Criminal Procedure and Investigations Act 1996

The main provisions E+W+N.I.

3 [F1 Initial duty of prosecutor to disclose]. E+W+N.I.

(1) The prosecutor must—

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which [F2 might reasonably be considered capable of undermining] the case for the prosecution against the accused [F3 or of assisting the case for the accused] , or

(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).

(2) For the purposes of this section prosecution material is material—

(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or

(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.

(3) Where material consists of information which has been recorded in any form the prosecutor discloses it for the purposes of this section—

(a) by securing that a copy is made of it and that the copy is given to the accused, or

(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so;

and a copy may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded.

(4) Where material consists of information which has not been recorded the prosecutor discloses it for the purposes of this section by securing that it is recorded in such form as he thinks fit and—

(a) by securing that a copy is made of it and that the copy is given to the accused, or

(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.

(5) Where material does not consist of information the prosecutor discloses it for the purposes of this section by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.

(6) Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.

(7) Material must not be disclosed under this section to the extent that [F4 it is material the disclosure of which is prohibited by [F5 section 56 of the Investigatory Powers Act 2016] .]

(8) The prosecutor must act under this section during the period which, by virtue of section 12, is the relevant period for this section.

Textual Amendments

F1 S. 3 heading substituted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 Pt. 3 para. 21; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2 (with savings in art. 2(3))

F2 Words in s. 3(1)(a) substituted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), s. 32; S.I. 2005/950 {art. 2} Sch. 1; S.I. 2005/1817, art. 2 (with savings in art. 2(3))

F3 Words in s. 3(1)(a) inserted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 32, 336; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2 (with savings in art. 2(3))

F4 Words in s. 3(7) substituted for s. 3(7)(a)(b) (2.10.2000) by 2000 c. 23, s. 82(1), Sch. 4 para. 7(1) (with s. 82(3)); S.I. 2000/2543, art. 3

F5 Words in s. 3(7) substituted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 39(2) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

Modifications etc. (not altering text)

C1 Pt. I power to apply (with modifications) conferred by SI 2015/1490 rule 23.2 Note (as inserted (2.4.2018) by The Criminal Procedure (Amendment) Rules 2018 (S.I. 2018/132), rules 1, 11(a)(v))

C2 S. 3(3)-(5) excluded (E.W.) (prosp.) by 1997 c. 39, ss. 9(2), 11(2).

4 [F6 Initial duty to disclose]: further provisions. E+W+N.I.

(1) This section applies where—

(a) the prosecutor acts under section 3, and

(b) before so doing he was given a document in pursuance of provision included, by virtue of section 24(3), in a code operative under Part II.

(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3.

Textual Amendments

F6 Words in s. 4 heading substituted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 Pt. 3 para. 22; S.I. 2005/950, art. 2, Sch. 1; S. I. 2005/1817, art. 2 (with savings in art. 2(3))

5 Compulsory disclosure by accused. E+W+N.I.

(1) Subject to subsections [F7 (2) to] [F7 (3A) and] (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.

(2) [F8 Where this Part applies by virtue of section 1(2)(b), this section does not apply unless—

(a) a copy of the notice of transfer, and

(b) copies of the documents containing the evidence,

have been given to the accused under regulations made under section 5(9) of the M1 Criminal Justice Act 1987.]

(3) [F8 Where this Part applies by virtue of section 1(2)(c), this section does not apply unless—

(a) a copy of the notice of transfer, and

(b) copies of the documents containing the evidence,

have been given to the accused under regulations made under paragraph 4 of Schedule 6 to the M2 Criminal Justice Act 1991.]

[F9 (3A) Where this Part applies by virtue of section 1(2)(cc), this section does not apply unless—

(a) copies of the documents containing the evidence have been served on the accused under regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998; and

(b) a copy of the notice under [F10 subsection (1) of section 51D] of that Act has been served on him under that subsection.]

(4) Where this Part applies by virtue of section 1(2)(e), this section does not apply unless the prosecutor has served on the accused a copy of the indictment and a copy of the set of documents containing the evidence which is the basis of the charge.

