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References
B.S. Jackson,Making Sense in Law (Liverpool: Deborah Charles Publications, 1995), 26–30.
[These sections offer a more systematic semiotic analysis of material discussed primarily from a Benthamite perspective in my forthcoming article: “Bentham, Truth and the Semiotics of Law”, inLegal Theory at the End of the Millennium, ed. M.D.A. Freeman (Oxford: Oxford University Press, 1998), 493–531 (=Current Legal Problems, vol. 51).
Details in a letter of Mr Ronald Thwaites, QC,The Times, 17.02.97.
The Times later reported that Paul Dacre, Editor ofThe Daily Mail, had taken a personal interest in the Lawrence case. He once employed Stephen's father to do some plastering work on his home. Mr. Lawrence had contacted Mr. Dacre to seek assurances that the case would be treated sympathetically.
Legal aid would not be available to the plaintiffs. Moreover, they could not in practice then avoid giving evidence. The newspaper could use, in seeking to establish the truth of its allegations (on the balance of probabilities), all the evidence used in the earlier criminal proceedings and even some evidence there excluded for legal reasons. See further n.15,infra.
The Mail on Sunday, 4th September 1994.
On US suggestions of introducing a “not proven” verdict, see Alan M. Dershowitz,Reasonable Doubts: The O.J. Simpson Case and the Criminal Justice System (New York: Simon & Schuster, 1996), 38f.
“Should we lose our innocence?”,The Times, 6th September 1994.
As reported by Whitaker,supra n.9. Zander had been a member of the Royal Commission set up to propose reforms in the criminal justice system, in the light of a series of notorious “miscarriages”. How the proposals of that Commission were themselves later miscarried is another story in itself.
Whitaker,supra n.9, argues that as an attempt to align the civil and criminal systems, this was a blunt instrument ill-suited to its task. It made convictions unchallengeable by anyone, not merely by a convicted libel plaintiff. This means that there is a serious disadvantage for anyone trying to substantiate allegations of “framing” by the police because, as the libel plaintiffs, the police can rely on their quarry's conviction as evidence that he did it and argue that they therefore had no need to frame him.
On different lay and legal reactions to the (then hypothetical) liability of O.J. in a civil trial after his acquittal of the crime, see Dershowitz,supra n.8, at 39.
Halford v.Brookes [1992] 1Personal Injuries Quarterly Review 175, 178.
Such a correlation between degrees of proof and degrees of sanction is far from foreign to the history of law. For an example in the Dead Sea Scrolls, see myEssays in Jewish and Comparative Legal History (Leiden: E. J Brill, 1975), 172–83, 186f. Canon law came to recognise full, half and even quarter proof and to apply different consequences to them.
Indeed, the newspaper may sometimes be able to use evidence inadmissible in the criminal trial. Whitaker,supra n.9, points out that in “honey trap” cases, where police obtain a confession by enticing the suspect into a relationship (and thus inadmissible in the criminal trial because of breach of the Police and Criminal Evidence Act 1984), the newspapers may still publish the legally inadmissible confession, and thus challenge the acquitted defendant to prove his innocence in a civil case. In that case, the newspaper will successfully defend itself by “proving” the allegation on the balance of probabilities. Indeed, there is no legal obstacle, in such honey trap cases, to the production of the confession to the libel jury, as evidence that the accused did commit the offence.
See B.S. Jackson,Semiotics and Legal Theory (London: Routledge & Kegan Paul, 1985, reprinted Liverpool: Deborah Charles Publications, 1997), pp. 76f., 96f. This is one of the crucial differences between the “semiotic square” and the square of classical logic.
E. Landowski, “Truth and Veridiction in Law”,International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique II/4 (1989), 37f., notes the dual meaning of “prova” in Italian (proof and test), and stresses the construction of proof through the interpersonal confrontations in the courtroom.
On proof and truth, cf. Landowski,supra n.22, at 34–36.
Cf. the psychologist's “attribution theory”, discussed with citation of literature in Jackson,Making Sense in Law, supra n.1, at 233, 364.
Whitaker,supra n.9: “But the Scottish “not proven” verdit has its shortcomings in that defendants feel the cloud of guilt remains over their heads; the Scots recently considered its abolition but decided to retain it. The criminal context is also only part of the picture.”
