Current Status in English Law of the Privilege Against Self-Incrimination - Essay Example

1 Current Status in English Law of the Privilege Against Self-Incrimination The fairness of the right has been tested in the courts, debated in acadame, elaborated on at length by many scholars, and explored and dissected in detail by a number of researchers. These individuals have had more than 3 centuries of history to explore and compare, and yet, even today, the thought which has the prevailing prevalence in the minds of most, is an 1825 assessment of the right, made by Jeremy Benthem “…if all criminals of every class had assembled and framed a system after their own wishes, is not this rule, the very first which they would have established for their security?”1 Consequently, even today the question still looms, is the provision exploited by professional criminals? According to Ian Dennis, “…the result of the research on this issue remain inconclusive. Police research undertaken in Northern Ireland indicated just over 50% of the suspects detained for serious offenses including terrorist offenses refused to answer any sustentative questions when questioned by the police.”2 Also, “…one English study concluded that 71% of such suspects remained silent before the introduction of legislation curtailing the right to silence” “This figure was reduced to 35% following the introduction of the legislation”3. In a Criminal Law Review Committee report, it is noted that, “…studies have concluded that the right to remain silent before the trial was more likely to be exercised by suspects questioned about a serious offence” 4 1Kowalick,P., Silence may be golden no longer, Australian Federal Police 2Dennis I., The Rationale of Criminal Conspiracy, in LQR 93, 1977, p39 3Williams, J., Inferences From Silence (1997) 141 Solicitors 566 4Miller, R., Submission at 4, Police Association of New South Wales, Submission at 11. Criminal Law Review at para 30 2 However, the direction and the discretion on the application of the self incriminating rule, has been continuously wrestled with by parliament and the courts respectively. The courts have been compelled to address a number of human rights issues, pertaining to fairness, as it relates to the due process model, and the crime prevention model. Since these two models run counter to each other, what are the limitations of the privilege of self incrimination? Does the privilege routinely extend to everyone in all circumstances? It is stipulated in the “Police and Criminal Evidence Act of 1984”5, that, “the privilege pertains to everyone”. However, it has been determined that ‘everyone’ has conditional connotations, and is restricted to first party applications; “In Berber v. Perry (1961), a prosecution witness, in regard to charges brought against a defendant who was identified as his friend, made a previous statement concerning the offence which tended to implicate he and his friend as the perpetrators of the offence. During the trial the “friend” wanted to claim the protection of the privilege, but the court held “…that the claim must be valid and legitimate. Since he was not invoking it to protect himself, but to protect another person, the claim could not stand”6 In Duke v. R (1989), the issue of fairness was again explored, as the suspect confessed to the charge, but the court argued that it would be unfair to the accused to admit the statement at trial”7. “…Stephen Odgers illuminated the possibility that the tactics of the police may have been in accordance with a crime prevention model, thereby the tactics used in securing the statement would be adverse to due process”8. The landmark case on establishing fairness 5The Police and Criminal Evidence Act 1984 6Brebner v. Perryt (1961) SASR 177 7Duke v. R (1989) 63 ALR323 8Ibid 3 and furthering the due process model, was McKinney v. R (1991). The High Court determined that the police were not always truthful concerning confessions, consequently the matter was in need of judicial review. It was stated that,” in the effort to assure a fair trial, the jury should be provided a warning on the veracity of disputed confessions”9. In McKinney the dispute was not about the manner or content of the statement, but on whether the accused made a statement at all. The production of evidence by the police, and the integrity of the authorities, were the issues at hand. The High Court in McKinney, established a rule of application, whenever an accused person allegedly makes a confession, and for whatever the reason, the confession is not reliably corroborated, particularly when the confession is the only basis, for establishing the guilt of a person, the court held the view that “… video and or audio taping confessions was sufficient to corroborate the making of a statement”10. The rule is accompanied by the limitation that, the confession ‘must be’ the exclusive foundation for finding the accused person guilty. “In Perry and Maiden v. The Queen (1991), the court preserved the common law right against self incrimination.”