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LAW REPORT v 25 October 1995: Directions on defendant's silence at trial

Regina v Cowan; R v Gayle; R v Ricciardi; Court of Appeal (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Turner and Mr Justice Latham); 12 October 1995

Section 35 of the Criminal Justice and Public Order Act 1994, which altered the law in relation to a defendant in a criminal trial who did not give evidence, did not abolish the right to silence but permitted a jury, in a case where the prosecution had established a case to answer, to draw an adverse inference from the defendant's silence.

The Court of Appeal (Criminal Division) allowed the appeals of Donald Cowan and Ricky Gale against conviction and dismissed Carmine Ricciardi's appeal against conviction.

In the first two appeals the appellants were tried shortly after section 35 of the Criminal Justice and Public Order Act 1994 came into force. Section 35 altered the law and permitted the jury to draw inferences from a defendant's failure to give evidence at his trial. The trial judge directed the jury about each appellant's silence. In the third appellant's trial the judge followed the judicial studies board's specimen direction in summing up to the jury about the defendant's silence. The appellants appealed on the ground that the trial judge in each case failed to give a proper direction to the jury about when and what inferences could be drawn.

Michael Mansfield QC and Michael Magarian; Michael Mansfield QC and Christopher Baur (Registrar of Criminal Appeals) for Cowan and Gayle; Brian Hurst (Roe & Co, Abergavenny) for Ricciardi; David Jeffreys QC and Garrett Byrne; David Jeffreys QC and Andrew Radcliffe; David Jeffreys QC and Susannah Farr (CPS) for the Crown.

Lord Taylor CJ, giving the court's judgment, said that it should be made clear that the right of silence remained. It was not abolished by the section. As to inhibitions affecting a defendant's decision to testify or not, some existed before the 1994 Act.

The argument that section 35 altered the burden of proof was misconceived. The prosecution had to establish a prima facie case before any question of the defendant testifying was raised. The court or jury was prohibited by section 38(3) from convicting solely because of an inference drawn from the defendant's silence. The effect of section 35 was that the court or jury might regard the inference from failure to testify as a further evidential factor in support of the prosecution case. It could not be the only factor to justify a conviction and the totality of the evidence must prove guilt beyond reasonable doubt.

The plain words of section 35 did not justify confining its operation to exceptional cases. It would be open to a court to decline to drawn an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference. But there would need either to be some evidential basis for doing so or some exceptional factors making that a fair course to take.

The specimen direction suggested by the judicial studies board was a sound guide. The court highlighted certain essentials. The judge would have told the jury that the burden of proof remained on the prosecution throughout and what the required standard was. It was necessary for the judge to make clear that the defendant was entitled to remain silent. An inference from failure to give evidence could not on its own prove guilt. Therefore the jury must be satisfied that the prosecution had established a case to answer before drawing any inferences from silence.

If, despite any evidence relied on to explain his silence or in the absence of such evidence, the jury concluded the silence could only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they might draw an adverse inference.

It was not possible to anticipate all the circumstances in which a judge might think it right to direct or advise a jury against drawing an adverse inference. The rule against advocates' giving evidence dressed up as a submission applied. It could not be proper for a defence advocate to give to the jury reasons for his client's silence at trial in the absence of evidence to support such reasons.

In the first two appeals the judges had to cope with the new provisions without guidance. Their summing-ups were defective and the appeals must be allowed. In the third appeal the judge's direction could not be criticised and the appeal was dismissed.

Ying Hui Tan, Barrister