Lord Donaldson, we may recall, regards the legal system as weighted in favour of the accused, with many defendants who in reality are guilty being found not guilty because juries had “unreasonable” doubts about their guilt.
H. Kelsen,The Pure Theory of Law trld. M. Knight (Berkeley and Los Angeles: University of California Press, 1967, 2nd ed.), 5.
He quotes H. Kelsen,Reine Rechtslehre (Wien: F. Deuticke, 1960, 2. Aufl.), 245: “Erst durch diese feststellung gelangt der Tatbestand in den Bereich des Rechts, erst durch sie wird er aus einem naturlichen zu einen rechtlichen Tatbestand, wird er rechtlich als solcher erzeugt.” (This is part of the passage translated in the text at n.30: “It is only by this ascertainment that the fact reaches the realm of law; only then does a natural fact become a legal fact — is it created as a legal fact”). See also Z. Bankowski, “The Value of Truth: Fact Scepticism Revisited”,Legal Studies 1 (1981), 257–266, on the trial as a normatively justified truth certifying procedure; C. Varga,Theory of the Judicial Process. The Establishment of Facts (Budapest: Akadémiai Kiadó, 1995), 135f.
E. Bulygin, “Cognition and Interpretation of Law”, in L. Gianformaggio and S.L. Paulson, eds.,Cognition and Interpretation of Law (Turin: Giappichelli, 1995; coll. “Analisi e Diritto”, serie teorica, 18), 11–35, at 20. In support of Kelsen's view, see F.E. Oppenheim, “The Judge as Legislator”, in Gianformaggio and Paulson,ibid., 288–294, at 290.
On speech acts of certification in the legislative process, see B.S. Jackson, “Who Enacts Statutes?”,Statute Law Review 18/3 (1997), 177–207.
Bulygin,supra n.32, at 21f. (“Science is primarily interested in establishing the truth, whereas law is more interested in solving social conflicts”), 32; cf. L. Triolo, “Normative Interpretation and the Doctrine of the Ascertainment of Fact: Reflections on Kelsen's View”, in Gianformaggio and Paulson.supra n.32, at 201; F. Viola, “The Judicial Truth. The Conception of Truth in Judicial Decision”, in Gianformaggio and Paulson,supra n.32, at 215. See also Celano, n.70infra.
He quotesReine Rechtslehre, supra n.31, at 245: “Nicht die Tatsache an sich, daß ein Mensch einen Mord begangen hat, sondern die Tatsache, daß ein nach der Rechtsordnung zuständiges Organ in einem von der Rechtsordnung bestimmten Verfahren festgestellt hat, daß ein Mensch einen Mord begangen hat, ist die von der Rechtsordnung statuierte Bedingung.” This is part of the passage translated in the text at n.30: “Not the fact in itself that an individual has committed a murder is the condition stipulated by the legal order, but the fact that an organ, authorized by the legal order, in a procedure prescribed by the legal order, has ascertained that an individual has committed murder.”
Bulygin,supra n.32, at 21f. Cf., at 24: “If a jury has decided that the sentence “Dimitri killed his father” has been proved in court, then the judge is under the obligation to sentence Dimitri to imprisonment, because there is a norm that prescribes that judges ought to sentence to imprisonment those persons who have been found guilty of murder ... But — and this is of utmost importance — the judge is under the obligation to decide that Dimitri killed his father only if the sentence “Dimitri killed his father” is true and it is the fact that Dimitri killed his father that makes it true and not the decision of the judge; so the condition stipulated by the general norm that punishes murder is, contrary to Kelsen, the plain natural fact of murder and not the “legal fact” that Dimitri has been found guilty of murder.”
Kelsen,supra n.30, at 240.
Viola,supra n.34, at 206.
Text quoted at n.37. In the posthumousGeneral Theory of Norms, trld. M. Hartney (Oxford: The Clarendon Press, 1991), §45.i, Kelsen puts forward a conception of truth based on Husserl: “For a statement is true if it agrees with theobject of the statement, and in the typical case (i.e. that of a statement about a fact of reality) if the statement agrees with thereality it is about, the reality which is the object of the statement.” To this the footnote is added: “Husserl (1970:195): ‘Theexperience of the agreement between meaning and what is itself present, meant, between the actualsense of an assertion and the self-givenstate of affairs, is inward evidence: theIdea of this agreement is truth.’” Truth is thus a conceptual description of an inner experience of agreement between an assertion and the world.
