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RE-CONCEPTUALIZING THE RIGHT OF SILENCE AS AN EFFECTIVE FAIR TRIAL STANDARD

Published online by Cambridge University Press:  21 October 2009

John Jackson
John Jackson
Affiliation:
School of Law, University College Dublin.
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Abstract

As the European Court of Human Rights has come to qualify the privilege against self-incrimination and the right of silence in recent decisions, this article argues that the Court has failed to provide a convincing rationale for these rights. It is claimed that within the criminal process the right of silence should be distinguished from the privilege against self-incrimination and given enhanced effect in order to uphold the protective and participatory rights of the defence which come into play when a suspect is called upon to answer criminal allegations.

Type
Article
Information
International & Comparative Law Quarterly , Volume 58 , Issue 4 , October 2009 , pp. 835 - 861
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 Funke v France (1993) 16 EHRR 297.

2 Report of the Committee of Experts on Human Rights to the Committee of Ministers (Strasbourg, Council of Europe, 1970) para 141 (vi).

3 Case 374/87 [1989] Orkem v European Commission, ECR 3283.

4 (2007) 44 EHRR 32.

5 Application nos. 15809/02 and 25624/02, 29 June 2007.

6 Amar, AR and Lettow, RB, ‘Fifth Amendment, First Principles: The Self-Incrimination Clause’ (1995) 93 Michigan Law Review 857CrossRefGoogle Scholar, quoted in Allen, R J and Mace, M K, ‘The Self-Incrimination Clause Explained and its Future Predicted’ (2004) 94 Journal of Criminal Law & Criminology 243, 245CrossRefGoogle Scholar.

7 Stuntz, W J, ‘Self-Incrimination or Excuse’ (1988) 88 Columbia Law Review 1227, 1228CrossRefGoogle Scholar, quoted in Allen and Mace, ibid. See also Dolinko, D, ‘Is There a Rationale for the Privilege Against Self-Incrimination?’ (1986) 33 UCLA Law Review 1063Google Scholar.

8 Allen and Mace (n 6) 244.

9 See also S J Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart, Oxford, 2007) 161–2 (arguing that the focus in the Court's case law on the autonomy of the accused neglects the importance of the defence role in the institutional understanding of fairness).

10 (1997) 23 EHRR 313.

11 (1996) 22 EHRR 29.

12 (2001) 33 EHRR 12.

13 (2007) 44 EHRR 32. para 117.

14 ibid, para 44.

15 (1997) 23 EHRR 313, concurring opinion.

16 cf Kostovski v Netherlands (1991) 12 EHRR 434, para 44.

17 See M Boyle, ‘Freedom from Self-Incrimination and the Right of Silence: A Pandora's Box?’ in Mahoney et al (eds), Protecting Human Rights: the European Perspective (Carl Heymanns Verlag, Cologne, 2000) 1021, 1029–30.

18 This was the view of the dissenting judge, Judge Pavlovschi, in O'Halloran and Francis v. UK (2008) 46 EHRR 21 (Application no 15809/02). See also A Ashworth, Commentary [2007] Crim LR 897.

19 ibid.

20 See Brown v Stott [2001] 2 WLR 817 (holding that the power to require owners to name drivers was not a disproportionate response to the general public interest in maintaining public safety).

21 [2001] 2 WLR 817.

22 See dissenting opinion of Judge Myjer in O'Halloran and Francis.

23 K v Austria Series A no 255-B, 2 June 1993.

24 S Trechsel, Human Rights and Criminal Proceedings (Oxford University Press, Oxford, 2005) 347–8.

25 (1997) 23 EHRR 313, paras 68–69; Serves v France (1999) 28 EHRR 265, para 46; Quinn v Ireland (2001) 33 EHRR 264, para 40; Heaney and McGuinness v Ireland (2001) 33 EHRR 12, para 40; Allan v United Kingdom (2003) 36 EHRR 12; JB v Switzerland Appl 31827/96 (2001), para 64; Jalloh v Germany (2007) 44 EHRR 32, para 100.

