The defendant’s evidence decision, good character and the defence case

The defendant may give evidence but is not compellable to testify. The court must address the choice, and the lawyer should give understandable, case-specific advice. Assess the prosecution evidence, the defendant’s actual account, previous statements, likely cross-examination, communication or health needs and any potential inference from silence. The decision is not “prove innocence or lose”. The statutory choice and its safeguards remain even after a failed no-case submission. See CJPOA 1994, s 35; CrimPR 24.3(3)(e) and 25.9(2)(f).

Give the required warning at the proper stage. At the conclusion of the prosecution evidence, the court must ensure that the defendant understands the right to give evidence and, where s 35 applies, the possibility of a proper adverse inference from not giving evidence or refusing without good cause to answer a question. In a jury trial the statutory explanation is addressed in the jury’s presence. A represented defendant should have an opportunity to receive final advice. The court must not treat a formal question answered without comprehension as meaningful understanding.

The physical or mental condition exception is substantive. Section 35 does not apply where it appears to the court that the defendant’s physical or mental condition makes it undesirable for the defendant to give evidence. CrimPR 25.9(4) correspondingly disapplies the questioning step. This requires an assessment of the actual condition; a tactical preference not to face cross-examination is not the same exception. Declining to give evidence does not itself make the defendant punishable for contempt. Refusing an individual question has its own statutory good-cause protections, including a recognised privilege or the court’s permission: do not equate all refusals with evasiveness.

An adverse inference is a permissible conclusion from the silence in its evidential setting, not an automatic penalty. Under s 35, the prosecution evidence must independently call for an answer. The fact-finder must consider the reason for not testifying and any explanation properly before it. An inference may be appropriate if the only sensible explanation is that the defendant has no answer, or none that could withstand cross-examination. Even then it is a matter of whether an inference is proper, not an obligation to draw one. The lawyer’s assertion of an explanation is not itself evidence of that explanation.

Keep the safeguards together. The legal burden and criminal standard remain with the prosecution. Under CJPOA 1994, s 38(3), an inference cannot alone establish a case to answer or a conviction. The jury must itself assess whether the prosecution evidence calls for an answer; the judge’s earlier rejection of no case does not settle what evidence the jury believes. R v Becouarn [2005] UKHL 55, [11]–[15], [25]–[26], explaining the Cowan safeguards, supports this distinction. Police-interview silence under ss 34, 36 and 37 involves different triggers and protections and must not be substituted for the trial-stage rule.

If the defendant testifies, the ordinary questioning sequence applies. They normally give their evidence before other defence witnesses unless the court directs otherwise: PACE 1984, s 79; CrimPR 25.9(2)(h). The defence examines in chief, other defendants may cross-examine where applicable, the prosecution cross-examines and the calling party re-examines. Being the accused does not remove relevant cross-examination; it also does not remove the court’s duty to enforce proper questioning and applicable protections.

A Crown Court defence opening has a condition. It is available where the defence intends to call at least one other witness in person about the facts of the case, in addition to the defendant. Calling only the defendant is not enough; a witness called only to give character evidence does not satisfy the factual-witness condition. Nor is merely reading a statement the same as calling another live fact witness. Distinguish that opening from the earlier identification of issues at the court’s invitation. See CrimPR 25.9(2)(g) and its statutory note. Other defence evidence then follows in the permitted order. Additional or rebuttal evidence is possible if admissible and procedurally permitted; it is not an automatic second chance for a party to repair its omissions.

Good character has two possible evidential functions. It is not a defence and does not require acquittal. The credibility limb concerns whether the defendant’s evidence or relevant account should be believed. The propensity limb concerns whether the defendant is less likely to have committed the offence. A defendant’s relevant pre-trial account may be in evidence even where they do not testify; lack of testimony does not mechanically remove every character issue.

The availability and wording of a good-character directionGlossary termGood-character direction depend on the actual record, other misconduct, the issues and the account before the tribunal. No previous convictions does not invariably mean absolute good character; “effective good character” involves a judicial assessment, not automatic disregard of an old conviction. R v Hunter [2015] EWCA Crim 631, [72]–[80] supplies the controlling framework. Deep Dive 8 owns those detailed conditions. Here the practical step is to establish the factual basis, identify which function matters and request an appropriate direction before the jury is addressed on it.