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The Rules of Evidence and the Accused at Trial

As a matter of law the defendant can at any time give evidence and he is therefore a competent witness. He is however not compellable because he has the right not to give evidence although this would of course mean that adverse inferences could be drawn by his silence.

The course of the accused evidence: The accused should be the first defence witness. Where he decides not to testify he should be made aware of the likely consequences of his silence. Adverse inferences may only be drawn where the only likely explanation for his silence is that he has no answer to the prosecution case or none that would stand up to cross examination R v Cowan Gayle and Ricardi (1995)

Good Character: If a defendant has a good character he is entitled to expect the judge to direct the jury as to the fact that he is less likely have committed the offence and his credibility as a witness.

Bad Character: this evidence is described as evidence of or a disposition towards misconduct or other reprehensible behaviour. This evidence can be admitted under the following circumstances as per s 101 a-g CJA 2003 although the judge also has the discretion to exclude the evidence on the basis of fairness:

  • all parties agree
  • the evidence is  adduced by the defendant or given in answer  to defendant's cross examination
  • it is important explanatory evidence
  • it is relevant and important for both parties
  • it has substantial probative value
  • the defendant has attacked another person's character

Where the judge is deciding on whether it is fair to introduce bad character evidence he will look at the similarity and gravity of past and present offences, age of previous convictions and the strength of the prosecution case. R v Hanson (2005).


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