The Privilege Against Self-Incrimination and Criminal Justice 9781474200325, 9781841133171

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Preface The law of England and Wales, in common with that of other jurisdictions, purports to recognise a privilege against self-incrimination. Much has been published over the years on the overlapping, and larger, topic of the right to silence, and this trend looks set to continue. In comparison, the volume of contemporary literature focusing specifically on issues arising from instances of legal compulsion to provide potentially self-incriminatory information to officials has been considerably smaller. This literature does not include a book-length treatment of the operation of the privilege against self-incrimination in criminal proceedings in England and Wales. It is hoped that the present book will fill the gap and, in doing so, will highlight the doctrinal and theoretical issues that are of particular contemporary concern. While I hope that the reader will find in it an adequate coverage of the relevant law of England and Wales, this book is not intended to be a comprehensive work of reference and it is not my aim to provide a detailed treatment of all key doctrinal principles. I have often allowed quotations of particular judicial or academic observations to ‘speak for themselves’, in order to convey accurately their thrust and flavour and, quite regularly, the confusion inherent in them. I hope too that such a strategy may on occasion enable practitioners’ attention to be drawn readily to useful material which they will not otherwise have easily uncovered. The references to the academic literature that appear in the footnotes (and in the bibliography) may be used as a starting point for further reading. Throughout the book, consideration is given, where it is felt that it would be enlightening to do so, to the treatment of particular aspects of the privilege against self-incrimination in other jurisdictions. The bulk of the research and writing was completed between late March and early June 2013, and I generally stopped collecting new material, both primary and secondary, after late May 2013. I hope therefore that the law as stated in the book is generally up to date as at the spring of 2013, but every effort has been made to incorporate consideration of anything that has come to hand since then. In relation to two matters of case citation on which practice is not uniform, I have followed the recommendations made in the fourth edition (Oxford, Hart Publishing, 2012) of the Oxford Standard for the Citation of Legal Authorities (‘OSCOLA’). The first recommendation is this: ‘Give the year of judgment (not publication) in round brackets when the volumes of the law report series are independently numbered, so that the year of

viii  Preface publication is not needed to find the volume’ (page 14). The second is this: ‘In some specialist law reports, cases are given case numbers which run consecutively through the volumes, rather than page numbers. . . . In such cases, follow the citation method used by the series in question’ (page 18). Thus, for example, O’Halloran and Francis v UK, decided in 2007 and reported in 2008 in volume 46 of the European Human Rights Reports as case number 21, commencing at page 397, is cited as ‘(2007) 46 EHRR 21’ rather than as ‘(2007) 46 EHRR 397’ (as on Lexis), ‘(2008) 46 EHRR 21’ (as on Westlaw) or ‘(2008) 46 EHRR 397’. It has been a great pleasure working with Hart Publishing, and I am especially grateful to Richard Hart, Rachel Turner and Tom Adams for their courteous professionalism and patience. I am also indebted to a large number of other individuals for their (sometimes unwitting) assistance with this project. Within the legal academy I have received comments from, or benefited from more general discussions with, a good number of specialists in criminal procedure and evidence, including Andrew Ashworth, Ian Dennis, Sue Easton, Dimitrios Giannoulopoulos, Richard Glover, Jill Hunter, John Jackson, Roger Leng, Jenny McEwan, Susan Nash, David Ormerod, Abenaa Owusu-Bempah, Mike Redmayne, Andy Roberts, Paul Roberts, Jonathan Rogers, Jennie Temkin and Simon Young. I presented some of my earlier and more tentative ideas on the privilege against self-incrimination at the University of Nottingham (in February 2010 and September 2010, at two different events), at the University of New South Wales (in April 2010) and at City University London (in February 2013), and I am grateful for the comments that I received from the participants at these various events. The (linked) April 2010 and September 2010 events culminated in the publication of my essay, ‘“Give Us What You Have” – Information, Compulsion and the Privilege against Self-Incrimination as a Human Right’, as a chapter in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 239–58. Writing the present book has provided me with the opportun­ ity of developing and refining some of the ideas and themes explored originally in that chapter. I must also acknowledge my gratitude to my family as well as to the friends who, over the past several months, have gently and tactfully inquired about the progress of my work, especially Annelies, Mark K, Mark W, Mary, Neil, Sharmila and Vijay. Their support and cheerful encouragement are much appreciated. AL-T Choo London September 2013

Table of Cases Australia Application under the Major Crime (Investigative Powers) Act 2004, Re [2009] VSC 381....................................................................................36 Em v The Queen [2007] HCA 46...................................................................97 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477......................................................................................... 9, 20 R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, [1998] HCA 1.............97 Sorby v Commonwealth (1983) 152 CLR 281.................................................57 Tofilau v The Queen [2007] HCA 39..............................................................97 X7 v Australian Crime Commission [2013] HCA 29......................................16 Canada Application under s 83.28 of the Criminal Code, Re 2004 SCC 42, [2004] 2 SCR 248.................................................................................................36 Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) [1995] 2 SCR 97..........................................................................36 R v Broyles [1991] 3 SCR 595........................................................................97 R v Grant 2009 SCC 32, [2009] 2 SCR 353.....................................................12 R v Jarvis 2002 SCC 73, [2002] 3 SCR 757......................................................74 R v Liew [1999] 3 SCR 227............................................................................97 R v Noble [1997] 1 SCR 874........................................................................111 R v Prokofiew 2012 SCC 49, [2012] 2 SCR 639.............................................111 R v S(RJ) [1995] 1 SCR 451...........................................................................36 R v SAB 2003 SCC 60, [2003] 2 SCR 678................................ 58, 74, 76–77, 116 R v Sinclair 2010 SCC 35, [2010] 2 SCR 310...................................................81 R v White [1999] 2 SCR 417...............................................................39, 74–75 Thomson Newspapers Ltd v Canada [1990] 1 SCR 425..................................12 United States of America v Ross (1995) 41 CR (4th) 358................................36 European Court of Human Rights Al-Khawaja and Tahery v United Kingdom (2011) 54 EHRR 23...................117 Allan v United Kingdom (2002) 36 EHRR 12.................................... 95, 98, 118 Allen v United Kingdom (2002) 35 EHRR CD289.................................... 29–30

xii  Table of Cases Beckles v United Kingdom (2002) 36 EHRR 13............................................102 Bykov v Russia App no 4378/02 (ECtHR Grand Chamber, 10 March 2009).........................................................................................................98 Condron v United Kingdom (2000) 31 EHRR 1..................................... 102–03 Engel v Netherlands (1976) 1 EHRR 647........................................................23 Funke v France (1993) 16 EHRR 297.......... 23–24, 26–28, 30–31, 33, 43, 47, 114 Heaney and McGuinness v Ireland (2000) 33 EHRR 12.......................27–28, 63 IJL, GMR and AKP v United Kingdom (2000) 33 EHRR 11...........................26 JB v Switzerland App no 31827/96 (ECtHR, 3 May 2001).................. 43–44, 114 Jalloh v Germany (2006) 44 EHRR 32........ 8, 44–45, 49, 60, 63, 66, 76, 114, 117 Kaçiu and Kotorri v Albania App nos 33192/07 and 33194/07 (ECtHR, 25 June 2013)..............................................................................85 Kansal v United Kingdom (2004) 39 EHRR 31...............................................26 King v United Kingdom (2003) 37 EHRR CD1..............................................30 Konak v Turkey App no 3042/05 (ECtHR, 3 September 2013)........................85 Lückhof and Spanner v Austria App nos 58452/00 and 61920/00 (ECtHR, 10 January 2008).........................................................................67 Martin v Estonia App no 35985/09 (ECtHR, 30 May 2013)...................... 85, 95 Marttinen v Finland App no 19235/03 (ECtHR, 21 April 2009)................ 23, 28 Murray v United Kingdom (1996) 22 EHRR 29............................................100 O’Halloran and Francis v United Kingdom (2007) 46 EHRR 21.................................................................... 65–71, 79, 116, 118 Öztürk v Germany (1984) 6 EHRR 409.........................................................23 Rieg v Austria App no 63207/00 (ECtHR, 24 March 2005)....................... 29, 40 Salduz v Turkey (2008) 49 EHRR 19...................................................84–86, 89 Saunders v United Kingdom (1996) 23 EHRR 313............. 11, 21, 24–26, 29, 31, 34, 37, 42–47, 62–63, 78–79 Schenk v Switzerland (1988) 13 EHRR 242....................................................95 Shannon v United Kingdom (2005) 42 EHRR 31.................................27–28, 63 Sorokins and Sorokina v Latvia App no 45476/04 (ECtHR, 28 May 2013)...................................................................................... 85, 95 Weh v Austria (2004) 40 EHRR 37......................................................28–30, 40 Yılmaz v Turkey App no 11022/05 (ECtHR, 4 June 2013)...............................85 Hong Kong Secretary for Justice v Latker [2009] 2 HKC 100 (CA)....................................68 India Kasab v State of Maharashtra [2012] INSC 476.............................................94 Selvi v State of Karnataka [2010] INSC 340...................................................59



Table of Cases  xiii

International Criminal Tribunal for the Former Yugoslavia (ICTY) Prosecutor v Delalic (Trial Chamber of the ICTY, 19 January 1998)....... 60, 114 New Zealand Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 (CA)............19 Cropp v Judicial Committee and McKenzie [2008] NZSC 46, [2008] 3 NZLR 774..............................................................................................57 Singh v R [2010] NZSC 161, (2010) 25 CRNZ 112................................... 18–19 United Kingdom AT & T Istel Ltd v Tully [1993] AC 45 (HL)........................ 5, 13, 15–16, 42, 47 Akciné Bendrové Bankas Snoras (in bankruptcy) v Antonov [2013] EWHC 131 (Comm)..................................................................................14 Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, [2011] 1 WLR 2435..............................................................................................86 Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA)................................................................................91 Attorney-General for Gibraltar v May [1999] 1 WLR 998 (CA)......................14 Attorney-General’s Reference (No 7 of 2000) [2001] EWCA Crim 888, [2001] 1 WLR 1879.............................................................................. 46–47 Beghal v Director of Public Prosecutions [2013] EWHC 2573 (Admin)..................................................................................33, 35, 74, 116 Blunt v Park Lane Hotel, Ltd [1942] 2 KB 253 (CA)........................................13 Boyle v Wiseman (1855) 10 Ex 647, 156 ER 598..............................................17 Brannigan v Davison [1997] AC 238 (PC)................................................... 7, 16 Brown v Stott [2003] 1 AC 681 (PC)....................................................46, 71–72 C plc v P [2007] EWCA Civ 493, [2008] Ch 1.................................................47 Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601.................. 86, 89 Charles v The Queen [2007] UKPC 47...........................................................84 Director of Public Prosecutions v Wilson [2001] EWHC Admin 198, (2001) 165 JP 715.......................................................................................71 Greater Manchester Police v Andrews [2011] EWHC 1966 (Admin), [2012] ACD 18..........................................................................................50 Greenan v HM Advocate [2006] HCJAC 80, 2007 JC 181...............................18 HM Advocate v P [2011] UKSC 44, [2011] 1 WLR 2497......................37–38, 86 Hudson v Director of Public Prosecutions [1992] RTR 27 (DC)......................34 Jude v HM Advocate [2011] UKSC 55, 2012 SC (UKSC) 222..........................86 Kinloch v HM Advocate [2012] UKSC 62, [2013] 2 WLR 141.........................98 Lam v R [1991] 2 AC 212 (PC).......................................................................38

xiv  Table of Cases Lukstins v HM Advocate [2012] HCJAC 146, 2013 SLT 11............................44 Mawdesley v Chief Constable of Cheshire Constabulary [2003] EWHC 1586 (Admin), [2004] 1 WLR 1035.....................................................................71 McGowan v B [2011] UKSC 54, [2011] 1 WLR 3121......................................86 Milsom v Ablyazov [2011] EWHC 1846 (Ch), [2012] Lloyd’s Rep FC 98.........43 Mohammed v The State [1999] 2 AC 111 (PC)...............................................94 Mohan v Mohan [2013] EWCA Civ 586, [2013] CP Rep 36............................72 Mohd Ali bin Burut v Public Prosecutor (Brunei) [1995] 2 AC 579 (PC)..........82 O Ltd v Z [2005] EWHC 238 (Ch)........................................................... 15–16 Phillips v News Group Newspapers Ltd [2012] UKSC 28, [2013] 1 AC 1... 13, 16 R v Alladice (1988) 87 Cr App R 380 (CA)............................................... 88, 90 R v Allan [2004] EWCA Crim 2236...............................................................96 R v B [2003] EWCA Crim 3080....................................................................101 R v Berriman (1854) 6 Cox CC 388................................................................38 R v Birchall [1998] EWCA Crim 177............................................................110 R v Bresa [2005] EWCA Crim 1414........................................................ 101–02 R v Christou [1992] QB 979 (CA)..................................................................91 R v Compton [2002] EWCA Crim 2835.......................................................107 R v Cowan [1996] QB 373 (CA)...................................................................110 R v Crampton (1990) 92 Cr App R 369 (CA)..................................................82 R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 (HL)......................................................................................11, 15, 47 R v Dixon [2013] EWCA Crim 465, (2013) 177 JP 361............................ 109–10 R v Doyle [2002] EWCA Crim 1176...............................................................90 R v Dunford (1990) 91 Cr App R 150 (CA).............................................. 88, 90 R v Emmerson (1990) 92 Cr App R 284 (CA).................................................82 R v Foster [2003] EWCA Crim 178................................................................82 R v Friend [1997] 1 WLR 1433 (CA)............................................................109 R v Fulling [1987] QB 426 (CA).....................................................................82 R v Gill [2003] EWCA Crim 2256, [2004] 1 WLR 469............................... 89–90 R v Goldenberg (1988) 88 Cr App R 285 (CA).......................................... 82, 90 R v Hall-Chung [2007] EWCA Crim 3429....................................................103 R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412 (HL).............................................16, 30–34, 37, 47, 115 R v Hoare [2004] EWCA Crim 784, [2005] 1 WLR 1804...............................102 R v Hobson [2013] EWCA Crim 819, [2013] 2 Cr App R 27.........................110 R v Horncastle [2009] UKSC 14, [2010] 2 AC 373........................................113 R v Howell [2003] EWCA Crim 1, [2005] 1 Cr App R 1................................102 R v Ibrahim [2008] EWCA Crim 880, [2009] 1 WLR 578................................99 R v Institute of Chartered Accountants in England and Wales, ex parte Nawaz [1997] PNLR 433 (QB)............................................... 15, 17 R v Jelen (1989) 90 Cr App R 456 (CA)..........................................................91 R v K(A) [2009] EWCA Crim 1640, [2010] QB 343................................... 16, 71 R v Kearns [2002] EWCA Crim 748, [2002] 1 WLR 2815..............33, 46, 73, 116



Table of Cases  xv

R v Khan [2007] EWCA Crim 2331...............................................................17 R v Kinglake (1870) 11 Cox CC 499 (QB)......................................................18 R v Kirk [2000] 1 WLR 567 (CA)...................................................................89 R v Knight [2003] EWCA Crim 1977, [2004] 1 WLR 340..............................102 R v McKenzie [1993] 1 WLR 453 (CA)..........................................................83 R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513........................... 71, 83, 117 R v Newell [2012] EWCA Crim 650, [2012] 1 WLR 3142..............................105 R v O’Leary (1988) 87 Cr App R 387 (CA).....................................................91 R v Padellec [2012] EWCA Crim 1956............................................................50 R v Paris (1992) 97 Cr App R 99 (CA)............................................................82 R v Parris (1988) 89 Cr App R 68 (CA)...........................................................88 R v Raphaie [1996] EWCA Crim 374, [1996] Criminal Law Review 812 (CA).91 R v Rochford [2010] EWCA Crim 1928, [2011] 1 WLR 534..........................105 R v S(F) [2008] EWCA Crim 2177, [2009] 1 WLR 1489............................ 15, 22, 48–50, 52, 114–15 R v Samuel [1988] QB 615 (CA).........................................................87–88, 91 R v Seaton [2010] EWCA Crim 1980, [2011] 1 WLR 623..............................103 R v Senior [2004] EWCA Crim 454, [2004] 3 All ER 9....................................90 R v Tabbakh [2009] EWCA Crim 464, (2009) 173 JP 201..............................109 R v Turner [2003] EWCA Crim 3108, [2004] 1 All ER 1025..........................102 R v Wahab [2002] EWCA Crim 1570, [2003] 1 Cr App R 15...........................82 R v Walsh (1989) 91 Cr App R 161 (CA)........................................................88 R v Warickshall (1783) 1 Leach 263, 168 ER 234.............................................38 R v Williams (Orette) [2012] EWCA Crim 2162, [2013] 1 WLR 1200..............78 R (CPS) v Bolton Magistrates’ Court [2003] EWHC 2697 (Admin), [2004] 1 WLR 835.....................................................................................18 R (Firth) v Epping Justices [2011] EWHC 388 (Admin), [2011] 1 WLR 1818........................................................................................................105 R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403............................................................................. 16, 47 Rice v Connolly [1966] 2 QB 414 (DC)..........................................................12 Ridehalgh v Director of Public Prosecutions [2005] EWHC 1100 (Admin), [2005] RTR 26...........................................................................................90 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 (HL)....................................................................................... 14–15 Rottmann v Brittain [2009] EWCA Civ 473, [2010] 1 WLR 67........................15 Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 AC 264...................................................................................................78 Timothy v The State [2000] 1 WLR 485 (PC).................................................38 Thompson v The Queen [1998] AC 811 (PC)..................................................91 Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 (CA)...........................................................................................19

xvi  Table of Cases United States of America Berghuis v Thompkins 130 S Ct 2250 (2010)...................................................93 Brown v Walker 161 US 591 (1896)................................................................. 7 Dickerson v United States 530 US 428 (2000)............................................ 91–93 Gilbert v California 388 US 263 (1967)...........................................................55 Grand Jury Subpoena Duces Tecum Dated March 25, 2011, Re 670 F 3d 1335 (11th Cir 2012)......................................................... 52, 54 Griffin v California 380 US 609 (1965).........................................................111 Kastigar v United States 406 US 441 (1972)....................................................37 Miranda v Arizona 384 US 436 (1966)............................................... 91–94, 100 Murphy v Waterfront Commission 378 US 52 (1964)....................................3, 7 New York v Quarles 467 US 649 (1984)..........................................................93 Patterson v New York 432 US 197 (1977)......................................................... 3 Pennsylvania v Muniz 496 US 582 (1990).................................................. 55–56 Quarles and Butler, Re 158 US 532 (1895)......................................................12 Quinn v United States 349 US 155 (1955)........................................................ 3 Salinas v Texas 133 S Ct 2174 (2013)........................................................ 17, 93 Schmerber v California 384 US 757 (1966)............................................... 50, 56 US v Dionisio 410 US 1 (1973).......................................................................55 US v Hubbell 530 US 27 (2000)..................................................51–53, 114, 131 US v Wade 388 US 218 (1967)........................................................................54 US v White 322 US 694 (1944).................................................................... 7, 20

Table of Legislation Australia Evidence Act 2011 (ACT)..............................................................................21   s128(8)......................................................................................................37 Evidence Act 1995 (Cth)................................................................................21 Evidence Act 1995 (NSW).............................................................................21 Evidence Act 2001 (Tas)................................................................................21 Evidence Act 2008 (Vic).................................................................................21 Evidence (National Uniform Legislation) Act 2011 (NT).......................... 21, 36 Uniform Evidence Legislation   s128 .........................................................................................................36   s128(4)(b)..................................................................................................36   s128(5)......................................................................................................36   s128(7)......................................................................................................36   s128(7)(a)..................................................................................................36   s128(7)(b)..................................................................................................36   s187..........................................................................................................20 Austria Motor Vehicles Act   s130(2)................................................................................................ 28–29 Canada Charter of Rights and Freedoms................................................... 58, 75–76, 81   s7...................................................................................................36, 58, 74   s8........................................................................................................ 76–77   s11(d)........................................................................................................58   s13.................................................................................................35–36, 58 Motor Vehicle Act 1979 (British Columbia)   s61 ..................................................................................................... 39–40   s61(1)........................................................................................................39 Criminal Code   ss 487.04–487.09........................................................................................76

xviii  Table of Legislation India Constitution.................................................................................................94   art20(3).....................................................................................................59 New Zealand Evidence Act 2006............................................................................... 1, 21, 57   s4............................................................................................................... 1   s51(3)........................................................................................................57   s60............................................................................................................57   s60(1)(b)...................................................................................................19 Trinidad and Tobago Constitution   s5(2)(c)(ii).................................................................................................93 United Kingdom Banking Act 2009   Pt 2.........................................................................................................125   Pt 3.........................................................................................................125 Building Societies Act 1986   s57..........................................................................................................127   s57(5)......................................................................................................127   s57(5A)...................................................................................................127   s57(5A)(a)...............................................................................................127   s57(5A)(b)...............................................................................................127   s57(5B)....................................................................................................127   s57(5B)(a)...............................................................................................127 Civil Evidence Act 1968   s14...................................................................................................... 13, 15   s14(1).................................................................................................. 13–14   s14(1)(a).............................................................................................. 13–14   s14(1)(b)............................................................................................. 13–15   s14(2)........................................................................................................14   s14(3)........................................................................................................14   s14(4)........................................................................................................14   s14(4)(a)....................................................................................................14   s14(4)(b)...................................................................................................14



Table of Legislation  xix

  s14(5)........................................................................................................14 Companies Act 1985   s434............................................................................................. 24, 78, 124   s434(5)....................................................................................................124   s434(5A).................................................................................................124   s434(5A)(a).............................................................................................124   s434(5A)(b).............................................................................................124   s434(5B)..................................................................................................124   s434(5B)(a)..............................................................................................124   s436.................................................................................................... 24, 78   s447........................................................................................................125   s447A......................................................................................................125   s447A(1).................................................................................................125   s447A(2).................................................................................................125   s447A(2)(a).............................................................................................125   s447A(2)(b).............................................................................................125   s447A(3).................................................................................................125   s447A(3)(a).............................................................................................125   s447A(3)(b).............................................................................................125   s451........................................................................................................125 Companies Act 1989   s83..........................................................................................................128   s83(6)......................................................................................................128   s83(6A)...................................................................................................128   s83(6A)(a)...............................................................................................128   s83(6A)(b)...............................................................................................128   s83(6B)....................................................................................................128   s83(6B)(a)...............................................................................................128   s83(6B)(b)...............................................................................................128   s85..........................................................................................................128 Companies (Audit, Investigations and Community Enterprise) Act 2004   sch 7     para 1..................................................................................................130     para 3..................................................................................................130     para 3(1).............................................................................................130     para 3(2).............................................................................................130     para 3(2)(a).........................................................................................130     para 3(2)(b).........................................................................................130     para 3(3).............................................................................................130     para 3(3)(a).........................................................................................130     para 3(3)(b).........................................................................................130     para 5..................................................................................................130 Company Directors Disqualification Act 1986.............................................126   ss 6–10....................................................................................................126

xx  Table of Legislation   s15..........................................................................................................126   s19(c)......................................................................................................126   s20..........................................................................................................126   s20(1)......................................................................................................126   s20(2)......................................................................................................126   s20(2)(a)..................................................................................................126   s20(2)(b).................................................................................................126   s20(3)......................................................................................................126   s20(3)(a)..................................................................................................126   s20(3)(a)(i)..............................................................................................126   s20(3)(a)(ii).............................................................................................126   s20(3)(b).................................................................................................127   s20(3)(b)(i)..............................................................................................127   s20(3)(b)(ii).............................................................................................127   s20(3)(c)..................................................................................................127   sch 1.......................................................................................................126 Competition Act 1998   ss 26–28A................................................................................................128   s30A.......................................................................................................128   s30A(a)...................................................................................................128   s30A(b)...................................................................................................128 Counter–Terrorism Act 2008   s22..........................................................................................................101 Criminal Evidence Act 1898   s1(2).................................................................................................. 17, 109 Criminal Justice Act 1987   s2............................................................................................................127   s2(8)........................................................................................................127   s2(8)(a)...................................................................................................127   s2(8)(b)...................................................................................................127   s2(8AA)..................................................................................................127   s2(14)......................................................................................................127   s2(14)(a)..................................................................................................128   s2(14)(b).................................................................................................128 Criminal Justice Act 2003..............................................................................17   s101........................................................................................................109 Criminal Justice and Public Order Act 1994   s34........................................................................................101–03, 107–08   s34(1)...............................................................................................101, 107   s34(1)(a)–(c)............................................................................................101   s34(2)......................................................................................................101   s34(2A)...................................................................................................101   s35..........................................................................................................109   s35(1)(b)........................................................................................... 108–10



