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LordBere
Hi all,

i've read through the disclosure pages and understand that the prosecution need to disclose all evidence they are going to present as "staement of fact" at least 7 days before trial. From reading posts here i understand some try and spring video evidence etc on the day, as "if the witness brought it with them", but this must be strenously contested as if that happens the "evidence" (usually video i guess) cannot be presented as "statement of fact" but only used by a prosecution witness in the same manner as a policeman would use his notebook in the dock to refresh his memory.

However, i am confused as to what the defence needs to disclose, and when. for instance, i want to present all the correspondence i have sent to them and case law - do i need to disclose this too to the prosecution at least 7 days before???  :?:
cjm99
QUOTE
However, i am confused as to what the defence needs to disclose, and when. for instance, i want to present all the correspondence i have sent to them and case law - do i need to disclose this too to the prosecution at least 7 days before???  


The simple answer is , yes.

But, the skill is to allow what you want to be admissible, but hold back what you feel may not be to your advantage.
LordBere
so even though they received my letters, because they were omitted from the summons bundle I must send them to the CPS as defence evidence? obviously any additional evidence (i.e. communication about trying to find the driver in a S172 case) must be also disclosed.

But what about case law? I read in another post that case law can be quoted at any time, but somewhere else that if its used in evidence it must be disclosed....  :shock:
cjm99
QUOTE
But what about case law? I read in another post that case law can be quoted at any time, but somewhere else that if its used in evidence it must be disclosed....  


Stricktly speaking, all case law should be pre-notified. This is a common law requirement which when you consider the fact that the "common law", is an accumulation of case law, prior to statutory law's introduction, makes some sense.

In practical terms, the Magistrate's court will allow English High court and Lords cases to be quoted, but usually refuse European or other countries judgements without prior disclosure.
LordBere
thanks CJM. I am now preparing my own bundle for disclosure to the prosecution.

However, I have spent literally hours trawling for the exact "water tight" retorts to the dreaded "dah dah! disclosure on the day" and am VERY concerned as the more I read the less it seems they really have to give me 7 days for admissability, and can spring evidence whenever they please. am I just confused after spending hours reading up? or can they basically do as they please and get away with it, as all the disclosure arguments previously discovered here on this forum can be dismissed by referring to other guidelines and judgements? (for clarification look at skiptonmanors thread in the bad boyz, theres a little discussion around it there).

I just know they will ignore my requests for evidence and steam roller it on the day.

EDIT

sorry i'm being a bit hysterical - have reviewd the FAQ on discolure egain etc.
My worry is that i'm up for a S172 - i can find NOTHING that says for a S172 they have to do any more than wave pics etc under my nose outside the court 5 mins before we go in to be compliant .

e.g. S20 RTA says 7 days but that has nothing to do with a S172
cjm99
RTOA refers to certain documents being disclosed not less than 7 days prior to trial. There is no specific guidance for anything else. It all rests in common law and some recent guidelines. Fundamentally, without disclosure, a defendant is dissadvantaged as against the might of the police investigatory resourse, and the CPS.. A fair trial requires that you are made aware of all relevant information, just as the prosecutor is, and you have adequate time to digest and prepare.

QUOTE (Edwards -v- UK)
Comment: All the members of the Court were in agreement that the prosecution must disclose to the defence all material evidence for or against an accused if there is to be a fair trial


QUOTE (Article 6 HRA)
   3. Everyone charged with a criminal offence has the following minimum rights:
 
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(B) to have adequate time and facilities for the preparation of his defence;


read Attorney General Guidelines. parra 43

Search on "equality of arms",  "disclosure",  Article 6.2 and 6.3, and "fair trial"

I have some referance material, but it's too late at night to trawl for it.
Sathya
In Addition to the advice above,

I learned at my cost that if the CPS asked for a defence statement under the Criminal Evidence and Procedures Act and gave you 14 days to submit your defence, they do not have to make disclosures requested outside of the time period specified if you failed to do so.

To obtain disclosures after the 14 days allowed you must request the court to order such disclosures. This will normally only be allowed in exceptional circumstances.

