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Rectitude Rights and Legitimacy: Reassessing and Reforming the Privilege against Self-Incrimination in English Law
Published online by Cambridge University Press: 04 July 2014
Extract
The privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins, and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty. This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights. These developments can be summarised by saying that whereas the trend in England has been towards attrition and formal restriction of the privilege, the European Court of Human Rights has been reconstituting the privilege as an implicit element of the right to a fair trial under article 6.1 of the European Convention. The European decisions have the potential for significant expansion of the privilege, and they call into question the validity of several of the English developments.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997
Footnotes
*
Professor of English Law, University College London. This paper updates material first published in the following articles: I. Dennis, “Instrumental Protection, Human Right or Functional Necessity: Reassessing the Privilege Against Self-Incrimination” [1995] C.L.J. 342; I. Dennis, “The Criminal Justice and Public Order Act 1994: The Evidence Provisions” [1995] Crim. L.R. 4. I am grateful to the editors of these journals and to the respective publishers Cambridge University Press and Sweet & Maxwell Ltd. for permission to republish the material. I would like to thank the participants at the international conference for their comments on the first draft of the paper and my thanks go also to Roger Leng for his helpful suggestions.
References
1 Wigmore located the origins of the privilege in the second half of the seventeenth century, following the constitutional struggles that resulted in the abolition of the courts of Star Chamber and High Commission; Wigmore, J.H., Evidence (vol. VIII, McNaughton rev., Boston, 1961)Google Scholar para. 2250. Most evidence scholars have tended to accept this account: see, e.g., Ratushny, E., Self-Incrimination in the Canadian Criminal Process (Toronto, 1979) at 159–174 Google Scholar; Cross on Evidence (London, 7th ed., 1990) at 203–204, 418–419 Google Scholar. However, L.W. Levy argued that the roots of the privilege were to be found much earlier in the medieval common law ( Origins of the Fifth Amendment, New York, 1968 Google Scholar), and Wigmore's account has again been challenged in a recent article by Langbein, J.H., “The Historical Origins of the Privilege Against Self-incrimination at Common Law” (1994) 92 Mich. L.R. 1047 CrossRefGoogle Scholar, who argues that the privilege did not arise until much later, and that it is attributable to the introduction of defence counsel and the development of adversary criminal procedure at the end of the eighteenth century. See also Williams, Glanville, The Proof of Guilt (London, 3rd ed., 1963)Google Scholar chap. 3; Macnair, M.R.T., “The Early Development of the Privilege against Self-Incrimination” (1990) 10 O.J.L.S. 66 Google Scholar.
2 This celebrated passage reads as follows: “If all the criminals of every class had assembled and framed a system after their own wishes, is not this rule the very first they would have established for their security? Innocence never takes advantage of it. Innocence claims the right of speaking as guilt invokes the privilege of silence”. The passage is commonly cited as being from Bentham's, Treatise on Judicial Evidence (London, 1825) 241 Google Scholar. However, Andrew Lewis has pointed out that it is in fact taken from the anonymous English translation of Dumont's, Etienne Traite des Preuves Judiciaires (Paris, 1823)Google Scholar. Dumont relied exclusively on Bentham's manuscripts, and we can be reasonably confident that Bentham would have agreed with this expression of his views, but the point remains that he never actually used this formulation. See Lewis, A.D.E., “Bentham's View of the Right to Silence” [1990] C.L.P. 135 Google Scholar. For Bentham's well-known attacks on the “old woman's reason” and “the fox hunter's reason” for the privilege see his Rationale of Judicial Evidence (ed., Mill, J.S., London, 1827) vol. 5, 230–240 Google Scholar.
3 See Zuckerman, A.A.S., The Principles of Criminal Evidence (Oxford, 1989) 307 Google Scholar. Reference should also be made to Zuckerman's, earlier article “The Right against Self-Incrimination: An Obstacle to the Supervision of Interrogation” (1986) 102 L.Q.R. 43 Google Scholar.