Table of Legislation  xxi

  s35(2)......................................................................................................108   s35(3)......................................................................................................108   s35(4)......................................................................................................109   s35(5)(a)..................................................................................................109   s36.................................................................................................... 106–08   s36(1)......................................................................................................106   s36(1)(a)..................................................................................................106   s36(1)(a)(i)–(iv).......................................................................................106   s36(1)(b).................................................................................................106   s36(1)(c)..................................................................................................106   s36(1)(d).................................................................................................106   s36(2)......................................................................................................106   s36(3)......................................................................................................106   s36(4)......................................................................................................107   s36(4A)...................................................................................................107   s37.................................................................................................... 107–08   s37(1)......................................................................................................107   s37(1)(a)..................................................................................................107   s37(1)(b).................................................................................................107   s37(1)(c)..................................................................................................107   s37(1)(d).................................................................................................107   s37(2)......................................................................................................107   s37(3)......................................................................................................107   s37(3A)...................................................................................................107 Criminal Procedure and Investigations Act 1996   s3............................................................................................................104   s3(1)(a)...................................................................................................103   s5(1)(b)...................................................................................................104   s5(5)........................................................................................................104   s6A................................................................................................... 104–05   s6A(1).....................................................................................................104   s6A(1)(a).................................................................................................104   s6A(1)(b).................................................................................................104   s6A(1)(c).................................................................................................104   s6A(1)(ca)...............................................................................................104   s6A(1)(d).................................................................................................104   s6A(2).....................................................................................................104   s6A(2)(a).................................................................................................104   s6A(2)(b).................................................................................................104   s6A(3).....................................................................................................104   s11(5)(a)..................................................................................................105   s11(5)(b).................................................................................................105 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.............................................................................................. 86–87

xxii  Table of Legislation Criminal Procedure (Scotland) Act 1995   s15A.........................................................................................................87   s15A(3).....................................................................................................87   s15A(3)(a).................................................................................................87   s15A(3)(b).................................................................................................87   s15A(8).....................................................................................................87 Data Protection Act 1998   s7............................................................................................................122   sch 7     para 11................................................................................................122     para 11(1)............................................................................................122     para 11(1A).........................................................................................122     para 11(1A)(a).....................................................................................122 Employment Agencies Act 1973   s9...................................................................................................... 34, 124   s9(2A)............................................................................................... 34, 124   s9(2B).......................................................................................... 34–35, 124   s9(2B)(a)........................................................................................... 35, 124   s9(2B)(b)........................................................................................... 35, 124 Enterprise Act 2002   s188........................................................................................................128 Environmental Protection Act 1990   s33............................................................................................................32   s71(2).................................................................................................. 30–31 Financial Services and Markets Act 2000   s123........................................................................................................129   s174........................................................................................................128   s174(1)....................................................................................................128   s174(2)....................................................................................................129   s174(2)(a)................................................................................................129   s174(2)(b)................................................................................................129   s174(3)....................................................................................................129   s174(3)(a)................................................................................................129   s174(3)(b)................................................................................................129   s177(4)....................................................................................................129   s398........................................................................................................129 Human Rights Act 1998................................................................................20   s2..............................................................................................................20   s6..............................................................................................................20   s6(1)..........................................................................................................20   s6(2)..........................................................................................................20   s6(3)(a).....................................................................................................20 Insolvency Act 1985....................................................................................125 Insolvency Act 1986....................................................................73–74, 125–26



Table of Legislation  xxiii

   pt IX, ch VI...............................................................................................46   s22(6)......................................................................................................126   s47(6)......................................................................................................126   s48(8)......................................................................................................126   s66(6)......................................................................................................126   s67(8)......................................................................................................126   s95(8)......................................................................................................126   s98(6)......................................................................................................126   s99(3)(a)..................................................................................................126   s131(7)....................................................................................................126   s192(2)....................................................................................................126   s208(1)(a)................................................................................................126   s208(1)(d)................................................................................................126   s208(2)....................................................................................................126   s210........................................................................................................126   s235(5)....................................................................................................126   s289..........................................................................................................33   s291..........................................................................................................46   s291(6)......................................................................................................46   s353(1)....................................................................................................126   s354(1)(b)................................................................................................126   s354(3)....................................................................................................126   s354(3)(a).......................................................................................33, 73–74   s356(1)....................................................................................................126   s356(2)(a)................................................................................................126   s356(2)(b)................................................................................................126   s433........................................................................................................125   s433(1)....................................................................................................125   s433(1)(a)................................................................................................125   s433(1)(aa)..............................................................................................125   s433(1)(b)................................................................................................125   s433(2)......................................................................................... 73, 125–26   s433(2)(a)................................................................................................125   s433(2)(b)................................................................................................125   s433(3).............................................................................................. 73, 126   s433(3)(a)................................................................................................126   s433(3)(b)................................................................................................126   s433(3)(b)(i)............................................................................................126   s433(3)(b)(ii)...........................................................................................126   s433(3)(c)................................................................................................126   s433(3)(c)(i).............................................................................................126   s433(3)(c)(ii)............................................................................................126   s433(3)(d)................................................................................................126    sch 7, para 4(3)(a)....................................................................................126

xxiv  Table of Legislation Nationality, Immigration and Asylum Act 2002   s134........................................................................................................130   s135........................................................................................................130   s137........................................................................................................130   s139........................................................................................................130   s139(1)....................................................................................................130   s139(2)....................................................................................................130 Perjury Act 1911   s1............................................................................................................126   s2............................................................................................... 124, 126–28   s5..........................................................................................35, 122, 124–30 Police and Criminal Evidence Act 1984.................................................... 87, 91   s58...................................................................................................... 87–89   s58(1)........................................................................................................87   s58(4)........................................................................................................87   s66............................................................................................................87   s76............................................................................................................83   s76(2)..................................................................................38, 81, 83, 90, 94   s76(2)(a).............................................................................................. 81–82   s76(2)(b)............................................................................................. 81–82   s76(3)........................................................................................................90   s76(4)(a)....................................................................................................38   s76(5)........................................................................................................38   s76(8)........................................................................................................82   s77............................................................................................................83   s78......................................................47, 49, 72, 79, 90–91, 99–100, 103, 115   s78(1)..................................................................... 34, 37, 50, 83, 88–91, 115 Proceeds of Crime Act 2002   sch 6     para 2..................................................................................................129     para 2(3).............................................................................................129     para 2(4).............................................................................................129     para 2(4)(a).........................................................................................129     para 2(4)(b).........................................................................................130     para 2(5).............................................................................................130     para 2(5)(a).........................................................................................130     para 2(5)(b).........................................................................................130 Property Misdescriptions Act 1991   sch 1................................................................................................. 121–22     para 3(1).............................................................................................121     para 5..................................................................................................121     para 5(1).............................................................................................121     para 5(1)(a).........................................................................................121     para 5(1)(b).........................................................................................121



Table of Legislation  xxv

    para 5(1)(c)..........................................................................................121     para 8..................................................................................................122 Regulation of Investigatory Powers Act 2000   s49............................................................................................................48   s53(1)........................................................................................................48 Road Traffic Act 1988   s172...............................................................................................66–67, 71   s172(2)................................................................................................ 65–66   s172(2)(a).......................................................................................66–67, 71   s172(2)(b)..................................................................................................66   s172(3)......................................................................................................66 Terrorism Act 2000   s38B..........................................................................................................41   s49............................................................................................................50   s53............................................................................................................50   sch 5.......................................................................................................129     para 13................................................................................................129     para 13(4)............................................................................................129     para 13(4)(b).......................................................................................129     para 14................................................................................................129     para 14(1)............................................................................................129     para 14(1)(a)........................................................................................129     para 14(1)(b).......................................................................................129    sch 7.................................................................................................. 33, 35 Weights and Measures Act 1985   pts II–IV.................................................................................................121   pt VI.......................................................................................................121   ss 38–40..................................................................................................121   s81..........................................................................................................121   s81(1)......................................................................................................121   s81(1)(a)..................................................................................................121   s81(1)(b).................................................................................................121   s81(3)......................................................................................................121 Youth Justice and Criminal Evidence Act 1999   s33BA.....................................................................................................110   s59............................................................................................................34   sch 3.........................................................................................................34 Statutory Instruments Consolidated Criminal Practice Direction....................................................108   para IV.44.2.............................................................................................108   para IV.44.3.............................................................................................108   para IV.44.4.............................................................................................108

xxvi  Table of Legislation   para IV.44.5.............................................................................................108 Consumer Protection from Unfair Trading Regulations (SI 2008/1277).........122   reg 21......................................................................................................122   reg 23......................................................................................................122   reg 23(1)..................................................................................................122   reg 23(1)(a).............................................................................................122   reg 23(1)(b).............................................................................................122   reg 23(1)(c)..............................................................................................122   reg 23(3)..................................................................................................122 Criminal Procedure Rules............................................................................105 Judges’ Rules................................................................................................94 Police and Criminal Evidence Act 1984 (PACE) Codes of Practice..................90   Code C........................................................................................ 87, 119–20     para 10.1...............................................................................................89     para 10.5.............................................................................................102   Code E......................................................................................................87 Proceeds of Crime (Northern Ireland) Order 1996.........................................27 Textile Products (Labelling and Fibre Composition) Regulations (SI 2012/1102)   reg 13......................................................................................................123   reg 16......................................................................................................123   reg 16(1)..................................................................................................123   reg 16(1)(a).............................................................................................123   reg 16(1)(b).............................................................................................123   reg 16(1)(c)..............................................................................................123   reg 16(3)..................................................................................................123 United States of America Fifth Amendment to the US Constitution.................... 37, 50–51, 54–56, 93, 111 18 USC § 6002...............................................................................................37 18 USC § 6002(1)...........................................................................................37 18 USC § 6002(2)...........................................................................................37 18 USC § 6002(3)...........................................................................................37

Table of Conventions European Convention on Human Rights.....................................20, 24, 78, 119   art3.......................................................................... 8–9, 44–45, 65, 117, 119   art6.................................20, 23–24, 33, 46, 48, 62, 70–73, 83, 85, 95, 103, 118   art6(1)......................................... 20, 23, 26–29, 43, 50, 62–67, 70–71, 73–74, 78–79, 84–86, 95–96, 98, 110, 115–16, 118   art6(2)....................................................................................20, 24, 78, 110   art6(3)......................................................................................................20   art6(3)(c)............................................................................................. 84–86   art6(3)(d)................................................................................................117   art8..................................................................................................... 9, 119   art8(1)....................................................................................................... 9   art8(2)....................................................................................................... 9

Table of International Treaties International Covenant on Civil and Political Rights   art14(3)(g).................................................................................................20 Rome Statute of the International Criminal Court   art55(1)(a).................................................................................................60   art67(1)(g).................................................................................................60 Statute of the International Criminal Tribunal for Rwanda   art20(4)(g).................................................................................................60 Statute of the ICTY   art21(4)(g).................................................................................................60

1 Introduction: Origins, Rationales and the Relevant Legal Framework

T

HE EVIDENCE ACT 2006 of New Zealand defines ‘self-­ incrimination’ succinctly as ‘the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence’.1 Adopting this as a useful working definition, we might say that the logical implication of recognising a privilege against self-incrimination is that a person cannot be legally required or legally compelled to provide information which could reasonably lead to, or increase the likelihood of, that person’s prosecution for a criminal offence. The extent to which this reflects the position in criminal cases today is the main focus of this book.2 Issues relating to compulsory self-incrimination may arise from any legal compulsion placed on a witness testifying in a trial to provide potentially self-incriminatory information, but may also arise outside a trial, whenever an individual is subjected to legal compulsion to provide such information to a relevant authority. Indeed, we shall see that, in criminal cases, it is in the context of compulsion to provide information outside the four walls of a courtroom that the chief debates concerning the privilege against self-incrimination have taken place.   Evidence Act 2006 (NZ), s 4.   For earlier discussion of the privilege against self-incrimination, see AL-T Choo, ‘“Give Us What You Have” – Information, Compulsion and the Privilege against Self-Incrimination as a Human Right’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 239–58. See also, generally, S Sedley, ‘Wringing Out the Fault: Self-Incrimination in the 21st Century’ (2001) 52 Northern Ireland Legal Quarterly 107; M Berger, ‘American Perspectives on Self-Incrimination and the Compelled Production of Evidence’ (2002) 6 International Journal of Evidence and Proof 218; S Penney, ‘What’s Wrong with Self-Incrimination? The Wayward Path of Self-Incrimination Law in the Post-Charter Era – Part I: Justifications for Rules Preventing Self-Incrimination’ (2003) 48 Criminal Law Quarterly 249; M Berger, ‘Compelled Self-Reporting and the Principle against Compelled Self Incrimination: Some Comparative Perspectives’ [2006] European Human Rights Law Review 25; M Redmayne, ‘Rethinking the Privilege against Self-Incrimination’ (2007) 27 Oxford Journal of Legal Studies 209; S Edwards, ‘The Self-Incrimination Privilege in Care Proceedings and the Criminal Trial and “Shall Not Be Admissible in Evidence”’ (2009) 73 Journal of Criminal Law 48; JD Jackson, ‘Re-Conceptualizing the Right of Silence as an Effective Fair Trial Standard’ (2009) 58 International and Comparative Law Quarterly 835; S Sedley, Ashes and Sparks: Essays on Law and Justice (Cambridge, Cambridge University Press, 2011) ch 9. 1 2

2  Introduction

1.  ORIGINS AND RATIONALES

The origins of any legal recognition of the inappropriateness of compelling the provision of potentially self-incriminatory information are obscure and have been hotly disputed. A vast literature, which includes two major books,3 is available on the topic. While it is not the intention here to survey fully or to contribute to the debates, it is notable that, on one view, evidence can be found of a common law court as early as 1568 recognising a principle that no person had an obligation to reveal a crime, and of the recognition of such a principle in the Star Chamber in 1580.4 On another view, any such recognition of the maxim of nemo tenetur accusare seipsum (‘nobody has to accuse himself’) in the sixteenth century, and indeed in the seventeenth century, cannot be regarded as the precursor to the much wider privilege against selfincrimination which developed later. On this view, the privilege properly had its origins in the second half of the eighteenth century and in the nineteenth century, as the role of defence counsel was established and as principles of criminal evidence and procedure developed.5 For the purposes of this book, rather more important than any attempt to provide a full historical perspective is the identification of what rationale(s) might support a privilege against self-incrimination in the twenty-first century. Possible rationales or philosophical foundations for the recognition of a privilege against self-incrimination have been canvassed extensively in the academic literature.6 In essence, the rationales put forward are either epistemic or non-epistemic in nature. Such division of rationales according to whether they are epistemic or non-epistemic in nature, while not without its limitations, is widely accepted to be a useful heuristic device, and will be deployed here. 3   LW Levy, Origins of the Fifth Amendment: The Right against Self-Incrimination (New York, Oxford University Press, 1968); RH Helmholz, CM Gray, JH Langbein, E Moglen, HE Smith and AW Alschuler, The Privilege against Self-Incrimination: Its Origins and Development (Chicago, IL, University of Chicago Press, 1997). 4   LW Levy, ‘Origins of the Fifth Amendment and Its Critics’ (1997) 19 Cardozo Law Review 821, 823: ‘In 1568, a common law court, the Court of Common Pleas, speaking unanimously through Chief Justice James Dyer, first endorsed the [“nobody has to accuse himself”] maxim. In the 1580 Star Chamber case of Sir Thomas Tresham, Lord Chief Justice Christopher Wray of the King’s Bench asserted “that no man by lawe ought to sweare to accuse hymselfe when he might loose lyfe or lymme”’. See also S Sedley, ‘Wringing Out the Fault: Self-Incrimination in the 21st Century’ (2001) 52 Northern Ireland Legal Quarterly 107, 110; S Sedley, Ashes and Sparks: Essays on Law and Justice (Cambridge, Cambridge University Press, 2011) 105. 5  See, for a good summary, Queensland Law Reform Commission, The Abrogation of the Privilege against Self-Incrimination (QLRC R 59) (Brisbane, Queensland Law Reform Commission, December 2004) paras 2.11–2.18. 6  For a US perspective, see AM Dershowitz, Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment after 9/11 (New York, Oxford University Press, 2008) ch 6.



Origins and Rationales  3

1.1  Epistemic Considerations Epistemic justifications are instrumental, focusing on the promotion of accurate fact-finding or truth7 discovery, or, in other words, on what Bentham called ‘rectitude of decision’.8 Accurate fact-finding, in turn, is facilitated by the admission of reliable evidence in trials. The need to ensure that evidence is as reliable as possible is especially important in the case of prosecution evidence in criminal trials, because the admission of unreliable prosecution evidence could lead to the wrongful conviction of an innocent person. While the law clearly does not require ‘that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person’,9 the fundamental consideration is that ‘[p]eople have’, in Dworkin’s words, ‘a profound right not to be convicted of crimes of which they are innocent’.10 ‘The extreme unfairness of depriving a person of freedom for an offense she did not commit is beyond dispute’.11 There is a public dimension to this fundamental right: ‘When an innocent person is convicted, we all lose (except of course, the actual guilty person)’.12 Epistemic justifications for a privilege against self-incrimination are concerned, ultimately, with the protection of the innocent from wrongful conviction,13 being premised on the possibility that compulsion to provide potentially self-incriminatory information may produce unreliable information which, if used subsequently as evidence in a criminal trial, may lead to an innocent person being convicted.14 Such an 7   For a critical discussion of the concept of ‘truth’, see generally KD Kilback and MD Tochor, ‘Searching for Truth but Missing the Point’ (2002) 40 Alberta Law Review 333. 8   J Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice, vol 1 (London, Hunt & Clarke, 1827) (reprinted New York, Garland Publishing, 1978) 1. 9   Patterson v New York 432 US 197, 208 (1977) (White J). 10   R Dworkin, A Matter of Principle (Oxford, Clarendon Press, 1986) 72. 11  JJ Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the Balance between Freedom and Order (New York, Oxford University Press, 2011) 82. 12   AH Loewy, ‘Systemic Changes that Could Reduce the Conviction of the Innocent’ (2007) 18 Criminal Law Forum 137, 149. See also B MacFarlane, ‘Convicting the Innocent: A Triple Failure of the Justice System’ (2006) 31 Manitoba Law Journal 403; E Colvin, ‘Convicting the Innocent: A Critique of Theories of Wrongful Convictions’ (2009) 20 Criminal Law Forum 173; BL Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge, MA, Harvard University Press, 2011); CR Huff and M Killias (eds), Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems (New York, Routledge, 2013). 13   Murphy v Waterfront Commission 378 US 52, 55 (1964) (Goldberg J): ‘the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent”’ (quoting from Quinn v United States 349 US 155, 162 (1955) (Warren CJ)). 14   cf DJ 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 430, who argue that failure to recognise a privilege against self-incrimination would result in more guilty suspects telling lies in order to exculpate themselves, which in turn could lead triers of fact to discount all exculpatory statements, including those advanced by innocent suspects. Amongst numerous critiques of Seidmann and Stein’s thesis, see P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 561–63. See also S Leshem, ‘The Benefits of a Right to Silence for the Innocent’ (2010) 41 RAND Journal of Economics 398.

4  Introduction eventuality would be dependent on whether the individual providing information in response to the compulsion to do so ‘has it within his power to alter the evidence so as to affect its probative value on the issues of guilt or innocence’.15 More simply put, it would depend on ‘the existence of an opportunity to be truthful or not’.16 The crucial question is whether the respondent’s subjective thoughts or knowledge would be implicated in any information that is provided in response to the demand. The concern, it must be emphasised, is not with the potential unreliability of evidence per se, but with potential unreliability that is attributable to state action. In other words, it is not the risk of unreliability per se that we are seeking to identify, but, more specifically, such risk of unreliability as the state authorities have sufficient responsibility for generating.17 There can be no doubt that for the authorities to compel the provision of potentially selfincriminatory information may result in factually inaccurate, and therefore unreliable, self-incriminating information being provided in response to the compulsion. Such information would be tantamount to a false confession. The possible explanations for a false confession made by a suspect during police questioning are well documented in the literature, with the most common categorisation distinguishing between three different types of false confession that may be made in this situation:18 15  BM Dann, ‘The Fifth Amendment Privilege against Self-Incrimination: Extorting Physical Evidence from a Suspect’ (1970) 43 Southern California Law Review 597, 612. 16   RS Gerstein, ‘The Demise of Boyd: Self-Incrimination and Private Papers in the Burger Court’ (1979) 27 UCLA Law Review 343, 346 fn 17. 17   See JJ Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the Balance between Freedom and Order (New York, Oxford University Press, 2011) 82 fn 151: ‘The observation that excluding falsehood is not the aim of due process is better understood as expressing the view that a risk of unreliability alone is not a constitutionally sufficient basis for suppressing evidence. The introduction of false evidence, an unreliable confession, does undermine fundamental fairness, but only when the government has sufficient responsibility for generating the risk of falsehood’. 18   See GH Gudjonsson, The Psychology of Interrogations, Confessions and Testimony (Chichester, Wiley, 1992) 226–68, GH Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook (Chichester, Wiley, 2003) ch 8, A Memon, A Vrij and R Bull, Psychology and Law: Truthfulness, Accuracy and Credibility, 2nd edn (Chichester, Wiley, 2003) 77–81 and the discussion in AL-T Choo, Evidence, 3rd edn (Oxford, Oxford University Press, 2012) 92, on which I have relied here. See also LF Lowenstein, ‘Aspects of Confessions: What the Legal Profession Should Know’ (1999) 163 Justice of the Peace 586; LJ Taylor and SE Henderson, ‘Confessions: Consensus in Idem?’ [2002] Scots Law Times 325; J McEwan, The Verdict of the Court: Passing Judgment in Law and Psychology (Oxford, Hart Publishing, 2003) 174–75; GT Trotter, ‘False Confessions and Wrongful Convictions’ (2003–04) 35 Ottawa Law Review 179, 182–87; C Sherrin, ‘False Confessions and Admissions in Canadian Law’ (2005) 30 Queen’s Law Journal 601, 622 ff; LF Lowenstein, ‘Confessions in Criminal Cases: Are They Always Safe and Relevant?’ (2006) 170 Justice of the Peace 624; G Smith, ‘The Psychology of False Confessions’ [2009] 1 Criminal Bar Quarterly 8; JJ Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the Balance between Freedom and Order (New York, Oxford University Press, 2011) 81–82; FE Chapman, ‘Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion’ (2013) 37 Law and Psychology Review 159.



