ADMISSIONS BY PERSONS CHARGED WITH SCHEDULED OFFENCES (Hansard, 5 July 1973)

§ The Solicitor-General

I beg to move Amendment No. 11, in line 21, leave out 'it is proved' and insert: 'prima facie evidence is adduced'. With this Amendment it will be convenient to take Amendment No. 12, in page 4, line 22, leave out from ' accused 'to second to' in line 23 and insert: 'or some other person was subjected to or threatened with torture or inhuman or degrading treatment in order to induce the accused' and Government Amendment No. 13.

This matter was discussed in Committee at some length. It places on the accused the burden of proof that he has been subject to torture or inhuman or degrading treatment. I undertook to look at the matter again. The provision is based on an Opposition amendment which used the phrase "prima facie", it being accepted on all sides that no empty allegation would suffice and that it would have to be an allegation which the court 814 would be able to look at. Therefore, athough it is unusual in the experience of parliamentary draftsmen to use it, it seems to us to be, as it was considered by the Opposition to be, the best way of putting it.

The position now will be that if a prima facie case is raised by the accused alleging that he was subjected to torture or inhuman or degrading treatment his statement will not be admissible unless the prosecution satisfies the court that the statement was not obtained in that way.

It appears to be an amendment which meets the objections raised in Committee.

§ Mr. S. C. Silkin

I welcome the conversion of the Government to the view that in relation to this clause the onus of proof should, as it normally is in a criminal trial, be upon the prosecution. It gives me some ground for hoping that when we come to Clause 7 the Government may take the same view. I also welcome the conversion of the parliamentary draftsmen to the startling innovation of using Latin. I am grateful to them for using words which were contained in the amendment which the Opposition moved in Committee.

What is not included in the Government's concessions is the content of Amendment No. 12, which we are discussing with these two Government amendments. It was pointed out in Committee that where a situation exists such as that contemplated in subsection (2)—that is to say, an accused person is likely to be subjected, in the terms used by the Government and borrowed by them from the European Convention, to torture or inhuman or degrading treatment—it is at least as likely that that kind of treatment will be accorded to some other person in order to influence the accused to make a statement—one has in mind his wife or child especially—and it is at least as likely that either the accused or some other person, though not subjected to these forms of treatment, might be threatened with them in order to make him make an admission.

I hope that we are thinking in terms of a situation which is highly unlikely to arise in any event within the terms of the subsection as it now exists. We are contemplating the possibility that someone might make a statement as a result 815 of being subjected to torture or inhuman or degrading treatment. However, that is not the state of affairs that we wish to contemplate even in relation to the form of justice which Part I of the Bill provides. But we have to do so, and the Government have been right to put in such a clause. If it is right to do that to cover what we hope and believe to be a very unlikely circumstance, it is right that the clause should cover the equally unlikely circumstance which we describe in Amendment No. 12.

In Committee I expressed the hope that the Government would think again and ask themselves not so much how vital it was to put in this provision but, rather, whether any harm would be done by putting the provision in, thereby avoiding the situation in which a judge might be forced to construe evidence as being admissible even though he felt that it had been obtained in the manner described by us and that its weight, therefore, would not be as great as if it had been given freely.

Again I express the hope that between now and the discussions on this matter in another place the Government will have second thoughts.