No: 2010/3409/B5 
Neutral Citation Number: [2010] EWCA Crim 1928
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 28 July 2010
 
B e f o r e:
 
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)

MRS JUSTICE RAFFERTY DBE 

MR JUSTICE MADDISON  
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R E G I N A 

v 

GAVIN ROCHFORD
 
APPLICATION UNDER S.13 ADMINISTRATION OF JUSTICE ACT 1960 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr R Bentwood appeared on behalf of the Appellant
Mr R Dalling appeared on behalf of the Crown
Mr J Ryder QC appeared on behalf of the Bar Council
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J U D G M E N T
1.	THE VICE PRESIDENT:  This appeal against sentence challenges a sentence imposed for contempt of court.  It raises some quite short but significant questions as to the scope of the rules contained in sections 6A and 11 of the Criminal Procedure and Investigations Act 1996 which deal with a defence statement, often, incidentally, erroneously referred to as a defence case statement.  
2.	The defendant appeared before the Crown Court on an indictment charging a single count of dangerous driving.  The Crown's case was that the van in question had been followed from a petrol station and that the petrol station's CCTV showed the defendant getting into the driver's seat.  According to the Crown, the van had been driven dangerously thereafter, but the pursuing police car had lost sight of it after a number of miles and it had been found later the same night some little way from where contact had been lost.  The defendant was arrested about five days later after being, it was said, identified from the CCTV footage.  In interview he declined to answer any questions.  
3.	In the normal way the case was listed before the Crown Court for a plea and case management hearing.  The defendant entered a plea of not guilty.  On the same day, through his solicitors, he served a defence statement.  It contained the following paragraph under the heading: "General nature of the defence ‑ section 6A(1)(a)":
"The Defendant was not the driver of the vehicle in question at the material time.  He accepts he may have been the person shown on the CCTV at the garage."
The remainder of the defence statement does not need citation.  It said, consistently with the passage which we have just cited, that the defendant took issue with the prosecution in so far as it was suggested that he was the driver of the vehicle at the material time.  
4.	On the morning of the trial, the judge asked counsel for the defendant what his case was.  The judge said that he had read the defence statement as suggesting that the defendant was asserting that he may have been the driver of the vehicle at the petrol station, but that he was not at the material time.  In that event, said the judge, why was there no mention of alibi?  Was it that he was saying that he was in the vehicle but not the driver?  Counsel for the defendant responded to this extent only.  He told the judge that the defendant's case was that the defendant was not in the vehicle.  
5.	There followed a good deal of discussion which it is not necessary to recite.  The judge took the view that the defence statement failed to comply with section 6A.  It did not say where the defendant was at the material time if he was not in the driving seat.  Having taken that view, the judge invited counsel to amend the defence statement.  That invitation became, over the course of discussion, in effect a direction to amend the defence statement, although no formal order to that effect was, as it seems to us, ever explicitly made.  What was undoubtedly said was that a failure to amend would be treated as a contempt of court.  Indeed at one stage the judge was moved to suggest that it might be regarded as a contempt of court not only on the part of the defendant but also on the part of counsel.  
6.	Since the discussion was now taking that turn, counsel sought the help of his Head of Chambers and of the Bar council.  For our part we entirely understand why.  After everybody had reflected overnight, the following morning the judge handsomely recognised that any suggestion that counsel had offended, or at least that he was in contempt of court, was entirely wrong and he unreservedly unsaid that suggestion.  
7.	However, the judge remained of the same view as to the what he regarded as the defendant's failure to comply with section 6A.  He remained of the same view that in the absence of amendment the defendant was in contempt of court because he was disobeying the judge's order that the defence statement was defective and required amendment.  
8.	After substantial further discussion, which was politely and properly conducted on all sides, no amendment was forthcoming.  The judge imposed a sentence upon the defendant of 28 days' imprisonment, taking the view that he was in flagrant breach of his (the judge's) order.  That is the finding and sentence which the defendant challenges by this appeal.
9.	The requirements on an accused to disclose his case are contained for present purposes in sections 5(5) and 6A of the Criminal Procedure and Investigations Act 1996.  In the circumstances which applied in this case, it is common ground that section 5(5) applied.  That reads as follows: 
"Where this section applies, the accused must give a defence statement to the court and the prosecutor."
The contents of the defence statement are dealt with by section 6A(1): 
"(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,
 (ca) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and
 (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."
Section 6(2) makes specific provision for the disclosure of alibi particulars.  It is unnecessary to cite those in full, but an alibi must be properly disclosed.