Origins and Rationales  5

1.  Voluntary False Confessions. These may be made because the con­ fessor (1) has ‘a “morbid desire for notoriety”, that is, a pathological need to become infamous and to enhance self-esteem, even if it means the prospect of imprisonment’; or (2) has feelings of guilt about a real or imagined pre­ vious transgression; or (3) is ‘unable to distinguish fact from fantasy’; or (4) wishes to assist or protect the real culprit (a phenomenon that is more common in the case of minor offences than in the case of serious offences); or (5) sees no possible way of disputing guilt, and confesses in order to obtain a reduced punishment; or (6) wishes ‘to pre-empt further investigation of a more serious offence’; or (7) wishes ‘to hide other, non-criminal facts’.19 2.  Coerced-Compliant False Confessions. Such confessions occur when ‘suspects [come to] believe that the benefits of confessing outweigh the costs’.20 3.  Coerced-Internalised False Confessions. These ‘occur when people come to believe . . . that they have committed the crime they are accused of even though they have no actual memory of having committed the crime’.21 Such confessions do not imply that suspects become convinced that they have committed a crime . . . [I]nternalised false confessions occur because suspects have formed the opinion that it is more likely than not that they are guilty. They typically have no memory of having committed the crime, but [become] less certain of their innocence and . . . wonder whether it might be possible that they did commit the crime.22

While the considerations identified above are of specific relevance to false confessions made by suspects during police questioning, they apply more generally, mutatis mutandis, to false self-incriminating statements made in response to any questioning. A privilege against self-incrimination would clearly protect against the risk of an innocent person providing unreliable information (which may, potentially, contribute to his or her conviction even if innocent) where what is being demanded is an answer to a question. Where, however, the demand is for the handing over of a specific pre-existing document or for the provision of a bodily sample, there is no danger of the suspect speaking falsely.23 Epistemic considerations would not justify the applicability of any privilege against self-incrimination in such contexts. This and associated matters will be explored in greater detail in chapter three below. 19   A Memon, A Vrij and R Bull, Psychology and Law: Truthfulness, Accuracy and Credibility, 2nd edn (Chichester, Wiley, 2003) 78. 20   ibid 79. 21  ibid. 22   ibid 80–81. See also J Pearse and GH Gudjonsson, ‘Measuring Influential Police Interviewing Tactics: A Factor Analytic Approach’ (1999) 4 Legal and Criminological Psychology 221. 23   ‘The contents of the document will speak for [themselves] and there is no risk of the false confession which underlies the privilege against having to answer questions that may incriminate the speaker’: AT & T Istel Ltd v Tully [1993] AC 45 (HL) 57 (Lord Griffiths).

6  Introduction 1.2  Non-Epistemic Considerations A non-epistemic consideration is premised not on the promotion of accurate fact-finding, but rather on the promotion of any value or values unrelated to the achievement of accurate fact-finding. Such a consideration therefore ‘represents a political-moral judgment that certain values are more import­ ant than accuracy in fact-finding. As such, it limits the truth that is allowed to appear at trial in favor of social goals which transcend the importance of factual truth’.24 The law of evidence may, for example, exclude an item of evidence not because of any danger that it may be unreliable, but because to admit it may undermine particular values that are deemed worthy of pro­tection.25 Non-epistemic justifications for the privilege against self-­ incrimination are varied, but have in common deontological concerns with intrinsic values unrelated to the promotion of accurate fact-finding. One non-­epistemic justification that has gained currency is the notion that compelling the provision of potentially self-incriminatory information is, in very broad terms, an affront to individual dignity.26 Such compulsion may be said to impose an unjustified hardship. Bentham referred to this notion, disparagingly, as the ‘old woman’s reason’ for recognising a protection against selfincrimination: ‘The essence of this reason is contained in the word hard: ’tis hard upon a man to be obliged to criminate himself’.27 Such compulsion would, it might be argued, fly in the face of the ideal of doing justice ‘upon   RP Burns, A Theory of the Trial (Princeton, NJ, Princeton University Press, 1999) 95.  As a US author has noted in relation to evidence of coerced confessions (JJ Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the Balance between Freedom and Order (New York, Oxford University Press, 2011) 83): ‘Whether coerced confessions are true or false, they are excluded because their introduction at trial would nullify the dual constitutional guarantees of a fair accusatorial process. In sum, the constitutional rights to suppress involuntary confessions are grounded not only in the vital interest in fair outcomes, but also in the critical interest in fair procedures. Even when there is no threat of untrustworthiness, the use of a coerced confession transgresses a core principle of accusatorial system fair play’. Non-epistemic considerations that are said to underlie particular principles of evidence and procedure are not necessarily uncontroversial: see, eg, WT Pizzi, Trials without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It (New York, New York University Press, 1999); L Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge, Cambridge University Press, 2006). Indeed, Stein argues that principles governing the exclusion of evidence that are based on considerations ‘properly classified as extraneous to fact-finding’ are not appropriately viewed as being strictly within the province of the law of evidence: ‘evidential rules that override accuracy in fact-finding for the sake of other objectives and values . . .  do not belong to the central core of the Anglo-American evidence doctrine’ (A Stein, Foundations of Evidence Law (Oxford, Oxford University Press, 2005) 110). This view has been criticised by D Hamer, ‘The Truth Will Out? Incoherence and Scepticism in Foundations of Evidence Law’ (2007) 70 Modern Law Review 318, 321–22. 26   See generally MD Goodman, ‘Human Dignity in Supreme Court Constitutional Jurisprudence’ (2006) 84 Nebraska Law Review 740, 765–67. 27   J Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice, vol 5 (London, Hunt & Clarke, 1827) (reprinted New York, Garland Publishing, 1978) 230. 24 25

Origins and Rationales  7



a plane of dignity, humanity and impartiality’.28 Thus, the importance of upholding values and protecting the moral integrity of the criminal justice system may dictate that such compulsion is objectionable even if there is no danger that it may lead to the provision of unreliable information: The reprobation of compulsory self-incrimination is an established doctrine of our civilized society. . . . The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to everyone, and needs no illustration. It is plain to every person who gives the subject a moment’s thought. A sense of personal degradation in being compelled to incriminate one’s self must create a feeling of abhorrence in the community at its attempted enforcement.29

Again: Expressed in various ways, the chief strand of reasoning discernible in [any justification for a privilege against self-incrimination] is the undesirability of the state compelling a person to convict himself out of his own mouth. There is an instinctive recoil from the use of coercive power to this end. . . . A person should not be put in a position where he is exposed to punishment whatever he does . . . Members of a civilised society ought to treat each other better than this.30

In the United States, where ‘[t]he paradigm for compulsion is the subpoena ad testificandum (a court order directing a person to furnish testimony under oath)’,31 the Supreme Court has remarked vividly that such compulsion would, in the absence of a privilege against self-incrimination, subject the person under subpoena to ‘the cruel trilemma of self-accusation, perjury or contempt’.32 The premise underlying this much-quoted phrase is that it would somehow be ‘cruel’ to require such a person to make a choice between (1) testifying truthfully and, in effect, acknowledging facts that could give rise to criminal liability (ie, ‘self-accusation’); (2) lying under oath and therefore committing the crime of perjury; or (3) refusing to answer and being held in contempt for disobeying a court order.33

Enough has been said here to show that non-epistemic justifications for a privilege against self-incrimination tend to be couched in somewhat rhetorical and amorphous terms, involving the deployment of lofty statements and emotive concepts such as ‘hardship’, ‘cruelty’, ‘degradation’ and even ‘dignity’ itself. In relation to the last of these, McCrudden has observed:   US v White 322 US 694, 698 (1944) (Murphy J).   Brown v Walker 161 US 591, 637 (1896) (Field J (dissenting)). 30   Brannigan v Davison [1997] AC 238 (PC) 249 (Lord Nicholls). 31   WR LaFave, JH Israel, NJ King and OS Kerr, Criminal Procedure, 3rd edn, vol 3 (St Paul, MN, Thomson/West, 2007 [updated 2012]) § 2.10(b). 32   Murphy v Waterfront Commission 378 US 52, 55 (1964) (Goldberg J). 33   WR LaFave, JH Israel, NJ King and OS Kerr, Criminal Procedure, 3rd edn, vol 3 (St Paul, MN, Thomson/West, 2007 [updated 2012]) § 2.10(b). 28 29

8  Introduction A basic minimum content of the meaning of human dignity can be discerned: that each human being possesses an intrinsic worth that should be respected, that some forms of conduct are inconsistent with respect for this intrinsic worth, and that the state exists for the individual not vice versa. The fault lines lie in disagreement on what that intrinsic worth consists in, what forms of treatment are inconsistent with that worth, and what the implications are for the role of the state.34

In Barroso’s conception, dignity may be unpackaged as follows: For legal purposes, human dignity can be divided into three components: intrinsic value, which identifies the special status of human beings in the world; autonomy, which expresses the right of every person, as a moral being and as a free and equal individual, to make decisions and pursue his own idea of the good life; and community value, conventionally defined as the legitimate state and social interference in the determination of the boundaries of personal autonomy.35

Building on this, it may be possible to advance non-epistemic justifications for a privilege against self-incrimination that are somewhat more specific in nature. One such justification might posit that respect for personal autonomy,36 as an element of respect for dignity, demands that those at risk of prosecution must be given a fair opportunity to formulate a response to allegations of criminal wrongdoing. This includes being accorded control over the time and circumstances for disclosing information, and such control may be facilitated by the recognition of a privilege against self-incrimination.37 The often amorphous nature of non-epistemic justifications for a privilege against self-incrimination leaves such justifications vulnerable to criticism. For one thing, the boundaries or parameters of such justifications are far from clear. A more serious interference with individual dignity might well be considered to violate the prohibition of inhuman or degrading treatment in article 3 of the European Convention on Human Rights. Indeed, as we shall see in chapter three, the Grand Chamber of the European Court of Human Rights held in Jalloh v Germany 38 that, on the facts of the case, both the privilege against self-incrimination and article 3 were engaged 34  C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655, 723. On dignity, see also LR Barroso, ‘Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse’ (2012) 35 Boston College International and Comparative Law Review 331; T Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous nor a Panacea’ (2012) 32 Oxford Journal of Legal Studies 1; J Waldron, ‘How Law Protects Dignity’ (2012) 71 Cambridge Law Journal 200; CWJM Alting von Geusau, Human Dignity and the Law in Post-War Europe: Roots and Reality of an Ambiguous Concept (Oisterwijk, Wolf Legal Publishers, 2013). 35   LR Barroso, ‘Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse’ (2012) 35 Boston College International and Comparative Law Review 331, 392. 36   See generally HL Ho, ‘Liberalism and the Criminal Trial’ [2010] Singapore Journal of Legal Studies 87. 37   I have benefited here from the views of Roger Leng of the Law School of the University of Warwick. 38   Jalloh v Germany (2006) 44 EHRR 32.



Origins and Rationales  9

sim­ultaneously. In such circumstances, given the availability of article 3, it is unclear what jurisprudential value the recognition of a privilege against selfincrimination as a separate and discrete entity might add. Likewise, dignity concerns might well overlap substantially with concerns about invasions of privacy,39 including concerns about the intrusiveness involved in compelling one to lay bare one’s ‘inner sanctum’. Indeed, the protection of privacy is offered on occasion as a specific justification for recognising a privilege against self-incrimination.40 Yet, given that privacy is specifically protected by article 8 of the Convention,41 it is unclear why we should recognise a privilege against self-incrimination in order to protect privacy. The general thrust of many criticisms of non-epistemic justifications for a privilege against self-incrimination, to put it very simply, is that recognition of such a privilege would protect the guilty for little tangible benefit. To regard compulsion to provide potentially self-incriminatory information as somehow inherently unfair was, Bentham thought, tantamount to treating the criminal justice process as a sporting contest in which, for the purposes of entertainment, a fair chance for escape must be provided. The ‘fox-hunter’s reason’ for recognising immunity from such compulsion, he wrote, consists in introducing upon the carpet of legal procedure the idea of fairness, in the sense in which the word is used by sportsmen. The fox is to have a fair chance for his life: he must have (so close is the analogy) what is called law: leave to run a certain length of way, for the express purpose of giving him a chance for escape.42

Bentham also castigated the ‘old woman’s reason’ referred to earlier, as reflecting unnecessary squeamishness about any ‘hardship’ that might be involved in compulsion to self-incriminate, given the similar or greater hardship that would be entailed in punishment in the event of a conviction: [D]id it ever yet occur to a man to propose a general abolition of all punishment, with this hardship for a reason for it? Whatever hardship there is in a man’s being punished, that, and no more, is there in his thus being made to criminate himself . . .43 39   See generally DJ Solove, Understanding Privacy (Cambridge, MA, Harvard University Press, 2008) 112–17. See also JE Cohen, ‘What Privacy Is For’ (2013) 126 Harvard Law Review 1904; LJ Strahilevitz, ‘Toward a Positive Theory of Privacy Law’ (2013) 126 Harvard Law Review 2010. 40   See, eg, Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, where much reliance is placed on privacy as one of the specific justifications underlying the privilege against self-incrimination. 41   Art 8 provides: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. 42   J Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice, vol 5 (London, Hunt & Clarke, 1827) (reprinted New York, Garland Publishing, 1978) 238–39. 43   ibid 230.

10  Introduction Finally, the ‘cruel trilemma’ allegedly involved in compulsion to provide potentially self-incriminatory information has been trenchantly criticised: The problem is that an innocent person does not even face a lemma, let alone a di- or a trilemma. An innocent person who tells the truth will not commit perjury, engage in self-condemnation, or be subjected to a contempt citation for refusing to testify. This well-known phrase, in short, reduces to the astonishing proposition that the self-incrimination clause is designed to reduce the probability of punishing, one way or another, guilty people. In a world where ‘guilty people’ were largely guilty of political offenses against a distant sovereign, this might make sense; in our world, it is bizarre.44

Even if we were to accept that compulsion to provide potentially self-­ incriminatory information might somehow be ‘cruel’, ‘[t]he cruelty theorist must give us some reason to believe that the particular way in which compelled self-incrimination would force persons to harm themselves is too cruel to allow’.45 As a rejoinder to this, however, it might be pointed out that the argument that such compulsion would be ‘cruel’ is not necessarily intended to be susceptible of rational analysis: [The] argument cannot withstand an intensely rational appraisal, for it is in essence an emotional argument . . . [W]e cannot demonstrate why it is ‘cruel.’ We feel that it is cruel. Beyond that we cannot go. . . . Are we therefore to reject the . . . argument since we cannot rationally explain it? . . . [A]n irrational feeling plays a valid role in justifying the privilege . . .46

It can therefore be seen that, by virtue of their very nature and their reliance on normative conceptions of criminal justice, non-epistemic justifications for a privilege against self-incrimination may be regarded by those positing them as self-evident, but may just as easily be criticised. 44   RJ Allen, ‘The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets’ (1996) 67 University of Colorado Law Review 989, 1016–17. See also RJ Allen, ‘Theorizing about Self-Incrimination’ (2008) 30 Cardozo Law Review 729, 731. 45  D Dolinko, ‘Is There a Rationale for the Privilege against Self-Incrimination?’ (1986) 33 UCLA Law Review 1063, 1107. See also AR Amar, The Constitution and Criminal Procedure: First Principles (New Haven, CT, Yale University Press, 1997) 65–66. The following passage provides a succinct account of the counterarguments to the ‘protection from cruelty’ rationale for the privilege (D Luban, ‘Lawyers as Upholders of Human Dignity (When They Aren’t Busy Assaulting It)’ [2005] University of Illinois Law Review 815, 832): ‘[W]hat is so cruel about compulsory self-­ incrimination? Obviously, self-incrimination is bad for the witness because it might convict him of a crime, but we typically suppose that convicting the guilty is socially valuable rather than cruel, even if the guilty find it disagreeable. Perhaps criminal punishment is inherently cruel; but if so, it would be cruel whether the witness is incriminated by his own testimony or the testimony of others. Once we conclude that punishing crimes through imprisonment is not unacceptably cruel, it seems peculiar to throw up our hands in horror at the lesser cruelty of compelled testimony, which seems trivial by comparison with jail. Nor, finally, is there anything intrinsically repugnant about the act of self-incrimination. After all, if a remorseful defendant voluntarily confesses his crime we might praise him for accepting responsibility. In any event, we would not condemn him for confessing’. 46   DD Ellis, Jr, ‘A Comment on the Testimonial Privilege of the Fifth Amendment’ (1970) 55 Iowa Law Review 829, 838–39.

The Relevant Legal Framework  11



2.  THE RELEVANT LEGAL FRAMEWORK

The common law of England and Wales recognised what might loosely be termed the ‘right to silence’ or ‘right of silence’, an expression which, Lord Mustill once observed, arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified: (1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies. (2) 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. (3) A specific immunity, possessed by all 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. (4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock. (5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority. (6) A specific immunity (at least in certain circumstances . . .), 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.47

It is the second of the above ‘immunities’ which may be considered to represent the core of the privilege against self-incrimination recognised in the common law of England and Wales, and which will therefore constitute the main focus of discussion in this book. The privilege can be seen, as the above quotation suggests, as related to but distinct from48 the wider concept of the right to silence.   R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 (HL) 30–31 (Lord Mustill).   DJ Galligan, ‘The Right to Silence Reconsidered’ (1988) 41 Current Legal Problems 69. See, however, the dissenting opinion of Judge Martens, joined by Judge Kuris, in Saunders v United Kingdom (1996) 23 EHRR 313, 351: ‘From a conceptual point of view it would . . . seem obvious that the privilege against self-incrimination (roughly speaking, the right not to be obliged to produce evidence against oneself ) is the broader right, which encompasses the right to silence (roughly speaking, the right not to answer questions)’. 47 48

12  Introduction 2.1  The Context: A ‘Social’ or ‘Moral’ Duty of Co-operation Any consideration of the protection of individuals from compulsion to provide potentially self-incriminatory information must not lose sight of the idea that, ultimately, the criminal justice system may be viewed as an inherently coercive one. Thus, even if the system may not recognise the existence of general legal duties of co-operation, there may well be general moral duties imposed on citizens to assist and co-operate with the authorities in their investigation of crime. After all, ‘every citizen has a moral duty to assist the law in achieving its proper purposes, as an aspect of his duty to be concerned for the common good of his community’.49 Roberts and Zuckerman comment on the complex of moral and legal rights in this context in the following terms: Broadly speaking, it is perfectly proper to respond to the promptings of conscience by co-operating with such inquiries, even though there is no general legal duty to be a model citizen when the policeman comes knocking. There are, after all, many legal rights which, from a broader moral perspective, one ought not to insist on exercising at every opportunity, and which one sometimes ought to waive. It is a moral failing, and in this context also a derogation of civic responsibility, always to stand on the strict letter of one’s legal rights.50

One can find judicial comments to similar effect across the common law world. For example, L’Heureux-Dubé J remarked in the Supreme Court of Canada: The general freedom to do as one pleases . . . is not absolute. . . . It is . . . subject . . . in particular, to the necessary cooperation of citizens in eradicating crime and other illegal activities. This is sometimes expressed as a ‘social’ or ‘moral’ duty to cooperate with law enforcement agents . . .51   RA Duff, Trials and Punishments (Cambridge, Cambridge University Press, 1986) 132.   P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 543. 51   Thomson Newspapers Ltd v Canada [1990] 1 SCR 425 [244] (L’Heureux-Dubé J), quoting from Rice v Connolly [1966] 2 QB 414 (DC) 419, where Lord Parker CJ stated that ‘[i]t seems to me quite clear that . . . every citizen has a moral duty or, if you like, a social duty to assist the police’. For examples from other jurisdictions, see In re Quarles and Butler 158 US 532, 535 (1895) (Gray J) (‘It is the duty and the right not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States’); R v Grant 2009 SCC 32, [2009] 2 SCR 353 [37] (McLachlin CJ and Charron J) (‘[An] often-discussed situation is when police officers approach bystanders in the wake of an accident or crime, to determine if they witnessed the event and obtain information that may assist in their investigation. While many people may be happy to assist the police, the law is clear that, subject to specific provisions that may exceptionally govern, the citizen is free to walk away . . . Given the existence of such a generally understood right in such circumstances, a reasonable person would not conclude that his or her right to choose whether to cooperate with them has been taken away. This conclusion holds true even if the person may feel compelled to cooperate with the police out of a sense of moral or civic duty’). See also D Luban, ‘Lawyers as Upholders of Human Dignity (When They Aren’t Busy Assaulting It)’ 49 50

The Relevant Legal Framework  13



Such considerations form the background against which any examination or analysis of the privilege against self-incrimination in criminal cases should be undertaken. 2.2  Some General Principles A number of general principles underlie the privilege against self-­ incrimination in both civil and criminal proceedings.52 The operation of the privilege in civil cases has been subjected to criticism, with Lord Templeman stating in 1992, in respect of its operation in a particular context, that ‘I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past’.53 We shall see that the operation of the privilege in criminal proceedings has provoked similar controversy and debate. The classic expression of the privilege as it applies in civil proceedings is to be found in Goddard LJ’s reference, in Blunt v Park Lane Hotel, Ltd,54 to the rule . . . that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for.55

Of perhaps more contemporary relevance is section 14 of the Civil Evidence Act 1968, which provides: (1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty – (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and (b) shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the spouse or civil [2005] University of Illinois Law Review 815, 834 (‘A witness fulfills a civic obligation. Even if it is unpleasant or inconvenient to testify, she must do so for the good of the community . . . Temporarily, at any rate, the witness becomes the eyes and ears of the community, and aims at a collective, rather than a personal or individual, good’); R Schwartz, ‘A Call for Reform: Compelled Questioning of Witnesses in Criminal Securities Fraud Cases’ (2009) 54 Criminal Law Quarterly 341, 352–54. 52   For further discussion, see B Thanki (ed), The Law of Privilege, 2nd edn (Oxford, Oxford University Press, 2011) ch 8. 53   AT & T Istel Ltd v Tully [1993] AC 45 (HL) 53 (Lord Templeman). Lord Griffiths associated himself with this statement: ibid 57–58. See also Phillips v News Group Newspapers Ltd [2012] UKSC 28, [2013] 1 AC 1 [11] (Lord Walker). 54   Blunt v Park Lane Hotel, Ltd [1942] 2 KB 253 (CA). 55   ibid 257 (Goddard LJ). This statement was approved in AT & T Istel Ltd v Tully [1993] AC 45 (HL) 67 (Lord Lowry).