My offence was 40 in a 30 for you to know what I was charged with (and convicted using undisclosed video evidence)

I spent over an hour in court agruing different laws relating to disclosures. I even stated that a defence statement was not necessary for a magistrates court under the CE&P Act and was informed that was correct, but to obtain disclosures a defence statement had to be submitted.

The court (to be correct , the Clerk of the court) and CPS would not accept any arguements from other Acts because I had failed to reply under the Criminal Evidence and Procedures Act which is the first step of the Judicial system.

However, if you did give a defence statement within the specified time and disclosures are still not forthcoming then the Laws relating to disclosures in all other acts applies.

All I can suggest if you did not give a defence statement when or even if requested then I would get a good arguement together to convince the court to make a ruling for the CPS to make disclosures.

If however the CPS did not ask for a defence statemet under the CE&P Act then they can not use that Act against you.

I have mentioned the above because this actually happened to me.
cjm99
Sathya

In this case, he does not want disclosures, he wants to stop the admission of evidence by the CPS because they have failed to disclose.
Sathya
cjm99

I am aware of your comment but, as I stated in my posting, if he did not make a defence statement under CE&P Act in the specified time if asked for one,  then he can lose entitlement to ask for disclosures from that point on.

As in my case, I did not give a defence statement within the 14 days specified and when I requested disclosures I was sent a reply stating that I was not entitled to the information requested because I had failed to do so within the specified time limit.

During my hearing it was stated that CPS evidence could be shown because they had complied with the CE&P Act and I had not so the CPS were entitled to use the evidence.

Again, only from what I have learned since and when enquiring about an appeal, I was told that the above was correct an I had no grounds for "case stated"  appeal on the disclosure aspect or showing of undisclosed evidence.

What I have not read on these postings is if a defence statement was requested under the CE&P Act or not.

As I said in my previous posting, I could not stop the CPS using undisclosed video evidence because of my actions of failing to comply with the CE&P Act.

During my pre-trial and trial I argued about non disclosure of evidence quoting everything I learned from this site but was shot down each time for not complying with the law initially. I was in court for 2 hours and at the end the magistrates were instructed by the clerk of the court that non disclosure was not to be considered and that the video evidence was acceptable according to the law as written.

If he failed to comply with the law then he may not be able to stop the evidence being shown as happened to me.

What we should ask of LordBere is if a defence statement was requested initially or not under the Criminal Evidence and Procedures Act.

As per my previous posting I agreed with what you said but right or wrong, the above is what happened with me because I did not comply with the law. I maintained my right of silence at the beginning and refused to give a defence statement and I lost out because of it.
Mika
QUOTE (Sathya)
As I said in my previous posting, I could not stop the CPS using undisclosed video evidence because of my actions of failing to comply with the CE&P Act.


Your case may be a good example of why it could be important to seek the advice of a road traffic specialist.

Notwithstanding the provisions of the CPIA, the law appears quite clear with regard to the admissibility of material evidence:

Road Traffic Act 1991 23.( 8 ) provides:

Nothing in subsection (1) or (6) above makes a document admissible as evidence in proceedings for an offence unless a copy of it has, not less than seven days before the hearing or trial, been served on the person charged with the offence; …”.

It would also be very interesting to read the Crown’s submission on how the CPIA, takes precedence over the ECHR judgement in the case of Edwards v UK. rolleyes.gif
andy_foster
QUOTE (Mika)
It would also be very interesting to read the Crown’s submission on how the CPIA, takes precedence over the ECHR judgement in the case of Edwards v UK. rolleyes.gif


That's easy - the ECHR judegement confirms whether or not an action violates a Convebtion Right.
The HRA states that where possible, Primary Legislation must be read in such a way as to avoid violating Convention Rights. However, in the case of incompatable Primary Legislation (not capable of being read in such a way), in UK courts, the Primary Legislation must take precendence.

(There is a possible counter-argument to this but I severly doubt they'd allow it)
madmish
Can someone just clarify for me...

Sathya mentions a defence statement being requested under the Criminal Evidence and Procedures Act

I can find no reference to this act.  Mika then refers to the Criminal Procedures and Investigations Act.