4 Most recently, and notably, by ss. 34-39 of the Criminal Justice and Public Order Act 1994.
5 Funke v. France (1993) 16 E.H.R.R. 297 (European Court of Human Rights); Saunders v. U.K. (1997) 23 E.H.R.R. 313 (European Court of Human Rights); Murray v. United Kingdom (1996) 22 E.H.R.R. 29 (European Court of Human Rights).
6 Developments particularly at risk are the use at trial of statements given and documents disclosed by the accused under various statutory inquisitorial procedures (see Part IV below). A question mark also hangs over the legislation allowing adverse inferences from failure to mention facts to the police or to testify at trial. The European Court of Human Rights held in Murray v. United Kingdom (1996) 22 E.H.R.R.29 that this is a matter to be determined on the facts of each case, thus leaving open the possibility that the drawing of such inferences might in certain circumstances amount to a violation of the Convention. The applicant in this case (John Murray) failed, but the European Commission of Human Rights has held admissible an application by Kevin Murray (no relation) (Murray v. D.P.P. (1993) 97 Cr. App. R. 151) that the Criminal Evidence (Northern Ireland) Order 1988, on which the trial judge relied in drawing inferences from Murray's failure to give evidence at his trial for attempted murder, violates art. 6.1. (See Human Rights Case Digest vol. V, Part 1, Jan.-Feb. 1994, 40). Other challenges are likely.
7 See, for example, the discussion of the right to silence by the Criminal Law Revision Committee in their Eleventh Report Evidence (General) (Cmnd. 4991, London, 1972)Google Scholar paras. 22-32, and by Lord Templeman in A.T. & T. Istel v. Tully [1993] A.C. 45, 51-53. In this case Lord Templeman expressed scepticism whether the right to silence can guarantee a suspect freedom from ill-treatment or prevent the production of a dubious confession, which he regarded as the only purposes of the right. Cf. Lord Mustill in R. v. Director of Serious Fraud Office, Ex parte Smith [1993] A.C. 1, at 30-32, who articulates a wider range of underlying purposes but who still conceives of the right in instrumental terms.
8 Packer, H.L., The Limits of the Criminal Sanction (Stanford, 1968) 158 Google Scholar et seq.
9 See Part IVC below.
10 See, e.g., the comments of Lord Lane C.J. in R. v. Alladice (1988) 87 Cr.App.Rep. 380, 385.
11 See, for example, Criminal Justice Act 1987 s. 2(8), and in the civil context A.T. & T. Istel v. Tully [1993] A.C. 45, where the House of Lords accepted that an undertaking by the Crown Prosecution Service not to make use of material compulsorily disclosed by the defendant pursuant to a Mareva injunction was effective to defeat reliance on the privilege against self-incrimination.
12 A. T. & T. Istel v. Tully [1993] A.C. 45. Lord Templeman commented at p. 53: “I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff's property or money”. Although his Lordship was concerned in this case only with civil proceedings other dicta in his speech (see n. 7 supra) showed that his scepticism about the justification for the privilege extended to criminal matters also.
13 See further Part V, below.
14 This paper is concerned only with the privilege against self-incrimination as it relates to a suspect in pre-trial investigations or to a defendant at a criminal trial. It does not discuss the privilege in civil litigation or the testimonial privilege for witnesses.
15 [1993] A.C. 1, 30-32.
16 The term is often used interchangeably with the right to silence when Lord Mustill's second (“a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them”) and sixth (“a specific immunity … possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial”) immunities are under discussion.
17 This is the Latin maxim, referred to by Lord Diplock in R. v. Sang [1980] A.C. 402, nemo debet prodere se ipsum.
18 Where a procedure, such as a search or the taking of a sample, involves a violation of a suspect's interest in the security of person or property consideration of the privilege might seem to be unnecessary in view of the general protection afforded to such interests by the substantive law of crime and tort. Nevertheless the privilege could supply an independent reason for not permitting exceptions to the substantive law for investigative procedures: see Tate Access Floors v. Boswell [1991] Ch. 512, where Sir Nicolas Browne-Wilkinson V-C held that the privilege could be relied on to defeat parts of an Anton Piller order requiring a defendant to permit the plaintiff to search the defendant's premises and seize documents related to alleged infringements of copyright.
