HL Deb 02 November 2004 vol 666 cc190-200

2 After Clause 5, insert the following new clause—

"EVIDENCE AND PROCEDURE: ENGLAND AND WALES

(1) Subsections (2) to (4) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death ("the section 5 offence").

(2) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c.33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

  1. (a) of murder or manslaughter, or
  2. (b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,
even if there would otherwise be no case for him to answer in relation to that offence.

(3) The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c.37) (unless the section 5 offence is dismissed).

(4) At the defendant's trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).

(5) An offence under section 5 is an offence of homicide for the purposes of the following enactments—

Baroness Scotland of Asthal

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.

I shall speak also to Commons Amendments Nos. 3 and 85, which are consequential amendments relating to Clause 6 of the Bill as it currently stands. I do not intend to rehearse the ground we have already covered about what we are trying to achieve and why. Instead I would like, if I may, to deal head on with some of the criticisms that were made last time we debated these clauses. Before doing so I would like to say it is noteworthy that these provisions were debated in Committee in the other place and that Her Majesty's Loyal Opposition chose not to press the matter to a vote; nor did they revisit it on Report. Therefore, I take it that that stance will be continued although, of course, I await with bated breath what the noble Baronesses, Lady Anelay and Lady Walmsley, may say.

It has been asserted that our proposed procedural changes would allow a person to be convicted of murder or manslaughter merely on the basis of his or her silence in court. I hope I have already made myself clear on this but I state once again that that will not be possible. Section 38(3) of the Criminal Justice and Public Order Act 1994, read with the Murray case in the European Court of Human Rights, prohibits a verdict being returned that is based "wholly or mainly" on an adverse inference from silence.

If there was a possibility, after all the evidence had been heard, of such a verdict being returned, the trial judge would be duty bound not to allow the murder charge to go to the jury. It is important to remember that our proposals move only the point at which the question is considered of whether the prosecution has established a case to answer on murder. We are not proposing that this essential safeguard in our system should be completely expunged; the prosecution case must still pass a test of "case to answer".

It has also been suggested that our proposals would allow juries to draw an adverse inference from a defendant's silence in court even if that defendant may have had good or understandable reasons for not giving evidence.

A judge must be satisfied that a jury could draw such an inference of guilt from the evidence that has been heard before he allows the jury the possibility of doing so. And the jury cannot draw an inference unless it decides that the silence "can only sensibly be attributed" to the accused having no answer, or none that would stand up to cross-examination.

If the jury, when considering the evidence in the case as a whole, considers that there are possible reasons for the defendant's silence other than guilt—for example, "love, fear, loyalty, family solidarity"—it would not be proper for the jury to draw an adverse inference of guilt. Indeed, the jury may be directed that it must not do so.

It has been claimed in debates on these clauses that the prosecution will not be under an obligation to establish a case to answer before a charge of murder is left to the jury to consider. I wish to make it absolutely clear that this is wrong. The prosecution will remain under an obligation to establish a case to answer.

Postponing the decision whether the case may be left to the jury until after the end of the defence case does represent a change to traditional trial procedure, but it does not affect the substantive rights of the defendant, or the overall fairness of the trial. The Joint Committee on Human Rights has concurred with that view.

The way trials are arranged currently can fail justice in these cases. I believe we are all agreed on that. If we can make changes which attempt to correct this but do not jeopardise the fairness of trials, justice demands that we consider them.

In the particular domestic circumstances of these offences, the defendants are the only people who may reasonably be expected to be in a position to say what really happened. It should not be forgotten, either, that those defendants had a responsibility to safeguard the victim's well-being from a risk that was known or ought to have been known, yet the safeguard has failed. It is not unreasonable to ask to hear what they have to say before deciding whether the case should proceed further.

We in this House are all committed to justice for defendants in trials in these very difficult cases. But we must also strive to deliver, if we can, something which we have rarely had, and that is justice for the children and vulnerable adults who are the victims. The Government believe that these proposals retain the essential safeguards for a fair trail and improve the chances of justice being done. I therefore urge your Lordships to support Commons Amendments Nos. 2 and 3.

