Clients will invariably ask what a Defence Statement is and why one is required.
In general terms a Defence Statement (DS) is a document prepared by Defence Lawyers which sets out the nature of the proposed defence to be put forward at any trial and the issues which are in dispute and why. The defence must serve a Defence Statement in contested Crown Court matters although a Defence Statement is not compulsory in trials before the Magistrates Court. In uncontested matters (guilty pleas) a DS is not required.
In the Crown Court
The Court will set down a timetable in trial cases which will include the date upon when the Defence Statement is to be served both upon the Court and the Crown Prosecution Service. This date usually is in the region of around 28 days from the date the prosecution are to serve the evidence they seek to rely on and what is called `Unused Material `
Unused material is in the form of a notice which details documents, CCTV or other material that the prosecution have in their possession but are not seeking to use as evidence to try to prove their case. Unused material can undermine the prosecution case and /or assist the defence. When a Defence Statement is served, the prosecution are under a duty to review this material to see if any of it may assist the defence that has been set out in the Defence Statement. They then have to send any such material to the defence.
If a Defence Statement is not served, served late, or a different defence is put forward at trial ( to that contained in the DS) then this could mean that this will be held against a defendant. It is therefore very important that defence lawyers have full, signed, instructions about the allegations before any Defence Statement can be served. Lawyers can ensure that any Defence Statement is set out in a legally correct way but they do need full cooperation from their clients thus ensuring that the fullest of instructions are obtained.
In the Magistrates Court
It is voluntary to serve a Defence Statement in contested matters before the Justices. However, it can be a good tactic to serve one. As in Crown Court cases the prosecution have to serve the Unused Material Notice but if we think that they may have material we may want, but they have not disclosed, serving a Defence Statement setting out the reasons for disclosure of the material can be useful. The prosecution on receipt of the Defence Statement again have to review the material they have and send to the defence if it undermines their case or assists the defence.
Of course in many, if not the majority, of cases before the Justices it may be better not to serve a Defence Statement as this informs the prosecution in advance of trial what the proposed defence is. The defence are under no duty, in Magistrates Court trials, to disclose the nature of any defence to be put forward.
Therefore, in matters before the Crown Court, which are to be contested, defence lawyers really do full cooperation and instructions from their client which ensures that the best defence possible is placed before the Court at trial.