Saturday, 20 February 2010
Inferences drawn in criminal cases: Are they fair?
Criminal law offers a considerable number of instances in which appropriate inferences may be drawn.
1. Sometimes, there may be adverse comment by a trial judge on the fact that a witness (other than the defendant's spouse) has not been called as a witness: R v Khan  Crim LR 673, CA.
2. Whilst the prosecution may not comment on the failure by the defence to call the spouse of a defendant (see Police and Criminal Evidence Act 1984 s80A), the judge may do so though the matter requires a great deal of circumspection.
3. A refusal without good cause to provide an intimate sample may lead to the court drawing such inferences as appear proper: Police and Criminal Evidence Act 1984 s62(10). [There is no similar provision for non-intimate samples since, subject to compliance with the statutory conditions, reasonable force may be used to take those].
4. In a Crown Court trial, failure to provide advance disclosure of the defence case may lead to proper adverse inferences: Criminal Procedure and Investigations Act 1996. This is a complex area of criminal process and the rules relating to disclosure of evidence were radically amended by the Criminal Justice Act 2003.
5. Under the Criminal Justice and Public Order Act 1994, such inferences as appear proper may arise from:
a) Failure to mention facts when questioned or charged;
b) Failure to account for objects, substances , marks etc;
c) Failure to testify at trial.
The 1994 Act made a major breach in the ancient "right to silence." The defendant still retains a right to remain silent but runs the risk of "proper" inferences being drawn. The whole basis of these provisions is that the innocent person protests his innocence and offers an explanation.
These "right to silence" provisions have been particularly controversial and have spawned an enormous volume of case law. The Royal Commission on Criminal Justice reported in July 1993 and recommended that adverse inferences should not be drawn from silence at the police station but a majority of the Commissioners recommended that, once the prosecution case had been fully disclosed, defendants should be required to offer an answer to the charges made against them at the risk of adverse comment at trial on any new defence they then disclose or any departure from the defence which they previously disclosed. Needless to say, the government of the day did not go along with the Royal Commission's research-based recommendation.
The days when a defendant could remain uncooperative or silent and not run the risk of inferences are long gone. Other than being thought of as a pointer to guilt, just what other inferences might be drawn from the various refusals? Are these provisions really fair? In 1827 the philsopher Jeremy Bentham stated: “Innocence claims the right of speaking, as guilt invokes the privilege of silence”