Thomas Mair has decided not to give evidence at his trial OR present any other defence evidence on his behalf. His defence counsel, Simon Russell Flint QC, said Mr Mair had no previous convictions or cautions:
“You and you alone will determine whether Thomas Mair can return to his quiet and solitary existence or will be forever remembered as the man who assassinated Jo Cox,” he told jurors.
Not many defendants choose to remain silent at their trial, it can be risky owing to the adverse inference. s.35 CJPOA 1994 provides that inferences can be drawn from a defendant’s failure to give evidence or refusal to answer any questions without good cause, where he fails to give evidence on his own behalf at trial. In particular, if a defendant raises a specific defence such as self-defence or alibi, his failure to enter the witness box to substantiate this defence may lead the court to draw an adverse inference.
The inference could be that the defendant has no plausible explanation, or that any explanation he does have is too weak to stand up in cross-examination by the prosecution. However, a defendant cannot be found guilty on adverse inference alone.
Tactically, the decision and advice on this topic is a careful balancing act. What positives for the defence will come from the defendant giving evidence V’s what damage will be done to the defence case by the defendant giving evidence and being cross examined. In some cases the decision is easy owing to the strong defence case, the ability to rebut the prosecution’s case and the credible defendant able to deal with cross examination. In other cases the defendant is less able to deal with cross examination and less credible, so potentially more harm would be done by giving evidence.
However, jurors heard that Mr Mair, said in his first court appearance “death to traitors – freedom for Britain” when asked his name. It’s probable that evidence provided would have been along the same theme, so absolutely no good would come of the defendant giving evidence if that was the case. Accordingly, his defence counsel urged the jury to try Mr Mair without emotion, however “distressing, disturbing and tragic” the case had been.
Perhaps a virtue in this case…