Is CE&P an Act or are we on about the CPIA?
cjm99
I am sure, that she means the CPIA

By the way, it only applies to trials on indictment. But we can enforce the CPS to abide by it. see Attorney General's Guidelines. p43..and commentary

QUOTE
The guidelines are
applicable to all investigations and prosecutions undertaken by the
Crown, and therefore relate to prosecutions by government departments
as well as prosecutions by the Crown Prosecution Service. The guidelines
are binding on all public prosecutors, and it is expected that they will
have a persuasive effect on other participants in the criminal justice
process
.
Sathya
Sorry about confusion.

I did in fact mean "Criminal Procedures and Investigations Act" but as we all know once you have made an error you repeat it without thinking.

The Act applies to all summary cases and includes magistrates.

As for the Attorney Generals guidelines, I quoted that at my hearing but was told quite sharply that they were guidelines and the Act had not been ammended and therefore taken as read.

As we all know, magistrates courts are not the best places for a fair tral. In my case, I played havoc quoting ECHR rights of silence, UK Acts etc at my pre-trial and at the final trial, the CPS sent in their Senior Chief Prosecutor. When you have both court and CPS offices in the same town in Wales ..well you guess the result, they don't like upsetiing esch other.

Another aspect which amazed me was that after the CPS presented their case I was not allowed to give a defence case unless I went into the witness box first. Whan I refused to do so, the C of Ct said that the magistrates would retire at that point to make their deicions based on the evidence given up to that point. I again played havoc stating that I had never heard of a trial where the defence could not give their case to the court. Again I was shot down in flames saying that the court was simply acting according to law. I finally went ino the witness box just so that I could make a defence statement later where I again quoted everything possible form this site, the CPS manual but to no avail.

As Mika said about my trial

QUOTE
Your case may be a good example of why it could be important to seek the advice of a road traffic specialist.
cjm99
QUOTE
I was not allowed to give a defence case unless I went into the witness box first.


No one is allowed to present evidence other than from the witness box, With the exception of sec 9/ sec10 statements, and statutory certificates.

This said, there can be no purpose in allowing you to deliver even comments on the evidence so far before the court, nor points of aplicable law.

"Why not?".  I hear you say.

Because, at the close of the prosecution case, you were invited to make a 'submission of no case to answer'. All evidence to that point can be commented on and applicable law quoted. After the bench decide there is a 'primae facie' case to answer. Only new evidence presented by the defence can possibly have any relevance.

Sorry in advance if this upsets you.
Bob_Sprocket
QUOTE (cjm99)
Because, at the close of the prosecution case, you were invited to make a 'submission of no case to answer'. All evidence to that point can be commented on and applicable law quoted. After the bench decide there is a 'primae facie' case to answer. Only new evidence presented by the defence can possibly have any relevance.


Hi Chris,

I think that what you say is very important. If your case is that there are defects in the prosecution case or that evidence which has been allowed should not have been allowed and if they have not allowed this to be challenged properly during the delivery of the contested evidence then (if you have no defence witnesses or agreed s9 statements) your only opportunity to have the court hear your objections is at the time that you make your submission of no case to answer.

I assume that they can put no limit on the time and detail that you use to explain exactly why there is no case to answer. I also assume that the points that you put in your submission of no case to answer will be the same points that you will use in your appeal by way of case stated. The Magistrates will then have to say "Were we right to allow the admission of xyz evidence". If the High Court say "you should not have allowed that evidence and we therefore quash the conviction". You are home free.

I also guess that if you make a compelling argument, with good authorities, then the legal advisor would have to advise them that they should not allow the evidence. If he/she advises them to exclude a vital piece of evidence than there would be no case to answer. Unless you get it excluded at or before that point then even though it perhaps should not have been admitted you have lost your opportunity to save yourself the cost of an appeal.

Now I think I know what to do in my case wink.gif

Best wishes

Phil
Sathya
cjm99,

Nothing you have said upsets me.

All I was commenting on was that unless I went into the witness box the case would have been terminated at that point and the magistrates would retire to make their decisions etc.

You said
QUOTE
you were invited to make a 'submission of no case to answer'. All evidence to that point can be commented on and applicable law quoted.


In my case this was not so. I was informed very strongly by the C of Ct that because the CPS had finished their case and the fact I was not a solicitor I was not entitled to say anything at all from that moment on unless I went into the witness box first.