Moved, That the House do agree with the Commons in their Amendment No. 2.—(Baroness Scotland of Asthal.)

2A Lord Thomas of Gresford rose to move Amendment No. 2A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".

The noble Lord said: My Lords, we on these Benches have supported the principle of the new offence in Clause 5. It is necessary to consider its ambit, and I summarise it as follows: where a child or vulnerable person dies as the result of an unlawful act, which may be a blow or prolonged neglect or omission to call medical assistance, any person over the age of 16 who is a member of the same household who either committed that unlawful act or omission or was negligent in failing to prevent it is guilty of an offence punishable with up to 14 years' imprisonment. That new offence is normally discussed in the context of two parents where it is not clear which of them inflicted the unlawful act and it is impossible for a jury properly to decide. However, that is not necessarily the only circumstance in which the new offence may be used.

Section 35 of the Criminal Justice and Public Order Act 1994 will apply, as it does generally, to the new offence. An inference may be drawn adverse to the defendant for failure to give evidence or refusal to answer a question without good cause. However, I am happy to receive an assurance from the Minister today that silence by itself will not prove guilt and that no adverse inference can ever be drawn if there is insufficient evidence to require the defendant to respond.

At present the specimen directions on this topic, which judges will give to juries when the issue is before them, are the following: the judge will say to the jury that, his silence at this trial may count against him. This is because you may draw the conclusion that he has not given evidence because he has no answer to the prosecution's case, or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it, but you may treat it as some additional support for the prosecution's case". With the new offence in Clause 5 it is not difficult to establish a case to answer. If the prosecution proves prima facie that the victim died as a result of an unlawful act, for example, a non-accidental injury, and the facts indicate that there was a significant and foreseeable risk of that unlawful act and that the defendant was a member of the same household and appears to have taken no steps to prevent it, there is a case to answer. The prosecution does not have to prove that the defendant did foresee what occurred, but that he ought to have foreseen it. Accordingly, with the new offence there is no need to postpone the determination of the existence of a prima facie case to the end of the defence case. It gets rid of a difficulty in the law that has existed where a child or a vulnerable adult has been killed behind closed doors and there is a mystery about it. But this new clause, which appeared in the original Bill and was taken out by your Lordships, goes way beyond. Some bright spark obviously thought that it was a good idea to attempt to get a conviction of murder or manslaughter against an individual even though the evidence does not establish a prima facie case of either offence. To get round the fact that the judge would therefore throw the matter out at half-time, the submission of no case is to be postponed under the new clause to the end of the defence case. A conviction for murder may therefore rest on the shakiest of foundations.

6 p.m.

I am very glad to hear that silence alone will not be added to the lack of a prosecution case, to make it possible to convict a person of murder simply because the defendant does not give evidence. In these cases, as is my experience, a defendant will frequently not give evidence because he is protecting his wife or partner. It would be terrible for a person against whom there was no case to answer to be convicted of murder simply because he did not give evidence. From what the Minister said—no doubt she will confirm it—it follows that if a person has no case to answer on murder and remains silent, the judge must throw the case out once that person has declared that he is not giving evidence. The Minister is bound to accept that as a proposition.

Of course, that has a problem because the defendant faces a prima facie case under the new clause, and also a charge of murder. On the one hand he gets the possibility of a finite sentence of 14 years. On the other hand, for murder, he faces life imprisonment, with probably a minimum of 15 years actually served. There is therefore pressure on the defendant not to give evidence, so that he will not be convicted of murder, and therefore not to advance his defence to the new offence introduced in Clause 5. That is one problem that arises from the Bill.

I said that conviction would rest on the shakiest of foundations because the lack of a prima facie case on the prosecution's evidence is, by inference, to be made up by what one defendant says against the co-defendant and vice versa—what the two people charged with killing a child actually say in court. If they give evidence, it is the strongest inducement to lie and blame each other. As there is no prosecution case, the jury would therefore be faced with the question of which of them is telling the truth—which of them is the better liar. It becomes a personality contest—a gamble, a toss of the coin, intuition. It is rather like that Ouija case that some noble Lords will recall from years ago, when three or four members of the jury got out a Ouija board and asked the deceased who had killed him. That came to this House, and the conviction was obviously set aside.

