AS AN AMENDMENT TO COMMONS AMENDMENT NO. 177 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 177A. I regret that there is a printing error in Amendment No. 177A on the Marshalled List. Where it reads "credibility and reliability on any evidence" the word "on" should read "of".
In Amendment No. 177A I have sought to encapsulate my concern about the purpose of the clause. I support entirely the intention behind the clause, with one exception. The clause now provides that when a party to whom a request has been made for such a sample fails to provide it, the court may draw from his refusal or failure adverse inferences, in relation to the subject matter of the proceedings. That means that if a man is challenging his paternity of a particular child and the court requests him to provide a sample but he declines to do so, the court may then infer that he is the father of the child. In other words, the fact is proved by his refusal.
To my way of thinking that is unique. I can think of only two near analogies. One is that in the road traffic legislation it is provided that if a person fails, when properly required to do so, to take a breath test or provide a blood sample for testing for alcohol, he can be punished as if he had committed the offence of which he might have been found guilty if the sample had been shown to fall outwith the permitted limits. That is one analogy, but it is not an exact one. The other is corroboration by false denial in a paternity case.
The normal rule is the one which I have sought to include with Amendment No. 177A, namely that the inference that the court is entitled to draw is not an inference as to the fact of the case but an inference as to the credibility and reliability of any evidence of the party in relation to the matter. In my submission, that would be in accordance with the normal rule. One would need a very good reason indeed for departing from that normal rule. Therefore, while I support in general terms Amendment No. 177 I ask the Government to consider making this amendment. I ask them at least to give me a satisfactory explanation as to why that particular unique course has been chosen. I beg to move.
Moved, That Amendment No. 177A, as an amendment to Commons Amendment No. 177, be agreed to.—(Lord McCluskey.)

§ Lord Macaulay of Bragar
My Lords, the amendment is welcomed on this side of the House. Indeed, I think it emerges from Opposition proposals in another place. It is well known that in paternity cases in the sheriff court and even the Court of Session a great deal of distress and acrimony is brought about when the proceedings are prolonged because of the inability of the legal process to present positive evidence which might point one way or the other as to the paternity of the child. This is one way in which that difficulty can be overcome.
1649 Perhaps I may say with respect that I was impressed with what the noble and learned Lord, Lord McCluskey, said in support of his amendment, Amendment No. 177A, and the formula that he proposed, which seems much more apposite than the wording in Amendment No. 177.
I do not oppose this amendment, which takes advantage of the genetic fingerprint process, which can be said to be 100 per cent. positive in civil cases. I have reservations about its use in criminal cases. The advantage in civil proceedings is that one compares pure samples from the child and the alleged father and therefore pure samples can be matched. There is great doubt being cast upon the genetic fingerprint process in criminal matters where imperfect samples are obtained. It appears that adjustments can be made to the findings to produce a positive finding. The process has already been rejected in evidence in two cases in the United States because the methodology was imperfect. However, that would not appear to be a flaw in the analysis arising out of Commons Amendment No. 177.
Perhaps I may say in passing that the word "fails" is used in Amendment No. 177. There is no proviso for a person who cannot produce. There is a difference between failing and not being able to produce. We know from road traffic offences when various demands are made on people to produce samples that for one reason or another—sometimes it is for medical reasons, perhaps a fear of needles, there may be an inability to produce a urine sample because of the embarrassment—the person cannot provide what is required. There is no proviso in the amendment to take into account medical or psychological conditions that might prevent a person from giving a sample. If so, he will almost certainly lose the case, but perhaps that aspect might be considered at a later stage.

§ Lord Cameron of Lochbroom
My Lords, perhaps I may also add my voice in support of this amendment, particularly since I am aware of a case recently in which it was debated at some length as to whether the existing law was sufficient. The court decided that it was not. However, I should be grateful if the noble and learned Lord the Lord Advocate could explain why it was felt necessary to use the word "request" in this amendment rather than the direction which I believe the Scottish Law Commission recommended.
I think I am right in saying that the Law Commission report dealt with the matter of refusal or failure and felt that the court should be empowered to draw from that any adverse inferences which might be appropriate. I believe that that recommendation echoed the different provisions of the English Family Law Reform Act 1987 which amended the earlier legislation in England and allowed the use of similar tests by using a sample of blood and the like. In that legislation it is provided that the court may draw such inferences, if any, from that fact—the refusal or failure —as appear proper in the circumstances. That is what the amendment seeks to provide in the part to which my noble and learned friend has drawn attention. I suggest that he seeks to restrict it too narrowly. I 1650 cannot support his restriction. The broader phraseology in Amendment No. 177 is probably better. It allows the court a much wider use of discretion, which should be afforded in such cases. Subject to that comment, I welcome the new clause.

§ Lord Fraser of Carmyllie
My Lords, I welcome the general agreement for the provision. The fundamental point is the one raised by the noble and learned Lord, Lord McCluskey. It was spoken to by the noble and learned Lord, Lord Cameron.
I believe that it would be undesirable to restrict the provision as narrowly as the noble and learned Lord, Lord McCluskey, indicated. If someone declined to give such a blood test, and if the only inference that could be drawn from that was that the witness was not credible and was unreliable, there would remain substantial difficulties of proof. Those emerged in a case heard recently before the second division of the Court of Session. A direct hint was given to this House and another place that we ought to contemplate reform of the law.
The Scottish Law Commission report considered the matter in a different way. The amendment provides that the court may —not must—draw an adverse inference in such circumstances. The other alternative was that the court direct someone to give a blood sample. However, as part of the direction was that person to be held down and the blood sample obtained from him in circumstances requiring some force? For the best of reasons the commission rejected that alternative. It believed that it was safer and more appropriate to rely on the adverse inference. That is what the amendment provides. I believe it is correct that a broader approach should be allowed.
The noble and learned Lord, Lord Cameron, is absolutely correct in thinking that in its original report the Scottish Law Commission used the word "direct". It was considered appropriate to delete that word from its proposal and to introduce the word "request" because it is sufficient for the purposes of civil law in this context that an adverse inference should be drawn. If the word "direct" were to be used, not only might the court draw an adverse inference but, where a court has directed something and an individual has declined to comply with that direction, there might be the problem of contempt of court. It was for that reason that the word was excluded.

§ Lord McCluskey
My Lords, before I withdraw Amendment No. 177A I wish to comment on what has been said.
If one considers the roughly analogous provision in the road traffic legislation about providing a sample of blood, the person detained who is invited to give such a sample can decline to do so if he has a reasonable excuse. A person requested to provide a sample of blood, or to consent to the taking of such a sample from a child, might be a Jehovah's Witness, or a person who says that he has a phobia or some other psychological inability to accept any such proposal. If 1651 the court heard that assertion from him and believed him, there would be no problem. The court would then not draw an adverse inference from the refusal.
However, in the road traffic cases that I have read recently a person has said, "I didn't give blood. I have a reasonable excuse because I suffer from a phobia". The court has then said, "We don't believe that you suffer from a phobia," and the court has therefore penalised him under the road traffic provision.
One therefore may have a situation where, because the judge disbelieves the person's assertion that his refusal was because he had a phobia, the court could then hold that he was the father of the child. That does not seem to have any logic. I worry that the inference should go so far. I fear that the matter has not been properly thought through despite its antecedents. It is certainly unfortunate that in subsection (2) there is no reference to refusal or failure without reasonable cause. That is another provision that might usefully have Keen included. However, I do not propose to divide the House on this matter and beg leave to withdrew my Amendment No. 177A.