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Criminal Justice Bill


Criminal Justice Bill
Part 5 — Disclosure

22

 

(5D)   

A defence statement that has to be given to a co-accused (under

subsection (5A)) must be given within such period as the court may

specify.”

(2)   

After section 6 of that Act there is inserted—

“6A     

Contents of defence statement

5

(1)   

For the purposes of this Part a defence statement is a written

statement—

(a)   

setting out the nature of the accused’s defence, including any

particular defences on which he intends to rely,

(b)   

indicating the matters of fact on which he takes issue with the

10

prosecution,

(c)   

setting out, in the case of each such matter, why he takes issue

with the prosecution, and

(d)   

indicating any point of law (including any point as to the

admissibility of evidence or an abuse of process) which he

15

wishes to take, and any authority on which he intends to rely for

that purpose.

(2)   

A defence statement that discloses an alibi must give particulars of it,

including—

(a)   

the name, address and date of birth of any witness the accused

20

believes is able to give evidence in support of the alibi, or as

many of those details as are known to the accused when the

statement is given;

(b)   

any information in the accused’s possession which might be of

material assistance in identifying or finding any such witness in

25

whose case any of the details mentioned in paragraph (a) are

not known to the accused when the statement is given.

(3)   

For the purposes of this section evidence in support of an alibi is

evidence tending to show that by reason of the presence of the accused

at a particular place or in a particular area at a particular time he was

30

not, or was unlikely to have been, at the place where the offence is

alleged to have been committed at the time of its alleged commission.

(4)   

The Secretary of State may by regulations make provision as to the

details of the matters that, by virtue of subsection (1), are to be included

in defence statements.”

35

(3)   

After section 6A of that Act (inserted by subsection (2) above) there is

inserted—

“6B     

Updated disclosure by accused

(1)   

Where the accused has, before the beginning of the relevant period for

this section, given a defence statement under section 5 or 6, he must

40

during that period give to the court and the prosecutor either—

(a)   

a defence statement under this section (an “updated defence

statement”), or

(b)   

a statement of the kind mentioned in subsection (4).  

(2)   

The relevant period for this section is determined under section 12.

45

 

 

Criminal Justice Bill
Part 5 — Disclosure

23

 

(3)   

An updated defence statement must comply with the requirements

imposed by or under section 6A by reference to the state of affairs at the

time when the statement is given.

(4)   

Instead of an updated defence statement, the accused may give a

written statement stating that he has no changes to make to the defence

5

statement which was given under section 5 or 6.

(5)   

Where there are other accused in the proceedings and the court so

orders, the accused must also give either an updated defence statement

or a statement of the kind mentioned in subsection (4), within such

period as may be specified by the court, to each other accused so

10

specified.

(6)   

The court may make an order under subsection (5) either of its own

motion or on the application of any party.”

34      

Notification of intention to call defence witnesses

After section 6B of the 1996 Act (inserted by section 33 above) there is

15

inserted—

“6C     

Notification of intention to call defence witnesses

(1)   

The accused must give to the court and the prosecutor a notice

indicating whether he intends to call any persons (other than himself)

as witnesses at his trial and, if so—

20

(a)   

giving the name, address and date of birth of each such

proposed witness, or as many of those details as are known to

the accused when the notice is given;

(b)   

providing any information in the accused’s possession which

might be of material assistance in identifying or finding any

25

such proposed witness in whose case any of the details

mentioned in paragraph (a) are not known to the accused when

the notice is given.

(2)   

Details do not have to be given under this section to the extent that they

have already been given under section 6A(2).

30

(3)   

The accused must give a notice under this section during the period

which, by virtue of section 12, is the relevant period for this section.

(4)   

If, following the giving of a notice under this section, the accused—

(a)   

decides to call a person (other than himself) who is not included

in the notice as a proposed witness, or decides not to call a

35

person who is so included, or

(b)   

discovers any information which, under subsection (1), he

would have had to include in the notice if he had been aware of

it when giving the notice,

   

he must give an appropriately amended notice to the court and the

40

prosecutor.”

35      

Notification of names of experts instructed by defendant

After section 6C of the 1996 Act (inserted by section 34 above) there is

 

 

Criminal Justice Bill
Part 5 — Disclosure

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inserted—

“6D     

Notification of names of experts instructed by accused

(1)   

If the accused instructs a person with a view to his providing any expert

opinion for possible use as evidence at the trial of the accused, he must

give to the court and the prosecutor a notice specifying the person’s

5

name and address.

(2)   

A notice does not have to be given under this section specifying the

name and address of a person whose name and address have already

been given under section 6C.

(3)   

A notice under this section must be given during the period which, by

10

virtue of section 12, is the relevant period for this section.”

36      

Further provisions about defence disclosure

After section 6D of the 1996 Act (inserted by section 35 above) there is

inserted—

“6E     

Disclosure by accused: further provisions

15

(1)   

Where an accused’s solicitor purports to give on behalf of the

accused—

(a)   

a defence statement under section 5, 6 or 6B, or

(b)   

a statement of the kind mentioned in section 6B(4),

   

the statement shall, unless the contrary is proved, be deemed to be

20

given with the authority of the accused.