Kelsen,supra n.30, at 240.
This, indeed, would be consistent with Kelsen's theory of normative alternatives, and his example of legal errata. See further myMaking Sense in Jurisprudence (Liverpool: Deborah Charles Publications, 1996), 114–124.
Despite the time-limited nature of the trial procedure:supra n.34.
As quoted at n.30,supra.
See A.J. Ayer,The Central Questions of Philosophy (Harmondsworth: Pelican Books, 1976), 209f., arguing that there is no great difficulty in defining truth (Aristotle, Tarski); the important problem is in “giving some general account of the conditions under which we are justified in attributing it.” Cf. T. Gizbert-Studnicki, “How Many Theories of Truth Are Needed in Jurisprudence?”, inConditions of Validity and Cognition in Modern Legal Thought, ed. N. MacCormick, S. Panou and L.L. Vallauri (Stuttgart: Steiner, 1985; A.R.S.P. Beiheft 25), 153–161, at 153f., citing Carnap for the view that the Tarskian formula (Sentence ‘p’ is true if and only ifp) provides no answer to the criteriological question; D.N. MacCormick,Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), 90f.
N. Rescher,The Coherence Theory of Truth (Oxford: The Clarendon Press, 1973), 12: “The position we shall defend supposes that coherence is not themeaning of truth in the context of factual claims, but itsarbiter (to use F.H. Bradley's well-chosen word).” See, however, D. Patterson,Law and Truth (New York and Oxford: Oxford University Press, 1996), 10f., attacking Michael Moore's version of the conceptual = correspondence v. criteriological = coherence account.
E.g. (1) that correspondence, in the classical form (“p is true” means “p corresponds to reality”), involves an infinite regress, since it requires us to know whether “p corresponds to reality” is true and thus whether “p corresponds to reality” corresponds to reality, etc.: A. Pap,Elements of Analytic Philosophy (New York: MacMillan, 1949), 355, cited by Gizbert-Studnicki,supra n.46, at 154; (2) Ramsey'sredundancy theory, whereby “to call something true is simply to repeat what it says”: A.R. Lacey,A Dictionary of Philosophy (London: Routledge & Kegan Paul, 1976), 220; (3) the “picture theory” of Wittgenstein and others, which, as Lacey (ibid.) puts it, involves “a relation between two things, that which is true (a proposition, belief, judgment, etc.) and that which makes it true (a fact, or perhaps a state of affairs or event). The fact has a structure which the proposition, etc., copies or pictures.” See also J.C. Morrison,Meaning and Truth in Wittgenstein's Tractatus (The Hague and Paris: Mouton, 1968), 44–64, on Wittgenstein. The basic problem is that correspondence is either a metaphor, or a form of similarity such as a picture (neither of which seems strong enough as an account of what we mean when we claim something to be true), or it really masks an identity claim: that statementp is true if and only if it is identical top in the world. We may note that the Tarskian formula (Sentence ‘p’ is true if and only ifp) avoids the use of correspondence terminology, cf. C.J. Misak,Truth and the End of Inquiry. A Peircean Account of Truth (Oxford: Clarendon Press, 1991), 127. In the paper cited in n.39,supra, Dodd quoted G.E. Moore, “Truth and Falsity” (1901), inCollected Papers, ed. T. Baldwin (London: Routledge, 1993), 21: “[i]t is commonly supposed that the truth of a proposition consists in some relation which it bears to reality; and falsehood in the absence of this relation. The relation is generally called a ‘correspondence’ or ‘agreement’; and it seems to be generally conceived as one of partial similarity; ... and hence ... it is essential to the theory that a truth should differ in some specific way from the reality to which its truth is to consist ... It is the impossibility of finding any such difference between a truth and the reality to which it is supposed to correspond which refutes the theory.” The issue begged by such theories is whether language canever be identical to that which it represents. One form of that objection is expressed by Lacey,ibid.: “... finding pairs of things which correspond in this way is difficult, especially since the sort of structure which a proposition might have, involving the relations between things like nouns and verbs, or subjects and predicates, seems entirely different from any features of the outer world. Similar difficulties confront correspondence, or picture, theories of how sentences or propositions have meaning. Also if all we know is propositions, and propositions picture the world, how can we compare the propositions with the world itself to see if they picture it accurately.” C.J.F. Williams,What is Truth? (Cambridge: Cambridge University Press, 1976), 74, argues that: “The view that the concept of truth involves the notion of correspondence seems to involve the view that truth is in some way relational. To say that something is true [is] to say that it fits the facts, that it corresponds to what is the case; andfitting andcorresponding seem to be relations.” The problem becomes all the more acute when the attempt is made to apply a correspondence concept of truth to legal propositions. See, recently, A. Pintore,Il diritto senza verità (Turin: Giappichelli, 1996); L. Ferrajoli, “The Semantics of the Theory of Law”, inLaw and Language. The Italian Analytical School, ed. A. Pintore and M. Jori (Liverpool: Deborah Charles Publications, 1997), 249–90, at 253–63.