14  Introduction partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty. (2) In so far as any existing enactment conferring (in whatever words) powers of inspection or investigation confers on a person (in whatever words) any right otherwise than in criminal proceedings to refuse to answer any question or give any evidence tending to incriminate that person, subsection (1) above shall apply to that right as it applies to the right described in that subsection; and every such existing enactment shall be construed accordingly. (3) In so far as any existing enactment provides (in whatever words) that in any proceedings other than criminal proceedings a person shall not be excused from answering any question or giving any evidence on the ground that to do so may incriminate that person, that enactment shall be construed as providing also that in such proceedings a person shall not be excused from answering any question or giving any evidence on the ground that to do so may incriminate the husband or wife of that person. (4) Where any existing enactment (however worded) that – (a) confers powers of inspection or investigation; or (b) provides as mentioned in subsection (3) above, further provides (in whatever words) that any answer or evidence given by a person shall not be admissible in evidence against that person in any proceedings or class of proceedings (however described, and whether criminal or not), that enactment shall be construed as providing also that any answer or evidence given by that person shall not be admissible in evidence against the husband or wife of that person in the proceedings or class of proceedings in question. (5) In this section ‘existing enactment’ means any enactment passed before this Act; and the references to giving evidence are references to giving evidence in any manner, whether by furnishing information, making discovery, producing documents or otherwise.

A brief examination of a number of general principles governing the operation of the privilege will now follow. 2.2.1  UK Criminal Law Only Section 14(1)(a) clarifies that only potential incrimination in relation to the criminal law of some part of the United Kingdom56 is relevant. As has been explained: 56   This has been held to include EC law: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 (HL). Note that a court can in its discretion protect a person from self-incrimination in relation to foreign law: Attorney-General for Gibraltar v May [1999] 1 WLR 998 (CA). See also Akciné Bendrové Bankas Snoras (in bankruptcy) v Antonov [2013] EWHC 131 (Comm) [76] (Gloster J): ‘There is no right to withhold disclosure of assets on the basis of a risk of incrimination in relation to actual or threatened criminal proceedings abroad. In such a case, the court instead has a discretion as to whether to grant protection against the risk of incrimination . . . The exercise of that discretion depends in part on the risk of prejudice to the defendant in the foreign criminal proceedings’.



The Relevant Legal Framework  15 So far as it relates to offences and penalties provided for by the law of the United Kingdom this provision is declaratory of the common law. Its purpose is to remove the doubt as to whether the privilege against self-incrimination extends to offences and penalties under foreign law – a question on which the previous authorities were not wholly consistent . . .57

2.2.2  Incrimination of Spouses or Civil Partners Irrelevant in Criminal Proceedings Significantly, while section 14(1)(b) extends protection to include a person’s spouse or civil partner, [a]t common law . . . the privilege against self-incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary58 (emphasis added).

Thus, in criminal cases, where section 14 does not apply, potential incrimination of a spouse or civil partner is not relevant. 2.2.3  No Judicial Discretion to Withhold the Privilege where Parliament Has Not Done So Legislation may have the effect of abrogating the privilege against selfincrimination.59 The Court of Appeal has described the test to be applied in determining whether the privilege has been so abrogated in the following terms: The privilege against self-incrimination remains an important protection against oppression and it is not lightly to be inferred that Parliament has chosen to abrogate it, especially where it has not made its intention clear by the use of express 57   Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 (HL) 636 (Lord Diplock). See also Rottmann v Brittain [2009] EWCA Civ 473, [2010] 1 WLR 67. 58   Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 (HL) 637–38 (Lord Diplock). 59  See R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 (HL) 31 (Lord Mustill) (‘the common view that one person should so far as possible be entitled to tell another person to mind his own business’ notwithstanding, ‘in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand, created by Parliament and tolerated by the majority, albeit in some cases with reluctance’); AT & T Istel Ltd v Tully [1993] AC 45 (HL) 57 (Lord Griffiths) (‘Parliament has in recent years made many inroads into the privilege in a number of statutes’); R v Institute of Chartered Accountants in England and Wales, ex parte Nawaz [1997] PNLR 433 (QB) 449 (Sedley J) (‘In a considerable and growing range of situations governed by law Parliament has legislated to remove the privilege’); O Ltd v Z [2005] EWHC 238 (Ch) [49] (Lindsay J) (‘the privilege against self-incrimination . . . can be, as it has been, undone or qualified in particular contexts by statute’); R v S(F) [2008] EWCA Crim 2177, [2009] 1 WLR 1489 [17] (Lord Judge CJ) (‘It is well understood that the principle is subject to numerous statutory exceptions which limit, amend, or abrogate the privilege in specified circumstances’).

16  Introduction language. Accordingly, where Parliament has not expressed itself in clear terms, the court should be cautious in reaching the conclusion that it intended to abrogate the privilege. Only in cases where the purpose of the statute would otherwise be frustrated is that conclusion likely to be justified.60

There may be subtle variations in the way in which this principle is expressed,61 but Parliament’s intention to abrogate the privilege is generally not in doubt and not in dispute. The core of the discussion in this book concerns instances of such legislative attempts to curtail the privilege, and their validity.62 It is clear that a court has no discretion to curtail the privilege where Parliament has not done so. In Phillips v News Group Newspapers Ltd,63 the UK Supreme Court recently considered it to be undoubtedly the case that, save to the extent that it has been cut down by statute, [the privilege against self-incrimination] remains part of the common law, and . . . it is for the legislature, not the judiciary, to remove it, or to cut it down.64

  R v K(A) [2009] EWCA Crim 1640, [2010] QB 343 [19] (Moore-Bick LJ).   See, eg, R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412 (HL) 419 (Lord Hoffmann) (‘The question of whether a statute which confers a power to ask questions or obtain documents or information excludes the privilege against self-incrimination . . . is . . . one of construction. Some statutes expressly exclude the right to refuse to answer on the ground that the answer may tend to incriminate . . . Even without express words, the statute may impliedly exclude the privilege on the ground that it would otherwise be largely ineffective’); R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403 [73] (Dyson LJ) (‘It is open to Parliament to abrogate the privilege against self-incrimination. . . . Clear language (express or by necessary implication) would be required to show that Parliament intended to abrogate such a fundamental principle of the common law’). For a discussion of the position in Australia, see J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (Sydney, Federation Press, 2011) 232–33 and, very recently, X7 v Australian Crime Commission [2013] HCA 29 [142] (Hayne and Bell JJ): ‘the implication must be necessary, not just available or somehow thought to be desirable’. 62   Note that in some situations legislation expressly preserves the privilege. Extracts from examples of legislative provisions which do so are provided in Appendix 1 to this book. 63   Phillips v News Group Newspapers Ltd [2012] UKSC 28, [2013] 1 AC 1. See generally L Bently, ‘What Is “Intellectual Property”?’ (2012) 71 Cambridge Law Journal 501; R Lundie Smith, I Russell and R Rickard, ‘Supreme Court Defines “Intellectual Property” and the Scope of the Privilege against Self-Incrimination’ [2012] Entertainment Law Review 255; R Callender Smith, ‘Discovery and Compulsion: How Regulatory and Litigation Issues relating to Intellectual Property Rights Are Challenging the Fundamental Right to the Protection of Personal Data’ (2013) 3 Queen Mary Journal of Intellectual Property 2. 64   [2012] UKSC 28, [2013] 1 AC 1 [11] (Lord Walker). See also AT & T Istel Ltd v Tully [1993] AC 45 (HL) 57 (Lord Griffiths) (The privilege is ‘deeply embedded in English law and can only be removed or moderated by Parliament’); Brannigan v Davison [1997] AC 238 (PC) 249 (Lord Nicholls) (‘The privilege is rigid and absolute. The witness has an unqualified right. Where the privilege applies the witness need not answer. Unless the case falls within a statutory exception, that is the end of the matter. There is no scope for the court to exercise any discretion’); O Ltd v Z [2005] EWHC 238 (Ch) [49] (Lindsay J) (‘The distinction may not necessarily always be easy to draw but it would be one thing to override the wide Common Law privilege where an intention to do so in some circumstances could fairly be inferred from legislation; it would be quite another to do so where no legislation required it’). 60 61



The Relevant Legal Framework  17

2.2.4  Witnesses’ Entitlement to the Privilege While, as a rule, a compellable witness’s refusal to give evidence65 will constitute contempt of court, this is subject to the privilege against selfincrimination. Sedley J has succinctly expressed the principles governing the manner in which the privilege might be invoked as follows: I accept that the privilege must be claimed in order for effect to be given to it. . . . [The contention] that it must be claimed in terms . . . I do not accept. The most common situation in which the privilege arises is in civil or criminal proceedings where a witness is asked, or is to be asked, a potentially incriminating question. Counsel frequently prefaces the question by telling the witness not to answer until the judge has had an opportunity to explain the witness’s position to him or her. Whether or not counsel does so, the judge will ordinarily intervene to tell the witness that he or she is not obliged to answer. More . . . rarely the witness will ask ‘Do I have to answer that question?’ All three situations in my view amount to a plain invocation of the privilege.66

A witness cannot object to being sworn on the basis that the only relevant questions which could be put to him are such as would entitle him to invoke the privilege; he ‘must be sworn and must answer the questions put to him, or object to answer them, if he insists on any privilege in that respect’.67 It must be established that self-incrimination would be the consequence of providing the information that it is sought to elicit: [T]he privilege is designed to provide protection in relation to questions which might incriminate. If the danger of incrimination has already arisen and is independent of any questions which a person is required to answer, it is not possible to see why that person should be entitled to any protection at all. If his position is made no worse by answering a question, then there can be no basis for him to invoke the privilege.68

Furthermore, the risk of such incrimination must be a substantial one. It is thus necessary that before acceding to a claim to privilege the court should satisfy itself, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is a reasonable ground to apprehend real and appreciable danger to the witness with reference to the ordinary operation of the law in 65   Note that, with respect to the questioning of a testifying defendant in a criminal trial, the privilege against self-incrimination has been affected by numerous statutory provisions such as s 1(2) of the Criminal Evidence Act 1898 and the provisions of the Criminal Justice Act 2003 on evidence of the defendant’s bad character. See further chapter 5 of this volume. 66   R v Institute of Chartered Accountants in England and Wales, ex parte Nawaz [1997] PNLR 433 (QB) 444–45 (Sedley J). In a similar vein, the US Supreme Court has acknowledged very recently that the privilege is generally ‘not self-executing’ and must be claimed, although there is ‘no ritualistic formula’ to be applied to achieve this: Salinas v Texas 133 S Ct 2174, 2178 (2013) (Alito J). 67   Boyle v Wiseman (1855) 10 Ex 647, 653; 156 ER 598, 601 (Pollock CB). 68   R v Khan [2007] EWCA Crim 2331 [31] (Moses LJ).

18  Introduction the ordinary course of things, and not a danger of an imaginary or insubstantial character. The duty imposed by the court is non-delegable. It cannot simply adopt the conclusion of the solicitor advising the witness whose conclusion may or may not be correct . . .69

The privilege being that of the witness alone, the parties to the proceedings may not take advantage of his or her entitlement to claim the privilege. Thus the defendant in a criminal case may not argue that a prosecution witness’s claim to the privilege was wrongly rejected and that in consequence the evid­ ence given by the witness was improperly admitted.70 The decision of the New Zealand Supreme Court in Singh v R71 provides a clear illustration of the above principles. A complaint of assault was made against the defendant, and the complainant gave evidence against the defendant at a preliminary hearing. The complainant later attempted, however, to have the prosecution discontinued. She sought to be excused from testifying for the prosecution at trial on the basis of the privilege against self-­ incrimination, arguing that by testifying she would expose herself to the possibility of a prosecution of perjury in respect of what she had said at the preliminary hearing, as well as prosecutions for wasting police time and similar offences. This argument failed, the complainant was compelled to give evidence and the defendant was convicted. The Supreme Court held that the defendant’s appeal could not succeed because any privilege against selfincrimination would have been that of the complainant and could not be asserted by the defendant.72 The Court pointed out that, in any event, the claim to privilege had been rightly denied, observing: 69   R (CPS) v Bolton Magistrates’ Court [2003] EWHC 2697 (Admin), [2004] 1 WLR 835 [25] (Kennedy LJ). 70   R v Kinglake (1870) 11 Cox CC 499 (QB). Cockburn CJ explained (ibid 500–501) that ‘the privilege of refusing to be examined cannot be taken advantage of by any other party. By refusing to be examined, the witness may have exposed himself to imprisonment for contempt, or to a fine. But that merely concerns the witness himself. If he chooses to give his evidence voluntarily it would be perfectly good evidence, and it would not be illegal evidence in any sense whatever, and there could be no cause of complaint. If so, what difference does it make that he has given his evidence in consequence of some coercion which has been put upon him? I can see no reason for saying that when the witness is compelled to answer, although he might have objected, that is a ground of objection on the part of either of the litigants’. In a similar vein, Blackburn J noted (ibid 501): ‘The privilege is that of the witness, and if he waives it it is his own affair. But if, instead of giving his evidence voluntarily, he gives it under compulsion, what is the difference? The party in the suit is not injured. . . . [G]ranting that a wrong was done to the witness, it is a ground of complaint for him and no one else’. See also Greenan v HM Advocate [2006] HCJAC 80, 2007 JC 181 [12] (Lord Kingarth): ‘Even if the witness was directed to answer questions which she should not have been, we are quite unable to see how this could found a right of appeal on the basis that the answers to such questions were unfavourable to the appellant. The privilege against self-incrimination is that of the witness alone. It is not a right which the appellant, or anyone else, has any direct interest to enforce’. 71   Singh v R [2010] NZSC 161, (2010) 25 CRNZ 112. See generally A Bershadski, ‘Complainants who Stop Complaining: Being Prosecuted for Withdrawing an Allegation’ [2011] Journal of Commonwealth Criminal Law 153; B Robertson, ‘Evidence’ [2011] New Zealand Law Journal 98. 72   [2010] NZSC 161, (2010) 25 CRNZ 112 [28]–[30] (William Young J).

The Relevant Legal Framework  19



Under s 60(1)(b) of the Evidence Act 2006, the privilege against self-incrimination can only be invoked in relation to information which, if provided, would be ‘likely’ to incriminate the person claiming the privilege. The use by the legislature of the word ‘likely’ shows that it intended to confine the privilege to circumstances where the potential for incrimination is ‘real and appreciable’ and not ‘merely imaginary and fanciful’. This means that the claim can only be invoked where later prosecution is itself likely.73

On the facts of the case, the Court emphasised in particular that there was no realistic prospect of any prosecution being brought on the basis of the falsity of the complainant’s earlier allegations against the defendant: given the Crown’s position that these allegations were true, it was inconceivable that a prosecution would be commenced which was predicated on the basis that they were false.74 2.2.5 Companies Not uncontroversially, a company may invoke the privilege against selfincrimination in England and Wales: It is true that a company cannot suffer all the pains to which a real person is subject. It can, however, in certain cases be convicted and punished, with grave consequences to its reputation and to its members, and we can see no ground for depriving a juristic person of those safeguards which the law of England accords even to the least deserving of natural persons. It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence.75

By contrast, the US Supreme Court has taken a different view: Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. . . . The reason underlying the restriction of this constitutional privilege to natural individuals acting in their own private capacity is clear. The scope and nature of the economic activities of incorporated and unincorporated organizations and their representatives demand that the constitutional power of the federal and state governments to regulate those activities be correspondingly effective. . . . The framers of the constitutional guarantee against compulsory self-disclosure, who were interested 73   ibid [31], quoting from Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 (CA) 469 (Cooke J). 74   [2010] NZSC 161, (2010) 25 CRNZ 112 [36]. 75   Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 (CA) 409 (du Parcq LJ). It appears unsettled whether an employee of a company who is not entitled, in the circumstances, to invoke the privilege in his or her own right may decline to provide information for the purpose of protecting the company’s privilege. The consensus appears to be that such an employee may not claim the privilege by the back door in this fashion: see the succinct discussion in B Thanki (ed), The Law of Privilege, 2nd edn (Oxford, Oxford University Press, 2011) paras 8.10–8.14.

20  Introduction primarily in protecting individual civil liberties, cannot be said to have intended the privilege to be available to protect economic or other interests of such organizations so as to nullify appropriate governmental regulations.76

In Australia, too, a company may not invoke the privilege against selfincrimination.77 2.2.6  The Influence of International Human Rights Law Article 14(3) of the International Covenant on Civil and Political Rights incorporates an express guarantee of the privilege against self-­incrimination, providing as follows: ‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: . . . (g) Not to be compelled to testify against himself or to confess guilt’. The European Convention on Human Rights, by contrast, does not contain such an express guarantee. Article 6(1) of the Convention guarantees that, ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair . . . hearing’. This general right to a fair trial is buttressed by articles 6(2) and 6(3), which guarantee, additionally, a number of specific rights to those ‘charged with a criminal offence’, these specific rights contributing to the general right. None of these specific rights is the privilege against self-incrimination. It is trite law that any consideration of the principles of criminal evidence and procedure in England and Wales must take appropriate account of the European Convention on Human Rights. The Human Rights Act 1998, which came fully into force in England and Wales in October 2000, makes particular articles of the Convention, including article 6, directly enforceable in domestic law.78 Section 6 of the 1998 Act obliges public authorities, including courts,79 to act in a way which is compatible with the Convention rights80 unless provisions in primary legislation require them to act differently.81 In addition, section 2(1) crucially provides: A court . . . determining a question which has arisen in connection with a Convention right must take into account any . . . judgment [or] decision . . . of the European Court of Human Rights . . . so far as, in the opinion of the court . . . it is relevant to the proceedings in which that question has arisen.   US v White 322 US 694, 699–700 (1944) (Murphy J).   See section 187 of the Australian uniform evidence legislation and Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. For an Irish perspective, see A O’Neill, ‘The Right to Silence and the Company’ (2004) 39 Irish Jurist 111. 78   See generally B Emmerson, A Ashworth and A Macdonald (eds), Human Rights and Criminal Justice, 3rd edn (London, Sweet & Maxwell, 2012). 79   Human Rights Act 1998, s 6(3)(a). 80   ibid s 6(1). 81   ibid s 6(2). 76 77



Organisation of the Book  21

In the light of the above, and because of the useful framework that the jurisprudence of the European Court of Human Rights in Strasbourg provides, this book will, in general, use that jurisprudence as a springboard or starting point for the consideration of particular legal principles. 3.  ORGANISATION OF THE BOOK

The discussion of the privilege against self-incrimination, with particular reference to criminal proceedings, continues in the following chapter with an exploration of the general framework within which the European Court of Human Rights considers the privilege, and examines what influence this has had on the jurisprudence of the domestic courts. Chapter 3 asks what information is covered by the privilege: to what extent, if any, does coverage extend beyond information that is contained in answers to questions? Chapter 4 presents an analysis of whether legislative abrogations of the privilege automatically constitute human rights violations. The final chapter offers a number of concluding thoughts. The chief focus of this book is the law of England and Wales as influenced by the jurisprudence of the European Court of Human Rights. Where appropriate, I seek to derive additional insights from a consideration of the way in which particular issues are treated in Canada, India, the United States of America and in international criminal trials, and by the uniform evidence legislation in Australia82 and the Evidence Act 2006 of New Zealand. Such comparative insights as might be gained would also serve the purpose of testing the suggestion by the European Court of Human Rights of an emergent ‘international consensus’ on the scope of the privilege against selfincrimination, this suggestion being implicit in the Court’s description of the privilege as a ‘generally recognised international standard’ that is in place ‘in the legal systems of the Contracting Parties to the Convention and elsewhere’.83

82   On 18 April 1995, the Evidence Act 1995 (Commonwealth of Australia), covering nearly all aspects of the law of evidence, came into force in the Australian Federal jurisdiction, also applying, for several years, to the Australian Capital Territory. It was expected that the Act might provide a model for similar legislation in other Australian jurisdictions. Indeed, virtually identical statutes have been introduced in New South Wales (Evidence Act 1995 (NSW)), Tasmania (Evidence Act 2001 (Tas)), Victoria (Evidence Act 2008 (Vic)), the Australian Capital Territory (Evidence Act 2011 (ACT)) and the Northern Territory (Evidence (National Uniform Legislation) Act 2011 (NT)). For convenience these Acts are commonly referred to collectively as the uniform evidence legislation. See generally S Odgers, Uniform Evidence Law, 10th edn (Pyrmont, NSW, Thomson Reuters (Professional) Australia Ltd, 2012). 83   Saunders v United Kingdom (1996) 23 EHRR 313 [68]–[69].

3 What Is ‘Information’?

O

UR WORKING DEFINITION of self-incrimination has used the word ‘information’. But what precisely does the word encompass? The precise legal position on the applicability of the privilege against self-incrimination to ‘pre-existing’ material, such as a pre-existing document or other ‘physical’ evidence, is, as will be seen in this chapter, one of considerable complexity.1 If the view is taken that the rationale for the privilege is confined to preventing false confessions, then compulsion to produce a specific pre-existing document will rightly be considered not to violate the privilege. In the words of Lord Griffiths in AT & T Istel Ltd v Tully,2 I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the [holder] has committed a criminal offence. The contents of the document will speak for [themselves] and there is no risk of the false confession which underlies the privilege against having to answer questions that may incriminate the speaker.3

A useful starting point for discussion of the relevant issues is the following statement of the European Court of Human Rights in Saunders v UK:4 The right not to incriminate oneself is primarily concerned . . . with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.5

This quotation may be interpreted as suggesting that the Court regards any material having an existence independent of the will of the suspect (such as pre-existing documents and physical evidence) as being material that is out1   For earlier discussion of some of the issues, see S Easton, The Case for the Right to Silence, 2nd edn (Aldershot, Ashgate, 1998) ch 8. 2   AT & T Istel Ltd v Tully [1993] AC 45 (HL). 3   ibid 57 (Lord Griffiths). 4   Saunders v United Kingdom (1996) 23 EHRR 313. 5   ibid [69].

