Advice on challenging an allegation of assault
When someone denies a criminal allegation and a trial is listed, the prosecuting authority has to consider all of the material relating to the case and all of the enquiries they should make, before the trial begins.
The prosecution then divide the material up into two types – evidence in the case (information they will rely on to try and prove the allegation) and unused material (everything else).
It is usual practice for the prosecution to make a list of unused material and send a copy of the list to your son.
The prosecution is legally obliged to consider whether any unused material should be disclosed, using a specific test. Any material held which meets the test must be disclosed to your son.
The problem begins when material is missing from the schedule, or enquiries and investigations just haven’t been carried out by the police.
Sometimes, the prosecution won’t know that material exists which they should make an enquiry about.
If material suggesting that your son’s partner has a history of making false allegations is in the unused, your son should ask for a copy of that document.
If it meets the disclosure test, it must be disclosed to him.
If the prosecution refuse to disclose this, or if they don’t have any material, your son should inform the prosecution in writing and ask them to confirm whether any documents of this nature exist.
The usual way to do this is in a ‘defence case statement’ – your son should seek legal advice before making such a statement to confirm the format and content, and the consequences in criminal proceedings of giving this statement.
Once your son has the material he needs, he will need to make an application to the court to rely on any relevant evidence of his partners “bad character”.
There is specific legislation on this topic and your son should seek legal advice as to whether the material he has qualifies for an application to be made, and how to prepare one.
Here at Ben Hoare Bell we have a team of specialist criminal defence solicitors who would be happy to give your son some advice on these issues. We can also advise your son about the various funding options available to him if he wishes to have assistance in preparing his case or representation at his trial.