Written evidence to be reported to the House
Counter-Terrorism Bill
4:00 pm
Sir Ken Macdonald: That is certainly true. In terrorism cases, including the old IRA cases and cases involving the newer form of terrorism, it is comparatively unusual—very unusual, I would say—for suspects to answer questions. What is important, however, is that if they do not answer questions, the jury can be directed by the judge that they may draw an adverse inference against the defendant for his failure to answer a question.
The importance of that in post-charge questioning is as you indicated in your question. An awful lot of evidence comes to light after charge. At present, we have no way of putting it to a suspect to obtain an adverse inference if he refuses to answer questions about it, and we do not think that that is fair. We think that it should be open to the prosecution to place before a suspect the fruits of the investigation, even if they come about after charge. If the defendant wants to answer, fine—his answers can be given in evidence. If he does not want to answer, why should the Crown not be allowed to have an inference drawn from his failure? If that can be done if the defendant refuses to answer questions pre-charge, why not post-charge?