Regina v Cowan and Another: CACD 12 Oct 1995

Detailed directions were provided for the judge to give to a jury where a defendant chooses not to give evidence in his defence in the Crown Court.
Lord Taylor of Gosforth said: ‘1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.’
The existence of previous convictions on which the defendant might be cross-examined was insufficient to claim that the jury should not be told that it might draw an adverse inference from the defendant’s failure to give evidence: ‘In particular, we should deal specifically with two of the suggested ‘good reasons.’ First, the general proposition that a previous criminal record upon which a defendant could be cross-examined(if he has attacked prosecution witnesses) is a good reason for directing a jury that they should not hold his silence against him, would lead to a bizarre result. A defendant with convictions would be in a more privileged position than one with a clean record. The former could avoid submitting himself to cross-examination with impunity; the latter could not. We reject that proposition.’ The court approved the JSB specimen direction: ‘We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt or add to it in the particular circumstances of an individual case. But there are certain essentials which we would highlight. (1) The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is. (2) It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains. (3) An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. (4) Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. (5) If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.’ and ‘Finally, we wish to make it clear that the rule against advocates giving evidence dressed up as a submission applies in this context. It cannot 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.’
Lord Taylor of Gosforth LCJ
Independent 25-Oct-1995, Gazette 25-Oct-1995, Times 13-Oct-1995, [1996] 1 Cr App R 1, [1996] QB 373, [1995] EWCA Crim 8, (1996) Crim LR 409, [1995] 4 All ER 939, [1995] 3 WLR 818
Bailii
Criminal Justice and Public Order Act 1994
England and Wales
Cited by:
CitedRaymond Christopher Betts, John Anthony Hall v Regina CACD 9-Feb-2001
The defendants appealed convictions for causing grievous bodily harm. During interviw, the solicitor had advised that since the police had failed to make proper disclosure of the evidence, his client should not answer. He now appealed complaining of . .
CitedRegina v Condron, Condron CACD 17-Oct-1996
The defendants were charged with the supply of heroin. They had declined to answer police questions and it was on the record that their solicitor had advised them not to do so, on the grounds that he considered them unfit because they were . .
ApprovedRegina v Taylor CACD 1999
The appellant, who had previous convictions, did not give evidence, and the trial judge gave a direction in accordance with section 35.
Held: The Court rejected a submission by the appellant’s counsel that the judge should have not have told . .
CitedRegina v Becouarn HL 28-Jul-2005
At his trial for murder, the defendant had not given evidence, and the court had allowed the jury to draw proper inferences under s35.
Held: The JSB direction ‘on drawing inferences [i]s sufficiently fair to defendants, emphasising as it does . .
CitedPetkar and Farquar, Regina v CACD 16-Oct-2003
The defendants appealed their convictions and sentence for theft. Whilst employed by a bank thay had arranged for transfers to their own account. Each blamed the other. They appealed on the basis that the direction on their silence at interview was . .
CitedRegina v Roble CACD 21-Jan-1997
The defendant appealed against his conviction for wounding with intent. He had answered ‘no comment’ in the police interview, but claimed self defence at trial. The court considered what note should be taken of the solicitor’s evidence of his advice . .
CitedGough, Regina v CACD 8-Nov-2001
Appeal against conviction for burglary: ‘The appeal is concerned only with the directions given to the jury as to the inferences which they might draw after the appellant absconded during the course of his trial.’
Held: The direction was . .
CitedHobson v Regina CACD 23-May-2013
Appeal against conviction and sentence in respect of two counts of indecent assault. Hecomplained that the judge’s treatment of his failure to give evidence had been unclear.
Held: Whilst the judge’s remark may have been unfortunate, in its . .
CitedBlack v Regina CACD 17-Jul-2020
Disclosure Sufficient to Support Inference
The court was asked whether sufficient evidence had been adduced about the strength of the prosecution case at the time of interview, to permit an adverse inference to be drawn from the failure to mention specific facts pursuant to section 34 of the . .

These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.86455