The Law Commission

PART V

PROCEDURAL AND EVIDENTIAL REFORMS

introduction

5.1      In the Consultative Report, we indicated that we were minded to make four linked recommendations upon which we were consulting. They were as follows.^[1]

(1) That:

(a) 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 they can for the death or injury, to a police officer or court investigating or adjudicating upon criminal liability;

(b) 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 (a);

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

(2) That in a trial where, at the end of the prosecution case, the court is satisfied beyond reasonable doubt that:

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

(b) 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

(c) 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.

(3) That where:

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

(b) 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

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

(d) 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.

(4) 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.

5.2      We have considered carefully the responses to these consultation issues. We have decided to confirm the broad thrust of policy which they reflected. They may be summarised in three propositions as follows:

(1) There should be a statutory recognition that society expects that a person who was responsible for a child when (s)he is the victim of a serious assault or homicide shall, if so requested, provide the police and/or the court with such information as he or she can;

(2) There should be a rule of procedure that where the prosecution can prove that:-

(a) a serious offence has been committed against a child;

(b) the guilty party or parties must be within a known group of persons;

(c) and at least one of the defendants is a person who was responsible for the child,

then the court must postpone the question whether the case is fit to be left to the jury until the end of the defence case;

(3) In such a case, if a defendant who was responsible for the child fails to give evidence^[2] then the jury should be able to draw such inferences as appear proper from that failure. It should not be necessary for the jury, before drawing an inference, to be satisfied, that the defendant could be properly convicted on the basis of the other evidence against him, if no such inference were drawn.

5.3      Whilst confirming the essence of what we had been minded to recommend, we have, nonetheless, refined our thinking in order to respond to comments we received. It is our view that this scheme would assist in bringing to justice persons who are guilty of such offences, who would presently be unlikely even to be charged and that convictions which followed the operation of this scheme would be capable of being the result of a fair trial.
5.4      In Part VI we consider in detail how the statutory scheme we propose would work. In the remainder of this Part we address certain of the wider issues which were raised in the course of the consultation.
5.5      These recommendations were the subject of an acute division amongst respondents. Those who opposed these recommendations were in the minority but are important voices in the debate^[3] and they produced detailed and thoughtful criticisms which we have considered carefully. We focus on these contributions to the debate. Where we focus on the contribution of one respondent on a particular issue, but where others voiced the same concern, we trust that it will be understood that we are responding to all those who expressed that view even if we do not address their particular formulation of that concern.

The use of the European Convention on Human Rights

5.6      In the Consultative Report we emphasised the extent to which our thinking had been influenced by recent decisions of the European Court of Human Rights. Those decisions appeared to us to indicate that where a child has been killed or seriously injured by a private individual, constituting a breach of the child's fundamental human rights under Articles 2 and 3, then Article 13 required the State to provide a thorough and effective investigation capable of leading to the identification and punishment of those responsible.^[4] Furthermore, we were also influenced by the fact that, although the requirement for a fair trial was absolute and could not be affected by the seriousness of the offence involved, decisions of the European Court of Human Rights establish that the principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.^[5] Our conclusion was that:

where:

(1) the fundamental rights of a child have been infringed by killing or inflicting serious injury;

(2) it is clear that one or other or all of a limited group of people must be responsible for that infringement; and

(3) at least one of that group has or had parental or care responsibilities for the child

it is legitimate to question whether overall fairness in a trial may be achieved notwithstanding some adjustments to the normal rules of procedure and evidence with a view to making it possible to convict the guilty in circumstances where the application of the present rules make a conviction of the guilty impossible.^[6]

5.7      Our approach to the ECHR was subject to criticism by some respondents.^[7] We are grateful to each of these respondents for their careful analysis of the cases and principles to be derived from them. In some instances, however, we disagree with their conclusions. In some instances we believe that we were saying something different from that which they interpreted us as saying and we welcome the opportunity to clarify our position.
5.8      One line of argument was that Articles 2 and 3 are relevant to Article 6 in one way only: if a witness would be seriously at risk of death or really serious harm as a result of giving evidence and being cross examined in the usual way, that may prove a justification for restricting the defendant's right to have witnesses examined at a public hearing as long as adequate safeguards can be provided to ensure the overall fairness of the trial.
5.9      In the light of this, it was argued that our view that:

