JSB Direction Where Accused Does Not Testify

The Judicial Studies Board issued this specimen jury direction to be used in cases where the accused declines to testify. It was approved by the Divisional Court in R v Cowan etc (1996).

“The defendant has not given evidence. That is his right. But, as he has been told, the law is that you may draw such inferences as appear proper from his failure to do so. Failure to give evidence on its own cannot prove guilt but depending on the circumstances, you may hold his failure against him when deciding whether he is guilty. [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence before you namely … If you think that because of this evidence you should not hold it against the defendant that he has not given evidence, do not do so.] But if the evidence he relies on presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him. You do not have to do so. What proper inferences can you draw from the defendant’s decision not to give evidence before you? If you conclude that there is a case for him to answer, you may think that the defendant would have gone into the witness box to give you an explanation for or an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to do so.”

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