On truth conditional semantics' identification of reality conditions with meaning, see P.F. Strawson, “Meaning and Truth” (Oxford: The Clarendon Press, 1970), 10f., reprinted in hisLogico-Linguistic Papers (London and New York: Methuen, 1971), 170–189; Patterson,supra n.47, at 5.
SeeSemiotics and Legal Theory, supra n.21, at 35–43;Making Sense in Law, supra n.1, at 22–24. On this account, reference is part of the pragmatics of language, what we do with it, rather than its meaning: see further n.52,infra.
The notion that “natural facts” are perceptible as such is rejected also in the modern psychology of perception. S. Lloyd-Bostock,Law in Practice (London: British Psychological Society and Routledge Ltd., 1988), 362, writes: “Perception does not produce a record but an interpretation.” Cf. myMaking Sense in Law, supra n.1, at 362–67. When judges and juries have to decide facts, those facts are subject, as the American jurist Jerome Frank noted (Courts on Trial (Princeton: Princeton University Press, 1950), 22; cf.Making Sense in Jurisprudence, supra n.43, at 152f.), to a double refraction: the original perception by the witnesses of the events to which they testify, and the court's perception of the conduct of the testifying witnesses. What we perceive is often informed by our expectations, in the form, I have argued, of socially constructed narrative typifications of action:Law, Fact and Narrative Coherence (Merseyside: Deborah Charles Publications, 1985), 79–82;Making Sense in Law, supra n.1, at 152–161.
A conception which structural semiotics shares with P.F. Strawson, “On Referring”,Mind 59 (1950), 320–344, reprinted in G.H.R. Parkinson,The Theory of Meaning (Oxford: Oxford University Press, 1968), 61–85, and in Strawson'sLogico-Linguistic Papers, supra n.90, at 1–27: “‘Mentioning’, or ‘referring’, is not something an expression does; it is something that someone can use an expression to do” (1968:68, 1971:8). inLaw, Fact and Narrative Coherence, supra n.51, at 42–45, I used this in a criticism of MacCormick's theory of syllogistic justification of decisions in easy cases. While rejecting the criticism, MacCormick accepted this conception of reference: N. MacCormick, “Notes on Narrativity and the Normative Syllogism”,International Journal for the Semiotics of Law IV/11 (1991), 163–174; for a summary of the debate seeMaking Sense in Jurisprudence, supra n.43, at 245–255.
Contrary to a not infrequently propagated misconception, structural semiotics does not deny the existence of facts outside language, or of the meaningfulness of truth claims. E. Landowski, “A Note on Meaning, Interaction and Narrativity”,International Journal for the Semiotics of Law IV/11 (1991), 151–161, at 155f., puts it thus: “Semiotically speaking, the referential world cannot play the part of a privileged level of reality that would ultimately guarantee either the meaning or the truth of discourses. For what is usually designated by this expression should not be regarded as entirely exterior to the realm of meaning. The “referent” is not a mere independent reality outside language, which, in turn, language would transitively, and more or less truthfully, “represent”. On the contrary, referents are themselves structurally organised so as to form, be it on a purely figurative level, a language in its own right. In fact, one should probably admit that various types of rationalities coexist and accordingly command different “ways of being” of what we uniformly call reality. Whereas scientific rationality endeavours to seize the intrinsic way of being of the objects it puts under scrutiny (the aim being to modelize the “laws” of nature or society), the implicit epistemology which governs our common-sense cognitive attitudes transforms both natural and societal environment into ahuman world, that is to say into asemiotically articulated reality that producesmeanings, rather than obeys objective regularities. The natural world, in this case, tends to appear as an immediately readable level of signification or, in other words, as a specific semiotic manifestation — one which is certainly distinct from linguistic discourses, but which to no lesser a degree is distinct also from what would be a realm of pure objects.” Cf. Patterson,supra n.47, at 10, in the context of opposition to the metaphysical realism of Michael Moore, who takes the criteria of correspondence to be “the best scientific theory we have” (“The Interpretive Turn in Modern Theory: A Turn for the Worse?”,Stanford Law Review 41 (1989), 294): “To move from one form of language (law) to another (science) seems not to solve the problem, only change the venue.”
This is an issue also in the analytical tradition. Ayer,supra n.46, at 209f., notes that “although Tarski treats truth as a predicate of sentences, his theory tacitly admits propositions, since it requires that sentences of different languages be equivalent. The reason for this is that the language in which one defines truth need not be the same as the language for which one defines it. Thus, if one were speaking in French his example would read ‘“Snow is white” est vrai en anglais si et seulement si la neige est blanche.’ But this will achieve what is wanted only if the English sentence ‘snow is white’ and the French sentence ‘la neige est blanche’ express the same proposition.” I would say: the English sentence ‘snow is white’ and the French sentence ‘la neige est blanche’ may be used, and certainly are here used by Ayer (speaking for Tarski) with the same referents. But that does not entail the conclusion that the sense of ‘snow is white’ in English is identical to the sense ‘la neige est blanche’ in French. In support of such equivalence in the legal context, see Yvo Volman, “The Meaning of Theories and Theories of Meaning”,International Journal for the Semiotics of Law VIII/22 (1995), 87–102.
See Landowski, as quoted in n.53,supra.
See furtherLaw, Fact and Narrative Coherence, supra n.51, at chs.6–7.
M. Jori, “Making Sense of “Making Sense in Law”. Review of Bernard S. Jackson,Making Sense in Law. Linguistic, Psychological and Semiotic Perspectives”,International Journal for the Semiotics of Law IX/27 (1996), 315–328, at 326.
M. Jori, “On Touchie, Logic and the Universe”,International Journal for the Semiotics of Law XI/31 (1998), 63.
Supra n.57, at 325.
J. Bentham,De l'Ontologie, et autres textes sur les fictions, English text ed. P. Schofield, French translation and commentary by J.-P. Cléro and C. Laval (Paris: Seuil, 1997), 164. See further my “Bentham, Truth and the Semiotics of Law”,supra n.2, at 498f.
B.S. Jackson, “With Reference to Touchie”,International Journal for the Semiotics of Law XI/31 (1998), 91. See further my short reply to Touchie's response to the above, in the “Controversies” section of this issue (Infra, 323–326).
P.F. Strawson, “Truth”,Analysis IX/6 (1949), 83–97, esp. 89–92, as summarised by Lacey,supra n.48, at 220. Thus truth is a message about the status of another message, conveyed in discourse, a view expressed also in the semiotics of law: Landowski,supra n.53; Jackson,Law, Fact and Narrative Coherence, supra n.51, at 157.
C.H. Morris,Signs, Language and Behavior (New York: Braziller, 1946), 33.
Lacey,supra n.48, at 168. See also K.O. Apel,Charles S. Peirce. From Pragmatism to Pragmaticism trld. J.M. Krois (Atlantic Highlands, N.J.: Humanities Press, 1995), 65.
Misak,supra n.48, at vii.