[n]onetheless the fact that the need to protect children as victims has been recognised as relevant, in some cases, in determining whether the defendant has had a fair trial is of significance in this project.^[8]

was wrong in failing to recognise the strictly limited relevance of Articles 2 and 3 and 8 to Article 6. It was said that they are relevant only where giving evidence would itself endanger those rights. The criticism went on to suggest that what was contemplated by the Consultative Report was "watering down Article 6 protection precisely on the basis of the seriousness of the offence with which a person is charged".^[9]

5.10      We believe that the view attributed to us has been overstated. We did not, nor do we, recommend "watering down Article 6 protection" if what is meant by that phrase is that a trial, which is unfair, may be acceptable. What we are recognising is that trials in a variety of different jurisdictions and in different contexts may be fair even though the rules of procedure and evidence may differ. The test is whether the overall trial is fair. We do not believe that to be a controversial proposition. We are satisfied that the proper application of our scheme would result in a fair trial.
5.11      The suggestion, if such it is, that in determining which of one or more fair procedures to adopt the legislature cannot have regard to the secondary obligations of the State under Articles 2 and 3 to provide a thorough and effective investigation capable of leading to the identification and punishment of those responsible, is not one which we accept. The fact that new rules of procedure have been proposed in order to remove a present obstacle to the proper conviction of the guilty must be a legitimate matter for the legislature to consider if the procedure adopted can result in a fair trial.
5.12      Other critics appeared to believe that we were suggesting that the impact of the present rules of procedure and evidence, which prevents such cases being successfully prosecuted, necessarily involves a breach of the human rights of the children who have been killed or seriously injured. We did not go so far (though at least one of our respondents was of the view that we did). Nor did we say that, in such cases, the right of the defendant to a fair trial may be compromised in the interests of a person who is not being called as a witness.
5.13      Our position is that, in considering what rules of procedure and evidence may result in a fair trial, it is legitimate to have regard to the fact that part of the duty which the State owes to a child who has been killed or seriously injured is to establish "a thorough and effective investigation capable of leading to the identification and punishment of those responsible".^[10] Thus, if rules of criminal evidence and procedure can be devised which provide the defendant with a fair trial but which, nevertheless, contribute to a more effective investigation leading to the identification and punishment of those responsible, then that is a positive reason to adopt them rather than to adhere to rules which presently constitute a significant bar in the preponderance of such cases either to there being any trial at all, or of the jury in such a trial being permitted to consider the guilt or innocence of those charged with committing serious criminal offences.
5.14      The evidential and procedural recommendations which we make are the outcome of such reasoning. We believe that they are consistent with the provision of a fair trial for the following reasons.

(1) A person may only be convicted by the jury if the jury are sure of his or her guilt.

(2) Such a conviction does not involve the operation of any presumption of guilt, whether legal or evidential.

(3) Further, it does not involve consideration of any evidence which the defendant has no opportunity to test.

(4) The court is under a duty to withdraw the case from the jury wherever, at the end of the evidence, no jury, properly directed, could be sure of guilt.

(5) Where a defendant, responsible for the child, is minded not to give evidence, the fact that the law expects such a person to provide an account, and the possible consequence of not doing so, will be explained to them before they make their final decision.

(6) That expectation which is expressed in the statutory responsibility is reasonable. The civil law already imposes^[11] on witnesses to answer questions even if to do so would incriminate them or their spouse

(7) If the defendant has such a responsibility and is one of a known group one, or some, or all of whom, must have committed the offence or been complicit in it but remains silent a jury will be permitted by the court to draw an adverse inference from the failure of such a person to give evidence only if it would be "proper" to do so. In assessing the significance of the defendant's silence they would have to consider the evidence in the case as a whole and possible reasons for the defendant's silence other than guilt.