…A person who believes on reasonable grounds that he or she is suspect of having been a party to an offense is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles they played”11”…An 9McKinney v. R (1991) 171 CLR 468; 98 ALR 236 10Ibid 11Perry and Maiden v. The Queen (1991) 173 CLR 95 4 incident of the right to silence is that no adverse reference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right to silence or render it valueless.”12 However, in Weisensteiner v. the Queen (1993),”…the court approved greater judicial comment as it relates to the accused’s denial to render testimony during trial. This decision paved the way for the judge to instruct the jury on the drawing of adverse inference, whenever the accused refuses to offer testimony. When the court broadened the perimeters surrounding the right to silence, by granting the trial judge the discretion to give instruction to the jury in certain cases, the manner and circumstances with which this discretion has been handled by the judges has been the subject of both controversy and court actions. The Right to Silence was amended by the British Parliament in 1994. This amendment gave the judge the discretion to direct the jury on the correct use, by witnesses’ exercising the right either during police questioning, before their trial or during the trial. The amendment specifically cautions that a jury will be cognizant of the accused refusal to respond to questions, the answer of which may be different from the allegations being put forth by the prosecution. Six months after Parliament passed the new act, the case of “Regina v. Cowan Gayle & Ricardi 1995 The Times, October 13”13, was heard in the courts. This case 12Weissensteiner v. The Queen (1993) 178 CLR 217 13 Regina v. Cowen Gayle & Ricardi (1995) The Times, October 13 5 addressed, guidance to courts about directing a jury under the altered law and practice in S35 of the Criminal Justice and Public Order Act 199414. It pointed out that S38 (3) prohibited the court or jury from convicting solely because of an inference drawn from the defendant’s silence. The burden of proving guilt to the required standard remained on the prosecution throughout” 15. This case also raised a number of issues (1) “whether the discretion to draw inferences from silence under S 35 (3) should be open in the generality of cases or only exceptionally. It was resolved that, “the plain words of section 35 simply did not justify confining its operation to exceptional cases; S35 (1) dealt with exceptional situations in which subsections (2) and (3) were not to be invoked. Otherwise the section was in terms of general application”16. Because of this point raised in Cowan, it provided impetus for the successful opinion on fairness raised in Condron and Another v. United Kingdom (2000).It was decided that their right to a fair trial was violated by the judge’s comments in informing the jury of the couple’s refusal to respond to police questions. The Court of Appeal said, “…the judges direction was deficient”17.”…as a matter of fairness, the trial judge should have directed the jury that it should not draw an adverse inference if it was satisfied with the explaination”18 The European Court’s ruling in Condron and Another, has led to both controversy and debate. The basis of concern is that if fairness is to be applied across the 14Criminal Justice and Public Order Act 1994 15Ibid 16Ibid 17BBC News, Heroine Couples Right to Silence Upheld, Tuesday May 2,2000,Condron and Another v. UK(2000) 18Ibid 6 board, then the decision may have a retroactive affect. It is being speculated that due to the ruling, that many of those previously convicted under similar types of instructions, could possibly have their convictions overturned. (2) “If it was to apply in a jury trial, what directions should be given the jury by the judge? It was made clear that the right to silence remained. It was not abolished by S 35; on the contrary subsection (4) expressly preserved it”19 “This position was reinforced by the House of Lords in R v. Kevin Sean Murray (1993)20 and partly by the European Court of Human Rights in John Murray v. United Kingdom (1966),21 and of course in Condron v. United Kingdom (2001),22 which also restated the concept of early access to legal advice. The inferences a jury can draw from silence or failure to mention facts are given to them as the English Model directions, derived from R v. Cowan (1996)23. Lord Mustill in R v. Director of Serious Fraud Office, Ex parte Smith 1992,24 stated, “ The right to remain silent, does not denote any single right, but rather refers to a desparate group of immunities, which differ in nature, origin, incidence and importance”25. “One of these immunities is the immunity possessed by all 19 Condron and Another v. United Kingdom (2000) 20 R v. Kevin Sean Murray (1993) 21 John Murray v. United Kingdom (1966) 22 Condron v. United Kingdom (2001) 23 R v. Cowan (1996 24 R v. Director of Serious Fraud Office, Ex parte Smith 1999 25Ibid 7 persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind”26 The incrimination in the above instance would be manifested via an interview or by way of surrendering material or documents on demand to an authority, such as is stipulated in S 71 (2) of the Environmental Protection Act 1990.27 In the case of Funke v. France,28 the court (The European Court of Human Rights) held that the applicants right to a fair trial under article 6 (1) of the human rights convention had been infringed by a requirement to