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

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: HR Manager - West London - £50,000

£40000 - £50000 per annum + bonus: Ashdown Group: HR Manager - West London - £...

Recruitment Genius: Recruitment & HR Administrator

£17000 - £18000 per annum: Recruitment Genius: This is an exciting opportunity...

Guru Careers: HR Manager / HR Business Partner

£55 - 65k (DOE) + Benefits: Guru Careers: A HR Manager / HR Business Partner i...

Recruitment Genius: Senior HR Assistant

£23000 - £25000 per annum: Recruitment Genius: The Company's vision is to be t...

Day In a Page

Greece debt crisis: What happened to democracy when it’s a case of 'Vote Yes or else'?

'The economic collapse has happened. What is at risk now is democracy...'

If it doesn’t work in Europe, how is it supposed to work in India or the Middle East, asks Robert Fisk
The science of swearing: What lies behind the use of four-letter words?

The science of swearing

What lies behind the use of four-letter words?
The Real Stories of Migrant Britain: Clive fled from Zimbabwe - now it won't have him back

The Real Stories of Migrant Britain

Clive fled from Zimbabwe - now it won’t have him back
Africa on the menu: Three foodie friends want to popularise dishes from the continent

Africa on the menu

Three foodie friends want to popularise dishes from the hot new continent
Donna Karan is stepping down after 30 years - so who will fill the DKNY creator's boots?

Who will fill Donna Karan's boots?

The designer is stepping down as Chief Designer of DKNY after 30 years. Alexander Fury looks back at the career of 'America's Chanel'
10 best statement lightbulbs

10 best statement lightbulbs

Dare to bare with some out-of-the-ordinary illumination
Wimbledon 2015: Heather Watson - 'I had Serena's poster on my wall – now I'm playing her'

Heather Watson: 'I had Serena's poster on my wall – now I'm playing her'

Briton pumped up for dream meeting with world No 1
Wimbledon 2015: Nick Bollettieri - It's time for big John Isner to produce the goods to go with his thumping serve

Nick Bollettieri's Wimbledon Files

It's time for big John Isner to produce the goods to go with his thumping serve
Dustin Brown: Who is the tennis player who knocked Rafael Nadal out of Wimbeldon 2015?

Dustin Brown

Who is the German player that knocked Nadal out of Wimbeldon 2015?
Ashes 2015: Damien Martyn - 'England are fired up again, just like in 2005...'

Damien Martyn: 'England are fired up again, just like in 2005...'

Australian veteran of that Ashes series, believes the hosts' may become unstoppable if they win the first Test
Tour de France 2015: Twins Simon and Adam Yates have a mountain to climb during Tour of duty

Twins have a mountain to climb during Tour of duty

Yates brothers will target the steepest sections in bid to win a stage in France
John Palmer: 'Goldfinger' of British crime was murdered, say police

Murder of the Brink’s-MAT mastermind

'Goldfinger' of British crime's life ended in a blaze of bullets, say police
Forget little green men - aliens will look like humans, says Cambridge University evolution expert

Forget little green men

Leading evolutionary biologist says aliens will look like humans
The Real Stories of Migrant Britain: An Algerian scientist adjusts to life working in a kebab shop

The Real Stories of Migrant Britain

An Algerian scientist struggles to adjust to her new life working in a Scottish kebab shop
Bodyworlds museum: Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy

Dying dream of Doctor Death

Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy