R v Cowan
Guidance on when a jury may draw adverse inferences from a defendant's failure to give evidence at trial.
Facts
In three appeals heard together, defendants had chosen not to give evidence at their trials, and the judges had directed the juries that they could draw adverse inferences from their silence under section 35 of the Criminal Justice and Public Order Act 1994. The defendants argued that inferences should only be drawn in exceptional cases.
Legal principle
The Court of Appeal dismissed the appeals and gave guidance on directions under section 35. Lord Taylor CJ said that the judge must tell the jury that the burden of proof remains on the prosecution throughout, that the defendant is entitled to remain silent, that an inference from failure to give evidence cannot on its own prove guilt, that the jury must be satisfied that the prosecution has established a case to answer before drawing any inferences from silence, and that they may draw an adverse inference only if they conclude that the silence can only sensibly be attributed to the defendant having no answer, or none that would stand up to cross examination. The section is not confined to exceptional cases.
Related cases on criminal justice, evidence and appeals
- Connelly v Director of Public Prosecutions [1964] AC 1254
- Murray v United Kingdom (1996) 22 EHRR 29
- R (Adams) v Secretary of State for Justice [2011] UKSC 18, [2012] 1 AC 48
- R (Hallam) v Secretary of State for Justice [2019] UKSC 2, [2020] AC 279
- R v Cooper [1969] 1 QB 267
- R v Davis [2008] UKHL 36, [2008] 1 AC 1128
- R v Dunlop [2006] EWCA Crim 1354, [2007] 1 WLR 1657
- R v Galbraith [1981] 1 WLR 1039
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