The Jurisprudence of The ECtHR  43



side the scope of the privilege against self-incrimination. The Court’s jurisprudence on this point is not, however, a model of clarity, Roth J accurately noting in the Chancery Division in 2011 that ‘the approach to the question of pre-existing documents by the ECtHR in some of its decisions is not entirely easy to reconcile’.6 1.  THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

For a start, it is apparent that the Strasbourg Court’s observations in Saunders in the passage quoted above may not be easily reconcilable with its earlier judgment in Funke v France.7 In Funke, as seen in chapter two above, the Court considered a prosecution for refusing to produce bank statements to French customs authorities to be in violation of article 6(1). This implies that, contrary to the Court’s apparent suggestions in Saunders, there will be circumstances in which the Court considers pre-existing documents to be protected by the privilege against self-incrimination. The view that such documents may be so protected is also implicit in JB v Switzerland;8 here the Court found a violation of article 6(1) where ‘the authorities were attempting to compel the applicant to submit documents which would have provided information as to his income’9 and the applicant was prosecuted for failing to produce the documents. The Court’s reasoning on this point in JB is slender in the extreme,10 being essentially encapsulated in the following passage: [I]n its judgment . . . the [Swiss] Federal Court referred to various provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction, for instance the obligation to install a tachograph in lorries, or to submit to a blood or a urine test. In the Court’s opinion, however, the present case does not involve material of this nature which, like that considered in Saunders, has an existence independent of the person concerned and is not, therefore, obtained by means of coercion and in defiance of the will of that person . . .11

The suggestion here, then, is that (1) material such as ‘documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing’ (to quote from Saunders) will not have been obtained in defiance of the will of the person from whom it was obtained and will have an existence independent of that person; but that   Milsom v Ablyazov [2011] EWHC 1846 (Ch), [2012] Lloyd’s Rep FC 98 [19] (Roth J).   Funke v France (1993) 16 EHRR 297.   JB v Switzerland App no 31827/96 (ECtHR, 3 May 2001). 9   ibid [66]. 10  For criticism, see AJ Ashworth, ‘The Self-Incrimination Saga’ [2001] 5 Archbold News 5; IH Dennis, The Law of Evidence, 5th edn (London, Sweet & Maxwell, 2013) 168. 11   App no 31827/96 (ECtHR, 3 May 2001) [68]. 6 7 8

44  What Is ‘Information’? (2) the documents at issue in the instant case had been obtained in defiance of JB’s will and had no existence independent of him. What precisely is involved in ‘defiance of the will’ or what precisely it means for material to have an independent existence is not properly explained. This is unfortunate, as such explanation is required to facilitate an understanding of why the documents in the instant case should be covered by the privilege when the material mentioned in Saunders would not be. It is arguable that a clue to the reasoning of the European Court of Human Rights may be found in one of the examples provided in Saunders of material not subject to the privilege, namely, documents acquired pursuant to a warrant. A document acquired pursuant to a warrant is effectively acquired through force, without any requirement for co-operation on the part of the suspect. This suggests the possibility, mooted by Redmayne,12 that it is compulsion to co-operate (by way of the availability of a legal sanction for failure to do so) which lies at the heart of the Court’s concerns about selfincrimination, so that freedom from such compulsion represents the essence of the privilege. ‘Compelling persons to inflict harm upon themselves’, it might be argued, ‘aggravates the cruelty of simply inflicting it on them without their participation’.13 Such reasoning does not seek in any way to condone the use of force; it merely regards the use of force, unjustified or not, as lying outside the scope of the privilege against self-incrimination. This rationalisation may explain JB v Switzerland, but it fails to accommodate the judgment of the Grand Chamber of the European Court of Human Rights in Jalloh v Germany.14 Here the defendant was forced to regurgitate a bag of cocaine by the administration of an emetic without his co-operation. The Grand Chamber held that the severity of the force used was such that the procedure constituted inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights15 and 12   M Redmayne, ‘Rethinking the Privilege against Self-Incrimination’ (2007) 27 Oxford Journal of Legal Studies 209. See also the decision of the Scottish High Court of Justiciary in Lukstins v HM Advocate [2012] HCJAC 146, 2013 SLT 11 (on which see generally L Campbell, ‘DNA Collections after Charge: Lukstins v HM Advocate’ (2013) 17 Edinburgh Law Review 235). 13  C Theophilopoulos, ‘The Privilege against Self-Incrimination and the Distinction between Testimonial and Non-Testimonial Evidence’ (2010) 127 South African Law Journal 107, 115. 14   Jalloh v Germany (2006) 44 EHRR 32. See generally JD Jackson and SJ Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge, Cambridge University Press, 2012) 254–55. 15   (2006) 44 EHRR 32 [82]: ‘The authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed risks to the applicant’s health, not least because of the failure to obtain a proper anamnesis beforehand. Although this was not the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He therefore has been subjected to inhuman and degrading treatment contrary to Art 3’.

The Jurisprudence of The ECtHR  45



engaged the privilege against self-incrimination. Notably, therefore, it was the fact that force was used that, far from precluding the applicability of the privilege, actually underlay the finding that the privilege was engaged. The Grand Chamber held that the degree of force used in the present case differs significantly from the degree of compulsion normally required to obtain the types of material referred to in the Saunders case. To obtain such material, a defendant is requested to endure passively a minor interference with his physical integrity (for example when blood or hair samples or bodily tissue are taken). . . . [Alternatively, the material can be] produced by the normal functioning of the body (such as, for example, breath, urine or voice samples). In contrast, compelling the applicant in the instant case to regurgitate the evidence sought required the forcible introduction of a tube through his nose and the administration of a substance so as to provoke a pathological reaction in his body. . . . [T]his procedure was not without risk to the applicant’s health. [Furthermore], the evidence in the present case was obtained by means of a procedure which violated Art 3. The procedure used in the applicant’s case is in striking contrast to procedures for obtaining, for example, a breath test or a blood sample. Procedures of the latter kind do not, unless in exceptional circumstances, attain the minimum level of severity so as to contravene Art 3.16

In essence, the Grand Chamber found that the privilege was engaged even though the evidence in question was ‘pre-existing’ and obtained by force without the suspect’s compelled co-operation. The judgment in Jalloh does not therefore appear reconcilable with the ‘compelled co-operation’ rationalisation for the privilege. The Grand Chamber also sought to explain a particular statement of principle that had been advanced in Saunders v UK. In Saunders, as we have seen, the European Court of Human Rights excluded breath samples, blood samples, urine samples and bodily tissue from the scope of the privilege against self-incrimination. In Jalloh, the Grand Chamber sought to distinguish the Court’s analysis in Saunders from the instant facts: [T]he administration of emetics was used to retrieve real evidence . . . Conversely, the bodily material listed in the Saunders case concerned material obtained by coercion for forensic examination with a view to detecting, for example, the presence of alcohol or drugs17 (emphasis added).

The suggestion appears to be that the bag of cocaine regurgitated by Jalloh was per se incriminating, whereas the examples advanced in Saunders concerned material that might only become incriminating in the light of further tests or inferences. The legal principle to be derived from this would therefore be that it is possible for pre-existing material to be covered by the   ibid [114]–[115].   ibid [113].

16 17

46  What Is ‘Information’? privilege against self-incrimination only if it constitutes information that is per se incriminating rather than merely ‘neutral’. The precise justification for such a distinction is unclear. It certainly appears inconsistent with the holding in Saunders, discussed in chapter two above, that no distinction should be made between statements which are per se incriminating and those which are not; what matters is that, by seeking to adduce them in evidence, the prosecution is seeking to put them to use for an incriminatory purpose. 2.  THE CASE LAW IN ENGLAND AND WALES

Notwithstanding Lord Bingham’s observation in Brown v Stott18 that ‘it is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not’,19 the law of England and Wales would appear to distinguish strictly any information obtained pursuant to a requirement of the latter type from information obtained pursuant to the former. In R v Kearns20 the Court of Appeal offered the following statement of principle: There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of . . . the right not to incriminate oneself.21

The matter was considered by the Court of Appeal in A-G’s Reference (No 7 of 2000),22 in which the following question arose for consideration: Does the use by the Crown in the prosecution of a bankrupt for an offence under Chapter VI of Part IX of the Insolvency Act 1986 . . . of documents which (a) were delivered up to the Official Receiver . . . under compulsion (pursuant to the duty imposed on the bankrupt by section 291 of the 1986 Act, which is backed by the contempt sanction in section 291(6) of the 1986 Act) and (b) do not contain statements made by the bankrupt under compulsion[,] violate the bankrupt’s rights under article 6 of the European Convention on Human Rights . . .?

The Court of Appeal held that this question should be answered in the negative,23 reflecting what it considered to be the position of the law of

18   Brown v Stott [2003] 1 AC 681 (PC). Being a decision of the Privy Council, this is not technically binding in England and Wales. 19   ibid 705 (Lord Bingham). 20   R v Kearns [2002] EWCA Crim 748, [2002] 1 WLR 2815. 21   ibid [53] (Aikens J). 22   Attorney-General’s Reference (No 7 of 2000) [2001] EWCA Crim 888, [2001] 1 WLR 1879. See generally A Henderson, ‘Defining the Limits of Silence’ (2001) 145 Solicitors’ Journal 432. 23   [2001] EWCA Crim 888, [2001] 1 WLR 1879 [57] (Rose LJ).



The Case Law in England and Wales  47

England and Wales,24 under which there was ‘no doubt that the documents . . . would be regarded as admissible as a matter of law, subject of course to the trial judge’s discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984’.25 Arising, then, was ‘[t]he question . . . whether, in deference to the Strasbourg jurisprudence, this court should give a different answer to that which the English courts . . . otherwise suggest’. On this, [i]t seems to us that the distinction made in . . . the European Court of Human Rights’s judgment in Saunders’s case . . . between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. . . . If and in so far as there is a difference of view in the European Court . . . between Funke’s case . . . on the one hand and Saunders’s case . . . on the other, the approach in . . . Saunders . . . commends itself to this court. . . . Alternatively, if the Strasbourg jurisprudence simply does not give a clear answer to the question which is here posed, that entitles this court to follow the English authorities . . .26

The Court’s view was therefore that the Strasbourg jurisprudence was consistent with the domestic jurisprudence, but that, if the former lacked clarity, then it would be appropriate in any event for the domestic authorities to be followed. Purporting to apply A-G’s Reference (No 7 of 2000), the Civil Division of the Court of Appeal held in C plc v P 27 that the privilege against self-­ incrimination does not cover ‘material . . . which is itself “real” and “inde­ pendent” evidence and is not itself “compelled testimony”’.28 Subsequently, the Divisional Court in R (Malik) v Manchester Crown Court,29 noting the decision in C plc v P, commented, obiter, that the relevant judgments of the European Court of Human Rights were somewhat problematic . . . [W]e find it difficult to extract from them a clear statement of principle as to whether the privilege against self-incrimination applies to 24   The Court identified particularly the decisions of the House of Lords in R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 (HL); AT & T Istel Ltd v Tully [1993] AC 45 (HL); R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412 (HL). 25   [2001] EWCA Crim 888, [2001] 1 WLR 1879 [58]. 26   ibid [59]–[60], [62]. 27   C plc v P [2007] EWCA Civ 493, [2008] Ch 1. See generally S Burns, ‘A Very Limited Privilege’ (2007) 151 Solicitors’ Journal 1014; R Moules, ‘The Privilege against Self-Incrimination and Real Evidence’ (2007) 66 Cambridge Law Journal 528; A Zuckerman, ‘The Privilege against SelfIncrimination May Not Confer a Right to Refuse Disclosure of Incriminating Documents that Came into Existence Independently of the Disclosure Order’ (2007) 26 Civil Justice Quarterly 395; FLH Ng, ‘Privilege against Self-Incrimination in Independent Evidence: C plc v P (Attorney-General Intervening)’ (2008) 12 International Journal of Evidence and Proof 150. 28   [2007] EWCA Civ 493, [2008] Ch 1 [38] (Longmore LJ). For an incisive critique, see B Thanki (ed), The Law of Privilege, 2nd edn (Oxford, Oxford University Press, 2011) paras 8.32–8.34. The House of Lords gave leave to appeal but the appeal was later withdrawn: Journals of the House of Lords, Session 2007–08, vol 241, p 757: www.publications.parliament.uk/pa/ld200708/ldjournal/241/ lords_journal_241.pdf. 29   R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403.

48  What Is ‘Information’? pre-existing documents. We are inclined to accept . . . that they seem to indicate that the privilege against self-incrimination protected by art 6 is in play even where the potential for self-incrimination derives from pre-existing documents.30

All of the above must now be read in the light of the interesting, albeit far from straightforward, decision of the Court of Appeal in R v S(F).31 The police lawfully seized from the defendants computer material containing encrypted files, which were unreadable without encryption keys. The defendants were served with notices under section 49 of the Regulation of Investigatory Powers Act 2000 compelling disclosure of the encryption keys. They were prosecuted under section 53(1) of the Act for not complying with the notices. The defendants’ application for the prosecution to be stayed as an abuse of the process of the court, on the basis that the requirement to provide the information infringed the privilege against self-incrimination and contravened article 6, was rejected by the trial judge. The basic point made by the Court of Appeal, in a passage worth quoting in full, was that the encryption key existed independently of the ‘will’ of each defendant: On analysis, the key which provides access to protected data, like the data itself, exists separately from each defendant’s ‘will’. Even if it is true that each created his own key, once created the key to the data remains independent of the defendant’s ‘will’ even when it is retained only in his memory, at any rate until it is changed. If investigating officers were able to identify the key from a different source (say, for example, from the records of the shop where the equipment was purchased) no one would argue that the key was not distinct from the equipment which was to be accessed, and indeed the individual who owned the equipment and knew the key to it. Again, if the arresting officers had arrived at the premises . . . immediately after S had completed the process of accessing his own equipment enabling them to identify the key, the key itself would have been a piece of information existing, at this point, independently of S himself and would have been immediately available to the police for their use in the investigation. In this sense the key to the computer equipment is no different from the key to a locked drawer. The contents of the drawer exist independently of the suspect: so does the key to it. . . . In the present cases the prosecution is in possession of the drawer: it cannot however gain access to the contents. The lock cannot be broken or picked, and the drawer itself cannot be damaged without destroying the contents.32

Furthermore, the Court observed, ‘the key is neutral’33 and not per se incriminating:   ibid [77] (Dyson LJ).   R v S(F) [2008] EWCA Crim 2177, [2009] 1 WLR 1489. See generally S Mason, ‘Some International Developments in Electronic Evidence’ (2012) 18 Computer and Telecommunications Law Review 23. 32   [2008] EWCA Crim 2177, [2009] 1 WLR 1489 [20] (Lord Judge CJ). 33  ibid. 30 31

The Case Law in England and Wales  49



The actual answers, that is to say the product of the defendants’ minds could not, of themselves, be incriminating. The keys themselves simply open the locked drawer, revealing its contents. In much the same way that a blood or urine sample provided by a car driver is a fact independent of the driver, which may or may not reveal that his alcohol level exceeds the permitted maximum, whether the defendants’ computers contain incriminating material or not, the keys to them are and remain an independent fact.34

This acceptance of a distinction between ‘neutral’ information and information that is per se incriminating recalls the views of the Grand Chamber of the European Court of Human Rights in Jalloh v Germany, noted above. Whilst the Court in S(F) considered that the privilege against self-­ incrimination was not per se engaged by the legal compulsion to provide the encryption key, since this information was per se neutral, it conceded that the privilege might be engaged if the material uncovered pursuant to the ‘unlocking’ of the computers turned out to be incriminating. This was because, in such circumstances, the defendants’ knowledge of the key would be an incriminating fact. In the Court’s words: If [the computers] contain incriminating material, the fact of the defendants’ knowledge of the keys may itself become an incriminating fact. . . . In our judgment the correct analysis is that the privilege against self-incrimination may be engaged by a requirement of disclosure of knowledge of the means of access to protected data under compulsion of law. . . . In short, although the defendants’ knowledge of the means of access to the data may engage the privilege against self-incrimination, it would only do so if the data itself – which undoubtedly exists independently of the will of the defendants and to which the privilege against selfincrimination does not apply – contains incriminating material. If that data was neutral or innocent, the knowledge of the means of access to it would similarly be either neutral or innocent.35

The Court concluded that it could ‘see no possible ground for a successful application that the prosecution . . . should be stopped as an abuse of process’,36 since, if the defendants had complied with the notices and any material consequently uncovered had been used in prosecuting them, then, in relation to any subsequent trial, the powers under section 78 of the 1984 Act to exclude evidence in relation, first, to the underlying material, second, the key or means of access to it, and third, an individual defendant’s knowledge of the key or means of access, remain.37

  ibid [21].   ibid [21], [24]. 36   ibid [26]. 37   ibid [25]. 34 35

50  What Is ‘Information’? In other words, ‘if the material were . . . incriminatory, it would be open to the trial judge to exclude evidence of the means by which the prosecution gained access to it’.38 In sum, the Court’s decision, whilst detailed and interesting, leaves one none the wiser as to the precise scope of the privilege as it pertains to information of the type in question. Ultimately, the Court took the convenient option of holding that, even if the privilege were engaged because the computers contained incriminating material, this was not something that could be known until the information was provided in order that the computers could be ‘unlocked’. It was not inappropriate, the Court thought, for the defendants to be required to disclose the encryption keys, since section 78(1) of the Police and Criminal Evidence Act 1984 would provide adequate protection in any subsequent prosecution of the defendants on the basis of the information provided. In other words, a prosecution for refusing to provide the information would not be unfair because, if the information were to be provided and used in a subsequent trial, the fairness of that trial could in any event be ensured. If adopted more generally, such an approach might have the unfortunate consequence of leaving little scope for the finding of article 6(1) violations in cases of refusal to provide information, with courts reasoning that to have required the defendant to answer would not have been unjustified because the fairness of any subsequent trial could have been ensured.39 3.  US CONSTITUTIONAL LAW

The privilege against self-incrimination is protected by the Fifth Amendment to the US Constitution, which provides: ‘No person . . . shall be compelled in any criminal case to be a witness against himself’. In the classic case of Schmerber v California,40 the US Supreme Court had to consider whether a blood sample fell within the scope of the Fifth Amendment privilege. The Court held that ‘the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature’.41 In the present case, the Court observed,

38  ibid [24]. S(F) was applied in Greater Manchester Police v Andrews [2011] EWHC 1966 (Admin), [2012] ACD 18, in which it was held that it would have been appropriate to allow the Chief Constable’s application for permission to serve a notice under s 49 of the 2000 Act requiring the disclosure of encryption keys. 39   For a decision on sentencing following a plea of guilty to an offence of failing to disclose an encryption key contrary to s 53 of the 2000 Act, see R v Padellec [2012] EWCA Crim 1956. 40   Schmerber v California 384 US 757 (1966). 41   ibid 761 (Brennan J).

US Constitutional Law  51



[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.42

More recently, in US v Hubbell,43 the US Supreme Court reconsidered the Fifth Amendment status of pre-existing documents.44 The demand for compulsory disclosure in Hubbell was couched in very general terms. The authorities wanted documents that fell within any of 11 very broadly worded categories, resulting in the production of some 13,120 pages of material.45 The Court held that ‘the act of producing documents in response to a subpoena may have a testimonial aspect’46 (emphasis added) in the context of a particular case, and that it did so here: Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. The assembly of literally hundreds of pages of material in response to a request for ‘any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to’ an individual or members of his family during a 3-year period . . . is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. . . . [R]espondent . . . took the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena. It was only through respondent’s truthful reply to the subpoena that the Government received the incriminating documents . . .47

In arriving at the conclusion that the Fifth Amendment privilege was engaged on these facts, the Supreme Court emphasised the mental effort expended by Hubbell in complying with the subpoena, and sought to draw a distinction between surrendering the key to a strongbox (outside the scope of the privilege) and divulging the secret combination of a wall safe (covered by it). Significantly, this stands in contrast with the views of the Court of Appeal   ibid 765.   US v Hubbell 530 US 27 (2000). 44   See generally SM Salky, The Privilege of Silence: Fifth Amendment Protections against SelfIncrimination (Chicago, IL, ABA Publishing, 2009) ch 9. 45   See Appendix 3 to this book, where the documents which were required to be produced are enumerated. 46   530 US 27, 36 (2000) (Stevens J). 47   ibid 41–43. 42 43

52  What Is ‘Information’? of England and Wales, which thought in R v S(F), as we have seen, that requiring a password was analogous to requiring the key to a drawer. The US Supreme Court observed: It was unquestionably necessary for respondent to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena. . . . The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox. . . . The Government’s anemic view of respondent’s act of production as a mere physical act that is principally nontestimonial in character . . . simply fails to account for these realities.48

The Court sought to rationalise its decision by reference to previous case law rather than broader considerations of principle. Hubbell consequently failed to state a clear test for identifying the classes of documents covered by the privilege,49 ‘leav[ing] unanswered the question of how precisely the govern­ ment must identify the documents, by reference to its prior knowledge’. It is therefore unclear whether the government must ‘identify a specific document as one known to be in the subpoenaed party’s possession (eg, an airline ticket for a known trip on a particular day)’, or whether it is sufficient to ‘refer to a somewhat broader grouping of documents upon showing that the party engaged in a particular type of activity which involved receipt of such documents (eg, airline tickets from a specific airline which the subpoenaed party regularly used)’.50 Several attempts have been made by commentators to explain Hubbell. For example, Allen and Mace consider the crucial factor to be that ‘the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action’.51 For Pardo, on the other hand, the privilege against self-incrimination was engaged in this case because the defendant was being relied upon as an ‘epistemic authority’ in relation to compelled information: In the bodily-sample cases, the defendant will not be serving as an epistemic authority for whether he has a certain blood type, or whether his DNA matched a sample found at the scene, or whether his urine contained trace amounts of illegal drugs. Fact-finders asked to justify their conclusions could not pass the   ibid 43.   See also In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 670 F 3d 1335, 1347 (11th Cir 2012) (Tjoflat, Circuit Judge): ‘Case law from the Supreme Court does not demand that the Government identify exactly the documents it seeks, but it does require some specificity in its requests – categorical requests for documents the Government anticipates are likely to exist simply will not suffice’. 50   WR LaFave, JH Israel, NJ King and OS Kerr, Criminal Procedure, 3rd edn, vol 3 (St Paul, MN, Thomson/West, 2007 [updated 2012]) § 8.13(a). 51   RJ Allen and MK Mace, ‘The Self-Incrimination Clause Explained and Its Future Predicted’ (2004) 94 Journal of Criminal Law and Criminology 243, 247. 48 49



US Constitutional Law  53 epistemic buck to the defendant with regard to any of these claims. . . . With testimonial communications the defendant is the epistemic authority, and factfinders are being asked to rely on the epistemic authority of the defendant. If they were challenged to defend a conclusion, based on the defendant’s testimonial com­munications, that the defendant is guilty, they could pass the epistemic buck to the defendant. In other words, fact-finders could potentially justify their decisions by citing the defendant’s own epistemic authority, by claiming that the defendant (and not they) are the ones with direct epistemic support justifying the fact-finders’ conclusions.52

What seems clear is that, on a narrow interpretation, it is possible to rationalise the decision in Hubbell purely on grounds of evidential reliability. In other words, even on the assumption that there is nothing wrong with compelling the provision of information unless the compulsion will potentially generate false or unreliable information, the decision in Hubbell can be justified. On this view, a demand for the production of a specific pre-existing document is unproblematic because the suspect is accorded no leeway to lie, either deliberately or unwittingly. But where, as in Hubbell, the demand is sweeping and open-ended, there is a danger that the suspect may, in the process of responding, falsely incriminate himself, just as he might do in the course of a police interrogation. In short, it is possible to define a ‘testimonial communication’ as a communication the truthfulness of which is capable of being manipulated. This does not, however, appear to be the criterion that the Supreme Court actually had in mind in Hubbell for defining the scope of the privilege against self-incrimination. If the view were taken that considerations of evidential reliability alone underlay the privilege, then a demand to divulge the secret combination of a wall safe would not be regarded as materially different from a demand to surrender the key to a strongbox; in either case only one ‘true’ response would be available (the correct combination or the correct key) and thus there would be no possibility of false information being provided. The Supreme Court, however, placed the demand for the combina­tion and the facts of the instant case in the category of cases in which the privilege would be engaged, while regarding the demand for the key as a situation not engaging the privilege. What the Court appears to have had in mind is a non-epistemic justification for the privilege that has at its core the extent of the mental effort required of the respondent or the degree of mental intrusiveness involved, rather than an epistemic justification focused on the quality of the information that might be provided. Consistent with the Supreme Court’s views on combinations to wall safes is the decision on encryption of the US Court of Appeals for the 11th Circuit 52   MS Pardo, ‘Self-Incrimination and the Epistemology of Testimony’ (2008) 30 Cardozo Law Review 1023, 1040.