(2)   

If it appears to the judge at a pre-trial hearing that an accused has failed

to comply fully with section 5, 6B or 6C, so that there is a possibility of

comment being made or inferences drawn under section 11(5), he shall

warn the accused accordingly.

25

(3)   

In subsection (2) “pre-trial hearing” has the same meaning as in Part 4

(see section 39).

(4)   

The judge in a trial before a judge and jury—

(a)   

may direct that the jury be given a copy of any defence

statement, and

30

(b)   

if he does so, may direct that it be edited so as not to include

references to matters evidence of which would be inadmissible.

(5)   

A direction under subsection (4)—

(a)   

may be made either of the judge’s own motion or on the

application of any party;

35

(b)   

may be made only if the judge is of the opinion that seeing a

copy of the defence statement would help the jury to

understand the case or to resolve any issue in the case.

(6)   

The reference in subsection (4) to a defence statement is a reference—

(a)   

where the accused has given only an initial defence statement

40

(that is, a defence statement given under section 5 or 6), to that

statement;

 

 

Criminal Justice Bill
Part 5 — Disclosure

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(b)   

where he has given both an initial defence statement and an

updated defence statement (that is, a defence statement given

under section 6B), to the updated defence statement;

(c)   

where he has given both an initial defence statement and a

statement of the kind mentioned in section 6B(4), to the initial

5

defence statement.”

37      

Continuing duty of disclosure by prosecutor

Before section 8 of the 1996 Act there is inserted—

“7A     

Continuing duty of prosecutor to disclose

(1)   

This section applies at all times—

10

(a)   

after the prosecutor has complied with section 3 or purported to

comply with it, and

(b)   

before the accused is acquitted or convicted or the prosecutor

decides not to proceed with the case concerned.

(2)   

The prosecutor must keep under review the question whether at any

15

given time (and, in particular, following the giving of a defence

statement) there is prosecution material which—

(a)   

might reasonably be considered capable of undermining the

case for the prosecution against the accused or of assisting the

case for the accused, and

20

(b)   

has not been disclosed to the accused.

(3)   

If at any time there is any such material as is mentioned in subsection

(2) the prosecutor must disclose it to the accused as soon as is

reasonably practicable (or within the period mentioned in subsection

(5)(a), where that applies).

25

(4)   

In applying subsection (2) by reference to any given time the state of

affairs at that time (including the case for the prosecution as it stands at

that time) must be taken into account.

(5)   

Where the accused gives a defence statement under section 5, 6 or 6B—

(a)   

if as a result of that statement the prosecutor is required by this

30

section to make any disclosure, or further disclosure, he must

do so during the period which, by virtue of section 12, is the

relevant period for this section;

(b)   

if the prosecutor considers that he is not so required, he must

during that period give to the accused a written statement to

35

that effect.

(6)   

For the purposes of this section prosecution material is material—

(a)   

which is in the prosecutor’s possession and came into his

possession in connection with the case for the prosecution

against the accused, or

40

(b)   

which, in pursuance of a code operative under Part 2, he has

inspected in connection with the case for the prosecution

against the accused.

(7)   

Subsections (3) to (5) of section 3 (method by which prosecutor

discloses) apply for the purposes of this section as they apply for the

45

purposes of that.

 

 

Criminal Justice Bill
Part 5 — Disclosure

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(8)   

Material must not be disclosed under this section to the extent that the

court, on an application by the prosecutor, concludes it is not in the

public interest to disclose it and orders accordingly.

(9)   

Material must not be disclosed under this section to the extent that it is

material the disclosure of which is prohibited by section 17 of the

5

Regulation of Investigatory Powers Act 2000 (c. 23).”

38      

Application by defence for disclosure

In section 8 of the 1996 Act (application by accused for disclosure), for

subsections (1) and (2) there is substituted—

“(1)   

This section applies where the accused has given a defence statement

10

under section 5, 6 or 6B and the prosecutor has complied with section

7A(5) or has purported to comply with it or has failed to comply with it.

(2)   

If 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

15

the prosecutor to disclose it to him.”

39      

Faults in defence disclosure

For section 11 of the 1996 Act there is substituted—

“11     

Faults in disclosure by accused

(1)   

This section applies in the three cases set out in subsections (2), (3) and

20

(4).

