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.
What is the right to remain silent?
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.
Failure to testify
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.
When can inferences be drawn?
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:
- On grounds of privilege
- Because another statute excludes the evidence that would be contained in the answer, or
- Because the court rules that the question need not be answered
What inferences can be drawn?
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.
How is a jury directed?
The elements of an appropriate direction to the jury in 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:
- That the accused has a right not to give evidence but he has been warned that a failure to do so may lead to the jury drawing inferences
- A failure to give evidence cannot on its own prove guilt but it can assist in deciding whether the accused is guilty
- If a reason for not testifying has been put forward by the accused, the jury should consider it and if accepted not draw any inferences. However, if rejected, they may draw an inference but are not obliged to do so
- If the jury concludes that the only sensible explanation for the decision not to testify is that he has no answer or no answer that would stand up to cross-examination, then it would be open to the jury to hold against him his failure to give evidence. It is for the jury to decide whether it is fair to do so
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 conviction.