Position of a Defendant Called by the Court to give Evidence
| DOI | http://doi.org/10.1177/002201839906300538 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | House of Lords |
House
of
Lords
Position
of
aDefendant Called by the Court to
give Evidence
Rv
Bingham
[1999] 1 WLR 598
The appeals of two defendants convicted (with others) of
murder
in
Northern Ireland were heard together in this case. The case of one,
Cooke, mirrored that of Bingham
and
they
had
the same result. In each
trial, before a judge sitting without a jury, counsel for the defence had
indicated that, at the close of the case for the prosecution, he did
not
propose to call the defendant as a witness. Under Article 4(2) of the
Criminal Evidence
(NI)
Order 1988, the judge called on the defendant to
give evidence and warned him that,
if
he failed to do so, or, having been
sworn, he refused to answer questions without good reason, adverse
inferences might be drawn, under Article
4(4).
The defendant was
sworn, but his counsel declined to ask him any questions. He did so, in
the belief that that would have the consequence that no one else would
be permitted to ask questions, so this was a tactical 'strategem' to defeat
the object of the Order. The judge agreed with him and rejected the.
prosecution's submission that it was entitled to cross-examine any wit-
ness who had been sworn.
In
the event, the judge found the defendant
guilty
on
the basis of the evidence adduced by the prosecution
and
expressly stated that there had been no need to rely on any adverse
inference that might have been drawn from his silence in
the
witness
box underArticle 4(4) of theOrder, (That Orderwas
the
precursor of the
present English rule and was amended to bring it into line with the
Criminal Justice and Public Order Act 1994; but the present trials were
before that amendment.) The judge had added that, had it been neces-
sary to draw an inference under the Order, he would have done so.
Article 4of the Criminal Evidence
(NI)
Order
1988
empowers a trial
judge to call upon adefendant to give evidence in his own defence.
If
he
refuses to be sworn or, being sworn, refuses to answer any questions
Without good reason, the court may draw such inference as it thinks
proper.
On appeal to the Court of Appeal, it was not suggested that the judge
had relied on any inference drawn under Article 4. The court dismissed
the appeal,
but
certified, as a point of law of general public importance,
the question whether a judge is entitled to refuse leave to the prosecu-
tion to cross-examine adefendant
who
has been sworn
under
the
provisions of Article 4, on the ground that his counsel has
not
asked him
any questions. This question arose
out
of a submission made by the
defendant, as a ground of appeal, which is breath-taking in its boldness.
He contended that he had
not
had a fair trial, not because the judge had
erroneously drawn adverse inferences under Article 4 (for it was ac-
cepted that his statement that he had not done so could
not
be chal-
lenged), but because the judge's refusal to allow the prosecution to
465
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