26 This useful distinction has been made by D McGrath, Evidence (Thomson Round Hall, Dublin, 2005) 623. See also Dennis, I, ‘Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination’ (1995) 54 CLJ 342, 348CrossRefGoogle Scholar (making a distinction between theories concerned with ‘accusatorial process norms’ and theories concerned with upholding substantive values).

27 See eg Allen, RJ, ‘The Simpson Affair, Reform of the Criminal Justice Process and Magic Bullets’ (1996) 67 University of Colorado Law Review 988, 1021Google Scholar and Dolinko (n 7).

28 Murphy v Waterfront Commission (1964) 378 US 52, 55, per Goldberg J. For a clear analysis of Bentham's arguments, see W Twining, Theories of Judicial Evidence: Bentham and Wigmore (Weidenfeld & Nicolson, London, 1983) 84.

29 P Roberts and A Zuckerman, Criminal Evidence (Oxford University Press, Oxford, 2005) 395.

30 R J Allen, ‘The Simpson Affair, Reform of the Criminal Justice Process and Magic Bullets’ (1996) 67 University of Colorado Law Review 989, 1021.

31 (1996) 23 EHRR 313, para 9, n 74.

32 M Redmayne, ‘Rethinking the Privilege Against Self-Incrimination’ (2007) 27 Oxford Journal of Legal Studies 209, 221.

33 See also R K Greenawalt, ‘Silence as a Moral and Constitutional Right’ (1981) 23 William and Mary Law Review 15, 39.

34 Redmayne (n 31) 222.

35 (1996) 23 EHRR 313, para 12.

36 R v B (SA) [2003] 2 SCR 678, para 34.

37 See Allen and Mace (n 6) above.

38 R v S (R) (1995) 121 DLR (4th) 589, 702-3, per L'Heureux-Dube J. See also P Arenella, ‘Schmerber and the Privilege Against Self-Incrimination: A Reappraisal’ (1982) 20 American Criminal Law Review 31.

39 Ferreira v Levin 1996 (1) BCLR 1, 123, para 259, per Sachs J.

40 [2003] 2 SCR 678.

41 For arguments basing the privilege against self-incrimination on the protection of privacy, see D J Galligan, ‘The Right to Silence Reconsidered’ (1988) CLP 69.

42 Roberts and Zuckerman (n 28) 414–6.

43 cf RK Greenawalt (n 32).

44 Telfner v Austria (2002) 34 EHRR 207.

45 Even in his own day, these claims were hotly contested, see eg Lord Denman's arguments in the Edinburgh Review in 1824, recounted by Twining (n 27) 105.

46 ibid, 209 n 83. For discussion of how Bentham's views have been mis-used by modern advocates of the abrogation of the right of silence in the police station, see W Twining, ‘The Way of the Baffled Medic’ (1973) 12 JSPTL (NS) 348.

47 See J Jackson, M Wolfe and K Quinn, Legislating Against Silence: The Northern Ireland Experience (Northern Ireland Office, Belfast, 2000).

48 Greenawalt (n 32) 44.

49 D J Seidmann and A Stein, ‘The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege’ (2000) 114 Harvard Law Review 431.

50 For other objections to the theory based on the fact that it makes assumptions about the way suspects and defendants and fact-finders would act that may not be empirically justified: see Van Kessel, G, ‘Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right of Silence’ (2002) 35 Indiana Law Review 924, 956–960Google Scholar and Park, R and Saks, MJ, ‘Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn’ (2006) 47 Boston College Law Review 1, 72Google Scholar.

51 See T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office, London, 2000) Home Office Research Study no 199.

52 See D Dixon, ‘Politics, Research and Symbolism in Criminal Justice: The Right of Silence and the Police and Criminal Evidence Act 1984’ (1991) 20 Anglo-American Law Review 27, 38.

53 See S Greer, ‘The Right to Silence: A Review of the Current Debate’ (1990) 53 MLR 58.

54 Royal Commission on Criminal Justice, Report (1993) Cm 2263, 54.

55 As far back as 1987 it had established a working group to consider how, not whether, the law should be changed. See Report of the Working Group on the Right of Silence (Home Office, London, 1989).