54  What Is ‘Information’? in In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011.53 In the course of a child pornography investigation, a subpoena duces tecum was issued requiring an individual to appear before a grand jury and to produce unencrypted contents of laptop computers and external hard drives. His refusal to decrypt the hard drives led to his being adjudged in contempt of court. Reversing this judgment, the Court of Appeals held ‘that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and . . . such protection would extend to the Government’s use of the drives’ contents’.54 This was because ‘the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature’.55 Examples of other scenarios involving what may broadly be termed ‘physical evidence’ that the US Supreme Court has considered in the context of the privilege against self-incrimination may now be provided. 3.1 Voice At issue in US v Wade 56 was whether the privilege against self-incrimination was engaged by Wade’s being compelled, prior to his indictment for robbery, to participate in a line-up in which he was required to wear strips of tape on his face, as the robber had allegedly done, and to repeat words like those the robber had allegedly used. The Supreme Court held that ‘[n]either the lineup itself nor anything . . . that Wade was required to do in the lineup violated his privilege against self-incrimination’, explaining its reasoning as follows: [C]ompelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evid­ ence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample . . . and . . . is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ 53   In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 670 F 3d 1335 (11th Cir 2012). See generally H Fakhoury, ‘A Combination or a Key? The Fifth Amendment and Privilege against Compelled Decryption’ (2012) 9 Digital Evidence and Electronic Signature Law Review 81. For earlier discussion, see NK McGregor, ‘The Weak Protection of Strong Encryption: Passwords, Privacy, and Fifth Amendment Privilege’ (2010) 12 Vanderbilt Journal of Entertainment and Technology Law 581; S Mason, ‘Some International Developments in Electronic Evidence’ (2012) 18 Computer and Telecommunications Law Review 23; N Soares, ‘The Right to Remain Encrypted: The SelfIncrimination Doctrine in the Digital Age’ (2012) 49 American Criminal Law Review 2001. 54   670 F 3d 1335, 1341 (11th Cir 2012) (Tjoflat, Circuit Judge). 55   ibid 1346. 56   US v Wade 388 US 218 (1967).

US Constitutional Law  55



nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. . . . None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.57

Likewise, the Supreme Court in US v Dionisio,58 on the basis that ‘the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination’, firmly rejected the contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said.59

3.2 Handwriting60 In Gilbert v California61 the Supreme Court held that the taking of handwriting exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. . . . One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.62

3.3  Sobriety Testing In Pennsylvania v Muniz,63 Muniz, having been arrested for driving while under the influence, was asked to provide his name, address, height, weight, eye colour, date of birth and current age. He responded to these questions, stumbling over his address and age. He was then asked for the date of his sixth birthday, which he was unable to provide. The Supreme Court held that, while the manner of his responses to the questions was not covered by the privilege against self-incrimination, his answer to the question concerning his sixth birthday was so covered:   ibid 221, 222–23 (Brennan J).   US v Dionisio 410 US 1 (1973). 59   ibid 5–6, 7 (Stewart J). 60   See generally YF Yunes, ‘Dictation Method: Do Dictated Handwriting Exemplars Provide for Testimonial Evidence Protected by the Fifth Amendment?’ (2007) 34 American Journal of Criminal Law 433. 61   Gilbert v California 388 US 263 (1967). 62   ibid 266–67 (Brennan J). 63   Pennsylvania v Muniz 496 US 582 (1990). 57 58

56  What Is ‘Information’? Under Schmerber and its progeny . . . any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz’s responses to Officer Hosterman’s direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice . . . does not, without more, compel him to provide a ‘testimonial’ response for purposes of the privilege. This does not end our inquiry, for Muniz’s answer to the sixth birthday question was incriminating, not just because of his delivery, but also because of his answer’s content; the trier of fact could infer from Muniz’s answer (that he did not know the proper date) that his mental state was confused. . . . The correct question for present purposes is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence. . . . Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful). . . . [T]he incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response.64

Again, it would appear from this brief survey that epistemic considerations are not necessarily at the forefront of the Court’s thinking. If they were, then the privilege would have a wider scope than the above cases would suggest. For example, a voice exemplar, being, unlike a blood sample, susceptible (to some degree at least) of manipulation by the person providing it, would be covered by the privilege if epistemic considerations were to be taken seriously. Similarly, on the basis of epistemic justifications, one might expect the privilege to cover handwriting exemplars since ‘[a]n individual has a choice to attempt to disguise a handwriting exemplar, but nonetheless the Fifth Amendment does not apply to the situation’.65 Epistemic considerations would also suggest that there should be no grounds on which to distinguish between the two categories of evidence at issue in Muniz, since the manner of Muniz’s responses to the questions, like the specific response to the sixth birthday question, is not immune to the possibility of alteration or manipulation. 4. AUSTRALIA

In Australia, too, the courts would appear to have attempted to make a ‘testimonial’/‘non-testimonial’ distinction in determining what material is covered by the privilege:   ibid 592–93, 599 (Brennan J).   RJ Allen, ‘Theorizing about Self-Incrimination’ (2008) 30 Cardozo Law Review 729, 734.

64 65

New Zealand  57



The privilege [against self-incrimination] prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of a witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he may be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting.66

5.  NEW ZEALAND

This book has used as a starting point the definition of ‘self-incrimination’ provided in the Evidence Act 2006 of New Zealand. In terms of its scope, the privilege against self-incrimination in New Zealand67 notably attaches only to ‘a statement of fact or opinion given, or to be given, (a) orally; or (b) in a document that is prepared or created . . . after and in response to a requirement to [provide specific information]’.68 This excludes from the operation of the privilege (1) all pre-existing documents, as well as (2) all bodily samples and other pre-existing material extractable from the suspect. Material of the latter type was considered by the New Zealand Supreme Court in Cropp v Judicial Committee and McKenzie,69 where at issue was the validity of a random drug-testing régime for jockeys, pursuant to which a urine sample was required to be provided. The Supreme Court observed: The last of the appellant’s arguments was that the rules are invalid because they do not provide a protection against self-incrimination for jockeys in relation to the samples produced by them for testing. It was submitted that a jockey may incriminate him or herself by being required to supply a sample of urine which, if tested and found positive for drugs, could be used in a criminal prosecution of the jockey, presumably for possession of the drug in question. This argument was unsupported by reference to any authority and must be rejected. All the authorities are in fact the other way. . . . [T]he privilege against self-incrimination . . . is directed at testimonial compulsion. It does not justify an individual refusing to supply physical evidence which exists and can be found independently of any testimony of the individual, such as bodily samples. . . . [T]here must be some testimonial link in the act of production if the privilege is to apply. That could not be the case in relation to urine or other bodily samples supplied by jockeys . . . The privilege is now dealt with by s 60 of the Evidence Act 2006. The definition of ‘information’ in s 51(3) restricts the privilege to a right not to provide information that is in the form   Sorby v Commonwealth (1983) 152 CLR 281, 292 (Gibbs CJ).   Provided for by the Evidence Act 2006 (NZ), s 60.   This is the definition of ‘information’ contained in the Evidence Act 2006 (NZ), s 51(3). The NZ Law Commission has recommended that the words ‘given, or’ be deleted: see New Zealand Law Commission, The 2013 Review of the Evidence Act 2006 (NZLC R127) (Wellington, Law Commission, April 2013) paras 10.148–10.158. 69   Cropp v Judicial Committee and McKenzie [2008] NZSC 46, [2008] 3 NZLR 774. 66 67 68

58  What Is ‘Information’? of an oral or documentary ‘statement’. A refusal to produce real evidence emanating from a person in the form of a urine sample does not engage the privilege.70

The New Zealand legislation now makes it very clear, as we have seen, that the privilege covers only information provided in oral answers and in documents created following a relevant request. This reflects a very narrow view of the scope of the privilege. 6. CANADA

Reference was made in chapter two above to the ‘use immunity’ granted by section 13 of the Canadian Charter of Rights and Freedoms in respect of self-incriminating testimony provided by a witness. Section 13 aside, there is no express provision in the Charter in relation to the privilege against selfincrimination, but the guarantee in section 7 of ‘the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’ is considered to underlie recognition of the privilege.71 This approach of treating the privilege as ‘implicit’ in the Charter is not dissimilar, broadly speaking, to the approach of the European Court of Human Rights. While, however, the Strasbourg Court’s approach is predicated on the right to a fair trial, in Canadian law the privilege is considered primarily to be a ‘principle of fundamental justice’ under section 7, rather than an implicit feature of the right to a fair trial guaranteed by section 11(d) of the Charter. Recognition of the privilege as an aspect of fundamental justice may well account for the expansive view taken by the Supreme Court of Canada of the scope of the privilege. The Court indicated in R v SAB 72 that ‘[n]o distinction [should be] drawn between products of the mind and products of the body with respect to the principle against self-incrimination’.73 As will be discussed in chapter four, however, the Supreme Court held that, in the final analysis, there was no infringement of Charter rights in this case. For present purposes the significance of the decision lies in its holding that ‘products of the body’ do engage the privilege in the same manner as do ‘products of the mind’.

  ibid [47] (Blanchard J).   See generally AW Bryant, SN Lederman and MK Fuerst, The Law of Evidence in Canada, 3rd edn (Markham, ON, LexisNexis Canada, 2009) 519–28; DM Paciocco and L Stuesser, The Law of Evidence, 6th edn (Toronto, ON, Irwin Law, 2011) 314–42. I am grateful to Simon Young of the Faculty of Law of the University of Hong Kong for sharing his insights into the Canadian position. 72   R v SAB 2003 SCC 60, [2003] 2 SCR 678. See generally D Stratas, ‘R v B(SA) and the Right against Self-Incrimination: A Confusing Change of Direction’ (2004) 14 Criminal Reports (6th) 227; L Stuesser, ‘R v SAB: Putting “Self-Incrimination” in Context’ (2004) 42 Alberta Law Review 543. 73   2003 SCC 60, [2003] 2 SCR 678 [34] (Arbour J). 70 71

India  59



7. INDIA

The privilege against self-incrimination is encapsulated in article 20(3) of the Constitution of India, which provides: ‘No person accused of any offence shall be compelled to be a witness against himself’. The Supreme Court of India considered the privilege in Selvi v State of Karnataka.74 Among the issues addressed by the Court was whether the privilege was engaged by polygraph testing or by Brain Electrical Activation Profile (‘BEAP’) testing, the latter being ‘a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli’.75 The Court held: Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject’s thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of ‘personal knowledge’ through such means.76

The Court’s decision provides an illustration of a carefully considered approach to determining the scope of the privilege. While the Court acknow­ ledges that being subjected to polygraph testing or BEAP testing cannot be straightforwardly equated with undergoing police interrogation, it concludes that evidence generated in all three cases ultimately raises similar concerns, making it distinguishable from evidence of bodily samples.77 74   Selvi v State of Karnataka [2010] INSC 340. See generally JK Das, ‘Investigation Techniques in Criminal Cases and the Right to Health in India’ (2011) 12 Asia-Pacific Journal on Human Rights and the Law 56. 75   [2010] INSC 340 [67] (Balakrishnan CJI). 76   ibid [160]. 77   See also, generally, MB Holloway, ‘One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege against Self-Incrimination’ (2008) 27 Temple Journal of Science, Technology and Environmental Law 141; B Farrell, ‘Can’t Get You out of My Head: The Human Rights Implications of Using Brain Scans as Criminal Evidence’ (2009–10) 4 Interdisciplinary Journal of Human Rights Law 89; NA Farahany, ‘Incriminating Thoughts’ (2012) 64 Stanford Law Review 351.

60  What Is ‘Information’?

8.  INTERNATIONAL CRIMINAL LAW: THE ICTY

The advent of international criminal trials, pioneered from the mid-1990s by the International Criminal Tribunal for the Former Yugoslavia (ICTY), has required new configurations of international courts and judges to grapple with fundamental concepts of criminal procedure. Article 21(4)(g) of the Statute of the ICTY guarantees an accused the right ‘not to be compelled to testify against himself or to confess guilt’.78 In Prosecutor v Delalic,79 where the authorship of a particular letter was at issue, a Trial Chamber of the ICTY had to determine whether a handwriting sample could be demanded from one of the accused for comparison purposes. The prosecution contended that, ‘because it [did] not seek a statement wherein [the accused would] admit guilt or through which knowledge of specific circumstances [might] be inferred, the sample [could not] be regarded as self-incriminating’.80 By contrast, the defence contended that [a]n Order against [the accused] to provide a handwriting sample to enable the determination of the authorship of the letter would have the effect of compelling him to contribute to the process of incriminating himself, which [would] be a violation of his protection against self-incrimination, an essential element of a fair trial.81

Apparently taking a different view on this point from that taken by the Grand Chamber of the European Court of Human Rights in Jalloh v Germany, the ICTY considered the fact that a handwriting sample could be regarded as ‘neutral’ to be of no significance: The fact that the handwriting sample per se is neutral evidence is not the issue. If the handwriting sample taken together with other evidence will constitute material evidence to prove the charge against the accused, then [any Order of the Trial Chamber compelling the accused to provide the sample] would have compelled the production of self-incriminating evidence.82

The ICTY also rejected the contention that the privilege against self-­ incrimination covered ‘testimonial’ evidence only: In construing the provisions of Article 21 sub-paragraph 4(g), it is better to rely on the words of the provision if clear and unambiguous. The words ‘to testify against 78   See also Statute of the International Criminal Tribunal for Rwanda, art 20(4)(g); Rome Statute of the International Criminal Court, arts 55(1)(a) and 67(1)(g). 79   Prosecutor v Delalic (Trial Chamber of the ICTY, 19 January 1998). See generally M Berger, ‘The Right to Silence in The Hague International Criminal Courts’ (2012) 47 University of San Francisco Law Review 1. 80   Prosecutor v Delalic (Trial Chamber of the ICTY, 19 January 1998) [18]. 81   ibid [24]. 82   ibid [48].

Concluding Comments  61



himself’ are clear and unambiguous, and require no modification or qualification. Nowhere is the privilege from self-incrimination qualified, or restricted to testimonial evidence. To read such a limitation as is suggested by the Prosecution is to read into the plain words . . . a condition not contemplated by the law maker. Such a construction will subvert the intention of the protection by introducing a qualification inconsistent with the true basis of the protection. The Trial Chamber cannot deprive the accused of his guaranteed right through construction of the words of the provision given without express limitation.83

Thus, an Order compelling the relevant accused person to provide a handwriting sample would not be issued, as to do so ‘would involve him testifying against himself’.84 This ruling implies a notably expansive conception of the privilege against self-incrimination, capable of extending to physical (‘real’) evidence created under compulsion, and rejecting any notion that the privilege might apply only to ‘testimonial’ evidence or only to evidence that can be regarded as per se incriminating. 9.  CONCLUDING COMMENTS

Beyond information contained in answers provided in response to compulsory questioning, there is little agreement on what information the privilege against self-incrimination might cover. Different jurisdictions purport to take different approaches to this question. Even within a particular juris­ diction, the case law is not always entirely consistent, and may display a failure or unwillingness to engage deeply with the question. There can be little doubt that uncertainty about the potential reach of the privilege is not unrelated to the lack of consensus and lack of clear thinking in relation to the possible rationales for the privilege against self-incrimination. In practical terms, as we shall see in the next chapter, the failure to engage convincingly with the question of what constitutes ‘information’ has been reinforced by the approach that has come to be taken to the question of whether the privilege is ‘absolute’.

  ibid [58].   ibid [60].

83 84

4 Identifying the ‘Essence’ of the Privilege

S

UPPOSE THAT, IN a particular case, all conditions necessary for the privilege against self-incrimination to apply are satisfied and that the privilege is therefore engaged. Suppose, further, that there is legislation that criminalises refusal to provide the relevant information, thereby abrogating the privilege. Does article 6(1) of the European Convention on Human Rights require that the privilege take precedence over the intention of the legislature? This question is the subject of this chapter. 1.  AN ‘ABSOLUTE’ RIGHT?

In Saunders v UK,1 the European Court of Human Rights, having expressly stated that it did not ‘find it necessary . . . to decide whether the right not to incriminate oneself is absolute or whether infringements of it may be justified in particular circumstances’, went on, however, to observe: [The Court] does not accept the Government’s argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. . . . [I]t considers that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings.2

This suggests that, even if the privilege against self-incrimination is not ‘absolute’3 (in other words, even if the view is taken that the privilege can successfully be abrogated by Parliament in appropriate circumstances), one   Saunders v United Kingdom (1996) 23 EHRR 313.   ibid [74]. 3  See generally W Wu, ‘Interrogational Fairness under the European Convention on Human Rights’ (2011) 39 International Journal of Law, Crime and Justice 37. 1 2

The Jurisprudence of The ECtHR  63



matter that cannot be taken into consideration in deciding whether to give effect to the privilege on the one hand, or to Parliamentary intent on the other, is the weight of the public interest in bringing to conviction perpetrators of offences of the type in question. There were powerful dissenting opinions in Saunders. Judge Valticos, joined by Judge Gölcüklü, stated: Seeking to elevate to the status of an absolute rule the right of persons suspected of criminal offences, including serious crimes, not to incriminate themselves and not to answer any question which might incriminate them would mean in many cases that society was left completely defenceless in the face of ever more complex activities in a commercial and financial world that has reached an unprecedented level of sophistication. Defence of the innocent must not result in impunity for the guilty. In the dilemma on this point, which has been commented on, often in exaggerated terms, since ancient times, there is room for reasonable middle courses. In this field, as in many others, a proper sense of proportion must be the guiding rule.4

In a similar vein, Judge Martens, joined by Judge Kuris, noted that in the Court’s opinion, the privilege against self-incrimination is far more absolute than it is in my view. . . . I see neither [the right to silence nor the privilege against self-incrimination] as absolute and I therefore fundamentally disagree with the sweeping statement in . . . the Court’s judgment according to which ‘the public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings’.5

Subsequently, in Heaney and McGuinness v Ireland,6 the Strasbourg Court held, endorsing Saunders, that ‘the security and public order concerns of the Government cannot justify a provision which extinguishes the very essence of the applicants’ [privilege] against self-incrimination guaranteed by Article 6(1) of the Convention’.7 But more recent developments, which will now be analysed, cast substantial doubt on whether this remains the position.8 2.  THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

As we saw in chapter three above, the Grand Chamber of the European Court of Human Rights held in Jalloh v Germany9 that the privilege against self-incrimination was engaged by the administration of an emetic to cause   (1996) 23 EHRR 313, 350 (Judge Valticos).   ibid 353, 359 (Judge Martens). 6   Heaney and McGuinness v Ireland (2000) 33 EHRR 12. 7   ibid [58]. See also Shannon v United Kingdom (2005) 42 EHRR 31 [38]. 8  See generally NAJ Croquet, ‘The Right of Silence and Not to Self-Incriminate under the European Convention on Human Rights: To What Extent Are They Qualified?’ (2008) 4 Cambridge Student Law Review 214. 9   Jalloh v Germany (2006) 44 EHRR 32. 4 5

64  Identifying the Essence of the Privilege the regurgitation of a bag of cocaine. This, however, was not the end of the matter, the Grand Chamber taking the view that the fact that the privilege was engaged did not automatically mean a violation of the right to a fair trial under article 6(1). What precisely would be required was articulated slightly differently in two parts of the Grand Chamber’s judgment. The first reads as follows: In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court will have regard, in particular, to the following elements: the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.10

Later, the Grand Chamber, having noted that ‘the principle against selfincrimination is applicable to the present proceedings’,11 stated: In order to determine whether the applicant’s right not to incriminate himself has been violated, the Court will have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence at issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put.12

Two points may be made. First, the terminology used in the latter formulation of the principle may not appear entirely straightforward; it may appear contradictory to find that the privilege is ‘applicable’ and then to engage in a determination of whether it has been ‘violated’. The principle as understood by the Court might best be rationalised as follows. Having established that the privilege is engaged (or ‘applicable’) on the facts of the case, it is then necessary, in determining whether the ‘essence’ of the privilege has been destroyed, consequently violating article 6(1), to assess by a process of ‘balanc­ing’ whether the considerations underlying the privilege are sufficiently compelling to require effect to be given to the privilege. Secondly, the first formulation omits any reference to the weight of the public interest in bringing to conviction a perpetrator of an offence of this type as a relevant factor to be considered, but the latter includes it. In applying the latter, four-factor test to the facts of the case at hand, the Grand Chamber addressed each of the four factors in turn. First: As regards the nature and degree of compulsion used to obtain the evidence in the present case . . . forcing the applicant to regurgitate the drugs significantly interfered with his physical and mental integrity. The applicant had to be immobilised by four policemen, a tube was fed through his nose into his stomach and chemical   ibid [101].   ibid [116].   ibid [117].