disclose documents concerning his tax affairs that would incriminate him. Sally Ramage points out that, “the right to silence is not the same as the right to be presumed innocent but both fall within the concept of the right to a fair trial”29 On the other hand in C PLC v. P & Anoir [2007] EWCA CIV 493,30 we see that material which is demanded through a search order takes on a totally different view. Accordingly, “When considering the scope of the privilege against self incrimination, as regards, “independent” or “pre-existing” material, is no wider relation to material disclosed in the course of civil proceedings”31. In the aforementioned case, the Court of Appeal upheld the first instance decision, with the effect that certain self- 26 R v. Director of Serious Fraud Office, Ex parte Smith 1992 27 the Environmental Protection Act 1990 28 Funke v. France 29 Ramage, Sally (2005) The Privilege Against Self-Incrimination 30 C PLC v. P & Anoir [2007] EWCA CIV 493 31Ibid 8 incriminating materials, which had been handed over to an independent computer expert by the supervising solicitor during the execution of a search warrant, were not covered by the privilege of self – incrimination”32. Another area of immunities covered within the sensitive scope of silence, is the area of interviews.What are they? and what are the circumstances defining an occurrence? The court on a number of instances has been compelled to address the instances. In Batley v. Director of Public Prosecutions (1998) The Times, March 5 QBD,33 the facts in the case were, “having entered the public house the sight the officers met was such that any reasonable police officer would have suspected that an offence was being committed and, in those circumstances, that Batley was one of the persons committing it.When Batley was asked what the arrangements were, that was an intimation for him to state whether he had a defence to S 59 (1) a and (2) of the licensing Act 1964.34Batley might answer the question in a number of ways. The fundamental thing was that he was being asked to incriminate himself if he had committed the offence. The conversation amounted to an interview within the meaning of paragraph 11.1A of Code C”35 32 C PLC v. P & Anoir [2007] EWCA CIV 493 33 Batley v. Director of Public Prosecutions (1998) The Times, March 5 QBD 34 S 59 (1) a and (2) of the licensing Act 1964 35Op. Cit 12 Conclusion While I am a stark proponent of the due process model, I am also of the opinion, that law enforcement authorities should possess varying levels of latitude, whenever they are dealing with the criminal element and especially in the case of terrorist. However, this latitude should not infringe upon the human rights of the accused, regardless of the grounds for the apprehension or suspicion. It is clear that after almost three centuries of dealing with this issue, most authorities in some jurisdictions, are still plagued with the dilemma of not getting it right. This can in some instances be attributed to over zealousness, lack of understanding of the law, veracity, prejudice and in some instances, a lack of concern for due process, in favor of crime prevention. Parliament has made several attempts to remove these idiosyncratic shortcomings, however, human frailties has a way of forcing its will, in the line of fire. Even from the benches of magistrates and judges, the proper discretion has been challenged on various occasions and the plaintiff has come out the victor. When judges were given the discretion of providing instruction to the jury on adverse inference, much of the protection provided by the privilege in the first instance at trial, was watered down. As the cases presented pointed out, the watering down appeared, because the judges themselves, over exercised their discretion. References 1Kowalick,P., Silence may be golden no longer, Australian Federal Police 2Dennis I., The Rationale of Criminal Conspiracy, in LQR 93, 1977, p39 3Williams, J., Inferences From Silence (1997) 141 Solicitors 566 4Miller, R., Submission at 4, Police Association of New South Wales, Submission at 11. Criminal Law Review at para 30 5The Police and Criminal Evidence Act 1984 6Brebner v. Perryt (1961) SASR 177 7Duke v. R (1989) 63 ALR323 8Ibid 9McKinney v. R (1991) 171 CLR 468; 98 ALR 236 10Ibid 11Perry and Maiden v. The Queen (1991) 173 CLR 95 12Weissensteiner v. The Queen (1993) 178 CLR 217 13 Regina v. Cowen Gayle & Ricardi (1995) The Times, October 13 14Criminal Justice and Public Order Act 1994 15Ibid 16Ibid 17BBC News, Heroine Couples Right to Silence Upheld, Tuesday May 2,2000,Condron and Another v. UK(2000) 18Ibid 19 Condron and Another v. United Kingdom (2000) 20 R v. Kevin Sean Murray (1993) 21 John Murray v. United Kingdom (1966) 22 Condron v. United Kingdom (2001) 23 R v. Cowan (1996 24 R v. Director of Serious Fraud Office, Ex parte Smith 1999 25Ibid 26 R v. Director of Serious Fraud Office, Ex parte Smith 1992 27 the Environmental Protection Act 1990 28 Funke v. France 29 Ramage, Sally (2005) The Privilege Against Self-Incrimination 30 C PLC v. P & Anoir [2007] EWCA CIV 493 31Ibid 32 C PLC v. P & Anoir [2007] EWCA CIV 493 33 Batley v. Director of Public Prosecutions (1998) The Times, March 5 QBD 34 S 59 (1) a and (2) of the licensing Act 1964 35Op. Cit Read More