5.15      One respondent^[12] took issue with what he took to be our stated approach to compliance with the ECHR as expressed in the Consultative Report.^[13] He expressed the opinion that it was inappropriate for the Law Commission, as a responsible public body, to propose a change which constitutes a significant risk of incompatibility with a Convention right merely because it holds the view that it "is not thoroughly unreasonable" to describe the change as compatible with the ECHR. He reminded us of the guidance provided for those who have to make the statutory "statement of compatibility"^[14] namely that it should only be made if the Minister is "clear that, at a minimum, the balance of argument supports the view that the provisions are compatible".^[15] He suggested that we should be wary of recommending that the Government and Parliament "chance their arms" in relation to Convention compatibility without at least providing a balanced view of the degree of risk of incompatibility. He suggested that we adopt at least as demanding a test as that provided for by that guidance. We are mindful of the guidance and are grateful to him for highlighting it. We would not make any recommendation which did not in our view meet this standard.

The dilemma

5.16      Before we turn to the arguments on the substance of our recommendations on evidence and procedure, we think it right to express the acute and perplexing dilemma which lies at the heart of this project and which has, we believe, informed the deeply divided, sincere and impassioned views which consultees have expressed.
5.17      The dilemma may be expressed at its most acute in the following two questions.

(1) Must it be the case that a fair legal system is helpless to convict a parent who has murdered his or her own infant child, where it is clear that one, or other, or both, parents has killed, or is complicit in the killing of the child, merely by the device of each parent refusing to respond to questions about the child's death?

(2) More particularly, must it be the case that recommendations for reforming the rules of procedure and evidence which seek effectively to resolve, or respond to, this conundrum are doomed to failure either because they will be ineffectual in that they do not address the problem of the silent defendant, or will inevitably and unduly impact on the fundamental requirement of a fair trial by bringing the consequences of such silence to bear upon the question of guilt?

5.18      No respondent declared satisfaction with the present state of affairs. Indeed one respondent,^[16] which provided a detailed and persuasive critique of our evidential and procedural recommendations, expressed the view that "doing nothing is not an option" whilst rejecting each and every recommendation for change to the rules of procedure or evidence.
5.19      It may well be that the widespread support for the proposed new offences reflected relief on the part of respondents that there was something on offer which could be done to convict abusive or careless parents of an offence which reflected at least something of the underlying breach of the fundamental human rights of the child. We do not doubt that this is a legitimate response. On the other hand we are clear that it is very much a second best response in that it fails to provide an effective means to convict the person(s) of the gravamen of their criminal conduct that is killing the child, or being complicit in it.
5.20      We do not, for a minute, underestimate the difficulties in addressing the dilemma. However, as jurists brought up in the common law tradition, which prides itself on its flexibility in satisfying the requirements of justice, we are concerned that our legal system is currently doing a grave disservice to society and in particular its most vulnerable members. It is presently failing to provide an effective mechanism for bringing to justice those who are responsible for committing grave crimes against children, often their own. The simple expedient of determined silence is seemingly enough to render the system powerless where the victim is, for obvious reasons, unavailable to give evidence, even where it is known that one or more of a very limited number of suspects must have committed the offence. We think it incumbent on us to look most carefully at possible reforms which would address this dilemma, always recognising the fundamental requirement for a fair trial.
5.21      We are grateful to those who provided us with detailed criticisms of the broad recommendations we were minded to make. We believe that we have, in responding to them, provided a range of safeguards which have the effect that the scheme which is set out in clauses 4 to 8 of the draft Bill is one about which we can, with confidence, state that, in our considered view, the provisions we recommend are compatible with the ECHR.