To raise all the points used on this site, CPS literature etc, I had no option but go into the box so that I could make non disclosure arguements etc etc etc afterwards.

What did I learn from my case?

Firstly I should have made a defence statement at the very begining when asked for one to ensure my entitlement to disclosures under the CEIA.

The CEIA is the first step in the judicial system and other Acts only take effect providing the fist step has been complied with by all parties. This apparently also includes summary offences to be delat with in a magistrates court.

Later I learned, when enquiring about a "case stated" appeal on the non-disclosure aspect that a simple sentence similar to the following would have been sufficient to satisfy the Act: "I maintain that I was not exceeding the speed limit and believe that the equiment used was defective or method of operation incorrect"

Secondly, I now know that the law respects my right of silence and that I do not have to go into the witness box but, not being a solicitor, by doing so stops deprives me from saying anything else from that point on, not even saying "no case to answer". If I did not go into the witness box the case would have finished as soon as CPS had finished and judgement would have been made without a further word being said in defence.. Right or wrong, this is what happened to me.

Thirdly, to make sure I get disclosures to begin with because every time I asked a question about something said about or used wording from an act in the question about non disclosed evidence I was told constantly by the c of ct that disclosures were not requested in time and that the evidence has been presented in accordance with the law and my failure ask for disclosures was my fault and that was that.

Finally to get sound legal advice before going to court.

I only made my postings because I have seen many posters say they were not going to make a defence statement and that they were going to ask for disclosures using the wording from this site. Then if disclosures were not received hit them with the information from this site in Court.

This is what I did and I got hit for a six by making the same mistake simply because I did not make a defence statement

All I can suggest is that everyone should make a defence statement if asked for one just in case they encounter the problems I encountered.

Even if the CPS, magistrates and c of ct were right or wrong by using the Criminal Evidnce and Investigations Act in a magistrates court for a simple speeding offence then people can close this door by complying with it by making a simple defence statement.

A lesson learned by me and hopefully by others reading this.

Below is the extract the CPS used and C of Ct kept on quoted

The CEIA says
5. Compulsory disclosure by accused.  

 - (1) Subject to subsections (2) to (4), this section applies where-
>>
   (5) Where this section applies, the accused must give a defence statement to the court and the prosecutor.
 
     (6) For the purposes of this section a defence statement is a written statement-
 
 (a) setting out in general terms the nature of the accused's defence,
 (B) indicating the matters on which he takes issue with the prosecution, and
 © setting out, in the case of each such matter, the reason why he takes issue with the prosecution.

Some may suggect this should not include a magistrates court but apparently it applies to,all summary offences.
Bob_Sprocket
Hi Sathya,

I've said elsewhere that learning by trial and error is a very expensive business. So I agree with you that it is very important for us to share experience for others who follow the same track and that is what Pepipoo is all about so, good on yer!

Just to focus in on one point were you not allowed to make a 'submission of no case to answer' when the prosecution finished or did you miss your chance? Again focusing on the close of the prosecution case what actually happened at that point.

Thanks for sharing your experiance.

Best wishes

Bob
andy_foster
QUOTE (Sathya)
The CEIA says  
5. Compulsory disclosure by accused.  

 - (1) Subject to subsections (2) to (4), this section applies where-  
>>
   (5) Where this section applies, the accused must give a defence statement to the court and the prosecutor.
 
     (6) For the purposes of this section a defence statement is a written statement-  
 
 (a) setting out in general terms the nature of the accused's defence,  
 (B) indicating the matters on which he takes issue with the prosecution, and  
 © setting out, in the case of each such matter, the reason why he takes issue with the prosecution.  

Some may suggect this should not include a magistrates court but apparently it applies to,all summary offences.


QUOTE ([url=http://www.hmso.gov.uk/acts/acts1996/96025--a.htm#5)
S5(1)Criminal Procedure and Investigations Act 1996[/url]]
5. - (1) Subject to subsections (2) to (4), this section applies where-  
 
 (a) this Part applies by virtue of section 1(2), and  
 (B) the prosecutor complies with section 3 or purports to comply with it.  


