Accused as Witness

The Criminal Evidence (Northern Ireland) Act 1939 provides that every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether charged solely or jointly with any person. A person charged will not be called as a witness except on their own application. A person charged, when being a witness, may be asked any question in cross-examination, notwithstanding that it would tend to incriminate them as to the offence charged.

A person charged and called as a witness shall not be asked, and if asked shall not be required to answer, any question tending to show they have committed or been convicted or charged with any other offence, other than that charged, or are of bad character. There is an exception if it is proved that they have committed or been convicted of such another offence and the proof of such offence is admissible evidence to show they are guilty of the offence charged. Further, this will be rare.

They may be examined as to other offences or their character if they are personally or by their advocate asked questions of the witnesses for the prosecution with a view to establish their own good character, or given evidence of their good character, or the nature and conduct of the defence is such as to involve imputations on the character of the prosecutor or witnesses or the prosecutor or the deceased victim of the alleged crime or if they have given evidence against any other person charged in the same proceedings.

Every person called as a witness shall, unless otherwise ordered, give their evidence from the witness box. Where the only witness to the facts of the case called by the defence is the person charged, they shall be called as a witness after the close of the evidence for the prosecution. In cases where a right of reply depends upon whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

An accused person shall not, without leave of the court, in the trial of an offence, adduce evidence or call any witness to give evidence in support of an alibi unless they give notice of particulars of the alibi in accordance with the following conditions. In the case of the trial on indictment, they must be given within seven days before the end of the committal proceedings.

If the trial is to commence within seven days, not later than 24 hours after the end of the committal proceedings, in the case of a summary trial not later than the commencement of the trial. The prosecutor shall be entitled to an adjournment of the proceedings if the notice is given less than three days before commencement.

A notice of particulars of an alibi must give particulars of the alibi, the name and address of each witness to be called in support. If the name and address of a witness are not known at the time of giving the notice, any information in their possession which may be of material assistance in finding the witness must be given.

Leave shall not be refused if it appears to the court that the accused was not informed of the requirements of the provision when they were charged with the offence.

Notice of the particulars of the alibi must be given in writing. They may be given on behalf of the accused by their solicitor, if it appears they have authority. They must be given to the solicitor for the prosecutor. In a summary trial, they must be given to such person as may be prescribed by the magistrates’ court rules.

Evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place and in a particular area at a particular time they were not, or were unlikely to have been, at the place where the offence is alleged to have been committed at the time of its commission.

Where in proceedings against a person for an offence, evidence is given that the accused at the time before they were charged with the offence, on being questioned under caution by a constable, trying to discover by whom the offence has been committed, failed to mention any fact relied on in their defence in those proceedings or on being charged with the offence or officially informed that they might be prosecuted forthwith failed to mention any such fact being a factor which in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned charged may be subject to the below.

The court, in determining whether the accused has a case to answer in deciding whether to grant an application for dismissal of the charge and the court or jury in considering whether they are guilty of the offence, may draw such inferences from the above failure as appear proper.

Subject to directions of the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

The provisions apply in relation to questioning by persons other than constables charged with a duty of investigating offences and charging offenders as it applies to questions by police officers.

The article does not prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said and is present relating to the conduct in respect of which they are charged insofar as evidence would be otherwise admissible. It does not preclude the drawing of any inference from such silence or reaction which could have been drawn apart from the provision.

The legislation also provides that where the accused chooses not to give evidence or, having been sworn without good cause, refuses to answer any question, makes it permissible for the court or jury to draw inferences as appear proper from their failure to give evidence or their refusal without good cause to answer any question.

This applies unless the accused’s guilt is not an issue or it appears to the court that the physical or mental condition of the accused makes it undesirable for them to give evidence. It does not apply at the conclusion of the evidence for the prosecutor, their legal representative informs the court that the accused will give evidence or where they are unrepresented, the court ascertains from them that they will give evidence.

The court or jury in determining whether the accused is guilty of the offence may draw such inferences as appear proper from the failure of the accused to give evidence or their refusal without good cause to answer such questions.

The provision does not render the accused compellable to give evidence on their own behalf. They are not guilty of contempt of court by reason of failure to give evidence.

A person who has been sworn and refuses to answer a question shall be taken to do so without good cause unless they are entitled to refuse to answer by virtue of statutory provision or privilege, or the court, in exercise of its general discretion, excuses them from answering it.

This provision applies to indictable offences and offences in the magistrates’ or Crown’s court.