Commentary on Sections Part 5: Disclosure Section 33: Defence disclosure
181.This Section amends the defence disclosure requirements in section 5 of the 1996 Act.
182.Subsection (1) amends section 5 of the 1996 Act to provide for the cross service of defence statements following an order of the court. The court may make such an order of its own motion or on the application of any party (new sub-section 5(B)).
183.Subsection (2) inserts a new section 6A in the 1996 Act. The new section prescribes the content of a defence statement. It replaces subsections (6) to (9) of section 5 of the 1996 Act (which are repealed).
184.At present the accused is required to set out in general terms the nature of his defence. The effect of the new section is to require the accused to provide a more detailed defence statement. The present requirements contained in section 5(6)(b) and (c) of the 1996 Act are replicated in the new section 6A(1)(b) and (c) and the alibi notification provisions in section 5(7) and (8) are replicated in the new section 6A(2) and (3). The main changes are that the accused will, in the future, be required to set out the nature of his defence, including any particular defences on which he intends to rely, and indicate any points of law he wishes to take. Details of alibi witnesses must include the witness’s date of birth.
185.Subsection (1) of the new section 6A defines a defence statement for the purposes of Part 1 of the 1996 Act. The accused will be required to provide a written statement setting out the nature of his defence, including any particular defences on which he intends to rely. The statement must also indicate any facts on which the accused takes issue with the prosecution, setting out in respect of which matter the reason why he takes issue with the prosecution and indicating any point of law he wishes to take, including the admissibility of evidence and abuse of process points, and any authority on which he intends to rely for that purpose.
186.Subsection (2) of the new section 6A provides that if the statement discloses an alibi, the accused must include particulars of the alibi in the statement. These are to include the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, if the accused knows these details, when the defence statement is given. If the accused does not have this information, the particulars are to include any information in his possession that might assist in identifying or finding any such witness.
187.Subsection (3) of the new section 6A defines evidence in support of an alibi for the purpose of section 6A as 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 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. This definition reproduces the definition of evidence in support of an alibi given in section 11(8) of the Criminal Justice Act 1967.
188.Subsection (4) of the new section 6A gives the Secretary of State power to prescribe in regulations further details that are to be contained in defence statements. Such regulations will be subject to the affirmative resolution procedure.
189.Subsection (3) of the Section inserts a new Section 6B in to the 1996 Act which requires the accused to provide an updated defence statement within a period specified in regulations made under section 12 of the 1996 Act. However, if the accused has nothing to add to his earlier defence statement, he may instead give a written statement to that effect.
190.Updated defence case statements must comply with the requirements applicable to defence statements.
191.Subsections (5) and (6) of the new section 6B provide for the cross service of updated statements following an order of the court (made either of its own motion or on application by any party). This mirrors new sub section (5B) of section 5 of the 1996 Act (inserted by Section 28(1)) that provides for the cross service of the initial statement.