FROM MONDAY 28.2.11

New Defence Disclosure Time Limit Regulations

AND

New PCMH protocol in Manchester (and surrounds) – defence statement must be served before PCMH will go ahead.

As of Monday next week (28.2.11), the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (S.I. 2011/209) comes into force.

The key point is that these Regulations extend the time limit for defence disclosure in Crown Court cases to 28 days, whilst retaining the prescribed period of 14 days for magistrates’ courts cases. The new 28 day time limit for Crown Court cases is intended to ensure that completion of the defence disclosure duty without the need for an extension will be the norm, and that any applications for an extension will be rigorously scrutinised. It should be noted that the new time limit of 28 days applies to the service of defence statements and notification of defence witnesses.

The Statutory Instrument containing the Regulations is available at: www.legislation.gov.uk/uksi/2011/209/made

However, also from Monday next week (28.2.11) in Greater Manchester (and surrounding areas) a new protocol comes into force, the effect of which is that the judges are likely to refuse to hear PCMHs if no defence statement has been served. They plan to adjourn such PCMHs to 4.30 pm that same day at which time a defence statement will have to have been served.

See Protocol on Defence Statements announcement made on 7.12.10 http://www.manchesterlawsociety.org.uk/news/protocol-on-defence-statements.html

An interesting practice given that a defendant still cannot be forced to provide a defence statement. However, there is the case of R v Essa [2009] EWCA Crim 43 , to consider, where the Court of Appeal stated that no lawyer should properly advise his client not to give a defence statement; as it is a statutory requirement under section 5(5) of the 1996 Act it is not open to those who advise defendants to pick and choose which statutory rules applicable to the conduct of criminal proceedings they obey and which they do not.

The practice of refusing to hear PCMHs in the absence of a defence statement has existed for some time at Liverpool CC so some practitioners may have already encountered this.

March 2011 seminar: “Showing your hand : Defence disclosure”

These new developments come hot on the heels of recent changes requiring defendants to disclose, not just expert witnesses and alibi details, but to give full notification of all defence witnesses to be called. The police have been issued with guidance as to how to interview such witnesses although there is, as yet, very limited information as to how this will all actually work – or fail to work – in practice.

Theses changes, together with the detailed rules now governing the contents of defence statements mean that defence disclosure requirements are becoming onerous and potentially unworkable and prejudicial.

GCN will be running a seminar in Manchester in March 2011 to address all of the new rules and protocols covering defence disclosure generally and to consider the issues arising from these developments.

To register your interest in attending this event, please email hray@gcnchambers.co.uk .

Nina Grahame

25th February 2011