What is the Defence case?
You will be represented either by a barrister or a crown court advocate. For the purpose of this factsheet, we will refer only to a barrister to avoid repetition.
This is your case and your opportunity to present your case to the jury. Remember, you do not have to prove you are innocent – the prosecution must prove that you are guilty.
Do I have to give evidence at my trial?
No. It is your right and your choice to remain silent.
If I don’t give evidence will this go against me?
In some cases, yes. The Judge can give the jury a direction that they can draw an inference from your failure to give evidence. An inference means a common sense conclusion. An inference that is often drawn is that you did not want your account to be subjected to cross examination or in simple terms tested.
Whilst you can’t be convicted on an inference alone it is something that the jury can take into consideration in their deliberations once they have decided that there is a case for you to answer. This means that on the face of it the prosecution have raised a case against you. The stronger the case against you, the more likely it is that the jury will draw an inference from your failure to answer it.
Generally speaking, if you have a positive defence to put forward you should give evidence. However in some cases there are tactical reasons as to why you should not give evidence. This is something that you should always take advice on from your barrister.
What happens when I give evidence?
The procedure for you is much the same as for the prosecution witnesses. You will be asked to leave the dock and to go into the witness box to give your evidence. You should remain standing while you give your evidence unless you have been given permission to sit down.
You will be asked to swear or affirm at the beginning of your evidence, whichever you choose you are promising to tell the truth.
You will then be asked non-leading questions by your barrister. He/she will start off by asking you to give the court your name and address. Your barrister is not allowed to lead you when you give your evidence i.e. say ‘its right isn’t it, you were afraid that the alleged victim was going to assault you?’ The evidence must come from you. If you don’t say it the jury won’t hear it.
You are not allowed to refer to your statement when giving your evidence and it is therefore essential that you know your case inside out, it’s what your barrister will be expecting you to say.
How should I give my evidence?
Giving evidence is a very stressful experience and you will understandably be nervous however it is often a far easier experience than people expect – do not believe everything you see on the television!
Here are some tips for you –
- Stay calm. Easier said than done but it is important as it will help you focus.
- Direct your answer to the jury, not to your barrister. Remember it is the jury with whom you are trying to engage. Try not to stare though as though as this can look menacing.
- Speak slowly and clearly. The Judge, jury and other advocates in the case will be trying to take a note of what you say. A good tip to check whether you need to pause to allow them to keep up is to keep an eye on their pens or their hands if they are typing every now and then. If they have finished writing/typing then they have caught up with you.
- Listen to the question. This sounds obvious but often people are so worried about their next answer that they don’t actually listen to the question being asked of them. This does no justice to your answer.
- Take time to consider your answer, once you have said something it is very difficult to unsay it. It is much better to pause and think and only then, to answer.
- Be careful if you have previous convictions and the jury doesn’t already know about them as you could end up introducing them anyway. For example if you have a previous conviction for a dishonesty offence and you say, I wouldn’t lie I’m an honest person; your previous conviction for dishonesty could go before the jury to correct the false impression you have given.
- Say if you don’t understand a question.
- Say if you can’t remember something. It is much better than making something up for the sake of answering the question.
- Be firm in your denial but not rude. Remember the prosecutor is just doing their job. It is not personal and you should not make it so.
- Keep your demeanour the same whoever is asking you the question. So often defendants will be polite and respectful when answering their barristers questions and then become immediately hostile as soon as asked questions by the prosecutor. This looks terrible.
- Answer a question with a question. It is the advocate/Judge’s job to ask you questions and yours to answer them. Answering a question with a question makes you look cocky and the jury won’t like it.
- Make jokes whilst giving evidence. Many people do this out of nerves but whatever the reason, it looks disrespectful. Don’t do it.
- Be tempted to fill the silence. A common tactic when cross examining a defendant is to ask the question, wait for the answer and after the defendant has given the answer; say nothing. Many defendants including those who have given the best possible answer feel that they have to say more to fill the silence. Don’t be tempted to do so as your additional answer may harm your case.
- Be rude or sarcastic. The jury won’t like it.
Will I be cross examined?
Almost certainly yes. You will be cross examined by the prosecutor and the barrister for any co-defendants. The Judge may also wish to ask you questions. Bear in mind the above tips when you’re giving your evidence.
What happens after I have been cross examined?
Your barrister can re-examine you, that means ask you more questions but only on matters arising out of cross examination, for example if something needs clarifying.
You will then be asked to go back to the dock where you will remain for the rest of your trial.
Will the jury know about my previous convictions?
In certain cases, yes. This is called bad character evidence. Your previous convictions can be introduced:
- By your own admission, or
- If you create false impression, or
- If you make imputations (an attack) on the character of another witness in the case, or
- If it is relevant to an important matter in issue and the prosecution or any co-defendant has made a successful application to adduce it at your trial.
The law relating to bad character is complex and outside of the focus of this factsheet. If you have previous convictions and are worried about how they will be dealt with in your trial you should always seek legal advice on this.
You can’t be convicted on the basis of your previous convictions alone.
I have no previous convictions; can I tell the jury this?
Yes. If you have no previous convictions or cautions, this is called good character.
Your good character is a very important part of your case. At the end of the case when the Judge is giving the jury directions about the law, he/she should give the jury a direction about how to treat your good character.
The direction is twofold.
- Firstly it goes towards your credibility as a witness, i.e. assuming that you have given evidence or an account in interview, it may make it more likely that you are telling the truth.