Misak,supra n.48, at 12ff.: for Peirce, he argues, what consequences could be derived from an expression is onlypart of the meaning of that expression. An interpreter must know also the term's “denotation” (extension) and “connotation” (“intension”). At 16f., Misak relates these three aspects to the threefold classification of signs, each of which emphasises one aspect: icons (connotation), indices (denotation), symbols (“if the utterer knows how interpreters habitually interpret a sign, she can use the sign to cause a specific effect in the interpreter. And Peirce calls this effect the ‘interpretant’ of the sign.”). K. Lee,The Legal-Rational State (Aldershot: Avebury, 1960), 108, contrasts the positions of Peirce and James: whereas for James, truth is reduced to utility, for Bentham as for Peirce, “although utility informs the direction and search for truth, truth is not defined in terms of utility. What is true has its basis in reality or may be said in some way to be a reflection of it.”
Misak,supra n.48, at ch.4, “Objectivity, Bivalence and Truth”.
Which is perhaps implied in the observation by D.A. Pharies,Charles S. Peirce and the Linguistic Sign (Amsterdam: John Benjamins Publishing Co., 1985), 23f.: “Peirce defined reality in terms of human opinion, not because he thought there is no reality (i.e. no dynamical objects) out there independent of human thought, but because he knew that we, as humans, can never get closer to that ultimate reality than our perception and reasoning powers can take us.”
Misak,supra n.48, at 129.
E.g. B. Celano, “Judicial Decision and Truth. Some Remarks”, in Gianformaggio and Paulson,supra n.32, at 141: “As a consequence of this [time-bound] constraint, the regulative value of the idea of truth is restricted within bounds which are alien to purely theoretical inquiry; this drives a wedge between plain truth and truth in adjudication.” “At bottom, theres judicata principle is nothing but an institutionalized ‘fixation’ of the necessity of acting on provisionally held beliefs ...” (at 152); see also the writers cited in n.34,supra.
Viola,supra n.34, at 211.
Ibid., at 214. Viola's account of the interpenetration of these various “truth-games” (in a relationship of “concentric circles”: 212) suggests a form of intersemioticity, by contrast with Bulygin's (logical) account, in which one form of truth (the “natural”) counts as a condition of correctness of the other (the legal).
Or, less cynically, that the criminal verdict is concerned not only with the truth of the prosecution's claims, but also the justice of the investigative process. Supporting the “not guilty” verdict on O.J. Simpson as sending a message to the police not to lie, Dershowitz,supra n.8, at 209, implies a positive answer to his final question: “Can a historically erroneous verdict ever be a legally — and morally — just result?”
Law, Fact and Narrative Coherence, supra n.51, at 8f., 33–36;Making Sense in Law, supra n.1, at 160, chs.10–12passim. On the extent to which the semantics can be conceived independently of the pragmatics, see J. Ralph Lindgren, “The Consequences of a Pragmatic Turn for Semiotics”,International Journal for the Semiotics of Law III/9 (1990), 293–301; B.S. Jackson, “The “Autonomy Thesis” and the “Pragmatic Turn”: A Response to Ralph Lindgren”,ibid., at 303–308.
See Dershowitz,supra n.8, at 92f., and his citation, at 208f. n.*, of a book by three of the jurors: Armanda Cooley, Carrie Bess and Marcia-Rubin Jackson,Madam Foreman (Dove Books, 1996). At 96, he writes that: “In the end, the jurors concluded that the defense had put on a more honest case than the prosecution.”
Lloyd-Bostock, quoted in n.51,supra.
Making Sense in Law, supra n.1, at 160, chs.10.
On the relationship between early socialisation and moral development, see myMaking Sense in Jurisprudence, supra n.43, at 227–230.
The newspaper's claims also frequently exemplify the concept of “anchored narratives” used by Wagenaar and his colleagues: W.A. Wagenaar, P.J. van Koppen and H.F.M. Crombag,Anchored Narratives. The Psychology of Criminal Evidence (Hemel Hempstead: Harvester Wheatsheaf, 1993). See my discussion inMaking Sense in Law, supra n.1, at 177–85, and “‘Anchored Narratives’ and the Interface of Law, Psychology and Semiotics”,Legal and Criminological Psychology 1 (1996), 17–45.
No doubt because of the breach of the coroner's order. In general, as noted above, there is no inhibition, other than the law of libel, against claiming that someone found not guilty in a criminal trial is actually guilty (cf. the then Home Secretary's view, quoted in n.82, above).
