You’ve all seen the films. One of the more dramatic parts will be the defendant ‘taking the stand’ (this is an Americanism – in England and Wales you’d just say ‘give evidence’) and batting off the prosecution lawyers questions with ease. Or get caught out lying as the case may be. You’ve probably also heard of people ‘taking the fifth‘ (again an Americanism).
The basic rule in a criminal trial is that a defendant has an absolute right to give evidence in his own defence. He also has a complete right not to. This idea that he does not have to give evidence was historically unfettered, and was considered to be a fundamental human right. Until 1994. Now, although no-one can force a defendant to give evidence, there are consequences if he doesn’t.
This is governed by s35 Criminal Justice and Public Order 1994 (part of Michael Howard’s ‘tough on crime’ policy). This states that, provided there is no physical or mental reason why a defendant shouldn’t give evidence, then if they don’t “the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question“.
This has given rise to a huge amount of case law looking at when this applies, and what the Judge should tell the jury when a defendant doesn’t give evidence. The Crown Court Bench Book has the following guidance which judges should make sure the jury are aware of:
- The judge will have told the jury that the burden of proof remains up on the prosecution throughout and what the required standard is.
- It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains.
- An inference from failure to give evidence cannot on its own prove guilt.That is expressly stated in section 38(3) of the Act.
- Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
- If, despite any evidence relied upon to explain his silence or in the absence of any such evidence,the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.
Further guidance to Judges is also given :
- The question whether a section 35 direction should be given and in what terms should be discussed with the advocates before speeches. The defence might well be reminded of the rule that no reason may be advanced to the jury for the defendant’s decision not to give evidence without evidence to support it.Equally, if the judge concludes that no adverse inference is fairly and properly available, the jury should be explicitly directed.
- In the majority of cases there will be specific issues raised by the evidence for the prosecution,either the truth of the facts asserted or the conclusion to be reached from circumstantial evidence. The immediate inference available for the jury from the defendant’s choice not to give evidence is that the defendant has no answer to give and, accordingly, that the fact or the conclusion, as the case may be, is true. However, it may not follow that a legitimate adverse inference must imply guilt and, where it does not, the jury will be assisted by an explanation to that effect.
- It maybe, for example,that the defendant’s silences will support the prosecution’s case that he participated in relevant acts. It may or may not, depending on the jury’s view, support the prosecution case as to his specific intent.
- Where the defendant has given an explanation in a written statement or during interview under caution the jury should consider it as evidence of the truth of its contents. Where the defendant relies upon an interview which consists partly of admission and partly of denial or explanation, discussion with the advocates may be required to identify which parts of the interview are self serving. The judge may make legitimate comment to the effect that a self serving statement was not made under oath and has not been tested by cross-examination.In the rare case when the statement is wholly exculpatory it is admissible as evidence of the defendant’s reaction when first challenged but not in proof of the matters stated.Whether the statement is wholly exculpatory should be judged against the real issues as they appear at trial.
Haven’t you got a right to silence though?
Yes, sort of. That’s why this was so controversial. Nowadays you can’t be forced into giving evidence or speaking in a police interview, but if you don’t then this can be held against you. The legislation is a large inroad into this historic right.
But why wouldn’t you give evidence if you weren’t guilty?
Plenty of reasons. Giving evidence can be very stressful and it is very easy for someone to be made to look guilty. Sometimes there may be valid tactical reasons for someone not to give evidence, even though they are vehemently denying it.