Rochford, R v

A court cannot enforce the statutory duty to provide a defence statement by punishing non-compliance as contempt of court. The Criminal Procedure and Investigations Act 1996 provides its own consequences: appropriate comment and such inferences as appear proper.

A defence statement must identify a positive factual case which the accused intends to advance. An accused who advances no positive case may require the prosecution to prove its case, but should state that position. The statutory disclosure duty does not remove legal professional privilege or the privilege against self-incrimination. Legal advisers must explain and comply with the statutory duty; they cannot properly advise a client to disobey it.

The defendant was awaiting trial in the Crown Court on an indictment for dangerous driving. His defence statement denied that he was the driver at the material time, while accepting that he might have been the person shown on petrol-station CCTV.

On the morning of trial, defence counsel said that the defendant was not in the vehicle. The judge considered that the statement failed to disclose where the defendant was, required it to be amended, and treated the defendant’s refusal to amend as contempt of court. He imposed 28 days’ imprisonment.

The defendant challenged the finding and sentence. The appeal concerned the scope of defence-statement disclosure, the availability of contempt as a pre-trial sanction, and the duties of legal advisers where an accused advances no positive case.

1. The appeal was allowed. The finding of contempt and the 28-day sentence were quashed.
2. A defence statement must disclose the nature of the defence, matters in issue, why they are disputed, and the factual matters on which the accused intends to rely. If an accused intends to advance a positive case that he was elsewhere, whether by evidence, argument or submission, he must disclose the relevant basis and particulars under Criminal Procedure and Investigations Act 1996, section 6A. If he advances no positive case and merely requires the Crown to prove its case, there is no such failure. The judge could properly seek clarification, but could not compel counsel to reveal privileged instructions in order to establish whether a positive case would be advanced.
3. Even where a breach of the statutory disclosure duty is plain, the court has no power to create an additional sanction of contempt by ordering compliance. Section 11 supplies the statutory consequences: comment and, where proper, adverse inferences. The express contempt power for a different statutory contravention in section 18 reinforced the conclusion that contempt was unavailable for breach of sections 5(5) and 6A. Section 6E(2) likewise envisages a warning about possible section 11 consequences at a pre-trial hearing.
4. Section 6A does not abrogate legal professional privilege or the privilege against self-incrimination. It requires disclosure of what will occur at trial, not confidential lawyer-client discussions or an admission of guilt.
5. A legal adviser cannot properly advise an accused to disregard the statutory obligation to provide a defence statement. Where no positive case will be advanced, the statement should say that the accused does not admit the offence or relevant part of it, calls on the Crown to prove it, and advances no positive case. It need not disclose an admission of guilt or a refusal to provide instructions.

• Court of Appeal (Criminal Division): The application under section 13 of the Administration of Justice Act 1960 succeeded. The finding and sentence for contempt were quashed.
• Crown Court: Before the dangerous-driving trial began, the judge treated the defendant’s refusal to amend his defence statement as contempt of court and imposed 28 days’ imprisonment.