19 Per Sir Nicholas Browne-Wilkinson V-C in Tate Access Floors v. Boswell [1991] Ch. 512, 529, citing Rank Film Distributors Ltd. v. Video Information Centre [1982] A.C. 380, H.L. See also R. v. Director of Serious Fraud Office, Ex parte Smith [1993] A.C. 1, 30-32 (Lord Mustill); Cross on Evidence (London, 7th ed., 1990) 418 Google Scholar.
20 This is the sixth of the “disparate group of immunities” described by Lord Mustill in R. v. Director of Serious Fraud Office, Ex parte Smith [1993] A.C. 1, 30-32. It is in this sense that I mainly use the term ‘the right to silence’ from now on in this article.
21 (1966) 384 U.S. 436.
22 For English law see the Police and Criminal Evidence Act 1984 (hereafter PACE) Code of Practice C paras. 3.1, 3.15, 6, 10 and 11.2.
23 English law was thought for a long time to base the rule that an involuntary confession was inadmissible on unreliability (see R. v. Warickshall (1783) 1 Leach 263; Ibrahim v. R. [1914] A.C. 599), but in R. v. Sang [1980] A.C. 402, 436 Lord Diplock expressed the view that the underlying rationale of the common law rule was the principle nemo debet prodere se ipsum. In saying this Lord Diplock went further than Lord Reid in Commissioners of Customs and Excise v. Harz and Power [1967] 1 A.C. 761,820 who had opined that this principle and reliability were joint rationales for the voluntariness rule. Under PACE the notion of involuntariness was dropped. Confessions are now inadmissible if procured by oppression or by anything said or done likely to render any confession by the suspect unreliable (s. 76(2)). The architects of the reform based their proposals on a combination of reliability, disciplinary and protective principles: see the Eleventh Report of the Criminal Law Revision Committee (n. 7 supra) para. 64; Report of the Royal Commission on Criminal Procedure (Cmnd. 8092, London, 1981) paras. 4.131-4.132.
24 Arenella, P., “ Schmerber and the Privilege Against Self-incrimination: A Reappraisal” (1982) 20 Am. Crim. L.R. 31, at 37 Google Scholar.
25 For critical reviews of such accounts see Wigmore, supra a. 1, at para. 2251; McNaughton, J.T., “The Privilege Against Self-Incrimination: Its Constitutional Affectation, Raison d'être and Miscellaneous Implications” (1960) 51 J. Crim. Law, Criminology & Police Science 138 CrossRefGoogle Scholar. More recent sceptical writing has tended to focus on the four theories discussed here; see in particular Dolinko, D., “Is There a Rationale for the Privilege Against Self-Incrimination?” (1986) 33 U.C.L.A. L.R. 1063 Google Scholar; Dripps, D., “Self-Incrimination and Self-Preservation: A Skeptical View” [1991] U. Illinois L.R. 329 Google Scholar. For a more sympathetic treatment of both rights-based and consequentialist arguments see Easton, S.M., The Right To Silence (Aldershot, 1991)Google Scholar chap. 6; Schulhofer, S., “Some Kind Words for the Privilege against Self-Incrimination” (1991) 26 Valparaiso L.R. 311 Google Scholar.
26 The most notable recent advocates of this view were the majority of the members of the Royal Commission on Criminal Justice. See the Report of the Commission (London, 1993) (hereafter RCCJ) chap. 4, para. 22.
27 On the moral harm involved in wrongful conviction see Dworkin, R.M., “Principle, Policy, Procedure” in Crime, Proof & Punishment (ed. Tapper, C.F.L., London, 1981) 193 Google Scholar; Galligan, D.J., “More Scepticism About Scepticism” (1988) 8 O.J.L.S. 249 Google Scholar.
