Joint Committee On Human Rights

Joint Committee On Human Rights Fourth Report

2 Domestic Violence, Crime and Victims Bill

Date introduced to the House of Lords

Current Bill Number

Previous Reports

1 December 2003

House of Lords 6

3^rd

Background

2.1 In our Third Report of 2003-04, we reported to each House on our initial view of the human rights implications of the Domestic Violence, Crime and Victims Bill.[25] In respect of clause 5 of the Bill, we reported that we had raised with the Government our view that there was a risk of incompatibility with the right to a fair hearing under ECHR Article 6.1, and that we expected to report further on it in due course.[26] The Government has replied in the form of a letter from the Secretary of State for the Home Department dated 27 January 2004.[27] We now report further on our view of the human rights implications of clause 5 in the light of that response.

Clause 5: Inferences from Refusal to Answer Questions

THE PERCEIVED PROBLEM TO BE ADDRESSED

2.2 Clauses 4 to 6 of the Bill seek to address the situation where a child or vulnerable adult dies in suspicious circumstances from injuries which appear to have been suffered non-accidentally. If the victim died in a household consisting of two or more adults, they may be the only people who know how the victim died and who was responsible. If neither will give evidence, it is sometimes impossible to establish who was responsible, or to bring home criminal liability to anyone, because no one can be proved beyond reasonable doubt to have caused the injury. As a matter of policy it is desirable to identify those responsible for serious injuries and death. Failing to do so may also violate the rights of the victim and his or her close relations under ECHR Article 2 (right not to be intentionally deprived of life) by making it systemically impossible to carry out an inquiry into the death which will establish the cause of death and allow the guilty party to be punished.[28]

THE LAW COMMISSION'S REVIEW AND RECOMMENDATIONS

2.3 The matter was referred to the Law Commission, which published a consultation paper[29] and, after considering the results of the consultation, a final report on the subject.[30] The final report made four main recommendations in relation to the present problem.

a) First, statute should impose a legal responsibility on any person who had responsibility for a child, at the time when a serious offence was committed against the child, to assist the police in any investigation of the offence and the court in any proceedings in respect of the offence, by giving as much information as possible about whether, and if so by whom, the offence was committed.

b) Secondly, there should be a new offence broadly similar to (though somewhat less far-reaching than) the one now contained in clause 4 of the Bill.

c) Thirdly, it should be possible for the jury to draw such inferences as appear proper from the failure of a defendant to give evidence or to answer any question without good cause. These may include inferences of guilt even if the prosecution has not led evidence which would suffice to found a conviction if no inference is drawn.

d) Fourthly, the possibility of drawing an inference should be taken into account by a judge when considering whether the case should properly be left to the jury. An application of "no case to answer" should therefore not be made or determined in these cases until after all the evidence on behalf of the prosecution and all the defendants has been given.

2.4 The Law Commission recognized that these recommendations had implications for the right of a defendant to a fair hearing in the determination of criminal charges (ECHR Article 6.1) and the right to be presumed innocent until proved guilty according to law (Article 6.2). The Commission pointed out that the European Court of Human Rights had held that the drawing of adverse inferences from the silence of an accused could violate ECHR Article 6, but that it would depend on the circumstances. The Court in Murray v. United Kingdom[31] stressed that the right to remain silent provides protection against improper compulsion by the authorities which might lead to miscarriages of justice. The Law Commission disclaimed any intention to impose improper compulsion, to facilitate miscarriages of justice, or to "water down" the fairness of the trials in cases like these. In order to ensure that the trial would remain fair and that the risk of a miscarriage of justice would not be enhanced, the Law Commission recommended that there should be strict safeguards, and set out the safeguards expressly in the draft Bill appended to the Commission's final Report.[32]

2.5 The safeguards were:

a) the prosecution would have had to prove that a crime had been committed, and that the death was not accidental;

b) the prosecution would have had to prove that the person from whose silence an adverse inference was to be drawn was a person with responsibility for the child at the relevant time;

c) the prosecution would have had to prove that they had narrowed the field of suspects to a known group of individuals, often just one or two people;

d) the court would have been required not to draw any inference from silence if it appears to the court that the physical or mental condition of the accused makes it undesirable for him or her to give evidence;

e) the court would have been required to acquit or direct the acquittal of a defendant if satisfied at the end of all the evidence that no court or jury could properly convict him or her.

2.6 In addition, the Law Commission pointed out that the trial judge would have had a duty to give a proper direction to the jury that, if they think that the accused may have remained silent for reasons other than guilt, they should acquit if the evidence without any inference from silence would not support a conviction. They would have been told to convict only if they were sure that the only proper conclusion from all the evidence and the defendant's lack of an explanation was that the defendant was guilty.[33] The Law Commission thought that the inference from silence would not be the only or main evidence: it would have to be seen in the context of the circumstances of the case, including everything that makes it seem that a defendant could and should have explained the circumstances of the death and that the failure to do so could only be indicative of guilt.[34] As a result, the Law Commission took the view that there would not be a serious risk of violating ECHR Article 6, which, as interpreted in Murray v. United Kingdom[35] and other cases, prohibits a conviction where an inference from failure to give evidence is the only or main evidence of guilt.

