Author: Azizur Rahman
23 December 2013
7 min read
Any discussion about Defence Case Statements (DCSs) involves dealing generally with disclosure in criminal litigation. All of the official guidance documents, and all of the important case-law on the topic refer to one leading case – it is the seminal case on disclosure and Public Interest Immunity (PII); R v H & C  2 Cr. App. R 179. The authors represented ‘H’ in that case.
Over a decade on from that judgment disclosure is still the fault line in the larger and more complex prosecutions. Of course care must be taken in all cases, great or small, when committing your case to paper, but so many factors are likely to turn on the drafting of the DCS in the larger cases that a very great deal of consideration will have to be given at an early stage.
The Criminal Prosecution & Investigations Act 1996 (CPIA) sets out the framework for prosecution and defence disclosure in criminal litigation. The Act is the starting point and next is the Code of Practice (“COP”) made under it. After R v H & C the Attorney General issued his own ‘Guidelines’ in 2005 and there have been numerous other guidance documents since; importantly Lord Justice Gross’ Review of Disclosure in September 2011.
Section 6A of the Act deals with the contents of the Defence Statement. The DCS must set out; the nature of the accused’s defence, including any particular defences upon which he intends to rely; the matters of fact on which he takes issue with the prosecution – and why; particulars of the matters of fact on which he intends to rely on in his defence any points of law which he wishes to raise and also notification of the details of any defence witnesses sought to be relied upon by the defence (s6C). The degree of detail now required in a DCS is much more so than was originally the practice when the Act first came into force. In R v Bryant  EWCA Crim 2079 the Court of Appeal was critical of a DCS that consisted merely of a generalised denial of guilt accompanied by a statement that the defendant took issue with any witness giving evidence to the contrary – this was said to be ‘wholly’ inadequate.
The problem for a defendant is that getting it wrong may not only lead to cross-examination about why he is saying something ‘different’ to the jury than he put in writing previously but it can have a huge impact on what disclosure he or she will get from the prosecution.
The issue that most frequently arises in long and complex cases is disclosure of “unused” material held by the prosecution – in other words the material they investigators have obtained but are not using to support their case.
By s3 of the Act the prosecution must “disclose to the accused any prosecution material which has not been previously disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.” In deciding what material passes this test the prosecution consider the DCS. So in a simple case if X says it was B that stabbed A, not me, then any material tending to suggest that B was at the scene of the crime or is a violent man must be disclosed to X. But what if X is not charged with GBH – what if he is charged with involvement in a conspiracy to defraud case involving a complex scheme that is, according to HMRC, a tax scam designed to rip-off the public purse? These scenarios are frequent enough. Usually a great deal of the facts will not be in dispute, what is in issue is something a lot more nebulous than whether X did something or not; the issue will be dishonesty. Advancing the defence case by maximising prosecution disclosure, when the real issue is dishonesty, means taking a very careful approach to the drafting of the DCS.
In such circumstances an early consideration of why the Crown’s central theory is flawed must be considered in depth. For example, if a financial advisor has been running an investment scheme which turns out to be a tax dodge then the central question for the defence may well be (depending on the facts) why an alternative theory is more plausible – e.g. that X himself has been duped and did not know the real nature of the scheme. This in turn will lead onto disclosure of material tending to show that others who were also involved, but not charged, performed a similar role, or that others appear to be more likely candidates for the role – leading to disclosure of e.g. email correspondence between others revealing discussions about an aspect of the fraud where X is not named or included when he perhaps should be if what the Crown were alleging was true.
It will be seen then that in reality the more complex the case the simpler the issues become – knowledge and dishonesty - but the more difficult the disclosure is around those issues.