28 For a restatement of this view see Greer, S., “The Right to Silence: A Review of the Current Debate” (1990) 53 M.L.R. 709 CrossRefGoogle Scholar.
29 McConville, M., Sanders, A. and Leng, R., The Case for the Prosecution (London and New York, 1991) chap. 4, esp. pp. 56–57 Google Scholar.
30 The research evidence presented in the recent RCCJ Report gives varying figures. At their lowest it seems that at least 72% of suspects answer all or some significant police questions (see p. 53) and in some studies the percentage is much higher; see in particular Leng, R., The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate (RCCJ Research Study No 10, London, 1993)Google Scholar who found that the right to silence was relied on in less than 5% of cases. McConville, M. (Corroboration and Confessions, RCCJ Research Study No 13, London, 1993)Google Scholar found that the incidence of confessions by suspects varied between 53% and 61% (see p. 61). This finding is in line with other studies showing figures varying between 42% and 76% of suspects making full confessions, with further percentages making incriminating statements falling short of full confessions. These studies are summarised in Gudjonsson, G., The Psychology of Interrogations, Confessions and Testimony (Chichester, 1992)Google Scholar chap. 4.
31 In McConville's study (cited in n. 30), of those who confessed during custodial interrogation where the outcome of the case is known, 93.6% pleaded guilty: ibid, at 32.
32 “Politics, Research and Symbolism in Criminal Justice: The Right of Silence and the Police and Criminal Evidence Act 1984” (1991) 20 Anglo-American L.R. 27, at 38 Google Scholar.
33 For an excellent review see Gudjonsson, supra n. 30, passim.
34 Irving, B., Police Interrogation: A Case Study of Current Practice (Royal Commission on Criminal Procedure Research Study No 2, London, 1980) 153 Google Scholar.
35 See most recently the RCCJ Report at p. 54, discussing possible restriction of the right to silence.
36 Discussed by Dennis, I.H., “Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions” [1993] Pub. Law 291 Google Scholar; Walker, C., Justice in Error (ed. Walker, C. and Starmer, K., London, 1993)Google Scholar chap. 1.
37 Gudjonsson, supra n. 30.
38 R. v. Bailey and Smith [1993] 97 Cr. App. Rep. 365, 375.
39 PACE s. 78(1): In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
40 R. v. Samuel [1988] Q.B. 615. See also R. v. Parris (1989) 89 Cr. App. Rep. 68; R. v. Walsh (1990) 91 Cr. App. Rep. 161; R. v. Chung (1991) 92 Cr. App. Rep. 314.
41 R. v. Keenan (1990) 90 Cr. App. Rep. 1; R. v. Canale (1990) 91 Cr. App. Rep. 1; R. v. Bryce (1992) 95 Cr. App. Rep. 320.
42 In R. v. Keenan (1990) 90 Cr. App. Rep. 1, 6 Hodgson J. referred to protection against self-incrimination being provided primarily by PACE s. 76. Even this is debatable; see n. 23 above and the discussion in the text below.
43 See, e.g. R. v. Parris; R. v. Keenan; R. v. Canale; R. v. Chung (above).
44 See, e.g. R. v. Parris; R. v. Samuel; R. v. Walsh (above).
45 See, e.g. R. v. Alladice; R. v. Walsh; R. v. Canale (above).
46 I.H. Dennis, “Reconstructing the Law of Criminal Evidence” [1989] C.L.P. 21. See also Zuckerman, supra n. 3, chap. 16.
47 Confessions by persons suffering from a significant degree of mental handicap are a good example. If made following police pressure their possible unreliability may result in exclusion under PACE s. 76(2)(b) or 78: R. v. Delaney (1989) 88 Cr.App.Rep.338. If made without police pressure they may still be excluded at common law as too unreliable to ground a safe conviction: R. v. Mackenzie (1993) 96 Cr. App. Rep.98.
48 This list, which is not intended to be exhaustive, is derived from the core principles of responsibility and punishment (described in [1989] C.L.P. at p. 35) and from the freedoms set out in express terms in the European Convention on Human Rights.