(5) Where this section applies, the accused must give a defence statement to the court and the prosecutor.

(6) F11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) F11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) F11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) F11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E1 In its application to Northern Ireland, this section has effect subject to the modifications set out in Schedule 4; see s. 79

Textual Amendments

F7 Words in s. 5(1) substituted (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 66(3)(a); S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F8 S. 5(2)(3) repealed (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 66(3)(b), Sch. 37 Pt. 4; S.I. 2012/1320, art. 4(1)(c)(d)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c)(d), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(d)(2)(3) (with arts. 3, 4)

F9 S. 5(3A) inserted (E.W.) (4.1.1999 for certain purposes and 15.1.2001 otherwise) by 1998 c. 37, s. 119, Sch. 8 para.126; S.I. 1998/2327, art. 4(2)(c), Sch. 2; S.I. 2000/3283, art. 2

F10 Words in s. 5(3A)(b) substituted (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 66(3)(c); S.I. 2005/1267, art. 2(1)(2)(b), Sch. Pt. 2; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F11 S. 5(6)-(9) repealed (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 332, 336, Sch. 36 Pt. 3 para. 23, Sch. 37; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2 (with savings in art. 2(3))

Marginal Citations

M1 1987 c. 38.

M2 1991 c. 53.

6 Voluntary disclosure by accused. E+W+N.I.

(1) This section applies where—

(a) this Part applies by virtue of section 1(1), and

(b) the prosecutor complies with section 3 or purports to comply with it.

(2) The accused—

(a) may give a defence statement to the prosecutor, and

(b) if he does so, must also give such a statement to the court.

(3) F12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) If the accused gives a defence statement under this section he must give it during the period which, by virtue of section 12, is the relevant period for this section.

Textual Amendments

F12 S. 6(3) repealed (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 332, 336, Sch. 36 Pt. 3 para. 24, Sch. 37; S.I. 2005/950, art. 2; S.I. 2005/1817, art. 2 (with savings in art. 2(3))

[F13 6A Contents of defence statement E+W+N.I.

(1) For the purposes of this Part a defence statement is a written statement—

(a) setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,

(b) indicating the matters of fact on which he takes issue with the prosecution,

(c) setting out, in the case of each such matter, why he takes issue with the prosecution,

[F14 (ca) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence,]

(d) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including—

(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;

(b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.

(3) For the purposes of this section evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

(4) The Secretary of State may by regulations make provision as to the details of the matters that, by virtue of subsection (1), are to be included in defence statements.]

Textual Amendments

F13 S. 6A inserted (4.4.2005 for E.W., 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 33(2), 336; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2

F14 S. 6A(1)(ca) inserted (3.11.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 60(1), 153(7); S.I. 2008/2712, art. 2, Sch. para. 8 (with art. 3)

Prospective

[F15 6B Updated disclosure by accused E+W+N.I.

(1) Where the accused has, before the beginning of the relevant period for this section, given a defence statement under section 5 or 6, he must during that period give to the court and the prosecutor either—

(a) a defence statement under this section (an “updated defence statement”), or

(b) a statement of the kind mentioned in subsection (4).

(2) The relevant period for this section is determined under section 12.

(3) An updated defence statement must comply with the requirements imposed by or under section 6A by reference to the state of affairs at the time when the statement is given.

(4) Instead of an updated defence statement, the accused may give a written statement stating that he has no changes to make to the defence statement which was given under section 5 or 6.

(5) Where there are other accused in the proceedings and the court so orders, the accused must also give either an updated defence statement or a statement of the kind mentioned in subsection (4), within such period as may be specified by the court, to each other accused so specified.

(6) The court may make an order under subsection (5) either of its own motion or on the application of any party.]

Textual Amendments

F15 S. 6B inserted (prosp.) by Criminal Justice Act 2003 (c. 44), ss. 33(3), 336

[F16 6C Notification of intention to call defence witnesses E+W+N.I.