56 S Sedley, ‘Wringing out the Fault: Self-Incrimination in the 21st Century’ (2002) 52 Northern Ireland Legal Quarterly 107.

57 See eg R Alexy, ‘The Structure of Constitutional Rights Norms’ in A Theory of Constitutional Rights (Oxford University Press, Oxford, 2002) arguing that constitutional rights are optimization requirements that ought to be realized until competing considerations can justify their limitation according to strict proportionality conditions.

58 Redmayne (n 31) 230. cf Brown v Stott [2001] 2 WLR 817 where the Privy Council held that an admission compulsorily obtained under road traffic legislation by the defendant that she had been driving her car did not violate her right to a fair trial. The Privy Council held that limited qualification of the right against self-incrimination was acceptable if it was reasonably directed towards a clear and proper objective and represented no greater qualification than was called for by the situation.

59 A Ashworth, Human Rights, Serious Crime and Criminal Procedure (Sweet & Maxwell, London, 2002) 65, criticizing the Brown decision for putting the privilege against self-incrimination second to the general public interest.

60 cf Ferreira v Levin 1996 (1) BCLR, 1, para 265, per Sachs J (doubting whether these conditions were met where examinees' compelled answers to questions in an inquiry into a company's affairs could be used against them in subsequent criminal proceedings).

61 For the claim that most Anglo-American evidence scholarship has been dominated by a rationalist tradition which gives overriding effect to rectitude of decision making, see W Twining, Rethinking Evidence (2nd edn, Cambridge University Press, Cambridge, 2006) chapter 3.

62 See S Thaman, ‘Plea-Bargaining, Negotiated Confession and Consensual Resolution of Criminal Cases’ in K Boele-Woelki and S van Erp (eds), General Reports of the XVII Congress of the International Academy of Comparative Law (2007). For the effect of recent non-court disposals on suspects in custody such as the use of conditional cautions in England and Wales whereby defendants who admit their guilt are offered the chance to agree to complying with certain conditions as an alternative to appearing in court, see J Jackson, ‘Police and Prosecutors after PACE: The Road from Case Construction to Case Disposal’ in E Cape and R Young (eds), Regulating Policing The Police and Criminal Evidence Act Past, Resent and Future (Hart, Oxford, 2008) 255.

63 Although there are limits to the incentives that should be offered to suspects to cooperate, arguably it is unrealistic for any legal system which with limited resources must try to expedite proceedings as much as possible not to offer certain incentives to suspects to cooperate with an investigation. The ICTY Chamber has held that the lack of cooperation of an accused should not as a rule be taken into consideration as a factor that might justify denial of an application for provisional release. See Prosecutor v Jokic IT-01-42-PT and IT-01-46-PT, Orders on Motions for Provisional Release, 20 February 2002. But cooperation with the prosecution can be cited as a mitigating factor at the sentencing stage: see W Schabas, The UN International Criminal Tribunals: the Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, Cambridge 2006) 532–533.

64 See A Ashworth and M Redmayne, The Criminal Process (3rd edn, Oxford University Press, Oxford, 2005) 94, P J Schwikkard, ‘The Muddle of Silence’ (2009) 6 International Commentary on Evidence issue 2.

65 See J Jackson, ‘The Right of Silence: Judicial Responses to Parliamentary Encroachment’ (1993) 57 MLR 270, 274, Dennis (n 26) 370.

66 See, eg A Roberts, ‘Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures’ (2008) 71 MLR 331, J Jackson, ‘The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?’ (2005) 68 MLR 737. See also Summers (n 9) who makes a distinction between the rights of the accused and the institutional position of the defence.

67 ICTY Statute Art 21, ICTR Statute art 20.

68 See ICTY Statute art 18(3), ICTR Statute art 17 (3). The inclusion of this latter right was added to the rules in 1995 out of recognition of its importance: see J R W D Jones and S Powles, International Criminal Practice (3rd edn, Oxford University Press, Oxford, 2003) 502.

