Part 21 of the Criminal Procedure Rules 2005 (“the Rules”) governs the service of advance information.
When advance information should be given
The defendant is entitled to advance information1of the prosecution case in proceedings for all offences triable either way. This is to enable the defence to decide whether they wish to be tried in the magistrates' court or the Crown Court.
As a matter of good practice, advance information should also be provided for a summary offence. This will ensure that HSE meets the requirements of the ECHR as it assists the defence to understand the prosecution case. It will also assist HSE as experience shows that provision of this information often results in an early plea of guilty.
Notice of right to advance information
The defendant should be given notice in writing, at the time the summons is served, of:
the right to advance information; and
the address at which a request for disclosure may be made.2
It is in everybody’s interests to progress a case as quickly as possible and therefore consideration should be given to serving advance information with the summons in order to expedite proceedings.
Request for advance information
The defendant's request for advance information need not be in writing, and can be made orally at court. Alternatively, the defence may waive the right to advance information. This might be done, for example, where the defendant intends to elect trial in the Crown Court, and an adjournment for advance information would be pointless because the prosecution's case will be fully disclosed before committal proceedings take place.
The court needs to be satisfied that a defendant is aware of his/her right to request advance information before considering whether the case is suitable to be heard before the magistrates’ or Crown Court 3.
If a request for advance information has been made but has not been complied with, the court will adjourn the proceedings (see below).
Providing advance information
The Rules give the prosecutor a discretion as to the form in which to provide the advance information. This discretion needs to be carefully considered in every case. You will also need to consider whether disclosure might lead to intimidation of any witnesses (see Discretion to withhold material below).
You have the choice of providing advance information either by way of:
a copy of those parts of every written statement which contain information as to the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings. This will require you to check the statements and edit as necessary to remove any inadmissible or irrelevant material;4or
a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings.5
You will need to decide which method is appropriate to the circumstances of your case. For example, where you anticipate a not guilty plea or intend to invite the magistrates to send the case to Crown Court, you might think it appropriate to supply advance information in the form of copies of statements and exhibits, as the defence will receive them in the form of a trial or committal bundle in any event. In other circumstances, where you expect a guilty plea and that magistrates will deal with the case, it may be more appropriate to serve a summary, for example to keep costs down. Providing advance information by way of summary may also help to avoid difficulties for witnesses who work for or with the defendant6. The decision on how to provide advance information is entirely a matter for the prosecutor.
You should not mix these alternative methods of providing advance information. If you provide a summary but think it helpful to also provide copies of the inspector’s statement and/or statements and reports from an expert, you should make it clear that these are provided voluntarily in addition to the advance information and not as part of it.7 The person preparing the summary should also take great care to ensure that it comprises all the facts and matters which the prosecution proposes to adduce in evidence.
A useful guideline for writing the advance information summary is to summarise the facts under the headings used when deciding the evidence by which the case will be proved. A thorough summary will assist in the production of a ‘Friskies Schedule’, incorporating the facts of the case and any aggravating, mitigating or other relevant factors (see the Friskies Schedules section).
When you serve advance information, you should also serve a Friskies Schedule on the defence, if this has not been done already.8 This is particularly important where advance information has been provided by way of witness statements, as the Friskies Schedule will be the principal means of summarising the basis of the case for the defence and the court. It has been held that, in health and safety cases, the defence should be provided at an early stage with particulars of the prosecution case, and the service of the summonses and witness statements alone will not be sufficient for this purpose.8
More than one defendant
Where more than one defendant is to be prosecuted at the same hearing in connection with the same incident(s) or event(s), it is preferable to serve an identical set of advance information to all parties, covering all alleged offences.
Discretion to withhold material
It should be noted that Rule 21.4 gives the prosecutor discretion to withhold the whole or any part of the advance information if s/he is of the opinion that disclosure might lead to a witness being intimidated, or to the course of justice being interfered with. This is of course far more serious than the need simply to avoid difficulties for witnesses who work for or with the defendant. The discretion must be exercised with great care, and legal advice should be sought from Legal Adviser’s Office if such a situation arises.
If advance information is withheld, the prosecutor must give notice in writing to the person entitled to receive it, explaining that information has been withheld by virtue of Rule 21.4.
Special care should be taken to avoid any direct reference to material which is not intended to be disclosed by way of advance information. This is because Rule 21.3(3) provides that, subject to Rule 21.4, if reference is made to such a document either a copy of it shall be provided or it shall be made available for inspection (see Reference to documents below).
It is extremely important to ensure that HSE complies strictly with the Criminal Procedure Rules and, subject to Rule 21.4, provides the defendant with a full summary of the facts and matters about which the prosecution proposes to call evidence.
Editing of statements
Certain copy statements may be unsuitable for service and/or use as evidence without editing out parts of the statement. For example, if you considered charging several offences when the statements were taken but decided not to proceed with all of them, the statement may contain irrelevant material.
Editing of statements can:
inform the decision making process (if done early);
remove peripheral issues that can confuse the main elements of the case;
remove inadmissible and irrelevant evidence if the case goes to trial.
All editing should be carried out by the prosecutor using copy statements only. All editing should be done by enclosing the offending passages in square brackets and ruling through them so that they can still be read. Original statements and exhibits should never be marked in any way.9
A paragraph explaining that the prosecution will not rely on the bracketed passages should be included in the letter which accompanies the advance information. Alternatively a fresh statement can be obtained, and the earlier version served as unused material.
Reference to documents
Subject to Rule 21.4, where a statement or a summary refers to a document which you propose to put in evidence, the defendant should be given either a copy of the document, or sufficient information to enable the defendant or his/her legal representative to decide whether they need to inspect the document or a copy of it.10 The defendant is also entitled to inspect material objects (exhibits) that form part of the prosecution case.
Service of advance information
Advance information should be served with a covering letter either personally or by first class post. There is no obligation to serve a copy of statements or any summary on the Justices' Clerk. A record of service should be kept on file.
Mode of trial hearing
If for any reason advance information has not been served, it is always advisable to have the relevant material ready to hand so that it can be served at court. This may avoid an adjournment.
At the hearing, the magistrates must first ensure that the defendant is aware of his right to ask for advance information. 11
The court hearing may be adjourned to enable advance information to be served if:
a notice was not served on the defendant, and the court is informed that advance information would have been requested;
the defendant wished to make a request for advance information, but has not yet done so.
If the court is satisfied that you have not given advance information in response to a request from the defendant, and you do not have the material available, the court must adjourn the case to enable the request to be complied with, unless it is satisfied that the defendant's case will not be substantially prejudiced by non-compliance with the requirement.12 The court must keep a record of its decision, together with its reasons.13
In plea before venue hearings, the court will adopt the approach outlined above.
Footnotes
Rule 21.3 CPR 2005
Rule 21.2 CPR 2005
Rule 21.5 CPR 2005
Rule 21.3(1)(a) CPR 2005
Rule 21.3(1)(b) CPR 2005
See the more detailed comments in section on Witness Statements with reference to possible intimidation of witnesses
See also OM2002/101 for further guidance on providing advance information.
Dilisser Roy Bernard –v- Dudley Metropolitan Borough Council Neutral Citation Number: [2003] EWHC 147 Admin
See Editing Witness Statements, and Practice Direction (P.D). (Crime: Evidence by written Statements) [1986] 2 All S1 and [1986] 1 WLR 805