A classic example of the foregoing is when the investigators have seized numerous computers and discs etc. Most of that digital material will be ‘unused’. A great deal of it will not even be considered in reality. But, as we know that it is in the used material that the defence are most likely to find their hidden gems there must be a mechanism for the defence to at least know what the Crown have – even if it is not disclosed. This is usually done with a schedule of unused material – basically a list of items arising from the investigation that are not part of the formal evidence in the case. The list is called an MG6C. The defence can ask for items from the MG6C which may, or may not lead to the prosecution agreeing to disclose those items, depending on relevance (which will usually depend on the contents of the DCS).
There have been significant problems in a number of recent prosecutions where vast amounts of material have been seized by the investigators and then not used. How do the Crown go about listing what remains? The answer lies in fact in the Attorney General’s Guidance on Disclosure (Dec 2013) which effectively incorporates the Gross Review’s findings. Explaining how this works in detail is impossible in this short article but the upshot is that the defence can (and should) engage with the prosecution about how they should examine the computers that have been seized – e.g. use of key search words etc. This can present opportunities for the defence and a certain amount of tactical consideration will certainly apply. So, for example, if the prosecution persist with refusals of perfectly proper requests to examine a computer for a certain key word – or look for a certain category of document, then a marker can be laid down with the Court that the defence are concerned about the disclosure process. It is not then that those ‘markers’ become helpful – but many months later when the prosecution may again be proving inefficient or difficult by which time there are so many ‘markers’ that thought can be given to whether an application can be made that the disclosure process cannot be trusted and therefore there can be no trial. The central document the Judge will look in assessing any such application will be the DCS.
The investigators will frequently have to liaise with third party agencies before charge. In the case of X above the agency concerned may be the old Financial Services Authority (now Financial Conduct Authority) but it can be any number of bodies such as local authorities or some other regulatory entity. The defendant will have engaged with that body at length pre-charge and that body may have expertise about the issue in hand that the police/HMRC just do not have or may know more about, e.g. the ‘scam’ at hand as it has been dealing with hundreds of other boiler-room frauds or whatever aside the one that the police/HMRC are now asking them about.
Agencies like the FCA will often hand over very sizeable digital files of material to the prosecutors – of which only a portion is used in the case. This is fine – as long as there is a proper MG6C detailing what remains; if there isn’t one – it should be requested. Equally, the FSA, may have, in our example, information will may help show that Mr. X was not the sort of candidate that they the regulator were interested in. For example, the FSA may have investigated a number of boiler room type scams but centred their investigations, not on those actually selling the dodgy shares but on those who created the off-shore bank accounts and so on as they were the ones that could be demonstrated to have acted dishonestly. A number of small point like that may help persuade a jury that the experts who deal with these cases every day did not consider X to be the sort of man they were interested in and thus nor should the jury – getting the ammunition to make that point though takes imagination and experience in drafting the DCS. When drafting the DCS it must be bourne in mind there are duties under the AG’s Guidelines, as well as the COP to pursue “all reasonable lines of enquiry” and to retain material (COP; paras 3.5 and 5.1). Thus a defendant can force the prosecution to go to the third party agency and obtain the material that needed to make these sorts of points – and if they refuse they risk having the trial stayed.
In short, as always, the key is up-front preparation. The drafting of the DCS may very well end up being the single most important piece of work that the defence have to undertake – it requires judgment and expertise.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases at Carmelite Chambers, London. He has extensive experience in all aspects of financial and serious crime and the Proceeds of Crime Act 2002. He is ranked by both Legal 500 Chambers & Ptnrs & is recognised in C&P’s specialist POCA and Financial Crime sections; ‘he is phenomenal and is work rate is astonishing’ (2015).
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel and have been ranked by Legal 500 as an 'exceptional' firm with Aziz Rahman being described as 'top class’'. The firm is also ranked in Chambers & Partners. Rahman Ravelli are a Top Tier and Band 1 firm.
Aziz Rahman is Senior Partner at Rahman Ravelli and its founder. His ability to coordinate national, international and multi-agency defences has led to success in some of the most significant corporate crime cases of this century and top rankings in international legal guides. He is recognised worldwide as one of the most capable legal experts regarding top-level, high-value commercial and financial disputes.