The Law Commission

PART VI

EVIDENTIAL AND PROCEDURAL CHANGES

Introduction

6.1      In Part V we identified the possible reforms which we reject and the reasons for our having done so. In this Part, we set out the recommendations we are minded to make for changes in the rules of evidence and procedure which, in our view, will help tackle the problem of how a court may accurately and fairly convict a person who is guilty of this type of offence where presently they cannot be convicted.
6.2      In Part IV we set out our approach. In particular we identified as fundamental a recognition that the State has a positive duty to secure a thorough and effective investigation capable of leading to the identification and punishment of those responsible for a serious breach of the fundamental human rights of a child. We accept that the discharge of this duty should be consistent with providing the defendant with a trial which is fair pursuant to the obligations upon the State under Article 6.
6.3      To that end, we are minded to recommend a package of changes, respectively, to the substantive law, the rules of procedure and the law of evidence. We set out our conclusions on the former in Part VII. The changes to the rules of evidence and procedure comprise:

(1) Statutory recognition

(a) that the State is entitled, as an incident of its discharge of its duty towards the child pursuant to Articles 2 and 3 of the ECHR, to call for an account from a person, who is responsible for the welfare of a child who has suffered non-accidental death or serious injury, of how the death or injury came about;

(b) that such a person has a correlative responsibility, if called upon to do so, to give such an account if he or she can; but

(c) that this responsibility does not require the person to act contrary to their privilege against self incrimination;

(2) A change to the rules of procedure so that in a case where the prosecution can prove to the criminal standard:

(a) that a child has suffered non-accidental death or serious injury;

(b) that the defendants are within a defined group, one, some, or all of whom must be guilty; and

(c) that at least one of them is a person who has responsibility for the welfare of the child;

the decision whether the judge should withdraw the case from the jury on the basis that a conviction would be unsafe must be postponed until the close of the defence case;

(3) In a case to which (2) applies, a change to the ways in which sections 34 and 35 of the Criminal Justice and Public Order Act 1994 are applied. Where a defendant, who has not given an account to police and/or evidence at the trial, is a person who, at the material time, had responsibility for the welfare of the child, the jury may, in determining pursuant to sections 34 or 35 whether that person is guilty of the offence charged, draw such adverse inference from his/her failure to give an account or evidence as they see fit; but

(4) In a case to which (3) applies, the jury should not be concerned with whether, independently from the failure to give an account or give evidence, the prosecution has established a prima facie case against that person but should consider only whether they are sure of that defendant's guilt having regard to all the evidence and any inference they see fit to draw;

(5) The judge must withdraw the case from the jury at the end of the defence case where, having regard to the evidence and any inference which it would be proper for the jury to draw, a conviction would be unsafe or the trial would otherwise be unfair.

Recognising a responsibility to give an account

6.4      We have noted in Part III that one of the ways in which the State seeks to safeguard the fundamental rights of children under Articles 2 and 3 is to impose an obligation upon any witness in civil care proceedings to give evidence and to answer questions even if to do so might incriminate him or his spouse of any offence.^[1] This is a powerful obligation which appears to make the witnesses compellable, thereby exposing them to a penalty for contempt of court if they fail to comply. The quid pro quo is that such a statement is not admissible in evidence against the maker of the statement (or his spouse) in proceedings for an offence, save for perjury.
6.5      We have already noted that the root of the apparent failure of our present procedures to protect children from fundamental breaches of their human rights is, as one of our respondents put it

(that they) continue to permit both accused to put the prosecution to proof as to which of them actually committed the offence. It is the inability of the prosecution to achieve that goal when both accused are advised not to co-operate that is at the root of the present difficulty.

In our view it is legitimate to consider whether we may fairly address each of these aspects of the root of the problem.