69 ICTY, ICTR RPE 42A.

70 Note though the difference in that the Miranda rights only extend to a right to the presence of an attorney prior to questioning whereas the international criminal tribunals extend this right to the presence of counsel during questioning. This marks an important difference of perception in the way the right to counsel is exercised. Once a suspect exercises his Miranda rights, it would seem American defence lawyers virtually always advise suspects not to talk to the police, an attitude immortalized in Justice Jackson's comment that ‘[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statements to the police under any circumstances’: Watts v Indiana 338 US 49, 59 (1949). See G Van Kessel, ‘European Perspectives on the Accused As a Source of Testimonial Evidence’ (1998) 100 West Virginia Law Review 837. The way the right is expressed in the international criminal tribunals' statutes and rules, however, suggests that defence lawyers have at this stage a more positive role to play in participating in the defence.

71 ICTY, ICTR RPE 42B.

72 ibid 43.

73 Prosecutor v Delalić et al, Decision on Mucić's Motion for the Exclusion of Evidence, 2 Sept 1997 (excluding statements obtained by Austrian police in circumstances where the accused was not offered counsel or informed adequately of his rights). See R May and M Wierda, International Criminal Evidence (Transnational Publishers, New York, 2002) 277–278.

74 Rome Statute of the ICC, Art 55(1).

75 ibid Art 55(2).

76 Deweer v Belgium (1980) 2 EHRR 439 at [46]; Eckle v Federal Republic of Germany (1983) 5 EHRR 1. The UK courts have been similarly unclear on this point. In Attorney General's Reference (No 2 of 2001) the House of Lords held that the point in time at which proceedings should commence should ordinarily be when the accused is formally charged or served with a summons. But in R (on the application of R) v Durham Constabulary and Another [2003] 3 All ER 419, [2005] UKHL 21 the Divisional Court accepted that Art 6 was engaged when a person had been formally notified that allegations against him were being investigated. In the House of Lords Lord Bingham expressed reservations as to whether this was correct but was prepared to assume with some reluctance that there was a criminal charge against the young person at the beginning of the process by which he appeared to mean at the point of arrest.

77 J Jackson, ‘The Reasonable Time Requirement: an Independent and Meaningful Right?’ [2005] CLR 3, 19. See Howarth v United Kingdom (2000) 31 EHRR 861, Quinn v Ireland (2001) 33 EHRR 264.

78 See eg R J Toney, ‘Disclosure of Evidence and Legal Assistance at Custodial Interrogation: What does the European Convention on Human Rights Require?’ (2001) 5 International Journal of Evidence & Proof 39.

79 (1994) 17 EHRR 441.

80 Trechsel (n 24) 267.

81 (1994) 17 EHRR 441, para 38.

82 (1996) 22 EHRR 29, para 63.

83 (2001) 31 EHRR 35.

84 ibid para 43.

85 ibid.

86 Trechsel (n 24) 283.

87 See R v Gilbert (1977) 66 Cr App R 237. In a study conducted for the Royal Commission on Criminal Justice in 1993 it was found that the jury heard about the defendant's silence under questioning in 80 per cent of Crown Court trials. See M Zander and P Henderson, Crown Court Study (London, HMSO 1993), RCCJ research study no 19. In Canada it seems that efforts are made to shield the jury from an accused's pre-trial silence except where it has special relevance, see DM Paccioco and L Stuesser, The Law of Evidence (4th edn, Irwin, Toronto, 2005) 288–289.

88 cf Brennan v United Kingdom (2002) 34 EHRR 18 where the Court considered deferral was in good faith and on reasonable grounds but in any event the admission was made after the deferral of access and could not be linked to it.

89 Sarikaya v Turkey, Application no 36115/97, 22 April 2004. See also Mamaç v Turkey, Application nos 29486/95, 29487/95, 29853/96, 20 April 2004. Cf Ocalan v Turkey (2003) 37 EHRR 10.

90 Application no 36391/02, 27 November 2008.

91 ibid para 53.

92 ibid para 54.

93 ibid para 55.

94 Salduz has applied in a number of recent cases see Panovits v Cyprus, Appln. no

95 See also Panovits v Turkey, Appln. no 4268/04, 11 December 2008.