QUOTE ([url=http://www.hmso.gov.uk/acts/acts1996/96025--a.htm#1)
S1(2)[/url]]
(2) This Part also applies where-  
 
 (a) a person is charged with an indictable offence and he is committed for trial for the offence concerned,  
 (B) a person is charged with an indictable offence and proceedings for the trial of the person on the charge concerned are transferred to the Crown Court by virtue of a notice of transfer given under section 4 of the Criminal Justice Act 1987 (serious or complex fraud),  
 © a person is charged with an indictable offence and proceedings for the trial of the person on the charge concerned are transferred to the Crown Court by virtue of a notice of transfer served on a magistrates' court under section 53 of the Criminal Justice Act 1991 (certain cases involving children),  
 (d) a count charging a person with a summary offence is included in an indictment under the authority of section 40 of the Criminal Justice Act 1988 (common assault etc.), or  
 (e) a bill of indictment charging a person with an indictable offence is preferred under the authority of section 2(2)(B) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge).  


S1(2) does not apply to summary offences (unless it's included in an indictment), so S5 does not apply to summary offences.

I am not suggesting that S5 does not apply to summary offences, I am stating it catogorically.

S6 (volunatry disclousre) applies to summary offences (by virtue of S1(1)).
Secondary disclosure (S7) is only required from the prosecution if a defence statement has been submitted. Primary disclosure is a legal requirement, in a summary case, regardless of whether a defence statement has been submitted.

Sathya,
You would appear to have been done over by either a corrupt or an incompetant judiciary. This is through no fault of your own, and is no reflection on your abilities or the diligence of your preparation.
LordBere
This is all very worrying. I was not asked for a defence statement, but I had sent a letter (reinforced by a letter from the court progression officer) stating i required evidence.

QUOTE (LordBere)
I am drafting this letter which i will post tonight - what do you think of it? is it OK?? (recognise bits of it??  :) thanks for the help pepipoo !!)


<their address>                                                     <my address>

<cps ref> <case no>

Dear Crown Presecutor,  

With regard to the summons for an alleged speeding offence and S172 offence (xxxxx). I have pleaded ‘Not Guilty’ to this case. I believe that the evidence may be inaccurate and/or erroneous and the equipment used or method of operation was defective. I am formally requesting disclosure of all the evidence relating to this case ,including video,photographic or electronically stored evidence.  

If you intend to rely on any photographic or video evidence or any contemporaneous notes or police officer's pocket book to refresh a witness' memory in Court, then not withstanding any breach of my Human Rights and any breaches of the Data Protection Act, I require you to disclose to me any such information, no later than the 5th April 2005 which is seven days before the trial, in accordance with the ruling in Betts v Betts (1917) 33TLR 200 and section 3.50 Wilkinson Road Traffic Offences Edn 20.  

I refer to the Attorney General's disclosure guidelines dated 29 November 2000 and in particular paragraph 43, as follows:  

SUMMARY TRIAL  
43. The prosecutor should, in addition to complying with the obligations under the CPIA, provide to the defence all evidence upon which the Crown proposes to rely in a summary trial. Such provision should allow the accused or their legal advisers sufficient time properly to consider the evidence before it is called. Exceptionally, statements may be withheld for the protection of witnesses or to avoid interference with the course of justice.  

and from the first paragraph of the Commentary on the Guidelines:  

"The guidelines are applicable to all investigations and prosecutions undertaken by the Crown, and therefore relate to prosecutions by government departments as well as prosecutions by the Crown Prosecution Service. The guidelines are binding on all public prosecutors...".

I should be grateful if you would provide me with a copy of all the evidence as requested and any other documents on which the Crown proposes to rely, by return.  

Yours sincerely,  

xxxxxxxxxxxx


I am still umming and arring about what exactly to send the prosecution for MY disclosure - i feel i probably pertinent to send everything i MAY rely on and some other gumph i wont just to throw in a few false leads. Do i sent it to the court too?

Can we categorically say that the CPIA sections quoted earlier *do not* apply to a summary trial involving S172/Excess Speed??

rolleyes.gif
andy_foster
Section 3 (Primary disclosure by prosecutor) applies to all cases.
Section 5 (Compulsory disclosure by accused) does not apply to summary cases - e.g. speeding/S172
Section 7 (Secondary disclosure by prosecutor) only applies when a defence statement has been submitted.