The statutory responsibility to assist the police and courts

5.22      The first of three linked changes is to establish a statutory responsibility in persons who have responsibility for a child who has been the victim of a serious offence to assist the police and the courts by giving such information as they are able. On its own it attracted little adverse comment as a matter of principle.^[17] There were some^[18] who thought the concept unduly rarefied or an unnecessary statement of the obvious. The main thrusts of the critical comments we received were along the lines that it would have little effect because there was no criminal sanction attached,^[19] or that it would make sections 34 and 35 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) more complex,^[20] or that there would be a need to change the Police and Criminal Evidence Act Codes of Practice,^[21] or that it would operate unfairly in that it would put grossly unfair pressure on a person to answer and that it extends the concept of responsibility to "a disturbing extent".^[22]
5.23      We have taken these comments into account in formulating the draft Bill.^[23] We have adopted the policy of changing the 1994 Act scheme to no greater an extent than is necessary. The person's responsibility is limited to giving such information as he or she is able to give.^[24] The suspect must be informed that the responsibility exists and be given an explanation of its implications as soon as the statutory conditions are satisfied.^[25] It is explicitly provided that the statutory responsibility of a person being interviewed by the police as a suspect does not, in itself, carry with it any obligation to answer questions but that a court or jury may take it into account in considering whether to draw any inference under section 34(2) of the 1994 Act.^[26] In this way the operation of section 34 will be only tangentially affected and we now believe that the only changes which will need to be made to the Codes of Practice will be those necessary to give proper effect to the obligation to give the person being interviewed the information and explanation required by the statute.

Postponing the 'half time' submission until after the close of the defence case.

5.24      This is a crucial part of the scheme by which, in these cases, if the prosecution can prove certain matters, the court is prohibited from entertaining, at the close of the prosecution case, a defence application to withdraw the case from the jury. Any such application will be postponed until the close of the defence case. It is a response to the operation of the present rule which requires the court to consider, at the close of the prosecution case, whether there is a case which might be left to the jury where, at that stage, the only persons who could give direct evidence of what happened cannot yet have done so because the only persons who were present at the commission of the crime are those who were involved in its commission and the victim, who is dead or otherwise properly unavailable. Thus, in a case where the prosecution can prove at the conclusion of its case that: a crime was committed against the child; that the person(s) who must be guilty of the crime are within a number of known individuals; and at least one of the defendants had responsibility for the child, the question whether the case may be left to the jury must be postponed until after the conclusion of the defence case. The policy underpinning this recommendation is that, henceforth, in this type of case, the defence will have to decide whether or not to give or call evidence and will not be protected from having to take that decision by the present obligation on the court to consider a submission of no case to answer at the conclusion of the prosecution case.
5.25      We believe that we have identified three currents of criticism.
5.26      The first combines two practical criticisms. The main thrust is that the change would be ineffectual as the defence would either say nothing, thereby leaving the judge in the same position as now, or the defendants would give evidence and would claim to know nothing about the offence and/or blame each other. In that case it is argued that it might be difficult for the judge to conclude that a jury could properly convict, or it might make it highly unlikely that the jury would convict if given the opportunity. In either event there would be no conviction.
5.27      The converse of this argument was that, far from being ineffectual, the change would be dangerous. The judge would be unlikely to withdraw the case from the jury, either because there was conflicting defence evidence which should be considered by the jury, or because it was permissible for the jury to draw an inference from silence. In such cases, it was argued, there would be a greatly enhanced risk of the jury convicting the innocent in the emotive atmosphere which often surrounds such trials.
5.28      We do not accept either of these criticisms. The changes would not, in our view, be ineffectual. Cases are presently properly left to juries where the defendants blame one another and convictions can and do occur where there is a 'cut throat' defence. In the light of the prospect of an adverse inference being drawn from silence at trial it will by no means be a uniform, or an easy, decision for a defendant to make to decline the opportunity to give evidence. Indeed we anticipate that many such defendants will give evidence and that they and their co-defendant(s) will be judged, inter alia, upon that evidence.
5.29      Nor do we accept that there would be any increase in the risk of wrongful convictions. It is not the aim of our recommendations that convictions must follow at all costs. If the jury is not sure of guilt in the light of all the evidence and any inference it may be proper to draw, then there would, rightly, be an acquittal. If the jury could not properly convict then the scheme requires the judge to withdraw the case. We are in no doubt that judges would discharge this function conscientiously. One respondent wrote that he did not consider that the judge's discretionary power to ensure fairness would be an adequate protection for strong Article 6 rights. We do not intend that the judge's role should involve discretion. As at present the judge will be under a duty to withdraw the case from the jury if a properly directed jury could not reasonably convict.
5.30      The second current of criticism was that, as this change in procedure and the reasoning supporting it is potentially applicable to types of case other than death or serious injury to children, it should be introduced as a general measure rather than as a response to a problem in a particular kind of case.
5.31      One respondent^[27] identified the thinking underlying the recommendation as reflecting what may be a valid distinction to draw between:

