Chapter 9 has been rewritten to incorporate several updates. Every edition of the paperback and ebook bought after 12th November 2018 contains this new Chapter 9. If your edition was bought before that date, don’t worry because I have decided to reproduce Chapter 9 here in its entirety:
9 DEFENCE STATEMENTS AND UNUSED MATERIAL
In this chapter we’ll look at what defence statements are, when you have to serve them, what they should say and why they are important. And we’ll also look at what unused material is because this is linked with the topic of you providing a defence statement.
What is a defence statement?
A defence statement is a formal written document from the defence. It is served on the court and on the Prosecution in cases where you enter a Not Guilty plea. What you should say in your defence statement depends on what your case is about. It depends on:
- the issues in your case, i.e. what alleged facts do you and the Prosecution not agree about, and why do you not agree with the Prosecution?
- what your defence is, i.e. why are you saying you are Not Guilty?
Every defence statement will be different because every case is different. But there are some standard general rules about the kinds of topics that defence statements should deal with. You can see those rules in section 6Aof an Act of Parliament called the Criminal Procedure and Investigations Act 1996.
Tip: You can find Acts of Parliament on the government website www.legislation.gov.uk. You will see some boxes and if you enter the name of the Act of Parliament and its year, the website will find it for you.
Keep reading because a little further on we will consider what sort of information your defence statement should contain.
Why are defence statements important?
Crown Court cases
First of all, in the Crown Court you must provide a defence statement. This means that if you don’t, the Prosecution and the Judge may ask you why you have failed to provide one. Potentially the consequence of not providing a defence statement is that the Prosecution might ask you in front of the jury, if you give evidence at your trial, about why you haven’t served one. They might try and use your failure against you by suggesting that there may be suspicious reasons for this, for example that you are not being truthful if you give evidence about why you are not guilty.
If you serve a defence statement in a Crown Court case, then you must serve it by the Stage 2 date – see Chapter 8 What Will Happen If My Case Is Sent To The Crown Court?for more about the stage dates. If you are outside the time limit, send in your defence statement anyway.
Magistrates’ Court cases
If your case is staying at the Magistrates’ Court for trial, then you do not have to serve a defence statement. The Magistrates may not draw any inference against you if you don’t serve a defence statement. If you do serve a defence statement, then you must serve it within 14 days of the Prosecution confirming to you by letter that they have complied with their duty to disclose unused material to you. If you are outside the time limit, send in your defence statement anyway.
Defence Statements Can Be a Good Thing
Providing a defence statement potentially gives you a positive advantage at your trial. This is because, when the Prosecution and the Police receive it, they must examine what you have written carefully, and they must give you any documentation or information that they have that either undermines the prosecution case or that might help you put forward your defence case. Here we are coming to the area of unused material.
Disclosure of unused material
Before you give any defence statement at all, and all the way through your case from the very first hearing at the Magistrates right through to either acquittal or sentencing, the Prosecution have an important duty. They must give you any information or material that is not already in the evidence to do with the case if it might reasonably be considered capable of:
- undermining the case for the prosecution against you, or
- assisting your case.
An example might be if someone else in the pub told a police officer that the alleged victim hit you first, and you only hit out in self-defence. The police officer’s note of what this person said obviously undermines the prosecution allegation that you hit first, and should be disclosed to you as a matter of routine.
Jargon Buster: ‘Unused material’ refers to any information or material in the possession of the Prosecution that is not already served on you as part of the prosecution evidence against you.
If the Prosecution believe that they do not have any information or material that should be disclosed, then they must at least write to you and tell you as much.
The duty that the Prosecution have to review the unused material in case (to use shorthand) it undermines them or helps you is often described as a continuing duty. It never stops. With every twist and turn that a case might take, the Prosecution must keep under review whether any of the unused material should be disclosed to you in line with the undermining / assisting test.
If you supply a defence statement, then the Prosecution must consider once more whether, in light of what your defence statement says, any of the unused material might reasonably be considered capable of:
- undermining the case for the prosecution against you, or
- assisting your case.
Again they must disclose to you any material that does (to use shorthand once more) undermine them or assist you. And again, if the Prosecution believe that they do not have any information or material that should be disclosed, then they must at least write to you and tell you as much
What information should I give in my defence statement?
Section 6Aof the Criminal Procedure and Investigations Act 1996 tells you the sort of general information your defence statement should contain:
- The defence statement should set out the nature of your defence, including any particular defences on which you intend to rely. Here are some examples of defences: lack of honestyin a theft case, self-defencein an assault case, alibiif you were somewhere else at the time of the alleged crime. When section 6A talks about the natureof your defence, it means some detail of what you are saying, rather than just ‘I claim self-defence’.
