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 [2001] 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”


  1. Justice Clark: "The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances"

  2. Personally, I have no problems with 1, 2 or 3.

    I can understand the concern around the defence team springing a completely new alibi or other defence at trial. Although it is clearly for the Crown to make the case for the prosecution, they do need time to do so properly and effectively - so that they can confirm or refute the statements or evidence presented. The alternative, I suppose - which wastes a vast amount of time (including that of the jury) - would be to suspend proceedings until such time as the police have been able to investigate the newly introduced theory of events.

    The Zuckerman article was interesting - as are (admittedly from the US 5th Amendment perspectives) the connected Prof James Duane and Officer George Bruch lectures.

    It is the 1994 Act amendments that worry me - it relies on the 'innocent person' - who may well be guilty of something other than what the police are investigating him for - it's so difficult to tell now - knowing in detail what the police are asking. With the disproportionate weight of investigative power that modern techniques allow and the lack of any requirement for law enforcement to explain themselves - these are very difficult. "Account for a mark"? I regularly can't account for marks on my clothes to Mrs S-E, who does not have DNA testing kit or a mass spectrometer, but does have the uxorial (and maternal) instinct for detecting unnecessary work being caused for her by the various misdemeanours of her charges.

  3. Many thanks for the comments. Unless enormous care is taken with the "silence" provisions in the 1994 Act then the problem highlighted by Ben will occur. The case law on the Act has made things rather better than they might have been but these provisions (especially section 34) remain riddled with problems. In particular, it is essential that juries and magistrates consider what other evidence exists and whether that leads to a case to answer. Only if that is so should there be any question of inferences from silence. In any event, a conviction may not be based solely (or mainly) on inferences from silence. "Mainly" needs to be added as a result of the European Court of Human Rights judgment in Condron v UK (2001) 31 EHRR 1.

    I found the two video clips most interesting and many good points were made but we have to be careful when considering American practice. Professor Duane put up a good defence of the 5th amendment and Officer Bruch did not seek to destroy that defence. Bruch merely pointed out how a skilled interviewer will extract information even from the most hardened of interviewees though, if used here, some of his tactics would undoubtedly lead to an application to exclude (PACE s76 or 78) - especially the trickery in getting the interviewee to write a letter of apology and then arguing it is a signed confession!

    I am sure that right to silence will be a matter to which we will have to return in some future post.

  4. I am not convinced there is anything wrong with a surprise defence.

    Yes, it is possible where a defendant is in fact guilty that a surprise defence might be fabricated to make the most of the holes in the prosecution case.

    However requiring disclosure of the defence case would allow any corrupt prosecution to be tailored to the defence case in exactly the same way, so as to nullify the defence evidence in advance.

    This would remove one important safeguard against corrupt prosecutions (many perhaps thought to be in a "noble cause"), namely the chance of getting caught out in court.

    To require the defence to disclose presumes that the defence acts in bad faith but the prosecution does not. While that is certainly true in many cases that is not something the court ought to presume, lest it cease to be true.

  5. Ben,

    The prosecution case (and all evidence collected by the prosecution whether it is intended to be used in court or not) must be disclosed prior to trial. Yes, I strongly believe that the prosecution (and defence) cases should be biased towards the opposing evidence - that way the jury are seeing material relevant to matters in dispute rather than spending time hearing about things either which neither side disputes or are not materially relevant to the case.

    To put forward an alibi - say, of being on holiday in Lanzarote, for example, in court, as a surprise, will require the prosecution to determine, through airline and borders records whether the accused was actually out of the country (of course, once they've done that then the accused clearly went on a private yacht ...) I appreciate that there needs to be protection against corrupt or malicious prosecution but the "surprise defence" isn't about silence.

    I see many cases of "prosecution capture" amongst forensic examiners - both in terms of failing to appreciate exculpatory evidence and of seizing on the first theory of events that the wider investigation team come up with.

    On the Bruch video - his comments about investigations with European police while he was with the US Navy were quite interesting - IIRC "the interviews always started physically"

  6. SE, I am not sure whether you are agreeing or disagreeing here.

    "To put forward an alibi - say, of being on holiday in Lanzarote, for example, in court, as a surprise, will require the prosecution to determine, through airline and borders records whether the accused was actually out of the country (of course, once they've done that then the accused clearly went on a private yacht "

    Well, yes, if the prosecution case is put together from a pathologist's time of death, a fleeting identification, glass fragments, gunpowder residue, and a motive, and then the defendant turns up with ticket stubs and airline records, then a corrupt prosecution is denied the opportunity to coach their witnesses.

    "What's the earliest he could have died, Doctor? We really need it to be tuesday..."

    "Are you sure it was wednesday... didn't you say something about watching countdown? Could it have been tuesday? Sign here..."

    It's an adversarial system, the point is to test the prosecution case. Requiring the defendant to disclose at any point makes the system closer to an inquisitorial one.

    We might argue forever about exactly what the good or bad consequences of a change of rule might be, but to me, that's all by the way.

    The real problem is that it is simply wrong, as a matter of natural justice, to require the defendent to collaborate in any way with his own prosecution.

  7. Interesting points have been made.


    Until the Criminal Procedure and Investigations Act 1996 (in force 1.4.97) there were only limited requirements on the defence to disclose anything prior to trial. ALIBI was one of the exceptions (Criminal Justice Act 1967 s11) and EXPERT WITNESSES was another.

    The perceived problem before the 1996 Act was that the common law case law was rather too demanding on prosecutors. In the developing "prosecutorial" climate, that was seen as unfair! For this reason, the Royal Commission on Criminal Justice recommended a two-stage disclosure system for trials on indictment. The 1996 Act enacted that idea. [Professor M. Zander dissented from the majority on this issue since he considered defence disclosure to be wrong in principle and "because it would cause extra delay, cost and general inefficiency in the system - to little, if any purpose]. I believe, in the light of experience since 1996, that he was right.

    The 1996 Act system (as originally enacted) did not work well and was replaced in large measure by a new regime under the Criminal Justice Act 2003 Part V. This new system gives little comfort to those who fear that our system is becoming more and more "inquisitorial".

    Space on a blog does not really permit one to cover all the detail but we now have a disclosure regime which is extremely complex and which demands of the defence a considerable amount of detail. "Mission-creep" was identified as a possibility by Prof. Zander in his Memorandum of Dissent at para. 7.

    Since the 1993 Royal Commission, some 17 years have elapsed with major changes made to the disclosure system by the 2003 Act. It is very debatable whether we are any better off as a result.