(1) The accused must give to the court and the prosecutor a notice indicating whether he intends to call any persons (other than himself) as witnesses at his trial and, if so—

(a) giving the name, address and date of birth of each such proposed witness, or as many of those details as are known to the accused when the notice is given;

(b) providing any information in the accused’s possession which might be of material assistance in identifying or finding any such proposed witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the notice is given.

(2) Details do not have to be given under this section to the extent that they have already been given under section 6A(2).

(3) The accused must give a notice under this section during the period which, by virtue of section 12, is the relevant period for this section.

(4) If, following the giving of a notice under this section, the accused—

(a) decides to call a person (other than himself) who is not included in the notice as a proposed witness, or decides not to call a person who is so included, or

(b) discovers any information which, under subsection (1), he would have had to include in the notice if he had been aware of it when giving the notice,

he must give an appropriately amended notice to the court and the prosecutor.]

Textual Amendments

F16 S. 6C inserted (1.5.2010 for E.W.) by Criminal Justice Act 2003 (c. 44), ss. 34, 336(3)(4); S.I. 2010/1183, art. 3(a) (with art. 4(2))

Prospective

[F17 6D Notification of names of experts instructed by accused E+W+N.I.

(1) If the accused instructs a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused, he must give to the court and the prosecutor a notice specifying the person’s name and address.

(2) A notice does not have to be given under this section specifying the name and address of a person whose name and address have already been given under section 6C.

(3) A notice under this section must be given during the period which, by virtue of section 12, is the relevant period for this section.]

Textual Amendments

F17 S. 6D inserted (prosp.) by Criminal Justice Act 2003 (c. 44), ss. 35, 336

[F18 6E Disclosure by accused: further provisions E+W+N.I.

(1) Where an accused’s solicitor purports to give on behalf of the accused—

(a) a defence statement under section 5, 6 or 6B, or

(b) a statement of the kind mentioned in section 6B(4),

the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.

(2) If it appears to the judge at a pre-trial hearing that an accused has failed to comply fully with section 5, 6B or 6C, so that there is a possibility of comment being made or inferences drawn under section 11(5), he shall warn the accused accordingly.

(3) In subsection (2) “pre-trial hearing” has the same meaning as in Part 4 (see section 39).

(4) The judge in a trial before a judge and jury—

(a) may direct that the jury be given a copy of any defence statement, and

(b) if he does so, may direct that it be edited so as not to include references to matters evidence of which would be inadmissible.

(5) A direction under subsection (4)—

(a) may be made either of the judge’s own motion or on the application of any party;

(b) may be made only if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.

(6) The reference in subsection (4) to a defence statement is a reference—

(a) where the accused has given only an initial defence statement (that is, a defence statement given under section 5 or 6), to that statement;

(b) where he has given both an initial defence statement and an updated defence statement (that is, a defence statement given under section 6B), to the updated defence statement;

(c) where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(4), to the initial defence statement.]

Textual Amendments

F18 S. 6E inserted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 33(2), 336; S.I. 2005/950, art. 2, Sch. 1; S.I.2005/1817, art. 2

7 Secondary disclosure by prosecutor. E+W+N.I.

F19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F19 S. 7 repealed (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 332, 336, Sch. 36 Pt. 3 para. 25, Sch. 37; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2

[F20 7A Continuing duty of prosecutor to disclose E+W+N.I.

(1) This section applies at all times—

(a) after the prosecutor has complied with section 3 or purported to comply with it, and

(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned.

(2) The prosecutor must keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which—

(a) might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and

(b) has not been disclosed to the accused.

(3) If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable (or within the period mentioned in subsection (5)(a), where that applies).

(4) In applying subsection (2) by reference to any given time the state of affairs at that time (including the case for the prosecution as it stands at that time) must be taken into account.

(5) Where the accused gives a defence statement under section 5, 6 or 6B—

(a) if as a result of that statement the prosecutor is required by this section to make any disclosure, or further disclosure, he must do so during the period which, by virtue of section 12, is the relevant period for this section;

(b) if the prosecutor considers that he is not so required, he must during that period give to the accused a written statement to that effect.

