R v Cowan

Guidance on when a jury may draw adverse inferences from a defendant's failure to give evidence at trial.

Citation
[1996] QB 373
Court
Court of Appeal (Criminal Division)
Year
1996
Subject
English Legal System
Topic
Criminal justice, evidence and appeals

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.

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