49 It might be presumed to be unreliable for the purposes of an exclusionary rule, but the argument holds even where no such presumption is made.
50 For an interesting application of the risk-allocation thesis see Stein, A., “From Blackstone to Woolmington: On the Development of a Legal Doctrine” (1993) 14 Journal of Legal History 14 CrossRefGoogle Scholar.
51 For arguments along these lines see, e.g., Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55 (Goldberg J.); Wigmore, J.H., Evidence (vol. VIII, McNaughton rev., Boston, 1961)Google Scholar para. 2251; Report of the Royal Commission on Criminal Procedure, supra n. 26, para. 4.51.
52 See, e.g., Justice on Trial (London, 1993)Google Scholar para. 9.19. This report by the Independent Civil Liberty Panel on Criminal Justice relied also on the argument that the right to silence helps to protect the innocent from wrongful conviction.
53 As pointed out by Williams, C.R., “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 L.Q.R. 629, at 637 and 648 Google Scholar.
54 See, e.g., R. v. Raviraj (1986) 85 Cr.App.Rep. 93 (failure to explain possession of recently stolen goods yields prima facie inference of guilty knowledge, but, on the presumption of innocence theory, why does the privilege not apply in such a case?).
55 Gerstein, R.S., “Privacy and Self-Incrimination” (1970) 80 Ethics 87 CrossRefGoogle Scholar; P. Arenella, supra n. 24; Galligan, D.J., “The Right to Silence Reconsidered” [1988] C.L.P. 69 Google Scholar.
56 Galligan, ibid., at 88. For critical comment see Robertson, B., “The Right to Silence Ill-considered” (1991) 21 Vict. U. Wellington L.R. 139 Google Scholar.
57 [1988] C.L.P. at 89
58 (1966) 384 U.S. 757.
59 Arenella, supra n. 24, at 41.
60 Ibid.
61 Stuntz, W., “Self-Incrimination and Excuse” (1988) 88 Col. L.R. 1227, at 1277 Google Scholar.
62 See, e.g., Theft Act 1968 s. 31; A.T. & T. Istel v. Tully [1993] A.C. 45 (n. 11 supra).
63 The point is clearly made by Stuntz, supra n. 61, at 1234.
64 The lack of a general right to privacy in English law was confirmed in Malone v. Metropolitan Police Commissioner (No 2) [1979] 2 W.L.R. 700. For an account of the protection of privacy interests generally see Feldman, D., Civil Liberties and Human Rights in England and Wales (Oxford, 1993)Google Scholar chap. 8.
65 See, in the English context, R. v. Khan (Sultan) [1996] 3 All E.R. 289 where the House of Lords refused to accept that evidence obtained by a breach of privacy in the form of taped conversations recorded by surveillance devices attached to a person's house could be inadmissible as a matter of law.
66 Greenawalt, K., “Silence as a Moral and Constitutional Right” (1981) 23 William and Mary L.R. 15 Google Scholar.
67 Cf. Westen, P. & Mandell, S., “To Talk, to Balk, or to Lie: The Emerging Fifth Amendment Doctrine of the ‘Preferred Response’” (1982) 19 Am. Crim. L.R. 521 Google Scholar.
68 Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55; Pennsylvania v. Muniz (1990) 110 S.Ct. 2638, 2648; Westen & Mandell, Ibid. The trilemma is the choice between punishment for perjury (lies on oath), punishment for contempt (silence on oath) or punishment for the offence (truthful incrimination).
69 Supra n. 2.
70 Jones v. Owen (1870) 34 J.P. 759; Kuruma v. R. [1955] A.C. 197; Jeffrey v. Black [1978] Q.B. 490.
71 R. v. Sang [1980] A.C. 402; Fox v. Chief Constable of Gwent [1986] A.C. 281; R. v. Apicella (1985) 82 Cr.App.Rep. 295; R. v. Khan (Sultan) [1996] 3 All E.R. 289.