6.6      In our view, in furtherance of the discharge of the State's obligations towards children under the United Nations Convention on the Rights of the Child and the ECHR, our domestic law should expressly recognise that the State is entitled to call on persons who have had responsibility for a child during a time when the child suffers non-accidental death or serious injury to provide such account as they can to assist those properly responsible for investigating what happened to the child (such as a coroner's court, a family court, a criminal court or the police). The giving of such an account should be recognised as an incident of their responsibility for the welfare of the child. Express recognition, respectively, of the State's entitlement and the person's responsibility, in our view, falls well within the scope both of Articles 2 and 3 of the ECHR and of Article 19 of the UN Convention on the Rights of the Child. It would be an important statement of rights and responsibilities which will inform the decisions, respectively: of those with responsibility for a child whether to give an account; and of those who may be entitled to draw an inference from the fact that no account has been given by such a person.
6.7      We do not intend that the person's responsibility to provide an account should override his or her privilege against self-incrimination. Any statutory provision would have to make this clear. On the other hand, it will be the case that an unexplained omission to give an account when properly called upon to do so might properly lead to an inference that the reason for the silence is the wish to avoid self-incrimination. Furthermore, a jury, in considering the credibility of any explanation which is given for not having provided an account when asked for one, will be entitled to have regard to the fact that the person has a statutory responsibility, if innocent, to give an account.
6.8      We see no conflict between the recognition of such a responsibility and the specific provisions of section 98 of the Children Act 1989. That section overrides the right against self-incrimination in certain circumstances, but limits the use of an answer which may be given. Our recommendation does not cut across either of these elements of section 98.
6.9      Statutory recognition of such a responsibility is, we believe, necessary to address one constituent element of the present failure of the law to provide an effective procedure to identify and punish those who are guilty of gross human rights violations to children. It is likely to be effective in providing more evidence for the fact finding tribunal to consider, or in providing a means by which the fact finding tribunal may draw accurate inferences. We believe that, in the light of the safeguards to which we refer below, it would be a proportionate response to the present difficulty in obtaining accurate convictions of those who are guilty of such serious offences. As we explain below, we are not proposing to recommend alterations to the terms of sections 34 and 35 of the Criminal Justice and Public Order Act 1994. The creation of a statutory recognition of the right to call for, and the responsibility to give, an account would, however, have potential effects on their application which may call for consequential amendment.

Safeguards

6.10      The responsibility to give an account will only arise where the child's fundamental human rights have been grossly infringed and will only arise in the course of a police interview, or a trial, where the existing panoply of safeguards is in place.
6.11      We are, however, conscious that at the stage of police interview an innocent carer may be in a very confused state and possibly suffering from a turmoil of emotions: grief, anger, bewilderment, fear, and so on. We think it would, therefore, be in the interests of justice that the Codes which already operate to regulate interviews conducted by the police should make specific provision for the interviewing of a person who is believed to be the carer of a child who, in turn, is believed to have suffered non-accidental death or serious injury. In particular, the caution given to such a person about to be interviewed under caution should incorporate an appropriate explanation in simple terms about his or her statutory responsibility, as a carer of the child, if innocent, to give such account as he or she can about the circumstances in which the child suffered injury and that this responsibility should override any loyalty to any other person.
6.12      Without necessarily suggesting that these should be separately and specifically contained in the Codes, there are certain matters which, as a matter of common sense and practice, should be addressed in such cases. Where the carer claims to be fearful of another suspect, it would be desirable for some consideration to be given to what could be done to allay such possible fears and to emphasise the importance of the responsibility to give an account despite these fears. It would be advisable to consider whether it might be sensible to have and, if so, to have available to the police or the court the findings of a mental state examination by a medical practitioner. It would also be important that the account of the evidence provided to the carer's legal adviser should include an account of the content of relevant medical statements concerning the death of or injury to the child so that the carer may be given, from the earliest practicable stage, the opportunity to explain the medical evidence before any further questioning.
6.13      We are minded to recommend that:

(1) There should be a statutory statement that the State is entitled to call for a person, who has responsibility for a child during a time when the child suffers non-accidental death or serious injury, to give such account as he or she can for the death or injury to a police officer or court investigating or adjudicating upon criminal liability;

(2) The responsibility of a person for the welfare of a child shall include the responsibility to give such account as they can when properly called upon to do so pursuant to (1);

(3) The responsibility of a person pursuant to (2) does not require that he or she answer any question if to do so would expose him or her to proceedings for an offence.

6.14      The Codes which currently regulate the conduct of interviews by the police shall be amended to include such further provisions as may be necessary to give effect fairly to the above.