Leaving the matter until the end of the defence case so that one defendant will blame another and there will be some evidence against both of them, for the jury to choose between, is a recipe for wrongful convictions. So what? The Government have challenged the doctrine of Sir William Blackstone, in his Commentaries on the Laws of England of 1765, that it is better that 10 guilty men go free than one innocent man suffer punishment. However, he saw the law simply as the people's shield.

On the other hand, Jeremy Bentham—the philosopher, whose corpse is stuffed in University College, London, not the lawyer of the same vintage—viewed the law as a weapon that the government wield to punish criminals or anyone else in the name of the greatest good for the greatest number. He believed in rounding up people who might commit crimes. He wanted to restore torture to aid in securing convictions, and believed that a defendant's lawyer had an obligation to assist the prosecution. The Home Secretary is a Benthamite to his fingertips; I just hope that he does not end up in the same way.

Wrongful convictions obtained on unsatisfactory evidence undermine public confidence. We depend on the public to come forward as witnesses and act as jurors, to determine very important matters in our system. If there is a succession of appeals and it is found that people have been wrongly convicted, people's confidence and desire to help the law and the judicial process is weakened.

Mixing up the new offence that we support in Clause 5 with murder and manslaughter causes havoc to the law, on the principles of Sir William Blackstone. It was never suggested by the Law Commission in its report, Children: Their Non-Accidental Death or Serious Injury (Criminal Trials). Indeed, the Law Commission warned against it in paragraph 1.18. I shall briefly quote a passage from it, which states: New offences should not be used solely as a remedy to resolve the procedural problems associated with obtaining convictions for another type of offence", such as murder. The paragraph continues: Therefore, although a new substantive offence may have collateral procedural advantages, in that a defendant who would previously have been unwilling to give evidence may be persuaded to do so, we emphasise that a new offence must be justifiable on its own terms before we would recommend it". As with other matters in the report, the Government have abandoned that. They would rather have people wrongly convicted for murder than rely on the new offence that they have created in Clause 5. We oppose the new clause advanced in the amendment. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)

Lord Campbell of Alloway

My Lords, it is impossible to improve on the speech made by the noble Lord, Lord Thomas of Gresford, so I shall take only a very little time. The problem is the cumulative effect of Amendment No. 2 as drafted. I am surprised that the Minister could imagine that it served the interests of a fair trial.

The composite effect of the amendment is like Humpty Dumpty. It turns any concept of a fair trial on its head. It does more than remove the burden of proof on the Crown. Why? How? It removes the presumption of innocence, and enables an accused to be convicted if he fails to give evidence or refuses to answer a question. It puts on the accused the duty to establish his innocence. As the noble Lord so ably pointed out, this hideous, complex combination can end only in manifest injustice.

Last of all, the amendment removes the entitlement to submit no case to answer either at the outset of the trial—on the depositions, which is perhaps not so important—or at the conclusion of the evidence, as opened by the Crown. That would be bad enough itself, but if composite charges of murders were added to the indictment, it would be a recipe for total disaster.

Ordinarily, if the amendment were accepted and became part of the statute, the judge, faced with a suggestion that there should be a charge on Clause 5—which one accepts as being requisite—but that there should also be a charge for murder, would put the Crown to an election. It would be saying, "If you are going to proceed on murder, proceed on murder; if you are going to proceed on this clause, proceed on this clause". But the manifest injustice of proceeding on both is totally unacceptable, as has already been explained by the noble Lord, Lord Thomas.

Baroness Anelay of St Johns

My Lords, the Minister began by drawing attention to the fact that my colleagues in another place did not fight to the death over this issue. That does not imply that they are content with what the Government are doing—they have some severe reservations. My noble friend Lord Campbell of Alloway has just explained why there are still reservations. The Government have concocted a highly complex procedure, with the best intent; namely, that someone should not get away with murder. But we are concerned that the Government are creating a system that will not be workable and that leads to a theoretical erosion of long-established principles of law.

