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Baroness Scotland of Asthal: My Lords, I hope that I have made it clear that I am arguing strongly that it is not contrary to our common law or to the ECHR. That is an embodiment of the principles relating to fairness and probity and the standard which we have commonly used to test whether the procedures are fair. Fairness is very much part of this debate. Therefore, we say that our proposals do not offend the common law and neither do they offend against the ECHR.
In relation to the drawing of adverse influences, we are proposing only oneonly onesignificant change from the current regime under Section 35 of the Criminal Justice and Public Order Act 1994. That is, following the recommendation of the Law Commission, to remove what is called the "highly technical and artificial" approach in the Cowan judgment to the question of what is a situation which clearly calls for an explanation from the defendant. In these cases, under our scheme, it will not be necessary for the jury, before being able to draw an inference, to have first to find that the defendant could be found guilty on consideration of the evidence alone.
The Law Commission set out its reasons for coming to the conclusion that a technical approach to the principle which underlies Cowan is flawed. We debated the issue previously, but your Lordships will find it at paragraphs 6.90 to 6.95 of its report. We entirely agree with its arguments. After deep reflectionand we have given the matter deep reflectionI can assure noble Lords, in particular the noble Baroness, Lady Anelay of St Johns, that this is not a concerning breach of long-held principles in respect of inferences
I agree with my noble friend Lady Whitaker. These are cases which cry out for an appropriate response. It is simply not the case that a person may be convicted of murder or manslaughter solely on the basis of his or her silence. That simply is not correct and it is not our intention. The law as currently drafted in the Bill would not allow it. Under our scheme, a conviction that rested wholly or mainly on the basis of silence would be proscribed by virtue of Section 38(3) of the 1994 Act, in the same way as that section currently proscribes adverse inferences that may be drawn on that basis. This Bill does not change that position one jot.
Under this clause, the principle that an inference may be drawn only where it is proper to do so remains intact. It also leaves intact that approach to what is proper which requires the evidence to be such that it calls for an explanation from the defendant. Although under our scheme the point in the trial at which the question of whether a case to answer exists or not is determined later than ordinarily is the case, it remains the case that, before an adverse inference from silence can be drawn, the evidence will still have to be such as to establish, first, that the victim was unlawfully killed; and, secondly, that the defendant is within the closed group of people, at least one of whom must have committed the offence.
In addition, there must also be established against the defendant a case to answer in respect of the new offence under Clause 5that he or she caused the death or was in a position wherein he or she ought to have taken reasonable steps to protect the victim from the risk of the harm that ultimately caused it. These three things together constitute circumstances which, as the Law Commission has argued, it may, in appropriate cases, be proper to characterise, in a non-technical sense, as "calling for an explanation" or even as "establishing a case to answer".
But yet involvement in the new offence will on its own still not be sufficient to be found a conviction for murder or manslaughter. For a safe conviction on that charge, the court or jury must be convinced beyond reasonable doubt that the ingredients for the offence of murder or manslaughter are present and that they can be applied in respect of the defendant. For this to happen, either the jury must have heard some evidenceeither from the prosecution or during the defence casesthat the defendant did commit, or may have committed, the act that caused the death, or they must be in a position in relation to all the evidence properly to conclude that the defendant is maintaining what the Law Commission called an "eloquent silence" and be able to draw such inferences from that as are proper.
If neither of these is the case, the judge would be duty bound not to put the charge of murder or manslaughter to the jury. Delaying the point at which the decision on a submission of no case to answer is determined allows the possibility that the trial itself
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for giving way. I intervene only as a member of the Joint Select Committee on Human Rights and not in any party sense. On behalf of the committee, I confirm that, as the Minister said, after questioning the Minister we unanimously concluded that this legislation would not conflict with articles of the convention. It is right that I should put that on the record.
Baroness Scotland of Asthal: My Lords, I am grateful. So, we believe that what we are doing is proportionate, fair and will not improperly lead to improper convictions and unjustly find those who are innocent guilty of this offence. It enables the judge and the jury to exercise their proper function and, as was said in opening by the noble Lord, Lord Thomas of Gresford, each juryman, and/or woman, will be able to discharge his duty of faithfully trying the defendant according to the evidence. Only if he is sure that one or other of the defendants is guilty of murder will he or she be so convicted. We believe that that is the right and proper position.
The spectre of a person being discharged at half time and there then being evidence that came from the defence identifying which of them was responsible for the killing, and then being impotent to find that person so by the jury and/or by the judge in sentencing, is not a conclusion with which anyone in this House would be happy. I therefore invite your Lordships, notwithstanding the strength of feeling, to consider the issue again and not to divide the House. If there is a Division on the matter, I regret to say that on this occasion I would anxiously urge everyone to go into the "Not Content" Lobby.
Lord Thomas of Gresford: My Lords, as the noble and learned Lord, Lord Donaldson, warned us, there was admirable advocacy from the Minister in relation to her point of view. However, it cannot be justice for a person to be convicted of murder if there is no case to answer against that person simply because he or she is silent out of loyalty, love, intimidation, fear, family responsibility or any other emotion which may require his or her silence. That cannot be justice.
We agree that there has been a problem. We agree that the Government have properly addressed it in Clause 5 with the new offence. What we do not agree is that you can go beyond that and ask a jury to guess which of two or three people killed the child. When you boil it down, what the Minister said is that the only evidence that must be produced is that the childif it was a childwas unlawfully killed and that the defendant comes within a closed group of the family. That is all. That is the case to answer.
Beyond that, it is guesswork. Although the noble Baroness says, "Well, the jury cannot convict unless it is sure", this is a highly emotive area. Those of us who have been involved in cases of this sort, as I have, where the question arises of which of two peoplefather or motherkilled the child, know that it cannot be left to a jury to decide, supposing that there are cut-throat defences between two defendants. The jury cannot be left to say, "Well, I like him, but I do not like her", or, "She is the sort of person who would do it, not him". It becomes guesswork by the very terms of the clause, even though there is no case to answer.
We cannot base justicewhether to the victim or to the family, as the noble Baroness saidon hunches or guesswork of that sort. The clause is entirely unacceptable, as is Clause 7, and I beg to test the opinion of the House.
Resolved in the affirmative, and amendment agreed to accordingly.