This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how defendants are questioned during criminal trials in England and Wales, including rights to give evidence, cross‑examination, adverse inferences and practical considerations for defendants and solicitors.
In criminal trials in England and Wales, defendants may play a central role as witnesses, but they are not obligated to give evidence. The way a defendant is questioned - or chooses not to be questioned - is governed by long‑standing legal rights and procedural rules designed to ensure fairness, protect against self‑incrimination and structure the evidence presented. This article explains how defendants are approached and questioned during criminal proceedings, what rights they have, how questioning takes place in court, decisions about giving evidence, possible inferences and special protections.
Evidence and the Role of the Defendant
In the adversarial system of criminal justice used in England and Wales, the prosecution bears the burden of proof and must establish guilt beyond reasonable doubt. A defendant can participate in the trial in various ways - including choosing to give evidence under oath - but is never compelled to do so. This stems from the right to remain silent and the privilege against self‑incrimination, recognised both in statute and common law.
Giving evidence as a defendant carries both opportunities and risks: it allows the individual to tell their own account but also subjects them to cross‑examination by the prosecution and may expose them to adverse inferences if they refuse to answer questions without lawful justification.
The Right to Silence and Choice to Testify
What the Law Says
A person charged with a criminal offence has a right to remain silent and is not required to give evidence at their trial. This right is part of the broader privilege against self‑incrimination and reflects the principle that it is for the prosecution to prove guilt, not for the defendant to prove innocence.
Under Section 35 of the Criminal Justice and Public Order Act 1994 (as reflected in modern practice directions), the judge must ensure the defendant understands that they may give evidence, and that refusal to do so can allow adverse inferences to be drawn by the jury or judge in certain circumstances.
Deciding Whether to Give Evidence
Courts Advise the Defendant
After the prosecution has presented its case, the trial judge will pause to inform the defendant of their rights:
- that they may choose to give evidence under oath;
- that if they do so they will be questioned and cross‑examined like any other witness; and
- that if they choose not to give evidence without good reason, the fact‑finder may draw adverse inferences from their silence.
This is usually done in the presence of the jury, so the defendant's choice and the implications are made clear before the defence case begins.
The Process of Defendant Testimony
Giving Evidence
If a defendant chooses to give evidence, the process is similar to that for any other witness:
- Oath or affirmation: The defendant is sworn in to tell the truth.
- Examination‑in‑chief: Their own solicitor or barrister asks questions to elicit their account.
- Cross‑examination: The prosecution then questions the defendant, testing their version of events.
- Re‑examination (if applicable): Defence counsel may follow up to clarify points raised by cross‑examination.
The purpose is to allow the court or jury to hear the defendant's account and assess credibility within the context of all evidence.
Scope of Questions
When the defendant gives evidence, questioning by the prosecution focuses on aspects relevant to the issues in the case. There is no free‑for‑all: questions must be proper, relevant and within the scope of the trial. As with any witness, the court can intervene if questions are unfair, irrelevant or abusive.
Defendants Who Do Not Give Evidence
Many defendants choose not to testify, relying on the prosecution's burden of proof. This is a legitimate strategy, but it can have implications:
- Judges or juries must not convict solely based on silence; conviction still requires proof beyond reasonable doubt.
- However, if the defendant does not give evidence, and particularly if they were warned about inferences, the fact‑finder may take silence into account when weighing the evidence.
Silence alone does not constitute proof of guilt, but it may influence the decision‑making process as part of the overall evidence.
Cross‑Examination of the Defendant
If the defendant gives evidence, cross‑examination by the prosecution is an expected part of the process. During cross‑examination:
- Prosecutors may question the defendant about inconsistencies, gaps or implausible aspects of their testimony.
- The defendant must answer unless a valid legal ground (such as privilege) justifies refusal.
- Any refusal to answer without justification can itself lead to adverse inference.
This scrutiny is intended to test the accuracy and credibility of the defendant's oral testimony.
Special Considerations
Co‑Defendants and Unique Situations
The prosecution cannot call a defendant as a prosecution witness. A defendant may only give evidence as part of their own defence. If statements made by the defendant outside court are used by the prosecution, they are typically introduced as admissions rather than as testimony.
In complex cases, different defendants may choose different strategies about giving evidence, but each retains the right to decide independently whether to testify.
Vulnerability and Support
Defendants who are vulnerable or have communication difficulties may be entitled to assistance during questioning, such as the involvement of registered intermediaries to facilitate communication - although these are more standard for witnesses than defendants.
Practical Steps and Risks
Preparing for Testimony
Deciding whether to give evidence is a strategic choice for the defence. Effective preparation involves:
- Understanding the strength of the prosecution's case;
- Assessing whether testimony will assist or undermine the defence;
- Considering how cross‑examination might probe inconsistencies or gaps in the defendant's account.
Solicitors and barristers play a central role in advising defendants on these risks and benefits.
Potential Risks
Giving evidence opens a defendant to detailed scrutiny. Inconsistencies with prior statements, poor recall or unclear explanations can weaken the defence case. Conversely, skilfully presented testimony can help explain misunderstandings or provide context that undermines the prosecution's narrative.
Key Takeaways
In criminal trials in England and Wales, defendants have a fundamental choice about whether to give evidence. They are not compelled to testify, reflecting the right to remain silent and privilege against self‑incrimination. If a defendant chooses to give evidence, they provide testimony under oath, face cross‑examination by the prosecution and may be subject to adverse inferences if they refuse to answer questions without valid reasons. Judges ensure defendants understand these rights and implications before the defence case begins. Understanding this process helps defendants, solicitors and the public appreciate how evidence and personal testimony are balanced within a fair criminal justice system.
