Halsbury’s Laws of England/CRIMINAL PROCEDURE (VOLUME 27 (2010), PARAS 1-451; VOLUME 28 (2010), PARAS 452-962)/10.¬† EVIDENCE AND WITNESSES/(5) ADVANCE INFORMATION AND DISCLOSURE/(i) Introduction/481. Disclosure or advance notification by the defendant.
- Disclosure or advance notification by the defendant.
The defendant is not required to disclose any evidence or material that may be damaging to his own case or of assistance to the prosecution case, nor is he required to disclose evidence that may assist the case of any other defendant1.
At common law, the defendant was not required to give any advance notice or disclosure of evidence on which he proposed to rely at trial2. By statute, however, he may now be required (where the case is to be tried on indictment) to serve a ‘defence statement’ on the prosecution and court3. As from a day to be appointed, the court may also direct that a copy of this statement be served on any co-defendant4. A defence statement may (but is not required to be) given to the prosecution and the court prior to summary trial5. As from a day to be appointed, where a defence statement has been given, the defendant may then be required to provide an updated statement prior to the trial6.
Failure or delay in issuing a defence statement complying with statutory requirements or to present a defence consistent with the defence statement may be the subject of adverse comment by the court or any other party7 and the court or jury may draw such inferences as appear proper in deciding whether the defendant is guilty of the offence concerned8.
The defendant is also required to give advance notice of expert evidence on which he proposes to rely9. A party who seeks to adduce expert evidence in any proceedings (including summary proceedings) and who fails to comply with the disclosure requirements may not introduce that evidence unless every other party agrees or unless the court gives leave10.
1¬† ¬† ¬† Any such requirement would infringe the privilege against self-incrimination: see para 503. As to the general principles of fair disclosure to the defendant see para 480. As to the obligation to notify the prosecution of any expert witnesses instructed (even where not to be called) see para 488.
2¬† ¬† ¬† Alibi defences, however, were by statute required to be disclosed prior to trial on indictment: see the Criminal Justice Act 1967 s 11 (repealed); and the Criminal Procedure and Investigations Act 1996 (Appointed Day No 3) Order 1997, SI 1997/682.
3¬† ¬† ¬† See the Criminal Procedure and Investigations Act 1996 s 5; and para 486.
4¬† ¬† ¬† See the Criminal Procedure and Investigations Act 1996 s 5(5A) (not yet in force); and para 486.
5¬† ¬† ¬† See the Criminal Procedure and Investigations Act 1996 s 6; and para 486.
6¬† ¬† ¬† See the Criminal Procedure and Investigations Act 1996 s 6B (not yet in force); and para 486.
7¬† ¬† ¬† See the Criminal Procedure and Investigations Act 1996 s 11(5)(a); and para 489. In some cases, comment by another party is permitted only with leave of the court: see s 11(6), (7); and para 489.
8¬† ¬† ¬† See the Criminal Procedure and Investigations Act 1996 s 11(5)(b); and para 489.
9¬† ¬† ¬† See the Police and Criminal Evidence Act 1984 s 81 (advance notice of expert evidence in Crown Court); the Criminal Procedure and Investigations Act 1996 s 20(3) (advance notice of expert evidence in magistrates’ courts); CrimPR Pt 33 (CrimPR 33.1-33.9) (Expert Evidence); and paras 483, 609 et seq.
10¬† ¬† ¬† See CrimPR 33.4; and para 609.
480-500¬† Advance Information and Disclosure
SI 2010/60 (‘CrimPR’) replaced by Criminal Procedure Rules 2014, SI 2014/1610 (as amended: see para 110-195).