Establishing 'a case to answer'

6.15      In criminal cases there is a rule of procedure that if, at the close of the case for the prosecution, the judge concludes that the evidence, as it stands, is such that a properly directed jury could not properly convict on it, it is his duty, on a submission being made, to stop the case.^[2] We have already referred to the effect of this ruling in cases like Lane and Lane^[3] which requires the judge to withdraw the case from the jury at the close of the prosecution case. The application of this rule is a principal cause of the inability of the courts to convict those who are guilty of these offences.
6.16      In the informal consultation paper, the Criminal Law Team considered whether there should be some form of "statutory reversal of the rule in Lane and Lane" in circumstances where the prosecution could establish a prima facie case that a child had suffered non-accidental death or serious injury, that at least one of the defendants had responsibility for the child and that the defendants were within a small group of persons of whom one, some, or all were responsible for the offence.
6.17      In the paper the Team pointed out that permitting more cases to proceed past 'half time' in the way suggested would not necessarily result in more successful prosecutions. In order to convict a defendant the jury would still have to be sure that he or she either inflicted the injury or was secondarily liable. In some cases one or both of the defendants might give evidence and this might strengthen the prosecution case against one or both of them. This might then lead to the case being left to the jury and, on some occasions, a verdict of guilty.
6.18      In other cases the defendants might all be advised not to give evidence. The position at the end of the defence case would remain the same as at the conclusion of the prosecution case and the case would be bound to be withdrawn from the jury. Defendants in these circumstances would be unlikely to feel under any pressure to give or to call evidence. They would be likely to be advised that they have nothing to gain and everything to lose by doing so.
6.19      In the light of this reasoning, the Criminal Law Team concluded that altering the present procedure in this regard would be insufficient, in itself, to address the problem under consideration. Those who responded to the informal consultation paper largely agreed.
6.20      Some respondents suggested a different approach. They argued that it was a mistake to accept as a "given" that there had, in every case, to be a procedure whereby at the end of the prosecution case the court considered whether, at that stage, the jury could properly convict. They pointed out that in some trials it was illogical to withdraw a case from the jury at the close of the prosecution case, before hearing any defence evidence. In circumstances where the only persons present when the crime was committed were those who are accused of committing it and the victim, who is not available to give evidence (because he or she is dead, or too young to give evidence), the only persons who are available to give direct evidence to the court of what happened could not by that stage have done so. The present rule of procedure forces the court, in that situation, to come to a decision when the most significant evidence in the case cannot yet have been given. We found these observations very helpful. We have been persuaded that it was a mistake to focus on changing the law of evidence in order to enable the court to find an artificial 'case to answer' at the close of the prosecution case. Stephen Mitchell J suggested:

It seems to me that a tidier way of proceeding would be to abolish, as an issue for judicial consideration at the end of the prosecution's case, whether there is a case for the defendant(s) to answer and substitute for it the question whether there is a case, in respect of each defendant, fit to go to the jury. This last issue will fall for determination at the end of the evidence (prosecution and (if any) defence) and, as a matter of law, no issue of whether there is a case to answer will arise at the end of the prosecution's case.

6.21      We agree with this approach. If our proposed recommendation about the responsibility of carers to give an account is accepted, there is logic and justice in postponing consideration of whether the case is fit to be left to the jury until they have had the opportunity to give evidence. It would not in any way undermine either the right to silence or the presumption of innocence. The defence will still have the right to decide not to give evidence and the case will still only go to the jury if the judge is satisfied that a jury could properly convict applying the presumption of innocence. The change would remove from the defence a tactical advantage but we do not believe that it would do injustice. We do not consider that the proposed change would engage Article 6 of ECHR which is concerned with the overall fairness of the trial process. It would remove a present hindrance to the effective discharge of the State's duty to protect the fundamental human rights of the child.
6.22      We are minded to recommend that in a trial where, at the end of the prosecution case, the court is satisfied beyond reasonable doubt that:

(i) a child has suffered non-accidental death or serious injury;

(ii) the defendants form the whole of, or are within, a defined group of individuals, one or other or all of whom must have caused the death or the serious injury; and

(iii) at least one defendant had responsibility for the child during the time within which the death or serious injury occurred;

the judge must not rule upon whether there is a case to go to the jury until the close of the defence case.

6.23      We do not intend, by this recommendation, to allow purely speculative prosecutions to be brought where there is no reasonable prospect of conviction. In their response to the informal consultation paper, the Crown Prosecution Service was concerned that the trial should not become a means of investigation. Under the approach which we recommend, prosecutors must be expected to consider the likelihood of conviction bearing in mind the evidence which they intend to present and any evidence which they anticipate may be presented as part of the defence. As part of this exercise, the prosecuting authorities will also have to consider the impact of any adverse inferences which might be drawn against a defendant, either under the current law, or under the further recommendations which we are minded to make and which we set out later in this Part. It will, however, require them to focus somewhat differently upon the evidence they can present to the court. They will focus on whether they will be able to satisfy the court on the issues which will lead to the case proceeding to the end of the defence case.