They (the CPS) have to satisfy the requirements of Primary disclosure.
They do not have to satisy the requirements of Secondary disclosure unless you have submitted a defence statement.
You are not required to submit a defence statement, unless you require Secondary disclosure.

Read the legislation.
Read it again.
LordBere
advice taken onboard - read and reread!

I agree. S5 does not apply as its a S1(1) summary trial. unless the defence chooses to under S6 with a defence statement,and then only if the prosecution has been seen to comply with S3.

S3 is *binding* on the prosecution, no request by the defence required.


Now i just need to track back and cross reference this with an inadmissability statement that applies to S172 and not a road traffic offence which is clearly 7 days.

taking this on board i think I will not disclose, but keep for the day and reel this out - it may be a gamble but this legislation is quite clear.
Sathya
Bob,

No I was not given the opportunity to speak after the CPS had finished presenting their case.

As soon as the CPS finished I was immediately asked if  I wanted to give evidence under oath in the witness box. I said I did not want to do so and it was explained at that point that by not doing so the magistrates would retire to make their judgement.

I argued that it was not acceptable to have a one sided trial where prosecution could present their case and a defence not allowed. The C of Ct repeated my choices and said that because I was not a solicitor I could either go in the box and continue or the trial would end at that point etc etc. If I did go into the box I would be permitted to give a closing statement afterwards.

I then chose to go into the box so that I could give a defence arguement using all the info from this site etc.


-----------------------------------------------

Andy,

Yes what you say is correct but before your quote from the act it says :

QUOTE
Application of this Part.     1. - (1) This Part applies where-  
 
 (a) a person is charged with a summary offence in respect of which a court proceeds to summary trial and in respect of which he pleads not guilty,
 (B) a person who has attained the age of 18 is charged with an offence which is triable either way, in respect of which a court proceeds to summary trial and in respect of which he pleads not guilty, or  
 © a person under the age of 18 is charged with an indictable offence in respect of which a court proceeds to summary trial and in respect of which he pleads not guilty.  
     (2) This Part also applies where-
and then what you posted.

Oh the joys of legal "if this" and "if that" jargon.

To be on the safe side I would suggest that people read the first part of the act before considering the second part because it is this part that a magistrate apparently goes on.

Right or wrong who knows what a particular magistrates court or CPS may rely on in court but why take the chance of falling foul of it when a simple defence statement would kill off any of their attempts not to make disclosures when requested using the pepipoo suggested script after doing so.
andy_foster
[quote=Sathya]
Andy,

Yes what you say is correct but before your quote from the act it says :

[quote=Sathya]
Right or wrong who knows what a particular magistrates court or CPS may rely on in court but why take the chance of falling foul of it when a simple defence statement would kill off any of their attempts not to make disclosures when requested using the pepipoo suggested script after doing so.[/quote]

There is definately wisdom in your words, but there is a danger that if the accused is relying on  a CPS error (essentially to get off on a technicality), a defence statement, even an apparently inncoluous statement, might be sufficient to flag up the case for special attention
Bob_Sprocket
Apparently the concepts of primary and secondary disclosure was abolished by CJA 2003 Schedule 36 part 3.

http://www.hmso.gov.uk/acts/acts2003/30044...ch.htm#sch36pt3

Also, very well done LordBere!

Best wishes

Bob
Insider
QUOTE
Apparently the concepts of primary and secondary disclosure was abolished by CJA 2003 Schedule 36 part 3.  

http://www.hmso.gov.uk/acts/acts2003/30044...ch.htm#sch36pt3  

Also, very well done LordBere!  

Best wishes  

Bob


Now thats interesting, because as far back as this monday  :P  the clerk was insisting to Tyler, that he needed to file a defence statement to obtain 'secondary disclosure'
matt1133
QUOTE
Now thats interesting, because as far back as this monday    the clerk was insisting to Tyler, that he needed to file a defence statement to obtain 'secondary disclosure'


the inconsistencies will no doubt help the ECHR case icon_wink.gif
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