We are also concerned that the Government have expressed a view in Committee in this House that if they were to win another general election they might extend this process to other offences beyond murder and manslaughter, such as those where there was serious harm. The Minister is looking puzzled, so, therefore, she might give me an assurance that this is where this procedure stops. She might not be able to bind any future Home Secretary to such a commitment. I revelled in the description of the Home Secretary as a Benthamite, and what might happen to him. I shall think of that in the next Session when we debate for long hours the five or six Home Office Bills that face us.

The difficulty is that the Government have concocted an extremely complex procedure. The Front Bench position is that we hope that it will work. But we must be sure that it does not lead to the conviction of the innocent.

Lord Donaldson of Lymington

My Lords, I support the noble Lord, Lord Thomas of Gresford. I was surprised at the Minister's comment that the clause did not alter the burden of proof. The whole purpose of Clause 5 was to create a new offence which met the scandalous situation whereby one of two people was undoubtedly guilty of murdering a child or vulnerable adult, but one could not tell which. That clause was wholly sensible and violated no principle. But this further amendment alters the burden of proof—perhaps not the ultimate burden; but what is totally new, and has never been the law in this country, is that the prosecution can call upon the defendant to assist it in establishing guilt. In other words, the burden of proof would not require the prosecution to prove a prima facie case on its own, as is the case otherwise. It would put the accused in a position that he might well, willy-nilly, have to contribute to the burden of the prosecution. That would be a step too far.

Perhaps no-one can see, at present, why the provision should be extended any further, but I cannot see why it is here in the first place. Clause 5 provides an amply sufficient punishment. Why gild the lily, particularly at the expense of a long tradition of English law?

6.15 p.m.

Baroness Scotland of Asthal

My Lords, perhaps I may say to the noble and learned Lord, Lord Donaldson, that I absolutely agree with him regarding the necessity of creating the new offence. He is correct—there was a scandalous situation and I am delighted that this House and the other place have put that scandal to an end.

But I cannot agree with the noble and learned Lord's suggestion that this is gilding the lily, and perhaps I may explain why. I also thank the noble Lord, Lord Thomas of Gresford, for his agreement in relation to the offence and, indeed, for his kind sentiments regarding the health and well-being of my right honourable friend the Home Secretary. I am sure that my right honourable friend will be warmed by the concern expressed by the noble Lord for his long-term well-being.

The movement that we are suggesting does create a difference, but it does not, as the noble Lord, Lord Thomas of Gresford, suggests, put in peril the sanctity of the way in which we have delivered justice in this country. The procedure is said by the noble Baroness, Lady Anelay, to be highly complex. In fact it is not. It is a simple procedure. We are seeking now to deal with the situation where you have an unlawful killing that has been committed by one of a closed number of persons in a group. That group might be two or more. In practice, we are dealing with a trial where two or more people are to be charged and tried; the prosecution produces evidence regarding the new offence; it is clear that one or more of those people are responsible for the murder—the killing of the vulnerable person; but at "half time", as it is colloquially called, there is insufficient evidence to establish a prima facie case of murder.

The noble Lord, Lord Thomas of Gresford, and others would say that at that stage there should be no opportunity to determine whether further or other evidence might make that clearer. But evidence could be given by either of the defendants, which clearly identifies that one or either of them committed the offence. One would then have the interesting situation whereby members of the jury had heard evidence that may be uncontroverted, which may demonstrate that one of those defendants had killed the child but the jury would be unable to deal with the matter, because it had been removed from their consideration. Therefore, the only offence for which either of those defendants could be dealt with would be the lesser offence of familial homicide. Many right-thinking people would find that curious, if not verging on the ridiculous.

