Chapter Four: Review of defence statements
Section 70A of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act') places a duty on an accused person charged on indictment to lodge a 'defence statement' 14 days prior to the first diet or preliminary hearing.
The defence statement must set out:
- the nature of the accused's defence, including any particular defences on which the accused intends to rely
- any matters of fact on which the accused takes issue with the prosecution and the reason for doing so
- particulars of the matters of fact on which the accused intends to rely for the purposes of their defence
- any point of law which they wish to take and any authority on which they intend to rely for that purpose
- by reference to their defence, any information that they require the prosecutor to disclose
- the reasons why they consider disclosure by the prosecutor of any such information is necessary
Having lodged such a statement, the accused is required, not later than seven days prior to the trial diet, to either lodge a statement confirming that there has been no material change in circumstances relating to the accused's defence since the last defence statement was lodged, or, where there has been a material change in circumstances in relation to their defence since the last defence statement was lodged, to lodge a fresh statement setting this out. If at any stage there is a further material change in circumstances in relation to the accused's defence, the accused must lodge a fresh defence statement.
The primary purpose of the defence statement is to assist the Crown in discharging their duty to disclose information relevant to the defence. However, as noted in the policy memorandum for the Criminal Justice and Licensing (Scotland) Bill, the requirement for the accused to lodge a defence statement may also be relevant in assisting the court in identifying the real issues in dispute in a case and therefore, to assist the court in managing the progression of the case.
Lady Dorrian's Review
Lady Dorrian's Review recommended that "there should be a review of the utility of section 70A of the 1995 Act with a view to strengthening the requirement therein to lodge a meaningful defence statement."
The Scottish Government is committed to considering how such a review might operate and is pursuing this both through the work of the Governance Group and by using this consultation to seek views on key aspects of what issues such a review should consider and what form it should take.
The Review expressed the view that, "defence statements tend to be vague, anodyne and often lodged late. In addition, the timescale for the provision of defence statements is such that even were any detail to be provided, any beneficial effect on advancing disclosure is likely to be minimal". In particular, the Review noted that the statutory duty to lodge a defence statement could be met by a plain denial or call upon the Crown to prove its case (see Barclay v. HMA) as there is no statutory onus created by the provision for the accused to advance a positive defence.
The Review notes that while it appears that one of the reasons for introducing a requirement for the accused to lodge a defence statement was to assist the court in identifying the real issues in dispute, "the fact that the requirement to lodge a defence statement is not being operated in this way simply puts a heavier burden on Preliminary Hearing judges who have to manage cases as they progress, and one of whose tasks is to ascertain the extent to which there is a dispute between the Crown and the defence on matters of fact."
In Scotland, the only purpose that it is expressly stated that a defence statement can be used for is facilitating the Crown's disclosure duty. Notwithstanding the mention noted above that is made in the policy memorandum for the Criminal Justice and Licensing (Scotland) Bill as to the provision assisting judicial case management, there is nothing in the legislation itself which provides that it can be used by the court to assist in managing the case and identifying the core factual matters in dispute.
The Review states that "a more exacting requirement on the accused to provide a meaningful defence specifying for example the respects on which the defence takes issue with the Crown case would enhance the court's current case management powers, and those of any specialist court." This issue affects all cases tried on indictment though, in view of the fact that sexual offence cases are disproportionately likely to proceed to trial following a 'not guilty' plea, any changes made to the law concerning defence statements may be of particular relevance to sexual offence cases.
The Review contrasts the provision at section 70A of the 1995 Act with the statutory position in England and Wales. There, the position as set out at Part 1 of the Criminal Procedure and Investigations Act 1996 Part 1 of the Criminal Procedure and Investigations Act 1996 is that a court is entitled to make comment on, and the jury is entitled to draw inference from, the fact that an accused either does not lodge a defence statement timeously or changes their position at trial from that given in any defence statement lodged prior to the trial. This is seen as providing an incentive for the accused to make reference in their defence statement to any key matters which they intend will form a part of their defence in court as if they do not, the court would be entitled to comment on, and the jury would be entitled to draw inference from, the fact that the matter was not referred to in the accused's defence statement.
The Review notes that this approach is consistent with the different nature of the caution administered in England by the police when arresting a person on suspicion of having committed a criminal offence, and the provisions of section 34 of the Criminal Justice and Public Order Act 1994 section 34 of the Criminal Justice and Public Order Act 1994, which enables juries to draw inferences adverse to the accused's case if at trial the accused relies on facts which they could reasonably have been expected to mention when questioned or charged, but did not mention. The Review acknowledges that "it may not be necessary to go so far in Scotland, but there would be considerable benefit in strengthening the requirement to lodge a meaningful defence statement".
As noted above, the Review also expressed concerns about the timescales within which defence statements require to be lodged. Any reform to the timescales prescribed at section 70A of the 1995 Act for the lodging of defence statements by the accused would need to be considered in the light of other statutory timescales operating in the criminal justice process. Most significantly, section 66 of the 1995 Act sets out that the indictment must be served on the accused at least 29 clear days prior to the preliminary hearing in a High Court case and at least 29 clear days before the first diet in a Sheriff Court case. Consideration would need to be given as to whether any change to the timescale for lodging a defence statement required these time limits to be revisited in order to provide the accused's defence team with sufficient time to consider the terms of the indictment against the accused.
Any review would also have to consider how any revised time frame for the lodging of a defence statement would interact with the timescales for the lodging by the accused of any application under section 275 of the 1995 Act to lead evidence that they would otherwise be prohibited from leading in court, taking account of the complainer's right to object to the introduction of such evidence.
Question 31: Do you support undertaking a review of the use of defence statements?
Please give reasons for your answer.
Question 32: If you answered yes to the previous question, how do you think this should be progressed to address the issues identified by Lady Dorrian's Review?
Question 33: Are there any other matters relating to a review of defence statements that you would like to offer your views on?
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