Inferences from silence—failure to testify

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Inferences from silence—failure to testify
  • What inferences can be drawn from failure to testify?
  • When can an inference be drawn?
  • Exceptions relating to failing to answer questions in evidence
  • When should an inference not be drawn?
  • Guilt is not an issue
  • Physical or mental condition
  • When should a defendant testify?
  • Special provision for inferences under the Domestic, Violence, Crime and Victims Act 2004

Inferences from silence—failure to testify

What inferences can be drawn from failure to testify?

Inferences can be drawn where a defendant:

  1. having been sworn refuses without good cause to answer a particular question or questions, or

  2. chooses not to give evidence at all

Where either of the above situations arise, the court or jury ‘in determining whether the accused is guilty…may draw such inferences as appear proper'. This means that a court or jury can be invited to infer guilt from the defendant's silence.

When can an inference be drawn?

Before an inference can be drawn under the Criminal Justice and Public Order Act 1994 (CJPOA 1994), the following conditions must be satisfied:

  1. the defendant must fail to give evidence

  2. having been sworn, refuses to answer questions

  3. the failure to testify or answer questions is without ‘good cause’

  4. the defendant has either been:

    1. warned by the court the effect of the failure to give evidence, or

    2. has stated that he or she will give evidence and then fails to do so

The warning as to the effect of any failure to give evidence is mandatory. This is also enshrined in the Criminal Procedure Rules 2020 , SI 2020/759 (CrimPR), r 25.9(2)(e). It is given to the defendant at the close of the prosecution case. Appropriate forms of words for a trial judge to warn the defendant can be found at

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