10.	We observe in passing that there is also now in force section 6C, viz an obligation on the accused to provide to the court and the prosecutor the identity and particulars of any witness whom he intends to call.  That obligation has not been in question in this case, but it is a further indication of the change of culture which is effected by these provisions of the 1996 Act, as it has now been amended.  In R v Penner [2010] EWCA Crim. 1155 this court observed that a combination of these provisions and the Criminal Procedure Rules have or at least are designed to abolish what is known as trial by ambush.  
11.	Section 11 of the 1996 Act provides for the consequences of failure to comply with the plain obligation created by section 5(5).  Section 11(2) contains the triggers for the sanction.  They are as follows: 
"(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 afternoon 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 (or any particular of any matter of fact) which, in breach of 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."
There are other triggers which need not concern this court for present purposes.  Section 11(5) then provides as follows: 
"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."
There are supplemental provisions in subsection (8).  We need not cite those.  
12.	In summary, therefore, section 11 provides the sanction for failure to comply with the statutory duty, first to file a defence statement, and second to put into it those things which are required by section 6A.  The sanction is comment by either the court or any other party and the freedom of the tribunal of fact to conclude that the explanation for such a failure contributes to the case against the defendant as indicating that the failure is attributable to his guilt.  
13.	In the present case the judge took the view that we have explained that the defence statement did not comply with section 6A because it did not say where the defendant was at the material time.  He drew attention to the obvious dangers of an unknown and effectively ambush defence being raised.  He adverted to the possibility that if that were to occur and some new unsignalled assertion be made, it was foreseeable that the Crown might need to investigate it and that the time for investigation might occasion either the delay or perhaps the abortion of the trial.
14.	As to sanctions, the judge recognised that section 11 provided a sanction but observed that that would only apply once a jury has been empanelled and evidence has been called.  He concluded that there simply had to exist sanctions at the pretrial stage and that the relevant one was the ability of the court to order compliance and to punish as a contempt of court disobedience to the order.
15.	As it seems to us, a number of questions arise on those facts which we ought to address.  
16.	The first question which we think we ought to address is whether there was in this case a failure to comply with section 6A.  The answer to that is that we do not know and neither did the judge.  If the defendant was going to say that he was somewhere else rather than in the driving seat then there had been a failure to comply with section 6A.  If he was going to call evidence from some source other than himself that he was somewhere else other than in the driving seat then there had been a failure to comply with section 6A.  If, even, the possibility that he had been somewhere else was going to be raised distinctly before the jury by way of submission or argument, that too would entail a failure to comply with section 6A.  Once the issue is going to be raised in any of those manners (and there may be other ways in which it could be,) section 6A(1)(ca) and  (c) would apply and would require the defendant to set out why he took issue with the Crown on his location and to give particulars of the matters of fact on which he intended to rely for that purpose.  However, if the defendant was going to make no positive case at all and not raise the issue of his possible location elsewhere, and if he was simply going to sit tight and ensure that the Crown proved its case, then, as it seems to us, there would have been no failure to comply with section 6A.  
17.	The judge was entitled to ask, and indeed to ask insistently and trenchantly.  He was not, however, entitled to require counsel to reveal his instructions if no positive case was going to be made in any of the ways which we have identified or any other.  From a position of ignorance the judge was not in a position to know, any more than we are at this stage, whether there had been a breach of section 6A or not.  Only time will tell as the trial, which has not yet begun, proceeds.  
18.	The second question which we need to address is if it is plain that there is a breach of section 6A, either because there is no defence statement or because it has not got in it what it ought to have, can the court by ordering compliance then vest itself with the power to punish as a contempt of court disobedience to the order?  The answer to that is "No".  Any order such as a judge might make would be no more than an emphatic articulation of the statutory obligation created by section 5(5) and 6A.  The sanction for non‑compliance is explicit in the statute in section 11.  It is not open to the court to add an additional extra statutory sanction of punishment for contempt of court.  
19.	It is enough to justify that conclusion to point to the existence of the specific sanction which has clearly been thought about and which is provided in section 11.  It is also right, as Mr Dalling for the Crown has reminded us, that there are other indications within the statute which support that conclusion.  Section 18 of the Act deals with the sanction for contravention of different confidentiality provisions under section 17.  That section (section 18) does make contravention a contempt of court and it empowers the court to deal with the defendant accordingly.  The presence of that express stipulation for the power to punish for contempt is an indication in support of the very plain conclusion at which we have arrived.  Punishment for contempt is not available in the face of the presence of section 11.  Moreover, section 6E(2) specifically provides that if it appears to the judge at a pretrial hearing that it looks as if there has been a failure in relation to the defence statement and as a result there may be a possibility of adverse comment under section 11, the judge should warn the accused accordingly.  That too reinforces the plain conclusion at which we have arrived.