- Secondly, it goes towards your propensity to act as alleged, i.e. the fact that you have never been in trouble before may make it less likely that you have done what it is the crown say you have done.
It is a matter for the jury how much weight they attach to this.
Please note however that good character alone cannot amount to a defence.
I answered no comment in police interview – is this a problem?
The short answer is yes it can be and the court can draw an inference from your silence.
What is an inference?
At your police interview you would have received the following caution:
‘You do not have to say anything .But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence’.
It is at your trial that the impact of the caution comes into play. An inference can only be drawn if you didn’t say something in interview that you later rely on in trial. If you are not giving evidence an inference cannot be drawn from your silence at the police station although it can be drawn from your silence at trial.
If you do give evidence in your defence about something that you didn’t say in your police interview the jury can ask themselves ‘why didn’t you say that at the first opportunity?’ The jury can then draw their own conclusions about why you didn’t. The most obvious conclusion is that you have subsequently made up your defence having had some time to think about it and consider the evidence.
This in essence is an inference. Again, you can’t be convicted on an inference alone but a no comment interview followed by a lengthy explanation in court can be very powerful evidence against you in the absence of a good explanation for not giving that explanation at the police station.
Will an inference be drawn in my case from my silence at the police station?
It very much depends on the reason why you answered no comment and your personal circumstances including your mental and physical health at the time of your interview.
But my solicitor told me to go no comment.
Relying on the advice of your solicitor to answer no comment will not necessarily stop an inference being drawn. It depends on whether you genuinely believed that you were entitled to rely on that advice and whether it was reasonable for you to rely on that advice.
If you told your solicitor the account that you are now intending to give at your trial, a possible way to overcome the inference and the suggestion that you have subsequently made up your defence is to call the solicitor or legal representative who represented you for your interview to give evidence on your behalf at trial. You can do this even if that solicitor is no longer representing you. However this is not a straightforward process and may result in the prosecution being entitled to examine the contents of the solicitors file in detail.
If you answered no comment in interview and want advice about the implications on this for your trial you should speak to a solicitor.
Can I call witnesses in my defence?
Yes. In terms of procedure, any defence witness details must be notified to the prosecution and the court in advance within the statutory timeframe. In the defence witness notification you must provide the witness’s: name; date of birth; address; or provide any information that you can to help identify and locate that witness.
If you haven’t served your notification of defence witnesses within the time limit or at all, the court may decide that you are not allowed to call that witness at trial.
It is therefore very important that you comply with this and if you are represented, you should give all of your proposed witness details to your solicitor as soon as possible.
Always remember that if you have a nervous, timid or vulnerable witness whose evidence would be improved by special measures, for example, they could give their evidence via a video link up or from behind a screen.
How will my witness give their evidence?
In exactly the same way as when you give your evidence as described above.
Can I call character witnesses?
Yes. If you have no previous convictions or cautions it is generally a good idea to call character witness’s to give evidence on your behalf at your trial. Do be aware however that if you are intending to call character witnesses they must know what it is you have been charged with.
I have previous convictions, can I call character witnesses?
Yes. Any defendant can call a character witness but there may be implications for you in doing so. If you assert good character evidence then in many cases your previous convictions will go before the jury in order to correct the false impression that you have given.
If you have previous convictions the decision about whether to call character evidence is a tactical one and one which should be discussed with your barrister.
If for example you are a man with eight previous convictions for violence it may be considered unwise to call your mother to give evidence to say that you are not a violent person. The reason for this is twofold; firstly because your mother’s evidence would be worthless in those circumstances and secondly and more importantly, your eight previous convictions for violence, upon application, will then go before the jury in order to correct the false impression that you have just given through your mother’s evidence.
Conversely, if for example you have been charged with assault occasioning actual bodily harm and you have one previous conviction for failing to provide a specimen of breath dating back ten years, then to call, for example, your mother to say you are not a violent person would have much more credibility.
In some cases it can be in your best interests to admit into evidence your previous conviction/s by agreement; lessening the impact of any bad character application that the prosecution may make against you in these circumstances.
Essentially the decision is whether the good character evidence is of sufficient value to your defence to offset any prejudice that may be caused by the introduction of your previous convictions. This is something that you should always seek legal advice on.
Can the evidence of my witnesses be agreed or do they all have to attend court to give evidence?
In some cases, yes. Largely it depends on what your witness says. If there is nothing controversial about their evidence the prosecution may agree it. If there is anything in dispute, then the prosecution are unlikely to agree it and you will have to call that witness to attend court to give live evidence on your behalf.
Character evidence is far more likely to be agreed than evidence of fact.
Can my witnesses sit in court and listen to my trial?
No, not until they have given their evidence. Once your trial has started you should not speak to them about your case until they have given their evidence. Tactically it is better not to speak to them at all whilst in the court building as you don’t want any suggestion that you have been updating them about your trial or tipping them off as to what to say.
If your witness is an expert then in some cases they are able to sit in court to listen to the evidence as it unfolds at your trial so that they can then give their expert evidence/opinion on it.
What happens at the end of my case?
If you have been charged with another person and your case has been dealt with first, their case will then proceed in exactly the same way as described for yours. You or your barrister if you are represented will be able to cross examine them if they choose to give evidence and also their witnesses.
At the end of the Defence case the Judge will then sum up the evidence to the jury and direct them on the law.