...On that basis, it was submitted, the prosecution were entitled to adduce the evidence which was served after receipt of the defence statement, with a view to inviting the jury to conclude that Duarte had only changed his defence once a denial of identification became untenable, and to adduce the defence statement with a view to inviting an inference by the jury in accordance with section 11(5) of the Criminal Procedure and Investigations Act 1996.
As can be seen, where section 11(2) applies, the available sanctions are comment by the court or another party, and the drawing by the jury of an adverse inference. Section 11(2) will commonly apply where a defendant has given evidence and has put forward a defence which differs from that in his defence statement. We are however satisfied that if section 11(2) applies, the prosecution are in principle entitled to comment, or to invite the jury to draw an adverse inference, even though the defendant has not given evidence. We agree with the respondent's submission that it inevitably follows that the prosecution may apply to adduce the relevant contents of a defence statement, and/or may apply pursuant to section 6E(5)(b) of the 1996 Act to provide the jury with a copy of the defence statement (edited as may be appropriate), as part of their case. Where it is not clear during the prosecution case whether a defendant will in due course give evidence, it may be possible for agreement to be reached between the parties, and approved by the judge, to the effect that the prosecution will be entitled to delay the formal closing of their case until after the defendant has made a final decision whether to give evidence, or to re-open their case at that stage for the sole purpose of adducing the relevant contents of the defence statement; but subject to an arrangement of that nature, it will in general be too late for the prosecution to delay making any application until after a defendant has stated through counsel that he will not be giving evidence.
Before leaving Duarte's case, we observe that the problems which we have identified illustrate the care which must be taken when the prosecution seek as part of their case to adduce some or all of the contents of a defence statement filed by a defendant who may or may not subsequently give evidence. There will, of course, be cases in which such an application is appropriate; but a cautious approach should be adopted. Before an application is made on the basis of a change of defence, relying on a contrast between what was said in the defence statement and what has been put in cross-examination of prosecution witnesses, the question of whether the jury could properly find that there had been such a change by the defendant may require close attention. The identification of an issue will not necessarily involve a positive assertion of fact by the defendant, and fairness may require consideration of the extent to which the defendant relied on advice as to whether a particular legal issue should be identified. That, in turn, may raise difficult issues of legal professional privilege. Further, if application is made for a copy of the defence statement to go before the jury, it will be necessary to focus on precisely how the criteria in section 6E(5)(b) of the 1996 Act are said to be satisfied.