20.	In those circumstances, whilst we understand the judge's concern that there might be a risk of a subsequent trial being interrupted, he simply did not have the power to do what he did.  For those reasons the sentence for contempt of court must be quashed.  
21.	The third question to which we ought to advert is this.  Do legal professional privilege and the defendant's privilege against self‑incrimination survive section 6A?  The answer to that is "Yes".  What the defendant is required to disclose by section 6A is what is going to happen at the trial.  He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial.  Nor is he obliged to incriminate himself if he does not want to.  Those are fundamental rights and they have certainly not been taken away by section 6A ‑ see the reasoning in the slightly different context of the Criminal Procedure Rules in R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin), [2008] 1 WLR 2001.  
22.	The next question which we need to address and on which we have been very grateful for the assistance of Mr Ryder QC, instructed by the Bar Council, is this.  Can the lawyer properly advise a defendant not to file a defence statement? The answer to that is "No".  The obligation to file a defence statement is a statutory obligation on the defendant.  It is not open to a lawyer to advise his client to disobey the client's statutory obligation.  It is as simple as that.  
23.	Mr Bentwood for the defendant submitted that such advice could be given and that it was comparable to the advice which could be given to a defendant about whether to give evidence or not and upon the consequences of a decision not to do so.  The two are not analogous.  There is no statutory obligation to give evidence; there are merely statutory consequences if one does not.  There is a statutory obligation to file a defence statement and in addition there are statutory consequences if one does not.  We accept Mr Ryder's submission that counsel, or for that matter a solicitor or other legal adviser, cannot properly advise a defendant to disobey the statutory duty imposed by section 5(5).  He can of course advise the defendant what his obligation is, what he must put in his defence statement (which in turn depends upon how the trial is going to be conducted) and he must advise him of the consequences of not doing so.  If the rule were different we observe in passing that it would be open to any defendant at trial who had failed to file a defence statement to put in evidence the fact that it had been on advice and in consequence to submit that there should be no adverse comment.  In effect that would deprive section 5(5) and 6A of any effective content at all.
24.	The remaining question is this.  What is the duty of the lawyer if the defendant has no positive case to advance at trial but declines to plead guilty?  That is a realistic (if rare) practical possibility.  It may occur.  It may occur in at least two situations.  It might happen that a defendant within the cloak of privilege confides in his lawyer that he is in fact guilty of the offence charged but refuses to plead guilty.  He cannot be prevented from taking that course and his instructions to his lawyer are covered by privilege.  He is entitled in those circumstances to sit through the trial and to see whether the Crown can prove the case or not.  What he is not entitled to do is to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it.  A less extreme but equally possible example is the defendant who refuses to give instructions either at all or on specific points.  That too can occur.  In neither of those situations can it possibly be the obligation of the defendant to put into his defence statement an admission of guilt or a refusal to give instructions.  What are the lawyers to do?  It seems to us that we can give an answer only in general terms because it would be unhelpful for us to attempt the impossible task of foreseeing every factual scenario that might occur in future.  They will have to be dealt with as they arise, case by case.  But in general terms our answer is this.  The defence statement must say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it.  But it must also say that he advances no positive case because if he is going to advance a positive case that must appear in the defence statement and notice of it must be given.  Unless the requirement is that the statement is made but no positive case is advanced it would be open to defendants simply to ignore section 5(5) and 6A.  Once again, we understood Mr Ryder to accept that that is the correct analysis of the situation. 
25.	Accordingly, in all those circumstances the lawyer's duty is first of all never to advise either the absence of a defence statement or the omission from it of something which section 6A requires to be there because of the way the trial is going to be conducted.  The lawyer's duty is not to give the defendant advice on what to do.  The lawyer's duty is to explain the statutory obligation that he has and to explain the consequences which follow from disobedience of it.  
26.	We hope that those general propositions will be of assistance to those dealing with what may sometimes be difficult marginal situations.  We observe, as did Mr Ryder, that of course in the vast majority of cases the defendant's interests lie in making his defence statement fully compliant with section 6A.  
27.	For the reasons which we have given in the course of this judgment, the finding and the sentence for contempt of court must be quashed.  We make no further comment about the facts of this case because it has yet to be tried.  We are grateful to all counsel for their considerable help on a difficult question.