Evidence of Bad Character in Criminal ... - Law Commission

(b) testify but not contest the confession, and accept that a verdict of guilty
will most probably follow; or
(c) get his or her counsel to deny the confession, refrain from testifying and
thus rob the denial of any force. 73
4.40 Section 35(3) of the Criminal Justice and Public Order Act 1994 now creates a
pressure to give evidence by permitting the fact-finders to draw adverse
inferences from a failure to do so. 74 It is expected that fact-finders will be able to
draw adverse inferences in almost every case where the accused fails to testify. 75
4.41 In Taylor 76 it was held that the defendant could not avoid the possibility of
inferences being drawn under the section by arguing that the failure to testify
was based on the fear that his previous convictions might be disclosed. It was
observed that the defendant would already have been given the mandatory
warning under section 35(2), in the presence of the jury, of the risk that he would
be running by not testifying. If he then chose not to testify on the basis that
evidence of past discreditable conduct would prejudice the jury, it would be
difficult for the judge, when directing the jury that they should not draw
inferences, to give reasons. He could not give reasons, lest he create the prejudice
which the defendant set out to escape. 77
4.42 The case of Taylor and Goodman serves as an example. A prosecution witness, M,
had originally been a co-accused with the appellants to charges of conspiracy to
rob and of having a firearm with intent to commit an indictable offence
(robbery). He changed his plea to guilty and became a witness for the Crown. M
had convictions including one offence of assault occasioning actual bodily harm,
and, more significantly, two of conspiracy to rob. When M was called as a
witness, the prosecution did not tell the jury of his record. Defence counsel did
73 This quandary is set out by A Zuckerman in The Principles of Criminal Evidence (1989) at
p 265. In a recent case, counsel described the defendant as being “between a rock and a
hard place” in deciding whether to give evidence himself in support of his defence, as his
criminal record was highly prejudicial: Dempster [2001] EWCA Crim 571, para [40].
74 Four respondents thought more defendants were testifying. In the Home Office Study on
the right of silence, the researchers note that “Virtually all respondents … agreed that
fewer defendants are declining to testify since the introduction of the provisions” but
“There are no centrally collected statistics on the numbers and proportions of defendants
testifying to support or refute these perceptions.” T Bucke, R Street, and D Brown, The
Right of Silence: the Impact of the Criminal Justice and Public Order Act 1994 (2000) Home
Office Research Study 199, pp 52–53.
75
In Cowan [1996] 1 Cr App R 1, the Court of Appeal held that there would need to be
some evidential basis or some exceptional factors in a case to justify not drawing an
adverse inference. The court did not accept that the fact that the accused had attacked
prosecution witnesses and had a criminal record could constitute such a factor; otherwise a
defendant with a criminal record would be in a better position than one without, which
would be “a bizarre result” (at p 6B, per Lord Taylor CJ).
76 Taylor [1999] Crim LR 77.
77 T Bucke, R Street, and D Brown, The Right of Silence: the Impact of the Criminal Justice
and Public Order Act 1994 (2000) Home Office Research Study 199, p 15.
64