The defendant’s failure to give or offer evidence

Question 1

Commenting on defendant’s right of silence

Answer 1

As we have already noted, the defendant does not need to give evidence and is not obliged to call any other evidence on his or her behalf. In the event that he or she does not do so, the extent to which comment may be made on that fact is governed by s33 of the Evidence Act 2006 in the following terms:

Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

While the section prohibits the prosecution from making any comment, whether adverse or not, it allows the judge the discretion to do so. In practice, judges rarely comment on the defendant’s failure to give evidence. However, where a judge wishes to do so he or she must emphasise that the burden of proof still remains upon the Crown and must not leave the jury with the impression that if the defendant were innocent he or she would have given evidence. Beyond that, however, there is no precise rule determining what the
judge is or is not entitled to say.

The Evidence Act 2006 also preserves an important aspect of the right of silence. Section 32 provides that no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure to answer questions, respond to statements or disclose a defence before trial. In addition, the judge must direct the jury that it may not draw an inference of guilt from the failure.