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4.10.1 - Charge: Section 43 Direction

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When to Give this Charge

This charge may be given where an adverse inference can be drawn from the prosecution’s failure to call a witness to give evidence.

It may only be given where the trial judge is satisfied that the prosecution:

  1. was reasonably expected to call or question the witnesses; and
  2. has not satisfactorily explained why it did not call or question the witness.

The direction must also be requested by the defence, or there must be substantial and compelling reasons for giving the direction despite the absence of any request. See Directions Under Jury Directions Act 2015.

It may be modified for use in cases where an adverse inference can be drawn from the prosecution’s failure to question a witness.

Alternative Charge

In most cases where the prosecution fails to call or question a witness, an Anti-Speculation Direction should be given instead.

Section 43 Direction

In this case, you may have expected that the prosecution would have asked NOW to give evidence. However, they chose not to do so.[1]

[Explain reasons why the prosecution should have called the witness, and possible reasons for their failure to do so.]

It is for you to determine whether the prosecution had a satisfactory reason for not asking NOW to give evidence. If you conclude that the prosecution did not have a satisfactory reason for failing to call NOW, then you may conclude that [his/her] evidence would not have helped the prosecution.


[1] This charge was written for use in cases where the prosecution failed to call a witness. it must be adapted for cases where the prosecution fails to question a witness on a particular topic.


Last updated: 29 June 2015

See Also

4.10 - Prosecution Failure to Call or Question Witnesses

4.10.2 - Charge: Anti-Speculation Direction