Inferences from a defendant's failure to give evidence at trial (CJPOA 1994 ss.35 and 38(3))
Daniel Okafor is tried in the Crown Court in England for unlawful wounding. At the close of the prosecution case, his counsel tells the judge that Daniel will not give evidence. There is no suggestion that his physical or mental condition makes it undesirable for him to give evidence, and his guilt is in issue.
Which of the following best describes the position?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: The judge must check, before the jury, that Daniel knows he may testify and that inferences may be drawn if he does not; the jury may then draw proper inferences but not convict on them alone.
THE RULE TO REMEMBER
If a defendant chooses not to testify, after the court checks he understands the consequences, the jury may draw proper inferences but cannot convict on that inference alone.
Inferences from a defendant's failure to give evidence at trial (CJPOA 1994 ss.35 and 38(3))
Section 35 of the Criminal Justice and Public Order Act 1994 applies at trial unless the accused's guilt is not in issue or his physical or mental condition makes it undesirable for him to give evidence; neither exception applies. Under s.35(2) the court must, at the end of the prosecution evidence and in the presence of the jury, satisfy itself that the accused knows he can give evidence and that, if he chooses not to, the jury may draw such inferences as appear proper. Section 35(3) then permits the jury to draw proper inferences from his failure to testify. Section 35(4) confirms the accused is not compellable, so he commits no contempt by staying silent. Finally, s.38(3) provides that a person shall not be convicted solely on an inference drawn under s.35(3), so other evidence must support a conviction.
Why A is wrong: Section 35(3) expressly permits proper inferences from a failure to testify, even though the defendant cannot be compelled.
Why B is wrong: Section 35(4) states the accused is not compellable and is not guilty of contempt by failing to give evidence.
Why C is wrong: A s.35 inference depends on silence at trial; failure to mention facts in interview is a separate matter under s.34.
Why D is wrong: Section 38(3) prohibits a conviction based solely on an inference drawn under s.35(3).
A little more practice done.
Related questions
Adverse inferences from silence and access to legal advice (CJPOA 1994 s.34(2A))
Which of the following best describes whether an adverse inference may be drawn under s.34 of the Criminal Justice and Public Order Act 1994?
Inferences from failure to account for a substance: the special warning (CJPOA 1994 s.36)
Which of the following best describes whether an inference may be drawn under s.36 of the Criminal Justice and Public Order Act 1994?
Submission of no case to answer where the issue is a witness's reliability (R v Galbraith)
How should the judge approach the submission?
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