The Law Commission

PART III

OPTIONS FOR REFORM WHICH WE REJECT

Introduction

3.1      A number of possible reforms were put forward for consideration by the Commission's Criminal Law Team in the informal consultation paper which was issued in December 2002. Those which are summarised in paragraphs 3.2 – 3.6 and 3.11 below were not supported by the Team but that which is summarised in paragraphs 3.7 – 3.10 was. As a result of the responses which were received to that paper, the Law Commission decided to reject each of them and did not in the Consultative Report seek further to consult on them. The Commission's reasoning was set out at some length in Part V of the Consultative Report. For the most part, respondents to the Consultative Report either did not refer to them, or indicated their agreement with our decisions to reject them. One or two respondents did, however, refer to them and we respond to these responses where we deal with those rejected options. Otherwise we do not repeat the detailed arguments here save to identify what the options were and very briefly to say why we rejected them.

Imposing a legal burden on the defendant

3.2      We do not recommend that a legal burden should be imposed upon a defendant to provide an explanation for a child's death or injury which, if it were not discharged, would result in the defendant being convicted of the serious offence which has been committed. The view had been expressed by a few respondents to the informal consultation paper, that the child's right to protection under Articles 2 and 3 of the European Convention on Human Rights would justify the imposition of a legal burden upon the defendant. We concluded, however, that it would be wrong to convict a person of an offence of such seriousness if the jury, though not sure that the offence was committed by that defendant, were obliged, as a matter of law, to convict him or her because they were not persuaded, on the balance of probabilities, that the defendant did not kill or injure the child. We were of the view that if a provision to this effect were to be enacted, either it would be 'read down' by the courts so that only an evidential burden would be imposed, or it would be declared incompatible with Convention rights under the Human Rights Act 1998. We remain of that view.
3.3      This option had been strongly supported by a small number of respondents to the informal consultation document of the Criminal Law Team. In the course of our rejecting that option in the Consultative Report,^[1] we had characterised the argument in favour of imposing a legal burden as only working in an acceptable way if, by implication, the jury were to ignore the directions of the judge. We have been asked, by one of those who supported this option, to make it clear that this was not part of his reasoning. We are happy to do so. Nonetheless, we maintain our view that this is not a reform we should recommend. At its heart it still requires a jury to convict even though they are not sure of guilt, because the defendant has failed to discharge the legal burden upon him or her on the balance of probabilities. This is, in our view, not acceptable.

Imposing an evidential burden on the defendant

3.4      We do not recommend that there should be an evidential burden on a defendant to raise a defence where the prosecution has satisfied the court that a child has suffered non-accidental death or injury and the defendant is within a known small group of people one, or some, or all of whom must have killed or injured the child. We believe that imposing an evidential burden would create an unacceptable risk of unjust convictions. People would be at risk of being automatically convicted by virtue of a rule of law where they have failed to give, or adduce, evidence in cases where the prosecution has not proved all the elements of the offence against them. Although this appeared to have some support from those who responded to the informal consultation paper of the Criminal Law Team, upon analysis, that support was in truth support for drawing an inference from the silence of a person who had responsibility for such a child and who failed to give an account for how the child came by its injuries or death. That is an approach which informs our recommendations for evidential and procedural reform with which we deal in Part V below.

Compulsion to give an account

3.5      We did not recommend the imposition of a direct obligation upon defendants to provide an account of the child's death or injury, with a criminal penalty imposed if the defendant fails to do so. Such an approach to providing evidence which could be used in a prosecution would not withstand challenges under the ECHR or the Human Rights Act 1998.^[2]
3.6      Essentially our reasoning was that this would be wholly inappropriate for use against a person who might subsequently be a defendant on the footing that no answers from such questioning could be used against him. One respondent^[3] suggested that such a measure could be so effective as a means of providing information which could be used by the police in their investigation of the responsibility of that person and others that it would remove the need for any special procedural or evidential rules such as we were minded to recommend. That respondent referred us, by analogy, to the special powers of the Serious Fraud Office (SFO).^[4] We asked the SFO about their recent experience of using those special powers. We are grateful to them for having so helpfully responded to our request for information. They indicated that the powers are never, or seldom, used to question someone who is, or who might become, a suspect. Rather they are only used to interview witnesses who, for whatever reason, might otherwise be unwilling to cooperate. Our conclusion, based on the outcome of that inquiry, is that such a power would be of no use, in this kind of case, as a means of obtaining information from those who were, or might become, suspects or defendants. It would not, therefore, address the problem with which we are contending.

Admitting pre-trial incriminating statements made by one defendant against another

3.7      In its informal consultation paper, the Criminal Law Team had put forward for consideration the admission, as part of the prosecution case, of evidence of a pre-trial statement made by one defendant against the other, for the purpose of determining whether there is a case to answer against that other defendant. This suggestion met with a large measure of opposition from respondents to the informal consultation paper.
3.8      In the Consultative Report^[5] we acknowledged that there was a logical problem with using such a statement for a limited purpose only. Furthermore, our thinking on procedural reform has developed and in the Consultative Report and in this Report we recommend a new procedure in these types of cases, which is described in Part V. There is no place in that procedural reform for such a use of pre-trial statements.
3.9      We also acknowledged that there were serious ECHR difficulties with using a pre-trial statement as part of the prosecution case for the purposes of seeking a conviction in the absence of an opportunity to cross examine the maker of the statement.^[6]
3.10      Furthermore, the response of practitioners and the judiciary was largely hostile so that, even were the court to have a discretion to admit a pre-trial statement of a co-defendant without the maker giving evidence, we concluded that it would be rare that it would be admitted.^[7] We are not minded to recommend any further change to the law on co-defendants' statements.

Reforming the law of manslaughter

3.11      We did not recommend that there should be substantive proposals to amend the law of manslaughter to deal with this issue.^[8] We gave our detailed reasons for coming to this conclusion and it was one with which the bulk of respondents agreed.
3.12      We are aware that the CPS remains of the view that, in appropriate cases, this common law offence might be further developed to enable a conviction to be achieved in a case in which no one can be convicted for murder, on the basis of the defendants' gross negligence. That may be so. There is nothing in this Report which would prevent it. It does not seem to us, however, that it is likely to provide a solution on a scale which would preclude the need for the reforms which we recommend in this Report.

Note 1    Law Com No 279 para 5.19.    [Back]

Note 2    See Law Com No 279 paras 5.28 – 5.40.    [Back]

Note 3    The Criminal Bar Association.    [Back]

Note 4    Under s 2 of the Criminal Justice Act 1987.    [Back]

Note 5    Law Com No 279 para 5.51.    [Back]

Note 6    Law Com No 279 paras 5.47 – 5.50.    [Back]

Note 7    Law Com No 279 paras 5.52 – 5.54.    [Back]

Note 8    Law Com No 279 paras 5.55 – 5.64.    [Back]