Briefing Paper on the Convention-compatibility of new pre-trial defence disclosure regime
Lewis Kennedy, Advocate.
Defence Statements under section 70A of the Criminal Procedure (Scotland) Act 1995:
Defence statements are now a statutory requirement in respect of solemn cases commenced after 6 June 2011, under section 70A in the Criminal Procedure (Scotland) Act 1995 (as inserted by section 124 of the Criminal Justice and Licensing (Scotland) Act 2010).
It is a matter of some concern that these provisions constitute an erosion of the common law adversarial system. In recent years, there has been a perceptible movement away from the traditional adversarial model towards a more inquisitorial form of trial – with the judicial micro-management of cases dressed up with the antiseptic label of ‘case management’. A culture has emerged subordinating procedure to substance. With this new regime, there is an increased risk that the judge might enter the arena too enthusiastically, acting as an advocate and second prosecutor – such that the impartial administration of justice might appear to be prejudiced.
In England, the correlating legislation could at least be said to have been directed towards assisting in the operation of a more sophisticated and regulated disclosure regime. Here, the equivalent legislation has no stated purpose. Certainly, there is no indication as to the rationale behind this legislation in the Explanatory Notes in the Criminal Justice and Licensing (Scotland) Act 2010.
This paper considers whether the requirement for an accused person to lodge a ‘defence statement’ is in breach of general fair hearing requirements (as guaranteed by Article 6(1), ECHR); the Convention right to ‘equality of arms’, in the regulation of respective disclosure requirements for the Crown and defence (under Article 6(1) and Article 6(3)(b)); the Convention right to a presumption of innocence, the right to silence and the privilege against self-incrimination (in terms of Article 6(2)); and the right to legal professional privilege in the conduct of an accused’s defence at trial (under Article 6(3)(c)).
If so, it could be argued that these newly enacted provisions are ultra vires – in so far that this legislation has exceeded the legislative competence of the Scottish Parliament – thereby precipitating a ‘Devolution Issue’ Minute.
The information required:
Section 70A(9) provides as follows:-
‘(9) In this section, “defence statement” means a statement setting 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 the accused’s defence,
any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,
by reference to the accused’s defence, the nature of any information that the accused requires the prosecutor to disclose, and
the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.’
It can be seen that there is an obligation upon the defence to include a considerable degree of information – in particular, any matters of fact with which the accused takes issue in the prosecution case, and his reasons for doing so (paragraph (b)); and particulars of the matters of fact on which the accused intends to rely for the purposes of his defence (paragraph (c)).
Indeed, the defence must give notice of any issues, which may be in dispute – implying that the defence must subsequently obtain leave of the Court to argue issues, which have not previously been identified in the defence statement.
Depending on what is said in the defence statement, further disclosure of prosecution material, which is relevant to the stated defence, may be triggered.
The relevant form is prescribed by the Act of Adjournal (Criminal Procedure Rules Amendment No. 4) (Disclosure) 2011, which provides (7A.2.) that the ‘defence statement’ lodged under section 70A shall be in Form 7A.2-A. The form requires to be served upon the Crown and any co-accused.
The time limit for compliance is extremely short – the form must be lodged at least 14 days before the First Diet in Sheriff and Jury proceedings; and the Preliminary Hearing in High Court proceedings.
Unsurprisingly, the provisions do not impose any corresponding obligation upon the Crown. It is not as if the prosecution is required to supply a ‘case statement’ – or if the Court has been empowered with a discretion to order production of a case statement’ by the Crown.
Sanctions for non-compliance:
On the basis of the English experience, it would appear that it is not open to the defence lawyer to advise his client not to file a ‘defence statement’.
However, though the statutory obligation is mandatory, there do not appear to be any identified sanctions for non-compliance in terms of the Scottish legislative scheme.
Nonetheless, the very real risk is that an accused might be left open to cross-examination, and adverse comment from the Crown; a co-accused’s lawyer; and the trial Sheriff.
It is not immediately apparent from the wording of the Scottish statute that the Court might draw adverse inferences from non-compliance – but equally, this prospect is not expressly excluded. It would appear that on the basis of the relevant English interpretative case law, whether or not adverse comment is permitted is a matter for the Court’s discretion.
Failure to comply could even be regarded as an obstruction of justice and/or a Contempt of Court.
Meanwhile, an accused person could conceivably be prosecuted for making a false exculpatory ‘defence statement’. As a condition of defending himself the accused risks a perjury prosecution.
It is a matter of particular concern that the defence lawyer even could be found in Contempt of Court if he has failed, without reasonable excuse, to comply with this mandatory requirement.
The ‘errant’ or non-compliant lawyer could also be the subject of a disciplinary complaint to his regulatory body. Or to the Scottish Legal Aid Board (with the implied threat of de-registration and an ensuing loss of livelihood).  It is not know whether it is seriously being suggested that the Court is not just to try a case, but is to discipline parties for the conduct of their cases.
Possible aggravating factor in sentence:
Perhaps more practically, it is likely that the failure of the accused (or of his lawyer acting on his instructions) to comply would be regarded as an aggravating factor in sentencing in the event of conviction.
Notifying all elements of the offence as being in dispute would almost certainly be held against the accused. As would giving notice that all issues are in dispute, without identifying the particular issues in dispute. Or a failure to notify adequately the issues in dispute; or even by maintaining that some issues remains in dispute. Even the existence of a single outstanding disputed issue might subsequently test the patience of certain sentencers.