(1) the majority of cases in which it is unreasonable and unfair to expect a defendant to provide an answer to a non existent prosecution case, and

(2) cases where the defendant(s) is/are the only person/people who may reasonably be expected to be in a position to say what really happened and where it is consequently not unreasonable to hear what they have to say before deciding whether the case should proceed further.

5.32      We are grateful to him for articulating so clearly what in part underlies this recommendation. Allied with it is our belief that a person with responsibility for a child who is the victim of serious non-accidental injury should be responsible for providing such information as he or she can about it. It may or may not be the case that the postponement of the consideration by the court whether a case is fit to be left to the jury would be equally appropriate in a wider range of cases. If, as we believe, it is sound in principle and is necessary, we remain of the view would make no sense to delay its implementation merely because it may have more general application.
5.33      The third current calls into question our characterisation of the half time submission as "procedural". This current of criticism is to the effect that one of the incidents of the accusatorial, as opposed to the inquisitorial, system is that the decision whether the case may be left to the jury has to be determined exclusively on the material placed before the court by the prosecution. So, the argument runs, the prosecution accuses the defendant. The defendant should not be obliged to do anything but can require the prosecution to prove its case. If it cannot then the case should fall without the defendant being troubled to decide whether or not to deploy any defence. Our recommendation, it is said, would be inconsistent with this template. It would force the defence to make its deployments without the prosecution first having established "a case to answer" as the concept has developed.
5.34      Our recommendation certainly represents a change in the balance of the trial. It means that the decision whether the case may be left to the jury is determined not only on the material placed before the court by the prosecution but also on the basis of the evidence given or called by the defendant(s) or on the basis of whatever adverse inference it may be proper to draw from the defendant's silence at trial. We contest, however, the additional contentions, which were made on the back of this reasoning, that our recommendation constitutes an infringement of the presumption of innocence contrary to Article 6, or that the focus of the trial has shifted from the question "are we sure that you did it?" to the question "who did it?". We reject the notion that there is a single model of a fair trial any departure from which must inevitably result in an unfair trial.
5.35      As to the first, the position remains that a jury may only convict where it is sure of the defendant's guilt. The defendant does not have to prove or disprove anything. Furthermore, the court is under a duty to withdraw the case from the jury unless a reasonable jury properly directed could convict the defendant. In our view, the presumption of innocence remains intact.
5.36      As to the second, the only question which the jury has to answer is in respect of a specific defendant, and is "are we sure that this defendant is guilty of the offence with which he has been charged?".
5.37      In summary, we remain of the view that postponing the decision whether the case may be left to the jury until after the end of the defence case does not affect substantive rights of the defendant, or the overall fairness of the trial. Insofar as it places upon defendants the burden of taking a decision which otherwise might be spared them, it does no more than remove a tactical advantage which, in these particular cases, operates adventitiously and illogically to their advantage. Insofar as it requires the prosecution to undertake a somewhat different stance at the outset of the trial than is traditional, that is something with which we are confident the prosecution will be able to cope. Most importantly, it will not affect the fairness of the trial.