The drawing of inferences from silence

The historical context

6.24      The law prior to 1994 reflected a world in which there was not only no drawing of inferences from silence but in which the defendant's right to remain silent and have the prosecution prove its case was emphasised. For example in Marsh and Marsh v Hodgson,^[4] Ashworth J was able to say:

In my judgement there was, I would say, abundant evidence to support the prosecution case, and calling for an answer. In the first place there was strong evidence which the justices accepted to show that the injuries to this child were inflicted by human agency. Secondly, there was evidence to show that in all probability those injuries were inflicted on or about June 3. Thirdly, there was evidence, accepted by the justices, to the effect that both the defendants admitted that they had been in charge, and joint charge, of this child during June 3 and 4. ... Fourthly, they put up, when challenged or questioned about the injuries, an explanation which could not hold water for a moment in the light of the medical evidence, to the effect that the child had sustained her injuries through cot banging, and they could offer no other explanation.^[5]

6.25      His fourth point, concerned with the parents not offering a credible explanation for the injuries, was criticised in Lane and Lane.^[6] Croom-Johnson LJ stated that, while it was undoubtedly correct on the facts of that case, it is a point that may not apply to every such case, because it may be that a defendant "does not know the true explanation or has no means of knowing the facts which require explaining".^[7] He stated:

... lack of explanation, to have any cogency, must happen in circumstances which point to guilt; it must point to a necessary knowledge and realisation of that person's own fault. To begin with, one can only expect an explanation from someone who is proved to have been present. Otherwise it is no more consistent with that person either not knowing what happened or not knowing the facts from which what happened can be inferred, or with a wish to cover up for someone else suspected of being the criminal. There may be other reasons.^[8]

6.26      As we noted in Part I of this paper, the Report of the Royal Commission on Criminal Justice^[9] referred to the difficulties which may arise where one of two parents is suspected of injuring or murdering a child but it is impossible to say which one. The Royal Commission did not, however, consider that it would be appropriate to draw adverse inferences from a defendant's silence in such cases:

It must not, however, be supposed that removing the right of silence would be the solution in such cases. It would not enable the prosecution to establish which of them had committed the offence if both nevertheless insisted on remaining silent. Nor would the possibility of adverse comment at the trial enable a court or a jury to determine in respect of which of them the silence should be taken as corroboration.^[10]

The Criminal Justice and Public Order Act 1994

6.27      Contrary to the recommendations of the Royal Commission, the Criminal Justice and Public Order Act 1994 introduced a number of provisions to allow the drawing of 'adverse inferences' against a defendant in a number of situations. Section 34 of the Act provides, in summary, that where a defendant gives evidence and relies on some fact which he or she failed to mention on being questioned by the police and could reasonably have been expected to mention, the court or the jury, in deciding whether there is a case to answer or whether the defendant is guilty, may draw such inferences from the failure as appear proper.
6.28      Section 35 provides, in summary, that if a defendant chooses not to give evidence, or gives evidence but without good cause refuses to answer a question, the court or jury, may draw such inferences as appear proper from his or her failure to give evidence or refusal without good cause to answer.
6.29      Section 38(3) provides that a person cannot be convicted of an offence solely on the basis of such an inference (nor on the basis of an inference drawn pursuant to the other companion sections). As we will see below, this mirrors the approach of the European Court of Human Rights.
6.30      These sections have received a good deal of consideration by the Court of Appeal and by the European Court of Human Rights.
6.31      In Murray v UK^[11] the European Court of Human Rights considered similar provisions under Northern Irish law. The trial judge had said in his reasons for convicting the applicant that he had drawn adverse inferences from the fact that the applicant had not answered police questions and had not given evidence at his trial. The Court stated:

Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aim of Article 6.

