The Preparation of Defence Case Statements

Guidance on the Duties of Counsel
(As approved by the PCCC on 24 September 1997)

 

1  It is becoming increasingly common for solicitors to instruct counsel to draft or settle Defence Case Statements, required under section 5 of the Criminal Procedure and Investigations Act 1996.  Often these instructions are given to counsel with no or little previous involvement in the case shortly before the expiry of the time limit.

 

2  The relevant legislation is set out at §12-82 et seq. of the 1997 edition of Archbold.  In summary, however:
 
(i) The time limit for compliance is short - 14 days from service of prosecution material or a statement that there is none.  The permitted grounds for an extension of time are limited;

 

(ii) The contents of the Defence Case Statement are obviously of great importance to the defendant.  An inaccurate or inadequate statement of the defence could have serious repercussions for the defendant, if the trial judge permits “appropriate” comment;

 

(iii) Whilst it will be the natural instinct of most defence counsel to keep the Defence Case Statement short, a short and anodyne statement may be insufficient to trigger any obligation on the prosecution to give secondary disclosure of prosecution material.

 

3 Normally it will be more appropriate for instructing solicitors to draft the Defence Case Statement, since typically counsel will have had little involvement at this stage.

 

4 However, there is nothing unprofessional about counsel drafting or settling a Defence Case Statement, although it must be appreciated that there is no provision in the current regulations for graduated fees allowing for counsel to be paid a separate fee for his work.  This most unsatisfactory situation (which has arisen, as a result of the 1996 Act, since the graduated fees regulations were negotiated) is being addressed urgently by the Fees and Legal Aid Committee.  A barrister has no obligation to accept work for which he will not be paid.  The absence of a fee will justify refusal of the instructions of counsel who are not to be retained for the trial and are simply asked to do no more than draft or settle the Defence Case Statement.  Where counsel is retained for the trial, Rule 502(b) of the Code of Conduct deems instructions in a legally aided matter to be at a proper fee and counsel would not be justified in refusing to draft or settle a Defence Case Statement on the sole ground that there is no separate fee payable for this work.

 

5 Many members of the Bar will nevertheless feel that, in the interests of their lay client and or of good relations with instructing solicitors, they cannot refuse work, even where they would otherwise be entitled to do so.  Those who do so need to recognise the crucial importance of:

 

(i) Obtaining all prosecution statements and documentary exhibits;

 

(ii) Getting instructions from the lay client, from a properly signed proof and preferably a conference.  Those instructions need to explain the general nature of the defence, to indicate the matters on which issue is taken with the prosecution and to give an explanation of the reason for taking issue.  They must also give details of any alibi defence, sufficient to give the information required by Section 5(7) of the 1996 Act;

 

(iii) Getting statements from other material witnesses;

 

(ix) Ensuring that the client realises the importance of the Defence Case Statement and the potential adverse consequences of an inaccurate or inadequate statement;

 

(v) Getting proper informed approval for the draft from the client.  This is particularly important, given the risks of professional embarrassment if the client seeks to disown the statement during the course of the trial, perhaps when the trial is not going well or when under severe pressure in

cross-examination.  Counsel ought to insist on getting written acknowledgement from the lay client that:

 

(a) he understands the importance of the accuracy and adequacy of the Defence Case Statement for his case;

 

(b) he has had the opportunity of considering the contents of the statement carefully and approves it.

 

This may often mean having a conference with the lay client to explain the Defence Case Statement and to get informed approval, although in straightforward cases where counsel has confidence in the instructing solicitor, this could be left to the solicitor.  Where the latter course is taken, a short written advice (which can be in a standard form) as to the importance of obtaining the written acknowledgement before service of the statement should accompany the draft Defence Case Statement.  A careful record should be kept of work done and advice given.

 

(vi) If there is inadequate time, counsel should ask the instructing solicitor to apply for an extension of time.  This needs to be considered at a very early stage, since the application must be made before the expiry of the time limit.

 

6 It follows that counsel ought not to accept any instructions to draft or settle a Defence Case Statement unless given the opportunity and adequate time to gain proper familiarity with the case and to comply with the fundamental requirements set out above.  In short, there is no halfway house.  If instructions are accepted, then the professional obligations on counsel are considerable.