Drawing an adverse inference from a failure to give evidence at trial

5.38      This is the instrumental recommendation which enables the other two changes to have an effect. It provides for circumstances in which a jury may be permitted to draw an adverse inference against a defendant who had responsibility for the child but who does not give evidence at trial even though the prosecution evidence is not, on its own, such that a jury properly directed could convict that defendant. The statutory statement of responsibility to provide information and the postponement of the decision whether to leave the case to the jury would be ineffectual if the defendants could, at trial, maintain their silence without the possibility of adverse inferences. Were that to be so, the well advised defendant would say nothing and rely on the judge discharging his inevitable duty to withdraw the case from the jury. This would render nugatory the postponement of that decision and would empty of any consequence the statutory responsibility.
5.39      The key issues may be put in this way. If the prosecution can prove that the child was the victim of a serious offence committed by one or more or all of a known group, which includes the defendant who had responsibility for the child, but, omitting any adverse inference from the defendant's failure to give evidence, the jury could not be sure that the defendant was guilty, could the jury, consistently with fairness to that defendant, draw an adverse inference against him from his silence and conclude that he was guilty? If that were possible, what is there to prevent an unsafe conviction?
5.40      There is no dispute but that section 35 of the 1994 Act enables an adverse inference to be drawn from silence at trial in a proper case and that, as a matter of logic, such adverse inference must on occasions be decisive in securing a conviction.
5.41      We are grateful to certain respondents^[28] for drawing attention in their response to the fact that, as expressed in the Consultative Report, it appeared that we were recommending that the jury should be free to draw any inference which they saw fit, rather than that they should only be free to draw such inference as it was proper for them to draw. We accept that criticism of the way we expressed ourselves and have sought to ensure in the draft Bill that the power to draw an adverse inference is couched in identical terms to those which appear in sections 34 and 35 of the 1994 Act. Thus, before directing the jury that it may draw such an inference, the judge must first conclude that it would be proper for the jury to do so. This means that the principles which have been developed by the courts in respect of the 1994 Act, save for the one to which we refer below, will also apply in this context.
5.42      The only difference between what we recommend and the operation of the 1994 Act is that in our scheme we expressly remove one of the requirements set out in Cowan.^[29] We recommend that it will not be necessary for the jury to be satisfied, before drawing an adverse inference, that the defendant could properly have been convicted on the basis of the other evidence if no such inference were drawn. We set out in Part VI why that requirement is, in our view, illogical and is unlikely to reflect a realistic view of how juries will approach decision taking in such cases.
5.43      Those who oppose this recommendation do so, principally, on the basis that it would, in their view, breach Article 6. We address that argument in paragraphs 5.46 – 5.49 below.
5.44      Some,^[30] however, characterised our position as, on the one hand, acknowledging that the trial would be less than fair but nevertheless being content to accord the defendant a less than fair trial in such a case because of the obligations upon the State under Article 13 to provide an effective investigation of crimes which involved breaches of the child's fundamental human rights under Articles 2 and 3. They, correctly, pointed out that this would be an erroneous approach, in that it would not, as a rule, be a question of balancing the human rights of two participants in the trial - the defendant and child witness. They also correctly pointed out that the obligations under Article 13 are secondary rights, not as strong as the direct right to a fair trial, so that a diminution of the right to a fair trial could not be justified by the need to give effect to the secondary right. Finally they correctly pointed out that the severity of the offence allegedly committed could not be used as a reason to water down the content of the requirements of a fair trial.
5.45      It was not our intention to suggest that we could justify a less than fair trial by virtue either of the seriousness of the offence or by invoking the obligation to the dead or injured child under Article 13. We do, however, maintain that the ECHR is a "living instrument", the meaning of which is being constantly developed by the emerging case law.