(6) For the purposes of this section prosecution material is material—

(a) which is in the prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused, or

(b) which, in pursuance of a code operative under Part 2, he has inspected in connection with the case for the prosecution against the accused.

(7) Subsections (3) to (5) of section 3 (method by which prosecutor discloses) apply for the purposes of this section as they apply for the purposes of that.

(8) Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.

(9) Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by [F21 section 56 of the Investigatory Powers Act 2016] .]

Textual Amendments

F20 S. 7A inserted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 37, 336; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2

F21 Words in s. 7A(9) substituted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 39(3) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

8 Application by accused for disclosure. E+W+N.I.

[F22 (1) This section applies where the accused has given a defence statement under section 5, 6 or 6B and the prosecutor has complied with section 7A(5) or has purported to comply with it or has failed to comply with it.

(2) If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.]

(3) For the purposes of this section prosecution material is material—

(a) which is in the prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused,

(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused, or

(c) which falls within subsection (4).

(4) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.

(5) Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.

(6) Material must not be disclosed under this section to the extent that [F23 it is material the disclosure of which is prohibited by [F24 section 56 of the Investigatory Powers Act 2016] .]

Textual Amendments

F22 S. 8(1)(2) substituted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 38, 336; S.I. 2005/950, art. 2; S.I.2005/1817, art. 2

F23 Words in s. 8(6) substituted for s. 8(6)(a)(b) (2.10.2000) by 2000 c. 23, s. 82(1), Sch.4 para. 7(1) (with s. 82(3)); S.I. 2000/2543, art. 3

F24 Words in s. 8(6) substituted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 39(4) (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

Modifications etc. (not altering text)

C3 S. 8(2) modified by SI 2015/1490 rule 23.2(8)(a) (as substituted (2.4.2018) by The Criminal Procedure (Amendment) Rules 2018 (S.I. 2018/132), rules 1, 11(a)(iv))

9 Continuing duty of prosecutor to disclose. E+W+N.I.

F25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F25 S. 9 repealed (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 332, 336, Sch. 36 Pt. 3 para. 26, Sch. 37; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2

10 Prosecutor’s failure to observe time limits. E+W+N.I.

(1) This section applies if the prosecutor—

(a) purports to act under section 3 after the end of the period which, by virtue of section 12, is the relevant period for section 3, or

[F26 (b) purports to act under section 7A(5) after the end of the period which, by virtue of section 12, is the relevant period for section 7A.]

(2) Subject to subsection (3), the failure to act during the period concerned does not on its own constitute grounds for staying the proceedings for abuse of process.

(3) Subsection (2) does not prevent the failure constituting such grounds if it involves such delay by the prosecutor that the accused is denied a fair trial.

Textual Amendments

F26 S. 10(1)(b) substituted (4.4.2005 for E.W. and 15.7.2005 for N.I.) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 Pt. 3 para. 27; S.I. 2005/950, art. 2, Sch. 1; S.I. 2005/1817, art. 2

[F27 11 Faults in disclosure by accused. E+W+N.I.

(1) This section applies in the three cases set out in subsections (2), (3) and (4).

(2) The first case is where section 5 applies and the accused—

(a) fails to give an initial defence statement,

(b) gives an initial defence statement but does so after the end of the period which, by virtue of section 12, is the relevant period for section 5,

(c) is required by section 6B to give either an updated defence statement or a statement of the kind mentioned in subsection (4) of that section but fails to do so,

(d) gives an updated defence statement or a statement of the kind mentioned in section 6B(4) but does so after the end of the period which, by virtue of section 12, is the relevant period for section 6B,

(e) sets out inconsistent defences in his defence statement, or

(f) at his trial—

(i) puts forward a defence which was not mentioned in his defence statement or is different from any defence set out in that statement,

(ii) relies on a matter [F28 (or any particular of any matter of fact)] which, in breach of the requirements imposed by or under section 6A, was not mentioned in his defence statement,

(iii) adduces evidence in support of an alibi without having given particulars of the alibi in his defence statement, or

(iv) calls a witness to give evidence in support of an alibi without having complied with section 6A(2)(a) or (b) as regards the witness in his defence statement.