72 See supra n. 23.
73 In Lam Chi-Ming v. R. [1991] 2 A.C. 212 the Judicial Committee of the Privy Council held that evidence of the finding of a murder weapon should be excluded where the only link with the accused was via a video recording which re-enacted an involuntary confession. The judgment, given by Lord Griffiths, relied on the privilege against self-incrimination (echoing dicta in R. v. Sang, n. 23 supra) as well as reliability and police impropriety to justify the result.
74 See the cases cited in supra nn. 43 and 44.
75 [1987] 3 All E.R. 481.
76 Ibid., at 485.
77 Summers, R., “Evaluating and Improving Legal Processes: A Plea for Process Values” (1974) 60 Cornell L.R. 1 Google Scholar.
78 The trial judge was referred to s. 76 of PACE but is said by the Court of Appeal to have decided to admit the confession in his discretion after discussing the provisions of s. 78: [1987] 3 All E.R. at 483.
79 In R. v. Heron Times, November 22, 1993 (the Nikki Allan murder case) the trial judge excluded Heron's confession on the ground of oppression. The police questioning included the making of false claims to Heron that two witnesses had identified him at the place where the victim was last seen alive.
80 R. v. Christou and Wright (1992) 95 Cr. App. Rep. 264. See also R. v. Maclean and Kosten [1993] Crim. L.R. 687.
81 (1992) 95 Cr. App. Rep. 320. See also R. v. Okafor (1994) 99 Cr. App. Rep. 97.
82 (1992) 95 Cr. App. Rep. 320, at 325.
83 (1993) 97 Cr. App. Rep. 365.
84 R. v. Maqsud Ali [1966] 1 Q.B. 688; R. v. Jelen and Katz (1989) 90 Cr.App.Rep. 456; R. v. Ali (Shaukat) Times, February 19, 1991.
85 (1993) 97 Cr, App. Rep. 365, at 375.
86 (1992) 95 Cr. App. Rep. 264.
87 Ibid., at 269.
88 (1994) 98 Cr. App. Rep. 209.
89 Criminal Attempts Act 1981, s. 9(1).
90 (1994) 98 Cr. App. Rep. 209, at 215.
91 This is not a straightforward point. The police had not incited the defendants but they had aided the commission of the offence in the same way as an employee who is bribed to leave goods in a place where they can be stolen. Presumably the police would not be guilty either because they lacked mens rea or because a law enforcement defence would be open to them.
92 (1994) 98 Cr. App. Rep. 209, at 214.
93 R. v. Sang [1980] A.C. 402.
94 R. v. Gill and Ranuana [1989] Crim. L.R. 358; R. v. Edwards [1991] Crim. L.R. 45; R. v. Smurthwaite and Gill (1994) 98 Cr. App. Rep. 437, where the Court of Appeal lists the factors to be taken into account in deciding whether to exclude evidence obtained by entrapment. For discussion see Birch, D., “Excluding Evidence from Entrapment: What is a Fair Cop?” [1994] C.L.P. 73 Google Scholar; Robertson, G., “Entrapment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?” [1994] Crim. L.R. 805 Google Scholar.
95 As in D.P.P. v. Marshall [1988] 3 All E.R. 683.
96 As in R. v. Edwards [1991] Crim. L.R. 45.
97 As in R. v. Smurthwaite and Gill (1994) 98 Cr. App. Rep. 437.
98 There is much force in the argument that the better remedy in such cases is a stay of prosecution for abuse of process: see Robertson, supra n. 94.
99 The most significant of these is the introduction in the new Act of the requirement that the accused must have been cautioned before inferences can be drawn from his failure to mention facts when questioned about the offence.
100 Thus reversing R. v. Gilbert (1977) 66 Cr. App. Rep. 237.
101 Compare the remarks of Lord Mustill in Murray v. DPP (1993) 97 Cr. App. Rep. 151, 153-155, discussing similar provisions in Art. 4 of the Criminal Evidence (Northern Ireland) Order 1988.
102 S. 35(4) states in terms that the section does not render the accused compellable to give evidence on his own behalf. He will not therefore be guilty of contempt by failing to do so.