The Court does not consider that it is called upon to give an abstract analysis of the scope of these immunities and, in particular, of what constitutes in this context 'improper compulsion' …

On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused's silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution …

Whether the drawing of adverse inferences from an accused's silence infringes Article 6 is a matter to be determined in light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.^[12]

6.32      In Condron v UK^[13] the European Court of Human Rights followed Murray. In that case the applicants gave evidence at the trial and put forward an explanation for their failure to mention certain matters during their police interviews. The judge directed the jury in terms which left the jury at liberty to draw adverse inferences even if satisfied as to the plausibility of the explanation. It was therefore held that there had been a violation of Article 6.
6.33      There is a considerable body of domestic case law on sections 34 and 35. The leading authorities on section 34 are Argent^[14] and Condron.^[15]

Consequences of our recommendations for the operation of the Criminal Justice and Public Order Act 1994

6.34      The recommendation we are minded to make for statutory recognition of a responsibility on the part of a carer to give such account as he or she can for how an apparently non-accidental death or serious injury of a child occurred would, of necessity, have consequences for the drawing of inferences pursuant to the Criminal Justice and Public Order Act 1994. In relation to section 34 they would be:

(1) that in considering whether a defendant could reasonably have been expected to mention some fact relied on in their defence at the interview stage, the jury would be made aware of the defendant's statutory responsibility to give an account and that he or she had been warned about it in the course of the interview; and

(2) the jury would be entitled to take this into account in assessing the genuineness of the account given, for the first time, subsequent to the interview or at the trial.

6.35      This will have the practical effect that "no comment" interviews by defendants with responsibility for the care of children who have suffered non-accidental death or serious injury will become riskier for the defendants. We do not regard that prospect as unjust, so long as:

(1) there are proper safeguards for a defendant at the interview stage (a subject to which we have referred above); and

(2) the jury has been given proper directions about the matters of which they must be sure before they can convict a defendant.

6.36      In relation to section 35, the essential ingredients of the directions required to be given to the jury were laid down in Cowan^[16] by Lord Taylor CJ, giving the judgment of the Court of Appeal, as follows:

(1) The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.

(2) It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains.

(3) An inference from failure to give evidence cannot on its own prove guilt. This is expressly stated in section 38(3) of the Act.

(4) Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence.

(5) If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.^[17]

6.37      Read literally, the last requirement might suggest that the jury must be sure of the defendant's guilt before they can draw any adverse inference from his silence, but that would be to reduce the direction to absurdity. The important point is that the significance of the defendant's silence has to be evaluated in the context of and in conjunction with the evidence in the case and any explanation relied on to explain the silence.
6.38      The fourth point was emphasised by Lord Bingham CJ giving the judgment of the Court of Appeal in Birchall:^[18]

Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant's failure to give oral evidence at his trial until they have concluded that the Crown's case against him is sufficiently compelling to call for an answer by him. What was called the 'fourth essential' in Cowan was correctly described as such. There is a clear risk of an injustice if the requirements of logic and fairness in this respect are not observed.^[19][20]

6.39      If the procedural changes which we envisage are adopted, the judge will not have considered whether there was a case to answer at the close of the prosecution case. He or she will have considered whether there is a case to answer at the conclusion of the defence case and before the jury retires to consider its verdict. At that stage the judge will have considered, in the light of all the evidence and any inference which the jury may properly draw from silence, whether a conviction would or would not be unsafe or unfair.
6.40      How should the silence of a carer defendant at trial fit into that envisaged scheme of things? Although the jury must, of course, be directed to consider the whole of the evidence, we do not think it necessary in justice or in logic that the jury should be given a direction that, before making a decision whether to draw an inference from silence, it must first consider whether the strength of the case against the defendant was such as to call for an answer in the technical sense as reflected in Galbraith.^[21] If the recommendations we are minded to make are in effect, there will already be statutory recognition, as an aspect of the proper discharge by the State of its duties to the child pursuant to Articles 2 and 3 of the ECHR, that the circumstance of being responsible for a child who has suffered non-accidental death or serious injury calls for such account as can be given. This would reflect, in statutory form, the discharge of the fundamental obligation of the State to provide for the protection of children and the special responsibility undertaken by parents or carers.
6.41      Thus, in circumstances where the prosecution can prove that:

(1) the child has suffered a non-accidental death or serious injury;

(2) the defendant is one of a defined group who must have done it;

(3) the defendant is a person who is responsible for the welfare of the child;

(4) the defendant has a responsibility (if innocent) to give an account for how the child died or was seriously injured;

(5) but has not done so,

we do not think there need be any further precondition to the ability of a jury to draw an inference under section 35.