- If you disagree with the Prosecution evidence, you should indicate which of the prosecution facts you say are wrong, and why you say they are wrong. For example, if the prosecution witness statement of the alleged victim says that you hit him first, but you know this is untrue, then this would be a prosecution fact that you disagree with.
- You should think ahead to when the trial will take place, and consider what facts youwill want to tell the jury about. Your defence statement should set out detail of the facts on which you intend to rely for the purposes of your defence.
- Your defence statement should also say if you want to ask the Judge to consider any matters of law. You might think it would be unfair for the prosecution to tell the jury about some particular piece of evidence. You might think there is something bad about the way the Police or Prosecution have treated you, or that they’ve failed to investigate or prepare the case properly and you feel you have been disadvantaged. Typically these will be arguments to exclude evidence or arguments to stop the case because it is an abuse of the process of the court. These areas of law are often difficult to grapple with. In reality, without a lawyer’s advice there is an obvious risk that you are not going to spot when there is a good point to make, or maybe you will try and make a point that isn’t a good one. If you are representing yourself, you will just have to do the best you can do.
As with most online sources that this Handbook refers you to, don’t forget that you will also find a direct link in the Members’ Area at http://www.HowDoIDefendMyself.com.
What should I say in my defence statement if I wasn’t there when the alleged crime was committed?
If you were not present when the alleged offence was committed, then it is sometimes said that you are raising the defence of ‘alibi’. This is a Latin word that means ‘elsewhere’. Some criminal lawyers like using Latin words. Saying that you weren’t there when the crime was allegedly committed means that you are saying you were somewhere else, even if you can’t now remember where you actually were.
Section 6A(2)of the Criminal Procedure and Investigations Act 1996 tells you the sorts of things you will need to put in your defence statement if you are raising the defence of alibi. You must give particulars of your alibi, including:
- The name, address and date of birth of any potential witness you believe is able to give evidence in support of your alibi (or as many of those details as you know at the time when you are writing your defence statement);
- If you don’t know any of the name, address or date of birth of the potential witness who might support your alibi, you must give any information in your possession which might be of material assistance in identifying or finding him or her.
Do I have any alibi witnesses?
Section 6Ahelps you with this, too. You have to think about who might be able to help support your claim that you were somewhere else at the time of the crime that the Prosecution say you committed. Ask yourself who (if they could be found) could give evidence tending to show that by reason of your presence at a particular place or in a particular area at a particular time you were not, or were unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.
What if I’m not sure that my alibi witness would help me?
You must still give his or her details, or as much of them as you are able to give!
What if I wasn’t there when the crime was allegedly committed, but I can’t remember where I was?
In this situation, there is nothing you can do but say so. This is because you are still technically raising the defence of alibi(i.e. ‘elsewhere’) even though you can’t remember where you were.
What if I believe that the Prosecution have not properly complied with their duties to disclose unused material to me?
There is nothing ever to stop you writing to the Prosecution with any specific enquiry you might have and asking them to confirm their response in writing. This is quite an informal way to deal with the issue. You might consider it to be a good start. If you are unhappy with the response, or if you want to go straight to a formal resolution, you can consider whether to apply to a Judge for disclosure. This formal process is described by section 8of the Criminal Procedure and Investigations Act 1996.
You can only apply to a court under section 8 after you have served a defence statement, and after:
- the Prosecution have sent you a letter confirming that they have considered your defence statement and they have given you any material that they say might reasonably be expected to undermine their case or assist you in putting forward your case;
- or the Prosecution have said that in their view they do not have any material that might reasonably be expected to undermine their case or assist you in putting forward your case,
- or the Prosecution haven’t sent you any letter at all in response to your defence statement.
Jargon Buster: When an accused person makes applies to a Judge to force the Prosecution to make disclosure to her, it is often called ‘a section 8 application’.
If you make a section 8 application, you will need to explain to a Judge or to Magistrates that you have ‘reasonable cause to believe’ that the Prosecution have some material that might reasonably be expected to undermine the prosecution case or assist you in putting forward your case.
How do I make a section 8 application?
There is a particular form that you need to complete. The form has the very literal name ‘Defendant’s application for prosecution disclosure’. Find it in the list of forms here.
All Forms are listed on the Government website www.justice.gov.ukwhere all forms are listed. You will see a comprehensive list of all the forms that exist for use in the criminal courts, and you’ll be able to scroll down to the one you want. The Members’ Area at www.HowDoIDefendMyself.comwill give you the direct link.
The form itself tells you what you need to write about, what you need to attach, and where you need to send it.
How to find some of the sections of the Criminal Procedure Act 1996:
a. section 3 here
b. section 6A here
c. section 8 here
Find the application form for a section 8 disclosure application (‘defendant’s application for prosecution disclosure’) by clicking here and scrolling down to the heading Part 15.