(2)   

The first case is where section 5 applies and the accused—

(a)   

fails to give an initial defence statement,

(b)   

gives an initial defence statement but does so after the end of the

period which, by virtue of section 12, is the relevant period for

25

section 5,

(c)   

is required by section 6B to give either an updated defence

statement or a statement of the kind mentioned in subsection (4)

of that section but fails to do so,

(d)   

gives an updated defence statement or a statement of the kind

30

mentioned in section 6B(4) but does so after the end of the

period which, by virtue of section 12, is the relevant period for

section 6B,

(e)   

sets out inconsistent defences in his defence statement, or

(f)   

at his trial—

35

(i)   

puts forward a defence which was not mentioned in his

defence statement or is different from any defence set

out in that statement,

(ii)   

relies on a matter which, in breach of the requirements

imposed by or under section 6A, was not mentioned in

40

his defence statement,

(iii)   

adduces evidence in support of an alibi without having

given particulars of the alibi in his defence statement, or

 

 

Criminal Justice Bill
Part 5 — Disclosure

27

 

(iv)   

calls a witness to give evidence in support of an alibi

without having complied with section 6A(2)(a) or (b) as

regards the witness in his defence statement.

(3)   

The second case is where section 6 applies, the accused gives an initial

defence statement, and the accused—

5

(a)   

gives the initial defence statement after the end of the period

which, by virtue of section 12, is the relevant period for section

6, or

(b)   

does any of the things mentioned in paragraphs (c) to (f) of

subsection (2).

10

(4)   

The third case is where the accused—

(a)   

gives a witness notice but does so after the end of the period

which, by virtue of section 12, is the relevant period for section

6C, or

(b)   

at his trial calls a witness (other than himself) not included, or

15

not adequately identified, in a witness notice.

(5)   

Where this section applies—

(a)   

the court or any other party may make such comment as

appears appropriate;

(b)   

the court or jury may draw such inferences as appear proper in

20

deciding whether the accused is guilty of the offence concerned.

(6)   

Where—

(a)   

this section applies by virtue of subsection (2)(f)(ii) (including

that provision as it applies by virtue of subsection (3)(b)), and

(b)   

the matter which was not mentioned is a point of law (including

25

any point as to the admissibility of evidence or an abuse of

process) or an authority,

   

comment by another party under subsection (5)(a) may be made only

with the leave of the court.

(7)   

Where this section applies by virtue of subsection (4), comment by

30

another party under subsection (5)(a) may be made only with the leave

of the court.

(8)   

Where the accused puts forward a defence which is different from any

defence set out in his defence statement, in doing anything under

subsection (5) or in deciding whether to do anything under it the court

35

shall have regard—

(a)   

to the extent of the differences in the defences, and

(b)   

to whether there is any justification for it.

(9)   

Where the accused calls a witness whom he has failed to include, or to

identify adequately, in a witness notice, in doing anything under

40

subsection (5) or in deciding whether to do anything under it the court

shall have regard to whether there is any justification for the failure.

(10)   

A person shall not be convicted of an offence solely on an inference

drawn under subsection (5).

(11)   

Where the accused has given a statement of the kind mentioned in

45

section 6B(4), then, for the purposes of subsections (2)(f)(ii) and (iv), the

question as to whether there has been a breach of the requirements

 

 

Criminal Justice Bill
Part 5 — Disclosure

28

 

imposed by or under section 6A or a failure to comply with section

6A(2)(a) or (b) shall be determined—

(a)   

by reference to the state of affairs at the time when that

statement was given, and

(b)   

as if the defence statement was given at the same time as that

5

statement.

(12)   

In this section—

(a)   

“initial defence statement” means a defence statement given

under section 5 or 6;

(b)   

“updated defence statement” means a defence statement given

10

under section 6B;

(c)   

a reference simply to an accused’s “defence statement” is a

reference—

(i)   

where he has given only an initial defence statement, to

that statement;

15

(ii)   

where he has given both an initial and an updated

defence statement, to the updated defence statement;

(iii)   

where he has given both an initial defence statement

and a statement of the kind mentioned in section 6B(4),

to the initial defence statement;

20

(d)   

a reference to evidence in support of an alibi shall be construed

in accordance with section 6A(3);

(e)   

“witness notice” means a notice given under section 6C.”

40      

Code of practice for police interviews of witnesses notified by accused

In Part 1 of the 1996 Act after section 21 there is inserted—

25

“21A    

Code of practice for police interviews of witnesses notified by accused

(1)   

The Secretary of State shall prepare a code of practice which gives

guidance to police officers, and other persons charged with the duty of

investigating offences, in relation to the arranging and conducting of

interviews of persons—

30

(a)   

particulars of whom are given in a defence statement in

accordance with section 6A(2), or

(b)   

who are included as proposed witnesses in a notice given under

section 6C.

(2)   

The code must include (in particular) guidance in relation to—

35

(a)   

information that should be provided to the interviewee and the

accused in relation to such an interview;

(b)   

the notification of the accused’s solicitor of such an interview;

(c)   

the attendance of the interviewee’s solicitor at such an

interview;

40

(d)   

the attendance of the accused’s solicitor at such an interview;

(e)   

the attendance of any other appropriate person at such an

interview taking into account the interviewee’s age or any

disability of the interviewee.

(3)   

Any police officer or other person charged with the duty of

45

investigating offences who arranges or conducts such an interview

shall have regard to the code.

 

 

 
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