| Lord Coulsfield's analysis and recommendations: 7.7 A further important question is how to allow the defence to convey information about their thinking to the prosecutor, in order to inform and stimulate decisions on disclosure which accurately reflect the intentions of the defence. In most cases it is likely to be obvious to the Crown whether any material they hold is potentially exculpatory, but sometimes there will be unexpected lines of defence which the prosecutor could not reasonably foresee, and in these cases advance notice by the defence will put the prosecutor in a better position to judge what material needs to be disclosed. There is no doubt that it can be to the advantage of the defence to provide such a statement if there is a particular and positive line of defence and the defence are looking for material to support it. Any system of disclosure therefore needs to enable and encourage the defence to make an advance statement of their position whenever they perceive that this would help to secure fuller relevant disclosure and a fair trial for their client. 7.8 The statutory system in England and Wales goes further than this. Under the CPIA, the provision of a defence statement in response to initial disclosure is mandatory in all Crown Court cases, and the statement is required to specify the respects in which the defence takes issue with the Crown case. As I understand the position, that requirement was intended not only to assist in the process of disclosure, but also to help in case management. However, discussion with practitioners has indicated that in the majority of cases defence statements are late, unspecific and unhelpful. It has been argued to me that that is not a reason for not insisting on the provision of defence statements, and that the obligation to provide them could be more rigorously enforced. Experience suggests, however, that it would be difficult to enforce a requirement without either causing delay, or prejudicing a legitimate defence or both. In Scotland there are well-established rules defining the cases in which notice of a special defence has to be given. If it is necessary for the defence to apply to the court for additional disclosure, as discussed later, it will be necessary for them to explain the reasons for the request. I have not been convinced that a general requirement for a defence statement would give any significant additional benefit, to justify the additional work and cost which would be generated. R13. The legislation or the statutory code of practice should explicitly place on the Crown a responsibility to review disclosure decisions in the light of any new information provided by the defence. R14. The code should set out a standard recommended form for a defence statement for this purpose. |