The noble Lord, Lord Thomas, is correct to say that the public must have confidence in the justice system. For example, the public—the jury—are told that one of those people killed that vulnerable person or that child. You have heard evidence regarding which one did not do so, but you are restrained or removed from making that decision because you heard that evidence at the wrong moment. Many people would not understand that situation. We are suggesting that at the end of all the evidence it would be possible for a case of "no case to answer" to be properly made. The jury could have that offence of murder removed, so that the only proper case left to be tried by the jury would be the offence of familial homicide. That does not do violence to justice but it removes a technical impediment to justice being done. The jury would still be left with the decision but, at the end of the case, the prosecution would still have to establish that there was a case to answer on the murder.

I think it is right to remind your Lordships what the Joint Committee on Human Rights concluded on this issue, which it considered very carefully. I refer noble Lords to paragraphs 2.11 and 2.12 of its report but shall quote from paragraph 2.12 in particular. It said that, 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". At paragraph 2.13, the report states: 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". I accept straight away that it is a new way of dealing with the issue but it is not an unjust way. I am much reminded of a number of the changes that we have made over the years with which those of us familiar with the old ways have been uncomfortable—majority verdicts and many other examples spring to mind—and we have been able to do justice. I have confidence that the judges, working together with the Bar and the legal profession, will, using these procedures, be able to deliver a just and equitable resolution which is just to the defendant and also, after such a long period, just to the victims who have been murdered and whose voices have not been properly heard in the past.

Lord Thomas of Gresford

My Lords, the noble Baroness quoted from the Joint Committee on Human Rights in reference to convictions where there is simply silence. I have already pointed out that she has conceded that there will be no conviction in such cases and that silence will not make a case of its own.

I was concerned about the shaky foundations of a defendant giving evidence and blaming someone else—that is, blaming his or her co-defendant. How is a jury to sort out those two things? It is not a new problem because defendants have been interviewed by police officers since time began and they have been able to, and can, give an account which sets out their side of things. They might say, "It wasn't me; it was my husband", or "It wasn't me; it was my wife who inflicted the fatal blow". But the policy of the law until now has always been that statements made to police officers are evidence only against the person who makes that statement and not evidence against anyone else. The reason that that policy has been adhered to—it has been developed from the common law and adhered to throughout the centuries—is that it is unsafe to rely on the accusation of one defendant against another defendant.

These new proposals now compound the problem. Not only are we sweeping away that policy but we are allowing juries to convict a person on the say-so of a co-defendant without a prime facie case being put forward by the prosecution. It is a recipe for disaster and for wrongful convictions. I do not think that the public will have confidence in a system which allows people to go to prison for life simply because their partner, who can lie better, is preferred by the jury. That is no position at all.

Baroness Scotland of Asthal

My Lords, I thank the noble Lord for giving way. He is right that I did not deal with that, but it is not right for him to suggest that this is a new issue. Matters of this kind are dealt with every day in our courts, and juries are asked the simple, straightforward question: "Which evidence do you prefer? Do you prefer the evidence of the Crown, the defendant or the co-defendant?" That is why we have a jury. It is the decider of fact, and surprisingly juries have been very good at doing that for hundreds of years.

Lord Thomas of Gresford

My Lords, they have been very good at doing it for hundreds of years because there is always a prima facie case. They can compare the account of one defendant against the prosecution evidence and decide, in that context and within that framework, who is telling the truth. Here, we are faced with a situation where there is no prima facie case against two people and they simply point the finger of blame at each other. There is no way in which to resolve that except by way of a beauty contest in which the question is: "Which one do you think is better and which one appeals to you more?".

As I have said so often, this really is a recipe for disaster, but perhaps it is too late in the course of this Bill for us on these Benches to do very much more than give the warning, and we shall have to see how the courts deal with it. However, one thing is absolutely certain: a judge will tell a jury in the strongest possible terms that a defendant has an interest to serve when he accuses his partner of having committed the act which led to the death. In the absence of any corroborative evidence called by the prosecution, the direction is likely to be so strong that I do not believe that, in the long run, this measure will result in the number of convictions for murder that the Minister and those advising her hope that it will. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.