Article 6

5.46      In assessing what may be a fair trial we must, of course, pay due regard to the jurisprudence of the European Court of Human Rights. In the Consultative Report we focused, we believe correctly, on the case of Murray v UK^[31] as the starting point in exploring what might and what might not satisfy that requirement.
5.47      It is not, we believe, controversial to state that such decisions are not to be closely construed as if they were terms of a statute but are to be approached on the basis that they reveal the principles which underpin the concept of fairness.
5.48      The European Court of Human Rights, in the crucial passage in Murray which we cited in the Consultative Report,^[32] stressed that whether the drawing of adverse inferences from an accused's silence infringes Article 6 is a matter to be determined in all the circumstances of the case. It does not, therefore, seek to impose a "one size fits all" approach. It does, however, stress that the right to remain silent provides the accused with protection against improper compulsion by the authorities which contributes to avoiding miscarriages of justice and securing the aim of Article 6.
5.49      In our view our recommendation would neither constitute improper compulsion on a defendant to give evidence nor be conducive to miscarriages of justice. As to the former, our recommendation provides an incentive but not a compulsion for a defendant with a responsibility for the child to give evidence and the burden of proof remains firmly on the prosecution. We believe it is clear from the terms of the draft Bill^[33] that our scheme would not, as was suggested by some respondents, illegitimately transform the State's duties, to investigate and bring offenders to justice, into duties placed on individuals to give an account so as to compromise their right not to incriminate themselves.
5.50      As to whether our recommendations would conduce to miscarriages of justice, it is necessary to consider the position on the one hand if the defendant chooses to give evidence and on the other hand if the defendant chooses not to give evidence.
5.51      If the defendant chooses to give evidence, our system of trial by jury is founded on the belief that juries can generally be relied upon to make a fair and just evaluation of the evidence adduced by the defence as well as by the prosecution. We do not consider that there is a solid basis for supposing that they would be less willing or able to do so in the type of case under consideration than otherwise.
5.52      If the defendant chooses not to give evidence, the questions are whether it could be fair for the jury to draw an adverse inference from his or her failure to do so and whether a jury could be relied upon to approach the matter fairly.
5.53      As to the fairness of permitting the jury to draw an inference, the hurdles which the prosecution must surmount before the scheme applies are onerous. They must establish that a crime has been committed, that the defendant from whose silence at trial an adverse inference may be drawn is a person with responsibility for the child and that they can narrow the field of suspects to a known group of individuals. In many cases this will involve narrowing it down to one or both of two.
5.54      We have noted above that the court will, no doubt, wish carefully to consider whether the evidence which narrows the field places the defendant so close to the offence that it is proper for an inference to be drawn and, if so, whether a jury could properly convict. We reject the contention that the court will permit this to occur almost routinely. We also reject, for the reasons upon which we expand in Part VI,^[34] the suggestion that a conviction in which an inference plays a part must be "solely or mainly" based on an inference from silence. Equally we reject, as unduly technical and artificial, the contention that the only legitimate meaning of phrases such as "a case to answer" or "a situation which clearly calls for an explanation" is that on the evidence, without any inference being drawn, a jury could convict a particular defendant.
5.55      We consider that a person who is close to the commission of the offence and is responsible for the child, could be expected to give an explanation for their involvement or non involvement such that its absence may constitute an "eloquent silence" from which in the absence of any plausible innocent explanation an adverse inference could properly be drawn. We use the words "could" and "may" because the matter would have to be considered in the context of the evidence in the case.
5.56      Furthermore, and in response to a particular criticism,^[35] we wish to make it clear that there is no suggestion that the jury should be required to take the existence of that responsibility into account in deciding whether or not to draw an inference. They will know that there is such a responsibility as they will be aware that the judge has advised the defendant in similar terms as presently under section 35. They may take it into account if they see fit.
5.57      The only significant change from the section 35 regime as it has been applied by the courts, is the removal of the highly technical and artificial approach in Cowan^[36] to the question what is a situation "which clearly calls for an explanation from [the defendant]"^[37] upon which we have already commented and upon which we comment in detail in Part VI.^[38]
5.58      As to whether the jury could be relied upon to approach the matter fairly, the judge would have a vital role to perform. He must give the jury a proper direction. He will have to make it clear to the jury that, if they think the defendant may have remained silent for reasons other than guilt, they must acquit. They may only convict if they are sure that the only proper conclusion from all the evidence and the defendant's lack of explanation is that the defendant is guilty.
5.59      In addition, the judge must, if asked, consider whether the case is fit to go to the jury. If he is not so persuaded, applying the familiar test, then he must withdraw the case from the jury. In so doing the judge will, no doubt, consider whether the field of suspects has been narrowed to the point that the jury could, properly directed, conclude from the evidence and the adverse inference from silence that they were sure the defendant either killed the child or was complicit in its death. These safeguards are substantial and important. We are gratified that they have been instrumental in persuading some respondents who previously had concerns or reservations to conclude that the scheme does comply with Article 6.^[39]