6.42      Of course, a defendant who has given an explanation for his or her silence must be entitled to have the jury consider it when deciding whether to draw an adverse inference. If some explanation for silence is given, either to the police during investigation, or during the course of the trial, or there is other evidence from which such an explanation may be inferred, then this must be considered by the jury in deciding whether or not to draw an adverse inference in determining guilt or innocence. Conversely, so too should the absence of any explanation for silence.
6.43      In any event, before there could be a conviction, the jury would still have to consider the totality of the evidence, any inference it was entitled to draw from silence and, in the light of all that, only convict if sure of the defendant's guilt.

Compliance with Article 6 of the ECHR

6.44      In a closely reasoned response to the informal consultation paper, the Criminal Bar Association has reviewed the authorities and submitted that a conviction which was "decisively influenced" by the defendant's silence would be bound to be a violation of Article 6.
6.45      The European Court of Human Rights has refrained from attempting to lay down hard-edged rules in this area. Furthermore its decisions are not entirely consistent as exemplified by the cases of Asch v Austria,^[22] and Telfner v Austria.^[23] In the light of the conflicting authorities the Criminal Law Team concluded, in the informal consultation paper, that it could not be stated with confidence that a conviction based solely or mainly upon an inference from a failure to give evidence would be compatible with the ECHR. It did, however, express the view that, given the seriousness of the injustice involved to the dead or injured child and the intractable nature of the problems which have led to this state of affairs, the courts might be persuaded that a person convicted on that basis did have a fair trial notwithstanding the fact that their conviction was based on a case which included inferences from a failure to give an account.
6.46      Although there was a division of opinion on this issue amongst those who responded to the informal consultation paper, we were encouraged by the number of eminent respondents, including a number of senior judges, who considered that a conviction in these circumstances would not be unfair and that juries should be permitted to draw adverse inferences. We have also been persuaded, as we stated in Part IV, that Articles 2 and 3 loom much larger in the assessment of what constitutes a fair trial than we allowed for in that paper.
6.47      Taking all these factors into account, we are now of the firm view that a conviction in the circumstances which we are considering would not be based "solely"^[24] or mainly"^[25] on an inference drawn from silence. The prosecution must prove: (i) that the child has suffered a non-accidental death or serious injury; (ii) the defendant is one of a defined group who must have done it; (iii) the defendant is a person who was responsible for the welfare of the child and accordingly (iv) he or she has a responsibility, subject to the privilege against self incrimination, to give an account for how it died or was seriously injured; but (v) has not done so. The significance of the silence will vary according to the circumstances. That would be a matter for the jury's evaluation.
6.48      Even if it were the case that such a conviction could be described as "solely or mainly" based on such an inference, ECHR law is, as we have pointed out, by no means clear and very recent decisions of the European Court of Human Rights have emphasised that there are even more fundamental countervailing Article 2 and 3 rights which, in this type of case, have to be balanced against the specific requirements of Article 6. We are confident that, in the light of these decisions, a conviction in such a case would be eminently defensible as being fair. The following factors, in our judgment, weigh heavily in favour of that conclusion: the fundamental importance of the duty owed to the child by the State; the unsatisfactory state of the current law; the battery of safeguards we have described which must be satisfied before the jury may be permitted to draw such an inference; and the fact that the jury, before convicting, must be sure of the person's guilt.
6.49      We believe that the recommendations we are minded to make provide a reasonable balance between the State's obligations to the child under the UN Convention and the ECHR and its obligations to a defendant under Article 6 of the ECHR.

A full circle

6.50      Professor Glanville Williams addressed the problem of offences within the family, where all refused to assist the police, in an article entitled "Which of you did it?".^[26] He argued strongly against the introduction of special rules or procedures in such cases. He did, however, suggest that:

in a rational system of criminal law, the tribunal of fact (jury, or magistrates' court) should be entitled (and should be advised that it is entitled) to take into account the failure of the defendant to offer or to point to any reasonable evidence of innocence, when if he were innocent such evidence could reasonably be expected. ^[27]

He also pointed out that an innocent parent may have motives to frustrate a prosecution case, for example, protection of a guilty partner.