10 11 12

The Jurisprudence of The ECtHR  65



substances were administered to him in order to force him to surrender up the evidence sought by means of a pathological reaction of his body. This treatment was found to be inhuman and degrading and therefore to violate Art 3.13

Secondly: As regards the weight of the public interest in using the evidence to secure the applicant’s conviction . . . the impugned measure targeted a street dealer who was offering drugs for sale on a comparably small scale and was finally given a six months’ suspended prison sentence and probation. . . . [T]he public interest in securing the applicant’s conviction could not justify recourse to such a grave interference with his physical and mental integrity.14

Thirdly: Turning to the existence of relevant safeguards in the procedure . . . [a]lthough it can be said that domestic law did in general provide for safeguards against arbitrary or improper use of the measure, the applicant, relying on his right to remain silent, refused to submit to a prior medical examination. He could only communicate in broken English, which meant that he was subjected to the procedure without a full examination of his physical aptitude to withstand it.15

Finally, ‘[a]s to the use to which the evidence obtained was put’, the Court noted that ‘the drugs obtained following the administration of the emetics were the decisive evidence in [the] conviction for drug trafficking’.16 The Grand Chamber concluded in the light of its consideration of the four factors that the use of the evidence at Jalloh’s trial ‘infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair’,17 resulting in a violation of article 6(1).18 The use of the word ‘therefore’ is confusing, suggesting an approach whereby a violation of article 6(1) automatically follows from any infringement of the privilege. The precise point of the Grand Chamber’s reasoning and analysis in Jalloh is that whether article 6(1) is violated must be determined on a case-by-case basis. Here, because the considerations underlying the privilege against self-­incrimination were so compelling in the circumstances that the essence of the privilege had been destroyed by the failure to give effect to it, there was such a violation. In O’Halloran and Francis v UK,19 the Grand Chamber of the European Court of Human Rights considered legislation (section 172(2) of the Road   ibid [118].   ibid [119]. 15   ibid [120]. 16   ibid [121]. 17   ibid [122]. 18   ibid [123]. 19   O’Halloran and Francis v United Kingdom (2007) 46 EHRR 21. See generally S Burns, ‘Good to Talk?’ (2007) 157 New Law Journal 1454; JR Spencer, ‘Curbing Speed and Limiting the Right of Silence’ (2007) 66 Cambridge Law Journal 531; M Birdling, ‘Self-Incrimination Goes to Strasbourg: O’Halloran and Francis v United Kingdom’ (2008) 12 International Journal of Evidence and Proof 58. 13 14

66  Identifying the Essence of the Privilege Traffic Act 1988) requiring the registered keeper of a vehicle (section 172(2) (a)) or any other person (section 172(2)(b)) to provide the police with information relating to the identity of the driver of the vehicle on an occasion when the driver allegedly committed an offence. Both O’Halloran’s and Francis’s vehicles were ‘caught’ on speed cameras, and they were served with requests under section 172(2)(a). O’Halloran responded that he had been driving and was prosecuted for speeding. Francis refused to provide the information requested and was prosecuted under section 172(3), which made it an offence to fail to comply with a request under section 172(2). The Grand Chamber held that in order to determine whether the essence of the applicants’ . . . privilege against self-incrimination was infringed, the Court will focus on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.20

Thus the Court appeared to endorse the three-factor test rather than the four-factor one actually applied in Jalloh. In applying the test to the facts of the cases at hand, the Court in O’Halloran and Francis held, in effect, that a number of considerations should be ‘balanced’ in assessing whether article 6(1) had been violated in either O’Halloran’s case or Francis’s case. First, ‘[t]hose who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles’.21 Secondly, [a] further aspect of the compulsion applied in the present cases is the limited nature of the inquiry which the police were authorised to undertake. Section 172(2)(a) applies only where the driver of the vehicle is alleged to have committed a relevant offence, and authorises the police to require information only, ‘as to the identity of the driver’.22

Thirdly, ‘s 172 does not sanction prolonged questioning about facts alleged to give rise to criminal offences’, with the penalty for declining to answer being moderate and non-custodial.23 Fourthly, no offence is committed under s 172(2)(a) if the keeper of the vehicle shows that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence is thus not one of strict liability, and the risk of unreliable admissions is negligible.24

Fifthly, in the case of O’Halloran, ‘the identity of the driver is only one element in the offence of speeding, and there is no question of a conviction   (2007) 46 EHRR 21 [55].   ibid [57]. 22   ibid [58]. 23  ibid. 24   ibid [59]. 20 21

The Jurisprudence of The ECtHR  67



arising in the underlying proceedings in respect solely of the information obtained as a result of s 172(2)(a)’.25 The Grand Chamber concluded, therefore, that article 6(1) of the Convention had not been violated: Having regard to all the circumstances of the case, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under s 172 of the Road Traffic Act 1988, the Court considers that the essence of the applicants’ . . . privilege against self-incrimination has not been destroyed.26

Subsequently, in Lückhof and Spanner v Austria,27 a case which resembled that of Francis in the sense that ‘both applicants did not provide the name and address of the driver [of their cars] as requested and were convicted of failure to comply with their obligation to give that information’,28 the European Court of Human Rights, applying O’Halloran and Francis, found no violation of article 6(1) in respect of either applicant. A common criticism of O’Halloran and Francis is that, even if the ultimate result may be justifiable, the Grand Chamber’s judgment relies too heavily on a vague ‘balancing’ of competing considerations.29 A threshold objection is practical: one might ‘question whether there is now any coherent guidance’30 to aid the determination of whether article 6(1) has been violated in a particular case. A more comprehensive principled objection is that a right might lose its symbolic significance, and in time actually become devalued, if it can simply be ‘balanced away’ on an apparently ad hoc basis. In Dworkin’s trenchant words: ‘Of course there may be conflicts between [rights] and practical needs, but these are not occasions for fair compromise, but rather, if the [rights] must be dishonored, for shame and regret’.31 A preferable approach to generalised balancing insists that in weighing rights and public interests the fulcrum should be com­ pre­hensively set closer to the ‘public interest’ than ‘rights’ so that much stronger leverage is required from considerations of the collective good in order to tilt the scales.32

  ibid [60].   ibid [62].   Lückhof and Spanner v Austria App nos 58452/00 and 61920/00 (ECtHR, 10 January 2008). 28   ibid [50]. 29   See also J Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law Journal 174, 186–87. 30   M Birdling, ‘Self-Incrimination Goes to Strasbourg: O’Halloran and Francis v United Kingdom’ (2008) 12 International Journal of Evidence and Proof 58, 61. 31   R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1978) 13. 32   S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006) 227. 25 26 27

68  Identifying the Essence of the Privilege The premise of such an approach is that [t]hough rights do not necessarily conclude a matter, they should not be viewed as merely one factor to be taken into account in a global consideration of all relevant factors, but as a factor which presumptively excludes consideration of factors that would otherwise be relevant.33

Judges would be required ‘not to exercise their own judgement as to what the balance of reasons requires, but rather to assign a greater weight to rights and a lesser weight to the public interest than they would ordinarily think they deserve’.34 Accordingly, ‘courts should not weigh the harm to the rightholder against the gains to the public, but should rather give substantial . . . priority to the right-holder’s claims’.35 Meyerson draws an informative analogy to an individual’s deliberations on promise-keeping: [A]lthough we do not regard a promise as absolutely binding, we do not in the normal course of events weigh the effects of breaking a promise against the potential countervailing considerations with a view to assessing whether they tip the balance. This kind of reasoning is different from that involved in ‘weighing’ or ‘balancing’. We keep our promises as a matter of principle – based on the kind of person we wish to be – rather than by reference to their practical value or overall beneficial effects, and we break them only when it is glaringly obvious that that is the right thing to do.36

If it is accepted that the privilege against self-incrimination is not absolute, then the need to assign different weights or priorities to different considerations is inevitable. The practical difference between the ‘balancing’ approach and that just described may not be vast. In this respect it is instructive to consider the decision of the Hong Kong Court of Appeal in Secretary for Justice v Latker,37 which concerned the Hong Kong equivalent of the compulsory disclosure provisions considered in O’Halloran and Francis. The Court of Appeal, consisting of Ma CJHC, Stuart-Moore VP and Stock JA, unanimously held that Latker’s prosecution for failing to provide the details 33   D Meyerson, ‘Why Courts Should Not Balance Rights against the Public Interest’ (2007) 31 Melbourne University Law Review 873, 902. 34   ibid 883. 35   ibid 886. 36   ibid 886–87. But cf J Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden, Martinus Nijhoff Publishers, 2009); A Barak, ‘Proportionality and Principled Balancing’ (2010) 4 Law and Ethics of Human Rights 1; S Gardbaum, ‘A Democratic Defense of Constitutional Balancing’ (2010) 4 Law and Ethics of Human Rights 79; VA da Silva, ‘Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision’ (2011) 31 Oxford Journal of Legal Studies 273; C-M Panaccio, ‘In Defence of Two-Step Balancing and Proportionality in Rights Adjudication’ (2011) 24 Canadian Journal of Law and Jurisprudence 109; A Barak, Proportionality: Constitutional Rights and Their Limitations (D Kalir trans, Cambridge, Cambridge University Press, 2012) ch 12 and 542–47; M Cohen-Eliya and I Porat, Proportionality and Constitutional Culture (Cambridge, Cambridge University Press, 2013). 37   Secretary for Justice v Latker [2009] 2 HKC 100 (CA).

The Jurisprudence of The ECtHR  69



of the driver of his vehicle (which had been photographed by a digital red-light camera) was compatible with his right to a fair trial. Ma CJHC, adopting the approach in O’Halloran and Francis, considered the critical question to be: ‘what is the fair balance to be struck between, on the one hand, the demands and interests of the general community and, on the other, the fundamental rights of the individual?’.38 He concluded that the legislation ‘provide[d] an acceptable balance struck between the public interest and the fundamental rights of the individual’,39 the public interest in having such legislation being ‘overwhelming’.40 The fact that the Hong Kong legislation provided for the possibility of a custodial penalty for non-compliance was not regarded as a sufficient basis on which to distinguish O’Halloran and Francis and tilt the balance in favour of upholding the privilege. Ma CJHC observed that ‘[i]t is of course not in every case that a custodial sentence will be imposed; [this will be the case] only in the more serious situations’. He added that ‘Hong Kong is not in any event unique in providing for the possibility of a custodial sentence for this type of offence’.41 However, whilst concurring in the result, Stock JA expressly disassociated himself from Ma CJHC’s analysis, which, he thought, ‘runs the danger . . . of undermining the primacy of fundamental freedoms which, after all, reflect the interests of the general community’. In Stock JA’s view, ‘the starting point is always the freedom and any derogation from it must, both as to the need for derogation and its extent, be fully justified, albeit on societal grounds, by he who seeks to derogate’.42 Still, Stock JA’s alternative analysis arrived at the same conclusion on the instant facts (notwithstanding the possibility of imprisonment for non-compliance with the Hong Kong legislation). However, whilst both approaches might produce the same out­come in many, if not most, cases, the ‘balancing’ approach is deficient in providing limited practical guidance for its application. In the context of European human rights law, it presents the risk that domestic courts will fail to take a Convention right, albeit an ‘implied’ one like the privilege against selfincrimination, sufficiently seriously. As Ashworth observes in relation to the implications of O’Halloran and Francis: Although the outcome of the case may be regarded as inevitable, the route by which the Grand Chamber reached its conclusion is unsatisfactory. Rather than recognising a limited exception to the privilege against self-incrimination, based on an emerging European consensus and on an assessment that the exception would not be too damaging to the privilege overall, it has . . . suggest[ed] that a wider range of factors should be considered in deciding whether a particular   ibid [37] (Ma CJHC).   ibid [40]. 40   ibid [60]. 41   ibid [54]. 42   ibid [165] (Stock JA). 38 39

70  Identifying the Essence of the Privilege instance of self-incrimination constitutes a violation of the privilege. Some may think that the difference between the two routes is not great . . . But the fear is that . . . it will come to regard this and other Art 6 rights as capable of being traded off against the public interest.43

It is true that the legislative strategy at issue in O’Halloran and Francis might have been achieved by other means. In his dissenting opinion in O’Halloran and Francis, Judge Myjer noted that in order to be able to investigate and prosecute traffic offences effectively without unduly limiting the rights of the defence, a number of contracting states have used various legislative techniques avoiding the pitfalls at issue in the present case. They have, for example, chosen to draw adverse inferences from a failure to answer questions, or established a statutory but rebuttable presumption of fact that the registered owner of the motor vehicle was the driver in question. . . . [I]f the desired result can be achieved by proceeding in a way that is both effective and right, then one should not choose a wrong way, however effective it may be. In my opinion the applicants were right in submitting that the United Kingdom has just chosen the wrong legal solution to deal with the problems caused by the misuse of motor vehicles.44

The problem with this reasoning is that it is unclear that either of the alternative legislative techniques mentioned would actually represent a ‘right’ way in which to proceed. Both may themselves potentially violate related human rights norms – the right to silence in the case of the former,45 and the presumption of innocence in the case of the latter.46 As Ashworth’s commentary on O’Halloran and Francis observes: ‘This points to the conclusion that, if it is thought practically necessary to compel car owners to disclose who was driving, all methods create problems for human rights law’.47 3.  THE CASE LAW IN ENGLAND AND WALES

The courts of England and Wales have, likewise, taken the view that the privilege against self-incrimination is not absolute and that restriction of the 43   A Ashworth [2007] Criminal Law Review 897 (note) 900. It might have been more accurate if the phrase, ‘in deciding whether a particular instance of self-incrimination constitutes a violation of the privilege’, had been expressed as: ‘in deciding whether a particular infringement of the privilege against self-incrimination constitutes a violation of Art 6(1)’. See also A Ashworth, ‘The Exclusion of Evidence Obtained by Violating a Fundamental Right: Pragmatism before Principle in the Strasbourg Jurisprudence’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 145–61. 44   (2007) 46 EHRR 21 [O-III4] (Judge Myjer). 45   The right to silence would be undermined by the permissibility of adverse inferences being drawn from silence. 46   The presumption of innocence would be undermined by the burden being placed on the defendant to prove a matter relevant to his or her innocence (that he or she was not the driver). 47   A Ashworth [2007] Criminal Law Review 897 (note) 898.

The Case Law in England and Wales  71



privilege does not necessarily lead to an unfair trial. As the House of Lords explained: It is well known that among the rights implied into article 6(1) is a right against self-incrimination. It is equally well established that this implied right may be modified or restricted to serve a legitimate aim in the public interest.48

Indeed, influential on the reasoning of the Grand Chamber in O’Halloran v Francis v UK was the decision of the Privy Council in Brown v Stott,49 which itself concerned section 172(2)(a) of the Road Traffic Act 1988. On being required to say, pursuant to this legislation, who had been driving her car at a particular time, Brown responded: ‘It was me’, and a specimen of breath taken from her produced a positive result. The Privy Council held that Brown’s compelled answer could be relied upon in prosecuting her for driving with excess alcohol. Lord Bingham considered that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. . . . There being a clear public interest in enforcement of road traffic legislation the crucial question in the present case is whether section 172 represents a disproportionate response, or one that undermines a defendant’s right to a fair trial, if an admission of being the driver is relied on at trial.50

As the Grand Chamber of the European Court of Human Rights later did in O’Halloran and Francis v UK, the Privy Council concluded that the use of an answer compelled pursuant to section 172(2)(a) would not infringe the right to a fair trial.51 At the same time, the possibility that ‘balancing’ may come down in favour of upholding the privilege in particular circumstances should not be overlooked. R v K(A)52 concerned tax evasion charges brought following the defendant’s compelled disclosure in matrimonial ancillary relief proceedings of information about his income and assets. The Court of Appeal thought that   R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513 [49] (Lord Rodger).   Brown v Stott [2003] 1 AC 681 (PC). See generally R Pillay, ‘Self-Incrimination and Article 6: The Decision of the Privy Council in Procurator Fiscal v Brown’ [2001] European Human Rights Law Review 78; P Mirfield, ‘Silence, Innocence and Human Rights’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (London, LexisNexis UK, 2003) 135–37. Being a decision of the Privy Council, Brown v Stott is not, of course, technically binding in England and Wales. 50   [2003] 1 AC 681, 704 (Lord Bingham). 51   See also Director of Public Prosecutions v Wilson [2001] EWHC Admin 198, (2001) 165 JP 715; Mawdesley v Chief Constable of Cheshire Constabulary [2003] EWHC 1586 (Admin), [2004] 1 WLR 1035. 52   R v K(A) [2009] EWCA Crim 1640, [2010] QB 343. 48

49

72  Identifying the Essence of the Privilege [t]he essential principle to be derived from [Brown v Stott] is that a restriction of an accused person’s right not to incriminate himself will not infringe his right to a fair trial provided that the compulsion under which the information is obtained is of a moderate nature and the use of the evidence obtained by it represents a proportionate response to a pressing social need. . . . It is therefore necessary to consider the nature of the compulsion applied, the nature of the evidence obtained by means of it and the social need which the admission of such evidence at a subsequent trial is intended to meet.53

Notably, this formulation of the test includes specific reference to the weight of the public interest in bringing to conviction perpetrators of offences of the type charged. In relation to the facts of the instant case, the Court held: A wilful refusal to comply with an order for disclosure will amount to a contempt of court which may attract the not insignificant sanction of imprisonment. The nature of the compulsion that may be applied to enforce compliance with the obligation to disclose information that is of an incriminating nature is therefore severe. The social purpose for which the Crown seeks to adduce the evidence in criminal proceedings is the suppression of tax evasion. No doubt the protection of the public revenue is an important social objective, but the question is whether the admission of evidence obtained from the accused under threat of imprisonment is a reasonable and proportionate response to that social need. In our view it is not. This is an unusual case in as much as the Crown accepts that without the admissions made by K it has insufficient evidence to maintain a case against him. In many cases information obtained by way of disclosure in ancillary relief proceedings will provide leads that enable the Crown to obtain evidence from other sources that is sufficient to support a prosecution and in such cases there will be no need to rely on evidence obtained from the accused himself. That has not been possible in this case, but even so, we do not think that the need to punish and deter tax evasion is sufficient to justify such an infringement of the right of the accused not to incriminate himself. . . . For these reasons, although we would not agree with [the trial judge] in so far as he might be taken to suggest that the question is simply one of judicial discretion, we [hold] that the use of the admissions made by K in the ancillary relief proceedings would deprive K of the fair trial to which he is entitled under article 6 of the Convention and must therefore be excluded by the judge in the exercise of his powers under section 78 of the Police and Criminal Evidence Act 1984.54

While, in this situation, the balance of considerations was found to favour the appellant’s right to withhold information and compulsory disclosure was therefore regarded as incompatible with the appellant’s right to a fair trial, the balance might of course have tipped the other way if the circumstances had been materially different, for example if the scope of compul  ibid [41] (Moore-Bick LJ).   ibid [42]–[43]. K(A) was distinguished recently in Mohan v  Mohan [2013] EWCA Civ 586, [2013] CP Rep 36. 53 54

The Case Law in England and Wales  73



sory disclosure had been more limited or if the offence in question had been more serious. The reference to the question as not simply being one of judicial discretion is interesting, possibly indicating a desire to be seen to be subscribing to a balancing process that, while flexible, is at least relatively robust and underpinned by some general guidelines. R v Kearns55 provides another illustration. In this case the Court of Appeal held, as we saw in chapter two above, that the imposition by section 354(3) (a) of the Insolvency Act 1986 of duties to provide particular information did not result in Kearns being a person ‘charged with a criminal offence’ in the autonomous sense, and that the privilege against self-incrimination was therefore not engaged. But the Court then proceeded to hold that, even if this were incorrect, the same conclusion that there was no violation of article 6(1) would be reached through an application of the principle that [a] law which qualifies or restricts [the privilege against self-incrimination] is compatible with article 6 if there is an identifiable social or economic problem that the law is intended to deal with and the qualification or restriction . . . is proportionate to the problem under consideration.56

As the Court explained: [E]ven if, as we would be prepared to accept, section 354(3)(a) does infringe an ‘absolute’ concept of . . . the right not to incriminate oneself, criminal proceedings brought for a failure to provide the official receiver with information do not infringe article 6. . . . [T]he right . . . not to incriminate oneself that [is] implicit in article 6 [is] not absolute [and] can be qualified or restricted if there is proper justification and if the restriction is proportionate. In our view there is ample justification for the limited restriction in the right . . . not to incriminate oneself that is imposed by section 354(3)(a). The relevant part of the Insolvency Act 1986 is designed to deal with the social and economic problem of bankrupts. It is in the public interest that the affairs of bankrupts should be investigated, that the assets are traced and got in, and that the assets are then distributed to creditors. The bankrupt has a benefit in this regime too, because after a specified period of time he obtains legal absolution from his debts. The bankrupt is frequently the only person who can provide the necessary information about the bankrupt estate. There is, in our view, an obvious need for a statutory regime that imposes a duty on a bankrupt to co-operate in providing full and accurate information to the person charged with administering the bankrupt’s estate. Equally clearly that duty should be backed up by appropriate statutory sanctions to ensure that the duty is carried out properly. In our view the regime of section 354(3)(a) is a proportionate legislative response to the problem of administering and investigating bankrupt estates. The bankrupt is obliged to give information and to that limited extent he cannot exercise a right . . . not to incriminate himself. But, because of the provisions of section 433(2) and (3)   R v Kearns [2002] EWCA Crim 748, [2002] 1 WLR 2815.   ibid [53] (Aikens J).

55 56

74  Identifying the Essence of the Privilege of the 1986 Act, even if the bankrupt does not give the information required under section 354(3)(a), he only incriminates himself to the narrow extent of committing the offence of failing to provide the information. The only function of section 354(3)(a) therefore, is to provide a necessary sanction to the regulatory regime that is set up by the Insolvency Act 1986 to ensure the efficient administration of bankrupt estates. . . . [T]he offence of non-compliance is one of strict liability. But, in our view, that fact, taken with all the other points we have set out above, does not make any infringement of the right . . . not to incriminate oneself disproportionate in this case.57

This illustrates very clearly the potential power of permitting a finding that the privilege is engaged to be subjected to a process of balancing to determine whether, ultimately, there is a violation of article 6(1). In the final analysis, such an approach marginalises all learning on the precise scope and content of the privilege by making it subservient to the exercise of ‘balancing’. 4. CANADA

It is notable that, notwithstanding its expansive view of the scope of the privilege, the Supreme Court of Canada adopts a ‘balancing’ approach to applying the privilege in the case at hand. Indeed, the Court openly acknow­ ledges that ‘the principle against self-incrimination . . . requires different things at different times’.58 Thus, ‘the task in every case [is] to determine exactly what the principle demands, if anything, within the particular context at issue’.59 More specifically: In giving expression to [the privilege against self-incrimination] . . . s 7 [of the Canadian Charter of Rights and Freedoms] does not envelop an abstract and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled . . . A court must begin ‘on the ground’, with a concrete and contextual analysis of all the circumstances, in order to determine whether or not the principle against self-incrimination is actually engaged . . . This analysis necessarily involves a balancing of principles. One must, in assessing the limits on compellability demanded by the principle against self-incrimination, consider the opposing principle of fundamental justice suggesting that relevant evidence should be available to the trier of fact in a search for truth . . .60

As indicated above, this might more accurately be described as an inquiry into whether, ultimately, effect should be given to the privilege despite the fact that it is actually engaged. 57   ibid [54]–[57]. See also, in a similar vein, the very recent decision in Beghal v Director of Public Prosecutions [2013] EWHC 2573 (Admin). 58   R v SAB 2003 SCC 60, [2003] 2 SCR 678 [57] (Arbour J). 59   R v White [1999] 2 SCR 417 [45] (Iacobucci J). 60   R v Jarvis 2002 SCC 73, [2002] 3 SCR 757 [68] (Iacobucci and Major JJ).