Conclusion

5.60      As we indicated at the outset of this section, we are aware that this project has revealed an acute dilemma in these most serious cases. Having undertaken a careful examination of the underlying principles, we feel confident that the recommendations we are making are compatible with the European Convention on Human Rights, in particular Article 6(3).

Note 1    Law Com No 279 Part VIII, issues 7, 9, 10 and 11.    [Back]

Note 2    Or refuses, without good cause, to answer any question.    [Back]

Note 3    The most detailed responses were from the Criminal Bar Association, Liberty, Justice and Professor David Feldman.     [Back]

Note 4    Law Com No 279 paras 4.17 – 4.21 and 4.27 – 4.29.    [Back]

Note 5    Ibid, paras 4.11 – 4.15.    [Back]

Note 6    Law Com No 279 para 4.29.    [Back]

Note 7    The Criminal Bar Association and Professor David Feldman.    [Back]

Note 8    Law Com No 279 para 4.15.    [Back]

Note 9    Professor David Feldman.    [Back]

Note 10    Z v UK (2002) 34 EHRR 3 at para 109.    [Back]

Note 11    Section 98 of the Children Act 1989: witnesses are compellable in the civil courts and must answer even if it would incriminate them or a spouse We are grateful to Hale LJ for drawing our attention to the Court of Appeal decision inY & K (Children)[2003] EWCA (Civ) 669 in which the compellability of civil witnesses in such cases was confirmed after some doubt had been previously expressed (Law Com No 279 para 3.41).    [Back]

Note 12    Professor David Feldman.    [Back]

Note 13    Our approach was, in fact, not that set out in para 4.16 of the Consultative Report, but rather at para 4.29. See para 5.6 above.    [Back]

Note 14    Human Rights Act 1998 s 19(1)(a).    [Back]

Note 15    Lord Chancellor’s Department Human Rights Act 1998 Guidance for Departments 2nd Ed para 36.    [Back]

Note 16    The Criminal Bar Association.    [Back]

Note 17    The exception was the response of JUSTICE.    [Back]

Note 18    Such as the Association of Chief Police Officers and JUSTICE.    [Back]

Note 19    The Criminal Bar Association.    [Back]

Note 20    Allan Levy QC.    [Back]

Note 21    The Criminal Bar Association and JUSTICE.    [Back]

Note 22    JUSTICE    [Back]

Note 23    Clause 4.    [Back]

Note 24    Clause 4(4).    [Back]

Note 25    Clause 5(1), (2) and (3), and new section 35A(3) of the 1994 Act inserted by clause 8(3) of the draft Bill.    [Back]

Note 26    Clause 5(5).    [Back]

Note 27    Judge Jeremy Roberts QC.    [Back]

Note 28    Liberty and Professor Feldman.    [Back]

Note 29    [1996] QB 373.    [Back]

Note 30    The Criminal Bar Association and Professor Feldman.    [Back]

Note 31    (1996) 22 EHRR 29 (see Law Com No 279 para 6.31), followed in Condron v UK (2001) 31 EHRR 1 (see Law Com No 279 para 6.32), and later applied in Beckles v UK (2003) 36 EHRR 13.    [Back]

Note 32    At para 6.31.    [Back]

Note 33    Particularly clauses 5(5) and (6).    [Back]

Note 34    At paras 6.61-2 and 6.86-7.    [Back]

Note 35    Of Professor David Feldman.    [Back]

Note 36    [1996] QB 373.    [Back]

Note 37    Murray v UK (1996) 22 EHRR 29 at para 47.    [Back]

Note 38    At paras 6.89 – 6.96.    [Back]

Note 39    For example Judge David Radford, the CPS and Professor David Ormerod.    [Back]