6.51      This brings us back to the point at which the recommendations we are minded to make begin. We think that it is highly desirable for society, and may be incumbent on the State, to recognise that, in the special circumstances which we are considering, an innocent person who is responsible for the welfare of a child has a responsibility to give such account as he or she can for what has happened to the child. Furthermore, we are of the view that this responsibility should be recognised as overriding any loyalty to a partner.
6.52      At the end of a trial, a jury may be left thinking that it is reasonably possible that a silent defendant is innocent and has remained silent to protect another person. If so, the prosecution will not have proved its case and it would be right for that defendant to be acquitted. We also recognise that there would be the possibility that an innocent defendant might remain silent and be convicted. That would, of course, be undesirable. It would not follow, however, that there had not been a fair trial. The choice whether or not to give evidence would have been that of the defendant who would, at each stage in the process, have been made well aware of the importance which society places on a person living up to their responsibilities for the welfare of the child by giving such account as they can of what happened to that child.
6.53      We are minded to recommend that where:

(1) a child has suffered non-accidental death or serious injury;

(2) the defendants are (or are within) a defined number of individuals one or more of whom must be guilty of causing the death or serious injury; and

(3) a defendant who has responsibility for the welfare of the child does not give evidence;

(4) the jury should, in the case of that defendant, be permitted to draw such inferences from this failure as they see fit, but must be directed to convict the defendant only if, having had regard to all the evidence and to any inference to which they are permitted to draw having had regard to any explanation given for his or her silence, they are sure of the defendant's guilt.

The trial judge's duty to ensure fairness

6.54      We have put forward a number of recommendations for evidential and procedural reforms. In order for these provisions to operate fairly and to withstand scrutiny under the Human Rights Act 1998 it is essential that there should be effective procedural safeguards to ensure the fairness of the trial as a whole. In particular, the trial judge has a duty to ensure the fairness of the trial. This will require the judge, if asked, to consider whether the case should be withdrawn from the jury at the conclusion of the defence case. This may be particularly important if an adverse inference from silence were likely to be an important factor in the jury's considerations.
6.55      In our view the judge should be under a duty in such a case to withdraw the case from the jury if, in his judgment, having regard to the evidence and to any permitted inference which may be drawn, a conviction would be unsafe or the trial would otherwise be unfair. In our view, although the level of congruence between what is unsafe and what results from an unfair trial is extremely high, a requirement in this form would make perfectly clear the importance of satisfying the requirement of fairness in any trial which resulted in a conviction.
6.56      We are minded to recommend that a trial judge should be under a duty to withdraw the case from the jury at the conclusion of the defence case, where he considers that any conviction would be unsafe or the trial would otherwise be unfair.

Note 1    Children Act 1989, section 98.    [Back]

Note 2    Galbraith [1981] 1 WLR 1039.    [Back]

Note 3    (1986) 82 Cr App R 5. See paras 1.20 – 1.22, above.    [Back]

Note 4    [1974] Crim LR 35.    [Back]

Note 5    Cited in Lane and Lane (1986) Cr App R 5 at pp 11–12 (page 5 of the original transcript of Marsh and Marsh v Hodgson [1974] Crim LR 35).    [Back]

Note 6    (1986) 82 Cr App R 5.    [Back]

Note 7    Ibid, at p 12.    [Back]

Note 8    Ibid, at p 14.    [Back]

Note 9    (1993) Cmnd 2263.    [Back]

Note 10    Ibid, at para 25.    [Back]

Note 11    (1996) 22 EHRR 29.    [Back]

Note 12    Ibid, at pages 60–61, paras 45–48.    [Back]

Note 13    (2001) 31 EHRR 1.    [Back]

Note 14    [1997] 2 Cr App R 27.    [Back]

Note 15    [1997] 1 Cr App R 185.    [Back]

Note 16    [1996] QB 373.    [Back]

Note 17    Ibid, at p 381C–E.    [Back]

Note 18    [1999] Crim LR 311.    [Back]

Note 19    Ibid. Cited from transcript, case no 9808076W2, p 19.    [Back]

Note 20    In Doldur [2000] Crim LR 178, a case which concerned section 34, Auld LJ stated: Acceptance by a jury of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence, if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt. This case may be a straw in the wind that the strict approach which Cowan appears to require is not always necessary. The JSB specimen direction does not however reflect Doldur and the decision was not followed in R v. Milford [2001] Crim. L.R. 330.    [Back]

Note 21    See n 3, above.    [Back]

Note 22    (1993) 15 EHRR 597.    [Back]

Note 23    (2002) 34 EHRR 7.    [Back]

Note 24    Criminal Justice and Public Order Act 1994, section 38(3).    [Back]

Note 25    Murray v UK (1996) 22 EHRR 29 & Condron v. UK (2001) 31 EHRR 1.    [Back]

Note 26    Glanville Williams, “Which of you did it?” (1989) 52 MLR 179, pages 191–199.    [Back]

Note 27    Ibid, at p 185.    [Back]