In criminal proceedings,a fundamental principle is that an individual is innocent until proven guilty. Therefore, it is for the prosecution to prove that the defendant has committed a crime by establishing, beyond reasonable doubt, every element of the offence in question.
The accused does not have to prove he or she did not commit the crime (unless he raises an appropriate defence). This means, in theory, that the defendant does not need to say anything. This is the fundamental human right to remain silent.
However, Parliament has created a number of rules which allow an accused’s failure to answer questions to be used as evidence of showing his guilt, effectively diminishing this right to remain silent. These circumstances include remaining silent on being questioned by the police; not accounting for a certain object in his possession; or not accounting for his presence at a particular place.
Choosing not to testify at trial can also be used, in some cases, as evidence of the defendant’s guilt.
The traditional right of an accused not to testify has been modified by section 35 of the Criminal Justice and Public Order Act 1994. The provision allows the court and the jury to draw such inferences as appear proper from the failure of the accused to give evidence or from his refusal, without good cause, to answer any question.
Under the 1994 Act, adverse inferences can only be drawn if the accused has either been warned by the court of the effect of the failure to give evidence, or where he has stated that he will give evidence and fails to do so.
This applies generally to all defendants who fail to answer questions in their defence, unless their refusal is justified. Such justification could be established only if it falls under one of three cases:
Inference can be drawn from a person’s silence in court only in respect of his guilt. It cannot be used to effectively boost the prosecution’s case. Nor can it be used in the prosecution’s application for ‘no case to answer’, because applications for no case to answer are normally made at the conclusion of the prosecution evidence (before the accused has had any opportunity to present his case and give live evidence in court).
In addition, section 35 of the 1994 Act requires the magistrates in a summary trial to take into account the failure of the accused to testify. If the case is before a jury, the provision allows the judge to direct the jury to consider the failure of the accused to testify in cases when he has not given evidence and has been warned of the consequences.
The prosecution is also entitled to comment upon the failure of the accused to testify.
The elements of an appropriate direction to thein cases where a defendant has failed to testify have been established by case law (and formally embodied in required procedure). The direction given should contain guidance on the following elements:
It is therefore clear that a jury cannot lawfully convict solely on the basis of the accused’s silence at trial. Nevertheless, such a refusal to testify could be used to support the evidence of the prosecution against him and lead to.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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