Reported inThe Times, 15th February 1997.
In England and Wales, the right has been substantially restricted by the Criminal Justice and Public Order Act 1994, ss.34–39. The principal effects are: (i) where a defendant relies at trial on a defence which was not disclosed to the police during interview, the prosecution may comment on that “silence”, and the court (in determining whether there is a case to answer) or the jury (in determining guilt) may draw such inferences as they deem proper; and (ii) where the defendant fails to give evidence at his trial, or gives evidence but refuses without good cause to answer specific questions, the court or the jury (in determining guilt) may draw such inferences as they deem proper. However, the principle that it is for the prosecution to prove the case, and not for the defence to disprove it, is retained insofar as it remains possible for the defendant to refuse to answer questions at police interview, challenge the prosecution to prove the case, and (without asserting any “positive” defence, such as alibi, at trial), submit at the close of the prosecution case that there is no case to answer. No comment on or inference from the silence may be made in such circumstances. If, however, the judge rejects the “no case” submission, and the defendant fails to give evidence as part of the defence case, the prosecution is entitled to comment on that fact in its final address, and the court and jury may draw inferences from it. There are, however, no sanctions other than this; the defendant can never be compelled to answer questions or testify. See further I. Dennis, “Criminal Justice and Public Order Act 1994: The Evidence Provisions”,The Criminal Law Review (1995), 4–18; G. Slapper and D. Kelly,Sourcebook on the English Legal System (London: Cavendish Publishing Ltd., 1996), 352–360. These provisions relate only to persons accused at a criminal trial; they did not therefore apply to the coronial inquest here discussed. Moreover, had this issue arisen in a criminal trial, the white youths might possibly have been able to claim that they had “good cause” to refuse to testify, on the grounds of fear for their personal safety thereafter.
See further D. Kurzon, “Guilt invokes the privilege of silence”,Journal for Juridical Science 17:2 (1992), 1–14; “Silence in the legal process: a sociopragmatic model”, inLegal Semiotics and the Sociology of Law, ed. Bernard S. Jackson (Oñati: Oñati International Institute for the Sociology of Law, 1994), 297–332 (Oñati Proceedings 16); and “Right of silence: a sociopragmatic model of interpretation”,Journal of Pragmatics 23:1 (1995), 55–69.
Landowski,supra n.22, at 47, observes: “Equally, ... one hardly expects much more from awitness than the account of the facts that have seemed “obvious” to him.” The witness is expected, we may say, both to perceive and to speak “naively”, and this means co-operatively. In Landowski's terms, to refuse to do so through silence is to adopt an “actantial position” closer to the “judicial configuration”, thus not one expected of a witness, even though it may be the legal system which entitles the witness to do so. Thus lawyers are generally more sympathetic to the exercise of the right of silence than is the public, or the newspapers.
The report ofThe Times, February 12th 1997, is entitled: “Fury as witnesses obstruct inquest on black student.”
Making Sense in Law, supra n.1, at 432f. and literature there cited. On the difficulties of understanding proof “beyond reasonable doubt” and on US judicial attempts to define it, see also Dershowitz,supra n.8, at 40f., 70–72; see also B.S. Jackson, “Some Semiotic Features of a Judicial Summing-Up in an English Criminal Trial:R. v.Biezanek”,International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique VII/20 (1994), 201–224, at 218f.
Ibid., chs. 10–12.
InLaw, Fact and Narrative Coherence, supra n.51, at 193–195, I go a little further, in linking narrative coherence with a concept of interpersonal communicative integrity.
See Ian E. Morley, “Narratives, Anchored Narratives and the Interface between Law and Psychology: a Commentary on Jackson (1996)”,Legal and Criminological Psychology I/2 (1997), 271–286; M. Jori, “Making Sense of “Making Sense In Law”,”International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique IX/27 (1996), 315–328.
Making Sense in Law, supra n.1, at 363, 388.
Despite attempts like those of Wagenaar et al.,supra n.81, to create a scientific filter through which to process common sense assumptions.
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Jackson, B.S. Truth or proof?: The criminal verdict. Int J Semiot Law 11, 227–273 (1998). https://doi.org/10.1007/BF01110409
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DOI: https://doi.org/10.1007/BF01110409