(3) The second case is where section 6 applies, the accused gives an initial defence statement, and the accused—

(a) gives the initial defence statement after the end of the period which, by virtue of section 12, is the relevant period for section 6, or

(b) does any of the things mentioned in paragraphs (c) to (f) of subsection (2).

(4) The third case is where the accused—

(a) gives a witness notice but does so after the end of the period which, by virtue of section 12, is the relevant period for section 6C, or

(b) at his trial calls a witness (other than himself) not included, or not adequately identified, in a witness notice.

(5) Where this section applies—

(a) the court or any other party may make such comment as appears appropriate;

(b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.

(6) Where—

(a) this section applies by virtue of subsection (2)(f)(ii)(including that provision as it applies by virtue of subsection (3)(b)), and

(b) the matter which was not mentioned is a point of law (including any point as to the admissibility of evidence or an abuse of process) or an authority,

comment by another party under subsection (5)(a) may be made only with the leave of the court.

(7) Where this section applies by virtue of subsection (4), comment by another party under subsection (5)(a) may be made only with the leave of the court.

(8) Where the accused puts forward a defence which is different from any defence set out in his defence statement, in doing anything under subsection (5) or in deciding whether to do anything under it the court shall have regard—

(a) to the extent of the differences in the defences, and

(b) to whether there is any justification for it.

(9) Where the accused calls a witness whom he has failed to include, or to identify adequately, in a witness notice, in doing anything under subsection (5) or in deciding whether to do anything under it the court shall have regard to whether there is any justification for the failure.

(10) A person shall not be convicted of an offence solely on an inference drawn under subsection (5).

(11) Where the accused has given a statement of the kind mentioned in section 6B(4), then, for the purposes of subsections (2)(f)(ii) and (iv), the question as to whether there has been a breach of the requirements imposed by or under section 6A or a failure to comply with section 6A(2)(a) or (b) shall be determined—

(a) by reference to the state of affairs at the time when that statement was given, and

(b) as if the defence statement was given at the same time as that statement.

(12) In this section—

(a) “initial defence statement” means a defence statement given under section 5 or 6;

(b) “updated defence statement” means a defence statement given under section 6B;

(c) a reference simply to an accused’s “defence statement” is a reference—

(i) where he has given only an initial defence statement, to that statement;

(ii) where he has given both an initial and an updated defence statement, to the updated defence statement;

(iii) where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(4), to the initial defence statement;

(d) a reference to evidence in support of an alibi shall be construed in accordance with section 6A(3);

(e) “witness notice” means a notice given under section 6C.]

Textual Amendments

F27 S. 11 substituted (4.4.2005 for E.W. except for the insertion of s. 11(4)(7)(11), 15.7.2005 for N.I. except for the insertion of s. 11(4)(7)(11), 1.5.2010 for E.W. for the purpose of the insertion of s. 11(4)(7)) by Criminal Justice Act 2003 (c. 44), ss. 39, 336(3)(4); S.I. 2005/950, art. 2(1), Sch. 1 para. 2 (with Sch. 2) (as explained (29.7.2005) by S.I. 2005/2122, art. 2; and as amended: (14.7.2008) by 2008 c. 4, Sch. 26 para. 78, Sch. 28 Pt. 2; S.I. 2008/1586, Sch. 1 paras. 48(s), 50(2)(d); (30.11.2009) by S.I. 2009/3111, art. 2; (3.12.2012) by S.I. 2012/2905, art. 4; (3.12.2012) by 2012 c. 10, Sch. 14 para. 17; S.I. 2012/2906, art. 2(l)); S.I. 2005/1817, art. 2(1)(2)(f) (with art. 2(3)); S.I. 2010/1183, art. 3(b) (with art. 4(2))

F28 Words in s. 11(2)(f)(ii) inserted (3.11.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 60(2), 153(7); S.I. 2008/2712, art. 2, Sch. para. 8 (with art. 3)