THE APPROACH TAKEN IN THE BILL

2.7 The Bill adopts the Law Commission's recommendation that there should be no decision as to whether the defendant has a case to answer (in effect, whether the case should be left to the jury) until after the conclusion of all the evidence in the case.[36]

2.8 However, in several respects clause 5 of the Bill departs from the model proposed by the Law Commission.

a) First, the Bill contains no statutory statement of the responsibility of a person to assist the investigation of the death by providing information.

b) Secondly, clause 5 would allow a decision-maker to draw inferences from silence only when a person is charged with an offence contrary to clause 4 of the Bill as well as with murder or manslaughter in respect of the same death.[37]

c) Thirdly, clause 5 does not set out a self-contained set of rules to govern adverse inferences from silence in cases where two or more suspects refuse to incriminate themselves or each other. Instead, clause 5 would apply only where the existing rules for drawing inferences from silence, in sections 35 and 38 of the Criminal Justice and Public Order Act 1994, are applicable. This would limit the scope of the inference from failure to give evidence in two ways:

i) under the 1994 Act, as interpreted by the Court of Appeal (Criminal Division) in R. v. Cowan,[38] the judge has no power to invite the jury to draw an inference of guilt from a defendant's failure to give evidence unless the situation is one which clearly calls for an explanation from the defendant (a limitation which the Law Commission criticized and excluded from its draft Bill);[39]

ii) under section 38(3), a defendant cannot be convicted solely on the basis of the inference of guilt from failure to give evidence.

THE EFFECT OF CLAUSE 5 ON CONVENTION RIGHTS

2.9 The Explanatory Notes to the Bill claim that the effect of clause 5 would be that "a defendant may not be convicted solely or mainly on the basis of an inference from silence".[40] If this is correct, the law would be compatible with the requirements of ECHR Article 6 in relation to inferences from silence, as laid down by the European Court of Human Rights.[41]

2.10 On the other hand, the words in parentheses in clause 5(1) would allow an inference to be drawn in relation to a charge of murder or manslaughter "(even if there would otherwise be no case for him to answer on that charge)". This phrase is designed to ensure that the decision of the Court of Appeal (Criminal Division) in R. v. Cowan[42] would not apply to a charge of murder or manslaughter to which clause 5 applies. In that case, the court held (in relation to the drawing of an adverse inference from silence under section 35 of the Criminal Justice and Public Order Act 1994) that the prosecution must have established a case for the defendant to answer, in the sense of a strong enough case to justify the judge in leaving it to the jury, before the defendant has any need to consider giving evidence, and so before it can be proper to draw an inference of guilt from the defendant's failure to give evidence. As noted above, the Law Commission criticised this condition, and recommended that it should not apply in cases of non-accidental injury to and death of children. The Government's reply to our question makes it clear that the Government agrees with the Law Commission's criticism of the requirement for there to be a case to answer before an adverse inference may be drawn. The words in parentheses accordingly make it clear that, in relation to cases where people are charged both with an offence contrary to clause 4 and murder or manslaughter, the prosecution need not establish a case for the defendant to answer in relation to the charge of murder or manslaughter before an inference of guilt can properly be drawn from a defendant's silence.

2.11 The effect is that a judge, when deciding under clause 5 whether to leave a charge of murder or manslaughter to the jury, would be able to take account of an inference from silence alongside the prosecution's evidence. The same applies to a court or jury when assessing the defendant's guilt or innocence. It follows that there will always be some significant evidence which tends to fix the defendant with responsibility for the death before an inference can be drawn. No decision to leave a case to the jury or to convict could be based entirely on the inference from failure to give evidence (because of section 38(3) of the 1994 Act), but a conviction could be based on the inference taken together with less evidence than would suffice to allow the inference to be drawn at all in an "ordinary" case under section 35 of the 1994 Act.

2.12 However, the Government points out in its response to us that the prosecution would have had to establish a case to answer in relation to the charge of causing or allowing the death of a child or vulnerable adult (contrary to clause 4) before the inference from silence could be used to help to establish a case to answer in respect of the charge of murder or manslaughter. In this important respect, there is a protection against conviction of murder or manslaughter wholly or mainly on the basis of an inference from silence. In jury trials, it will be impossible to be sure that a conviction is not based wholly or mainly on an inference of guilt drawn from a failure to give evidence, in breach of the right to a fair hearing under ECHR Article 6.1 and the right to be presumed innocent until proved guilty according to law under Article 6.2.[43] Nevertheless, the trial judge will not be able to invite a jury to draw an adverse inference unless there is a case for the defendant to answer on a charge of causing or allowing the death to occur, and that is a suspicious circumstance which, taken together with the other safeguards attaching to inferences from silence, should be sufficient, in our view, to rein in any tendency a jury may have to draw an inappropriate inference from silence in relation to the charge of murder or manslaughter.

2.13 We therefore conclude that the Government is entitled to say that there is not a significant risk that clause 5 would give rise to incompatibility with ECHR Article 6.

25 Third Report, Session 2003-04, Scrutiny of Bills: Progress Report, HL 23/HC252, paras. 2.1-2.19. Back

26 ibid., para. 2.8. The letter to the Home Secretary raising the matter was published as an appendix to the Report. Back

27 See Appendix 2. Back

28 See R. (Amin) v. Secretary of State for the Home Department [2003] UKHL 51, [2003] 3 WLR 1169, HL. Back

29 Law Commission No. 279, Children: Their Non-accidental Death or Serious Injury (Criminal Trials) (2003). Back

30 Law Commission No. 282, Children: Their Non-accidental Death or Serious Injury (Criminal Trials) (2003). Back

31 (1996) 22 EHRR 29. See also Condron v. United Kingdom (2001) 31 EHRR 1 and Beckles v. United Kingdom (2003) 36 EHRR 13. Back

32 See Law Com No. 282, op cit, paras. 5.49-5.60, and cl 8 of the Law Commission's draft Bill (pp. 77-78 of the Report). Back

33 Ibid., para. 5.58. Back

34 ibid., paras. 5.54 and 6.80-6.87. Back

35 See Murray v. United Kingdom (1996) 22 EHRR 29. Back

36 Cl 5(2) Back