
defence statements was not without difficulty. From the outset, many
defence practitioners routinely ignored the requirement for a defence
statement or, alternatively, undermined the spirit of the legislation by
submitting a statement which amounted to little more than a simple
denial of the charge. In adopting such tactics, defence solicitors were
initially encouraged by early judicial reluctance to employ the statutory
sanction of adverse inference for non-submission or defective submis-
sion of a defence statement.
In recognition of the major weaknesses inherent in the original
legislation, the government made fundamental reforms to CPIA dis-
closure by means of the Criminal Justice Act 2003. This resulted in
significant changes, not only to the duty imposed on the prosecution,
but also in relation to the requirements of the defence statement. At the
same time, the courts have displayed an increasing willingness to utilise
the sanction of adverse inference where the defence have failed to
satisfy their disclosure obligations. This Comment seeks to offer some
reflection, firstly on the role of the defence statement as a mechanism
for compelling defence complicity in the trial process and, secondly, on
the developing case law which has served to clarify the current extent of
* LLB, LLM, PhD; Senior Lecturer, Bradford University Law School; e-mail:
C.W.Taylor@Bradford.ac.uk.
1 See, e.g., the decisions in Swash v DPP [2009] EWHC 803 (Admin) and R v Tucker
[2008] EWCA Crim 3063.
2 The failings of CPIA were recently reiterated once again by the 2008 Crown
Prosecution Service (CPS) review of disclosure practice, Thematic Review of the Duties
of Disclosure of Unused Material undertaken by the Crown Prosecution Service (HMSO:
London, 2008).
214
The Journal of Criminal Law (2010) 74 JCL 214–222
doi:10.1350/jcla.2010.74.3.635
The Evolution of the Defence Statement
the defence disclosure obligation. This question was most recently con-
sidered by the Court of Appeal in R v Essa.3
At the outset, it is important to remember that the concept of a
reciprocal (albeit more limited) obligation of disclosure on the defence
(achieved by means of the defence statement) represented one of the
most contentious aspects of CPIA. The historical ability of the defence to
‘keep their powder dry’ until trial was traditionally viewed as a funda-
mental right of the accused and police resentment at the ability of the
defence to mount such ‘ambush’ defences influenced the drafting of the
legislation.4 The result was the requirement for a defence statement
which, for the first time, saw the State impose a statutory obligation of
disclosure on the defence in order to compel cooperation with the police
and prosecution. This was achieved by two principal means: (1) by
explicitly making secondary prosecution disclosure contingent upon the
contents of the defence statement;5 and (2) by threatening the re-
calcitrant defendant not only with potentially incomplete prosecution
disclosure, but also with the possibility of adverse inference.6
As indicated previously, and in common with many other aspects of
CPIA disclosure, the defence statement provisions initially proved
largely ineffectual. Defence solicitors quickly adopted the tactic of sub-
mitting a ‘simple denial’ statement which appeared to satisfy the re-
quirements of the Act (thereby minimising the risk of adverse inference)
but, at the same time, revealed little or nothing of the case which they
intended to present at trial.7 In turn, CPS staff routinely failed to insist on
comprehensive defence statements as a trigger for secondary disclosure
and the courts displayed initial reluctance to draw adverse inference in
the numerous cases where the defence statement was incomplete, late
or even non-existent. This was the cause of considerable friction be-
tween prosecutors and those investigators who believed that a more
rigorous approach was required to compel defence cooperation.8
The changes to CPIA disclosure introduced by the Criminal Justice
Act 2003 represented, in the most part, the logical abandonment of the
most indefensible aspects of the original procedure. Key reforms in-
cluded the replacement of ‘primary’ and ‘secondary’ prosecution dis-
closure with a single ongoing duty,9 together with the imposition of an
objective test for disclosure. This replaced the original subjective test
3 [2009] EWCA Crim 43.
4 See M. Zander and P. Henderson, Crown Court Study: Royal Commission on
Criminal Justice Research Study No. 19 (HMSO: London, 1993); although it is
significant that the RCCJ itself did not appear totally convinced of the merits of the
police argument on this point (ibid. at para. 64).
5 The original s. 7(2) required the prosecutor to: ‘disclose to the accused any
prosecution material which has not previously been disclosed to the accused and
which might be reasonably expected to assist the accused’s defence as disclosed by the
defence statement’ (emphasis added).
6 CPIA, s. 11(3), mirroring the ‘right to silence’ provisions of the Criminal Justice and
Public Order Act 1994.
7 See the Crown Prosecution Service Inspectorate, Report on the Thematic Review of the
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