103 Eleventh Report (1972) para. 28 et seq.
104 The use of the right by suspected terrorists was given as the justification for withdrawal of the right in 1988 in Northern Ireland. See 140 H.C. Debates, cols 183-187, Nov 8, 1988 (Secretary of State Tom King); The Criminal Evidence (NI) Order 1988; Jackson, J. D., “Recent Developments in Criminal Evidence” (1989) 40 N.I.L.Q. 105 Google Scholar. For discussion of the effects of withdrawal see Jackson, J.D., “Curtailing the Right of Silence: Lessons from Northern Ireland” [1991] Crim. L.R. 404 Google Scholar.
105 Criminal Law Revision Committee, Eleventh Report (Cmnd 4991, 1972) paras. 21(v), 30.
106 Report of the Fraud Trials Committee (HMSO, London, 1986) para. 2.32 ff.
107 This citation, together with other materials relating to the 1988 Order, is usefully collated in JUSTICE, “Right of Silence Debate: The Northern Ireland Experience” (1994).
108 Report para. 4.43, citing the study by P. Softley (Research Study No.4, 1980) which showed that only 4% of those interviewed refused to answer all questions of substance and 8% refused to answer some questions.
109 Report chap. 4, para. 17.
110 JUSTICE, supra n. 107, at 2. The comparison was with the figures given in a Home Office Research Study showing an overall use of silence by 6%-10% of suspects outside London and 14%-16% within the Metropolitan police district: RCCJ Report chap. 4, para. 15.
111 For surveys of such reasons see Wigmore, J.H., Evidence Vol. VIII (McNaughton rev. 1961)Google Scholar para. 2251; Heydon, J.D., Evidence Cases and Materials (3rd ed., 1991) 168 Google Scholar et seq.
112 The Right to Silence in Police Interrogation: A Study of some of the Issues Underlying the Debate (RCCJ Research Study No. 10, 1993) 20 Google Scholar.
113 Custodial Legal Advice and the Right to Silence (RCCJ Research Study No 16, 1993) 195 Google Scholar.
114 Ibid., at 90-93.
115 Ibid., at 93-95.
116 Ibid., at 95-97.
117 “Reconstructing the Law of Criminal Evidence” [1989] C.L.P. 21 Google Scholar.
118 R. v. Turnbull [1977] Q.B. 224.
119 JUSTICE, supra n. 107, at 4.
120 Report, chap. 4, paras. 18-19. The evidence is to be found in Zander, M. and Henderson, P., Crown Court Study (RCCJ Research Study No. 19, 1993) 5–6 Google Scholar.
121 I am indebted to Roger Leng for drawing my attention to the importance of this point.
122 Leng, supra n. 30, at chap. 7.
123 Ibid., at 80.
124 Royal Commission on Criminal Procedure (Cmnd. 8092, London, 1981) Report, para. 4.53; RCCJ Report, chap. 4, paras. 22-25.
125 Police criticism of the right to silence began with the Dimbleby Lecture in 1973 by Sir Robert Mark, then Metropolitan Police Commissioner, and has continued to the present day: see F. McElree and K. Starmer, “The Right to Silence” in Justice in Error, supra n. 36, at 72-73, summarising the submission from the Police Service to the Royal Commission on Criminal Justice.
126 The point is clearly made by Ratushny, supra n. 1, at 186-187.
127 PACE s. 61.
128 PACE s. 63.
129 PACE s. 117.
130 PACE s. 62.
131 PACE s. 62(10).
132 For discussion of the exclusion of bodily samples from the scope of the privilege, and of some difficulties associated with it, see Easton, S., “Bodily Samples and the Privilege Against Self-Incrimination” [1991] Crim. L.R. 18 Google Scholar.
133 (1985) 81 Cr. App. Rep. 286.
134 Ibid, at 292.
135 Ibid.
136 See Part II of the Act.
137 [1996] 3 All E.R. 289.
