The Criminal Justice Act 2003 (Commencement No.13 and Transitional Provisions) Order 2006 (S.I. 2006 No. 1835) brings into effect on 24th July 2006 s.33 (1) (defence disclosure) (by inserting s.5 (5C) of the CPIA S. 33 (1) has only been partially activated since, when fully in force, it will also activate provisions for the service of defence statements on a co-accused. It appears however that s.5 (5C) has been brought into force at this stage to deal with a problem that some ingenious barrister noticed about the position regarding service of defence statements. He had noted that it was s. 5(9) of the CPIA 1996 that formed the basis of the requirement that a defence statement must be served within 14 days from the date of primary disclosure. However subsection 9 had been repealed by paras. 20 and 23 of Schedule 36 of the CJA 2003 and section 33 (1) which contained the new power had not been brought into force. This meant that there was no 'relevant period' for the service of a defence statement and accordingly no power for the judge or prosecution to comment on any apparent late service. The provision in the Commencement Order closes that gap by reintroducing the requirement to serve a defence statement within the relevant period as defined in s.12 CPIA. Some may be tempted to say that such obtuse arguments only go to show that counsel should get out more but others may feel a small degree of pleasure that the government have had to act further simply to plug a leak in this ridiculously complicated Act brought into force in dribs and drabs.
Is it true DCS are no longer compulsory in the crown court? A friend from law school who is also a paralegal informed me of this fact yesterday and it is news to me. She said this has been the case for some 6 months now.
I am not quite sure what you mean by compulsory. Defence Case Statements have never been compulsory in that an offence is committed by not serving one.
Where a defence statement is not served or served late there are consequences for the client and possibly wasted costs order for the solicitors in some circumstances. Other than that you do not need to bother with a Defence Case Statement.
Adverse inference may be drawn if the client relies on facts in his/her defence not included in the Defence Case Statement. Also, the prosecution use the Defence Case Statement when considering what should be disclosed.See: Defence case statement
Sorry my alerts to responses are quite late. I've never known a DCS not to be served in my experience this is why I was surprised. The paragraph in my litigation text book refers to s.5 CPIA 1996 as being 'compulsory' disclosure by the defence this is why I questioned it.
If you think about it your litigation text book is wrong, . What if the client does not wish to put up a defence and wants to put the prosecution to proof or if he/she does not wish to serve a Defence Case Statement. There is nothing the lawyers can do other than advise the client re adverse inferences and prosecution disclosure. And there is nothing the court can do other than direct the jury that they may draw adverse inferences from the defendant's failure to serve a defence statement.
I am going to sound a bit pedantic here. This statement, "Is it true DCS are no longer compulsory in the crown court?" is a bit simplistic.
In a case where a case is dealt with at the Crown Court there is no mandatory duty to serve a defence statement, for example where there is a committal for sentence from the Magistrates Court to the Crown Court, or perhaps an indictable only case sent from the Magistrates Court to the Crown Court where there is a guilty plea.
(38) If no defence case statement or no sufficient case statement has been served by the PCMH, the judge should make a full investigation of the reasons for this failure to comply with the mandatory obligation of the accused, under section 5(5) of the CPIA.
(39) If there is no or no sufficient defence statement by the date of PCMH, or any pre-trial hearing where the matter falls to be considered, the judge must consider whether the defence should be warned, pursuant to section 6E(2) of the CPIA, that an adverse inference may be drawn at the trial. In the usual case, where section 6E(2) applies and there is no justification for the deficiency, such a warning should be given.
My view, and I may be corrected here, is that serving a defence statement is not mandatory, and has never been.
I agree entirely with your take on disclosure. Maybe I was being a bit too simplistic. It's just that it that it gets right up my nose a when it comes to what rights we are supposed to have. We have the right to silence but woe betide you if you observe your right. What kind of right is that. The defence statement is in the same category.
Ron, that's a good point I didn't think of that, putting the prosecution to proof etc and Gavin my apologies for not being clearer I was referring to the case going to trial I appreciate a DCS isn't necessary for a sentence etc.
I've just always seen them served and from what I've learnt the only time you don't need to serve one is at summary trial. Forgive me I am still a bit green
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