138 Re London United Investments PLC [1992] Ch. 578; (powers of DTI inspectors under ss. 432 and 434 of the Companies Act 1985); Bishopsgate Investment Management Ltd. v. Maxwell [1993] Ch. 1 (powers of liquidators of an insolvent company under ss. 235 and 236 of the Insolvency Act 1986); R. v. Director of Serious Fraud Office, Ex parte Smith [1993] A.C. 1 (powers of the Director of the Serious Fraud Office under s. 2 of the Criminal Justice Act 1987).
139 See generally Kirk, D.N. and Woodcock, A.J.J., Serious Fraud: Investigation and Trial (London, 1992)Google Scholar.
140 Criminal Justice Act 1987, s. 2(8).
141 Moreover the SFO is able to use its powers under the Criminal Justice Act 1987, ss. 2 and 3 to obtain a transcript of the compulsory examination of a person by a liquidator under s. 236 of the Insolvency Act 1986. The answers given by that person will be admissible in evidence against him in a subsequent prosecution, subject to the trial judge's exclusionary discretion under PACE s. 78: In re Arrows Ltd (No 4) [1995] 1 Cr. App. Rep. 95.
142 See in particular Re London United Investments PLC [1992] Ch. 578, at 594; R. v. Director of Serious Fraud Office, Ex parte Smith [1993] A.C. 1, at 44.
143 RCCJ Report, chap. 4, para. 30.
144 The idea was expressly rejected by the European Commission of Human Rights in Saunders v. United Kingdom (1994) 18 E.H.R.R. C.D. 23, at 30: “It cannot be compatible with the spirit of the Convention that varying degrees of fairness apply to different categories of accused in criminal trials. The right of silence, to the extent that it may be contained in the guarantees of Article 6, must apply as equally to alleged company fraudsters as to those accused of other types of fraud, rape, murder or terrorist offences”.
145 Jackson, J.D., “The Right of Silence: Judicial Responses to Parliamentary Encroachment” (1994) 57 M.L.R. 270, at 274 CrossRefGoogle Scholar.
146 In Re Pergamon Press Ltd. [1971] Ch. 388 the Court of Appeal held that the subject of questioning by DTI inspectors need not be told of what he is suspected.
147 Thus, for example, DTI investigators may require an officer or agent of the company being investigated or any other person to produce documents and answer questions on oath: Companies Act 1985, s. 434(2) and (3).
148 (1993) 16 E.H.R.R. 297.
149 That is, by allowing the privilege to protect a person from having to produce preexisting documents as well as from having to make testimonial disclosures. In Fisher v. United States (1976) 425 U.S. 391 the Supreme Court introduced the “act of production” doctrine whereby the privilege may not bar the state from compelling the production of incriminating material from the accused as long as the process involved does not compel the accused to create an incriminating testimonial response by complying with the state's order. The production of bank statements, where the existence of the relevant accounts is not in issue, would seem not to be covered by the privilege according to this doctrine. Cf. United States v. Doe (1984) 465 U.S. 605, and see the discussion in McCormick on Evidence (St. Paul, 4th ed., 1992) 467 Google Scholar et seq.
150 Article 65-1 provides that “Customs officers with the rank of at least inspector [inspecteur or officier] and those performing the duties of collector may require production of papers and documents of any kind relating to operations of interest to their department”.
151 (1997) 23 E.H.R.R. 313.
152 (1996) 22 E.H.R.R. 29.
153 Ibid., at 60.
154 Ibid., at 61.
155 For current English law see Parts II and IV, above. American law has consistently taken the position that the Fifth Amendment privilege protects only against compelled testimonial communications and does not extend to the obtaining of non-testimonial items of evidence: see Schmerber v. California (1966) 384 U.S. 757 (blood sample); United States v. Wade (1967) 388 U.S. 218 (identification parade); Gilbert v. California (1967) 388 U.S. 263 (handwriting sample); United States v. Dionisio (1973) 410 U.S. 1 (voice exemplar).
156 (1997) 23 E.H.R.R. 313, at 337-338.