Canada  75



The Court’s decision in R v White61 provides a good illustration of its approach. In considering whether ‘self-incrimination concerns’ were present to such an extent as to justify the exclusion of evidence of conversations taking place in consequence of statutory compulsion to report an accident,62 the Court held that four factors should be considered. The first was whether White had been subjected to coercion, or whether she had provided free and informed consent. The Court warned that, ‘[w]hile the state should not be perceived as being coercive in requiring drivers to report motor vehicle accidents, the concern with protecting human freedom which underlies the principle against self-incrimination cannot be considered entirely absent in this context’. Ultimately, however, ‘the issue of free and informed consent must be considered a neutral factor’ in this case.63 Secondly, were the accused and the state in an adversarial relationship at the time of the relevant conversations? Here: The . . . decision to vest the responsibility for taking accident reports in the police has the effect of transforming what might otherwise be a partnership relationship into one that is potentially adversarial. Very often, the police officer who is receiving the accident report is simultaneously investigating a possible crime, in relation to which the driver is a suspect. At the same time that the officer is required . . . to obtain information about the accident from the driver, the officer may equally be required or inclined to inform the driver of possible criminal charges and of the driver’s legal rights under the Charter, including the right to remain silent. The result is seemingly contradictory instructions from police. Importantly, also, the driver is generally in the officer’s immediate physical presence. The result is . . . a context of pronounced psychological and emotional pressure.64

Thirdly, what was the risk of unreliable confessions being made? The Court considered that the prospect of unreliable confessions is very real. In particular, accident reports under the Act are frequently given directly to a police officer, ie, to a person in authority whose authority and physical presence might cause the driver to produce a statement in circumstances where he or she is not truly willing to speak . . . The driver who reasonably believes that he or she has a statutory duty to provide an accident report . . . will likely experience a significant ‘fear of prejudice’ if he or she does not speak. At the same time, there may be a strong incentive to provide a false statement, given the serious consequences which the driver may feel will flow from telling the truth, even if the truth does not in fact support a finding that a criminal offence was committed.65   R v White [1999] 2 SCR 417.   The issue of causation was discussed in chapter two above. 63   [1999] 2 SCR 417 [55] (Iacobucci J). 64   ibid [58]. 65   ibid [62]. 61 62

76  Identifying the Essence of the Privilege Finally, what was the (increased) likelihood of an abuse of power? Here, the possibility is real and serious that permitting the use of compelled accident reports within criminal proceedings might increase the likelihood of abusive conduct by the state. In taking accident reports from drivers, police would have a strong incentive or perhaps an unconscious inclination to overemphasize the extent of the statutory duty to report an accident . . . in order to obtain relevant information. . . . One can easily imagine the situation of a driver who . . . would provide a more extensive statement to police than legally required . . .66

In conclusion, exclusion of the evidence of the conversations was justified on the basis that ‘[t]he principle against self-incrimination is strongly brought into play by numerous aspects of the context surrounding the compulsion to make an accident report’.67 R v SAB68 provides a contrast. At issue was whether the so-called DNA warrant provisions in the Canadian Criminal Code69 infringed the Canadian Charter of Rights and Freedoms. These provisions allow search warrants to be issued, in certain circumstances, for the purpose of seizing bodily substances for forensic DNA analysis. The Court’s holding that such bodily substances were covered by the privilege against self-incrimination is notable for two reasons: first, as noted in chapter three above, it reflects an expansive view of the privilege; and, secondly, it reflects the view that material obtained by force may be covered by the privilege. This may be consistent with the thinking of the Grand Chamber of the European Court of Human Rights in Jalloh v Germany,70 but is contrary to the view that the underlying premise of the privilege is protection from a requirement to co-operate on pain of criminal liability for failure to do so. In SAB the Supreme Court went on to hold, however, that the fact that ‘searches and seizures pursuant to a DNA warrant engage the principle against self-incrimination’ was not conclusive, but was a matter to be considered in the broader context of determining whether there had been an infringement of ‘the right to be secure against unreasonable search or seizure’ guaranteed by section 8 of the Charter.71 The Court considered that this determination required, in turn, an analysis of the rationales for the privilege: The question, then, is whether the DNA warrant provisions at issue in this case impermissibly violate the principle against self-incrimination, thus rendering any search or seizure performed under them unreasonable, contrary to s 8. . . .   ibid [64].   ibid [67]. 68   R v SAB 2003 SCC 60, [2003] 2 SCR 678. 69   Criminal Code (Canada), ss 487.04–487.09. 70   Jalloh v Germany (2006) 44 EHRR 32. 71   2003 SCC 60, [2003] 2 SCR 678 [35] (Arbour J). 66 67

Canada  77



[A] consideration of the principle’s underlying rationales indicates that they do not. First, unlike cases involving testimonial compulsion, there is no concern with unreliability. On the contrary, one of the benefits of DNA evidence is its high degree of reliability. The second rationale – protection against the abuse of power by the state – requires a somewhat deeper analysis. . . . [T]he degree to which the principle is engaged will depend in part on the extent to which coercion was used by the state in obtaining the statements; the extent to which the relationship between the accused and the state was adversarial at the time the conscriptive evidence was obtained; and the presence or absence of an increased risk of abuses of power by the state as a result of the compulsion . . . The adversarial nature of the relationship between the state and the individual and the degree of coercion in the present context are undoubtedly high. . . . A person has little choice but to comply with the request for blood, hair or saliva made under a valid DNA search warrant. Further, the context in which the bodily samples are taken is obviously adversarial, there being reasonable grounds to believe that the target of the warrant was a party to an offence. However, while these factors are highly engaged, it is important to note that under the DNA warrant provisions, there are a number of safeguards in place to prevent abuse of those provisions by the state. In particular, the prior judicial authorization, circumscribed by strict requirements of reasonable and probable grounds and stringent limits on the potential use of the collected DNA evidence, ensures that the power to obtain bodily samples is not abused. It is also important to acknowledge that . . . the degree of intrusion both physical and informational is limited.72

The Court concluded, in the light of the above consideration of the rationales underlying the privilege against self-incrimination, that the legislative scheme delineated in [the DNA warrant provisions] is sensitive to the various interests at play. On balance, the law provides for a search and seizure of DNA materials that is reasonable. In light of the high probative value of forensic DNA analysis, the interests of the state override those of the individual. Forensic DNA analysis is capable of both identifying and eliminating suspects, a feature that seriously reduces the risk of wrongful convictions. The DNA provisions contain procedural safeguards that protect adequately the multiple interests of the suspected offender. The DNA warrant scheme therefore complies with s 8 of the Charter.73

The implications of treating the privilege against self-incrimination as a matter to be considered in the process of balancing competing interests emerge clearly from the above analysis of SAB. Even an expansive view of the scope of the privilege may ultimately be of little protective value if the privilege may then be subsumed within a flexible process of balancing, in a quest to determine whether the considerations underlying the privilege are sufficiently compelling to require effect to be given to the privilege, or   ibid [58]–[59].   ibid [61].

72 73

78  Identifying the Essence of the Privilege whether, on the contrary, the privilege should be overridden by other considerations. 5.  CONCLUDING COMMENTS

We must wait to see how the ‘balancing’ approach adopted by the European Court of Human Rights, and the domestic courts, continues to be applied to determine compliance with article 6(1) in particular cases. One may well concede that the manner in which the approach has been applied in the context of a particular case is plausible, and one may even consider the actual result reached to be justifiable. It is difficult, however, to claim that the approach has much predictive value or that it will lead readily to consistent results. Of course, such case-by-case approaches are not uncommon in the law of criminal evidence of England and Wales. A similar approach is employed, for example, to determine the compatibility of reverse-onus statutory provisions with the European Convention on Human Rights,74 Roberts and Zuckerman observing that [a]s with the domestic reception of Article 6(2)’s presumption of innocence, there is scope for proliferating litigation in relation to each individual statutory provision requiring the accused to provide information to the authorities under threat of a legal penalty for non-compliance.75

How precisely this approach differs from that taken in Saunders v UK 76 is a question of some nicety, but an examination of a passage from one of the dissenting opinions in Saunders is illuminating. In holding that the admission in evidence of the compelled statements obtained pursuant to provisions in sections 434 and 436 of the Companies Act 1985 did not violate article 6(1), Judge Martens, joined by Judge Kuris, stated: As far as the rationale for these immunities is to provide the accused with protection against improper compulsion by the authorities and, thereby, to contribute to avoiding miscarriages of justice, their rationale does not require to hold that [it is impermissible per se to use the compelled statements in evidence]: the impartiality of the DTI Inspectors who merely seek to establish the truth, their professional qualities – generally speaking senior barristers and accountants – the procedure before them, based as it is on natural justice under control of the courts, and, finally, the circumstance that those under investigation are given advance notice in 74  See Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 AC 264 and, among numerous other cases, R v Williams (Orette) [2012] EWCA Crim 2162, [2013] 1 WLR 1200. See generally A Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (Oxford, Hart Publishing, 2010) ch 5. 75   P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 569. 76   Saunders v United Kingdom (1996) 23 EHRR 313.

Concluding Comments  79



writing of what is required from them and may be accompanied by their lawyers, seem to offer sufficient guarantees against improper physical or psychological pressure, whilst the power of the trial judge under section 78 of PACE constitutes a further guarantee against unfairness arising from the inquisitorial nature of their inquiry as well as against any residual danger of miscarriage of justice.77

This, in a rather more elegantly expressed form, is, as we have seen, very much the type of reasoning that might be encountered in contemporary judgments of the Strasbourg Court, suggesting that Saunders might well be decided differently today. While we may accept that the result reached in a case like O’Halloran and Francis v UK is justifiable, it would be unfortunate if the style of reasoning employed in that judgment were to set the scene for future determinations of whether violations of article 6(1) follow from legislative abrogations of the privilege. A bolder approach that takes protection of the privilege as a clearer starting point, and erects a strong presumption that can be dislodged only in situations analogous to those considered in O’Halloran and Francis, might be thought appropriate. Broadly speaking, these are situations in which, to borrow Glover’s phrase used in another context, the primary concern of the legislation that abrogated the privilege appears to have been with individuals who ‘voluntarily engaged in a lawful activity that presented a serious risk or danger to public health and safety’.78 If such a situation is at issue, then the privilege may be able to be overridden, with the court then being at liberty to consider (and ‘balance’) other factors such as those that the Grand Chamber took into account in O’Halloran and Francis. If such a situation is not at issue, then the privilege must prevail. Adoption of an approach along these lines would allow the privilege against self-incrimination, rather than the intention of the legislature to dislodge it, to take centre stage.

  ibid 359–60 (Judge Martens).   R Glover, ‘Regulatory Offences and Reverse Burdens: The “Licensing Approach”’ (2007) 71 Journal of Criminal Law 259, 268. 77 78

5 ‘Indirect’ Compulsion: Confessions and Inferences From Silence

T

HE PRECEDING CHAPTERS have focused primarily on legislative attempts to abrogate the privilege against self-incrimination directly through criminalisation of the refusal to provide potentially selfincriminatory information. In other words, the concept of ‘compulsion’ has generally been used loosely to signify the availability of a criminal sanction in the event of failure to provide the information in question. In this chapter, we examine issues which might be considered to be somewhat peripheral to the core of the privilege, but which might nevertheless engage the privilege. The premise is that an individual may well feel ‘compelled’ to provide informa­tion in circumstances in which failure to do so will not in itself constitute a criminal offence. Such situations involve compulsion of a more indirect nature being brought to bear on individuals to provide potentially self-incriminatory information. For convenience, we may refer to these as instances of indirect compulsion. 1.  QUESTIONING SUSPECTS

The environment in which a suspect is questioned with a view to obtaining relevant information is inherently coercive and liable to sap the suspect’s free will.1 That being the case, it is perhaps unsurprising that the courts will not readily find that the questioning of a suspect by the police has infringed the privilege against self-incrimination. In the view of the Supreme Court of Canada, for example, [t]he suggestion . . . that the questioning of a suspect, in and of itself, runs counter to . . . the protection against self-incrimination . . . is clearly contrary to settled authority and practice . . . [C]onsideration must be given not only to the protection of the rights of the accused but also to the societal interest in the investigation and solving of crimes. The police are charged with the duty to investigate alleged 1   JD Jackson, ‘Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 139.



Questioning Suspects  81 crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime. While the police must be respectful of an individual’s . . . rights [under the Canadian Charter of Rights and Freedoms], a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say, in our respectful view, would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone.2

Clearly, in such circumstances, the danger of being subjected to some degree of compulsion to provide potentially self-incriminatory information – or, put simply, to make a confession of guilt – is always present. That the admission of unreliable confession evidence may contribute to miscarriages of justice is well known, as the past experience of England and Wales demonstrates.3 1.1  Mandatory Exclusion and Mandatory Directions The law of England and Wales has adopted the strategy of placing firm controls on the circumstances in which confession evidence sought to be adduced by the prosecution can be admitted in criminal trials.4 Fundamental is section 76(2) of the Police and Criminal Evidence Act 1984 (the Act),5 which provides: If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a)  by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, 2   R v Sinclair 2010 SCC 35, [2010] 2 SCR 310 [63] (McLachlin CJ and Charron J). See generally D Stuart, ‘Sinclair Regrettably Completes the Oickle and Singh Manual for Coercive and Lawless Interrogation’ (2010) 77 Criminal Reports (6th) 303; C Boyle, ‘R v Sinclair: A Comparatively Disappointing Decision on the Right to Counsel’ (2010) 77 Criminal Reports (6th) 310; A Bershadski, ‘A Trio of Cases, a Trio of Opinions: The Right of Access to Counsel in Canada’s Police Stations’ [2011] Journal of Commonwealth Criminal Law 170; C Boyle and E Cunliffe, ‘Right to Counsel during Custodial Interrogation in Canada: Not Keeping Up with the Common Law Joneses’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 79–102; VA MacDonnell, ‘R v Sinclair: Balancing Individual Rights and Societal Interests outside of Section 1 of the Charter’ (2012) 38 Queen’s Law Journal 137. 3   See generally IH Dennis, ‘Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions’ [1993] Public Law 291; GH Gudjonsson, ‘Unreliable Confessions and Miscarriages of Justice in Britain’ (2002) 4 International Journal of Police Science and Management 332. 4   See generally AL-T Choo, Evidence, 3rd edn (Oxford, Oxford University Press, 2012) ch 4, which provides a fuller account than is provided here, and on which I have drawn in part. 5  See generally P Mirfield, Silence, Confessions and Improperly Obtained Evidence (Oxford, Clarendon Press, 1997) ch 5; JR Spencer, Hearsay Evidence in Criminal Proceedings (Oxford, Hart Publishing, 2008) 151–57.

82  Confessions and Inferences From Silence the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

Section 76(8) provides that ‘“oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’ (emphasis added). This inclusive definition must be considered alongside the holding by the Court of Appeal in the leading case of R v Fulling6 that ‘oppression’ in section 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows: ‘Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens’. One of the quotations given under that paragraph runs as follows: ‘There is not a word in our language which expresses more detestable wickedness than oppression.’7

This and other decisions8 suggest that the word ‘oppression’ connotes fairly harsh treatment of the confessor, and therefore that it is only in rare cases that the prosecution would be unable to prove that a confession was not obtained by oppression.9 In relation to section 76(2)(b), an unreliable confession is one which ‘cannot be relied upon as being the truth’. The concern of section 76(2)(b), therefore, is with ‘the nature and quality of the words spoken or the things done by the police which are likely to, in the circumstances existing at the time, render the confession unreliable in the sense that it is not true’.10 Significantly, the condition that the confession be one made in consequence of something ‘said or done’ has been interpreted narrowly, with the Court of Appeal holding that the words ‘anything said or done’ ‘do not extend so as to include anything said or done by the person making the confession’, but rather, are ‘limited to something external to the person making the confession’.11   R v Fulling [1987] QB 426 (CA).   ibid 432 (Lord Lane CJ). 8   R v Emmerson (1990) 92 Cr App R 284 (CA); R v Paris (1992) 97 Cr App R 99 (CA); Mohd Ali bin Burut v Public Prosecutor (Brunei) [1995] 2 AC 579 (PC); R v Foster [2003] EWCA Crim 178. 9   Mirfield describes ‘oppression’ as a ‘high level concept’: P Mirfield, Silence, Confessions and Improperly Obtained Evidence (Oxford, Clarendon Press, 1997) 81. 10   R v Crampton (1990) 92 Cr App R 369 (CA) 372 (Stuart-Smith LJ). 11   R v Goldenberg (1988) 88 Cr App R 285 (CA) 290 (Neill LJ). Here, the defendant, a heroin addict, had himself requested the interview with the police during which the relevant confessions were made, apparently because he was suffering from withdrawal symptoms and wished to obtain bail in order to feed his addiction. It was contended that, given these circumstances, the confessions were likely to have been unreliable. The Court of Appeal held, however, that, as there was no suggestion that Goldenberg had confessed in consequence of anything said or done by the interviewing officers, s 76(2)(b) could not be invoked. See also R v Wahab [2002] EWCA Crim 1570, [2003] 1 Cr App R 15 [41] (Judge LJ): ‘In the present case, when the appellant instructed his solicitor to see whether some convenient arrangement could be procured with the police, he was uninfluenced by anything said and done by anyone else. Everything thereafter originated from the appellant himself’. 6 7



Questioning Suspects  83

Section 76(2) is supplemented by the judicial discretion, provided by section 78(1) of the Act, to exclude prosecution evidence which if admitted would compromise the fairness of the proceedings to an unacceptable degree. Section 78(1) is of very considerable practical importance in the context of the possible exclusion of confession evidence, possibly more so than section 76(2) itself.12 In addition to the possibility of exclusion under section 76(2) and section 78(1), specific safeguards are available in respect of confessions made by mentally handicapped defendants.13 The House of Lords deployed the privilege against self-incrimination in its reasoning in R v Mushtaq.14 The following point of law of general public importance was certified for consideration by the House of Lords: Whether, in view of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, a judge, who has ruled pursuant to section 76(2) of the Police and Criminal Evidence Act 1984 that evidence of the alleged confession has not been obtained by oppression, nor has it been obtained in consequence of anything said or done which is likely to render unreliable any confession, is required to direct the jury, if they conclude that the alleged confession may have been so obtained, they must disregard it.

This question was answered in the affirmative on the basis that the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it.15

The decision was also justified, more broadly and somewhat curiously, by reference to the privilege against self-incrimination. The House of Lords thought that, ‘having regard to the principle that a man cannot be compelled to incriminate himself and having regard to the importance attached to proper behaviour by the police’, and ‘even if a jury would be unlikely to rely on a confession which they considered had been obtained by compulsion’, the principle was that the jury must be left in no doubt of the fact that they are not entitled ‘to rely on a confession which they consider was, or may have been, obtained by oppression or other improper means’.16 This reasoning 12   Grevling notes that ‘[i]t is evident that many cases which could have fallen to be decided under section 76 are instead being considered by the courts under section 78(1)’, and that it is for this reason ‘that the jurisprudence on section 76 remains surprisingly underdeveloped given the difficulties of interpreting it’: K Grevling, ‘Fairness and the Exclusion of Evidence under Section 78(1) of the Police and Criminal Evidence Act’ (1997) 113 Law Quarterly Review 667, 667–68. 13   These safeguards are encapsulated in s 77 of the Police and Criminal Evidence Act 1984 and in the principle announced by the Court of Appeal in R v McKenzie [1993] 1 WLR 453 (CA). 14   R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513. 15   ibid [47] (Lord Rodger). 16   ibid [45]. The Privy Council has noted that Mushtaq ‘applies where a defendant accepts that he made a statement attributed to him’; ‘it does not apply where the complaint is that the statement

84  Confessions and Inferences From Silence appears to blur the traditional distinction between the roles of judge and jury by implying that responsibility for protecting the privilege against selfincrimination lies not only with the former but also with the latter.17 We shall now consider a number of further issues arising from the questioning of suspects that the European Court of Human Rights or the domestic courts have addressed in the context of the privilege against selfincrimination. These concern access to legal advice, cautioning suspects, the use of police informants, and ‘safety interviews’. 1.2  Legal Advice Article 6(3)(c) of the European Convention on Human Rights guarantees everyone charged with a criminal offence the right ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. In Salduz v Turkey18 the Grand Chamber of the European Court of Human Rights confirmed that article 6(3)(c) is applicable at the pre-trial stage,19 noting the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination. . . . [A]rt 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access was a fabrication and did not represent what the defendant told the interviewing officers’: Charles v The Queen [2007] UKPC 47 [14] (Lord Carswell). 17  For trenchant criticism, see IH Dennis, The Law of Evidence, 5th edn (London, Sweet & Maxwell, 2013) 225–26. 18   Salduz v Turkey (2008) 49 EHRR 19. 19   ibid [50].

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to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under art 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.20

Salduz continues to exert considerable influence. Recently, in Martin v Estonia,21 the Strasbourg Court held that the applicant’s defence rights were irretrievably prejudiced owing to his inability to defend himself through legal assistance of his own choosing. It follows that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.22

Again, in Yılmaz v Turkey,23 noting that, ‘at the material time, the restriction imposed on the applicant’s right to legal assistance was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State Security Courts’,24 the Court found ‘no particular circumstances which would require it to depart from its findings in . . . Salduz . . . There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1’.25 By contrast, in Sorokins and Sorokina v Latvia,26 the first applicant complained to the Strasbourg Court, inter alia, that his guilt had been established by the use of allegedly unlawfully obtained self-incriminating statements. The Court noted that, contrary to the position in Salduz, no complaint had been made here ‘about the lack of defence counsel during [the relevant] interrogations at the police office’. It went on to hold that, as there is no evidence and the applicant did not allege that the statements given to the prosecutor were made under coercion, and . . . he did not contest their credibility before the domestic court, the Court cannot conclude that his protection against self-incrimination has been infringed. There has accordingly been no violation of Article 6 § 1 of the Convention.27

  ibid [54]–[55].   Martin v Estonia App no 35985/09 (ECtHR, 30 May 2013). 22   ibid [97]. 23   Yılmaz v Turkey App no 11022/05 (ECtHR, 4 June 2013). 24   ibid [22]. 25   ibid [22]–[23]. To identical effect is the very recent judgment in Konak v Turkey App no 3042/05 (ECtHR, 3 September 2013). See also Kaçiu and Kotorri v Albania App nos 33192/07 and 33194/07 (ECtHR, 25 June 2013) [120]–[121]: ‘the Government have not pleaded, let alone demonstrated, that there was a compelling reason to restrict the first applicant’s access to a lawyer before making his statements . . . The impugned statements were used at the trial and in fact served as the sole basis for the applicant’s conviction . . . Neither the assistance later provided by lawyers nor the adversarial nature of the ensuing proceedings could cure this defect . . . There has accordingly been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) in respect of the first applicant’. 26   Sorokins and Sorokina v Latvia App no 45476/04 (ECtHR, 28 May 2013). 27   ibid [111], [112]–[113]. 20 21

86  Confessions and Inferences From Silence This suggests that protection from ‘coercion’ (with all the ambiguity that the word entails) is seen to lie at the heart of the privilege against self-­ incrimination in this context. In Cadder v HM Advocate,28 the UK Supreme Court, taking account of Salduz, found the Scottish system applicable at the time to be wanting. The Court considered the effect of Salduz to be that [t]here is room for a restriction of the right of access to a solicitor during . . . police interrogation, but only if there are compelling reasons in the light of the particular circumstances of the case which make the presence of a solicitor impracticable.29

The Court found that the alternative protections available in Scots law, such as the rule requiring that confession evidence be corroborated,30 while ‘entirely commendable’, are incapable of removing the disadvantage that a detainee will suffer if, not having had access to a solicitor for advice before he is questioned by the police, he makes incriminating admissions or says something which enables the police to obtain incriminating evidence from other sources which is then used against him at his trial.31

As there was no suggestion in the instant case of compelling reasons for the right of access to be restricted, the general rule announced by Salduz that ‘evidence of any incriminating answers obtained by the police from a detainee who is subjected to questioning without access to legal advice . . . is inadmissible’ prevailed.32 Accordingly, ‘leading and relying on the evidence of Cadder’s interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the Convention’.33 The decision in Cadder was followed by a stream of related Supreme Court decisions emanating from Scotland34 and, significantly, by ‘emergency legislation’ in the shape of the Criminal Procedure (Legal Assistance, Detention and 28   Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601. See generally D Colbran Espada, ‘Self-Incrimination and the Right to Legal Advice: A Spate of Scottish Cases’ [2011] Journal of Commonwealth Criminal Law 357; JD Jackson and SJ Summers, ‘Confrontation with Strasbourg: UK and Swiss Approaches to Criminal Evidence’ [2013] Criminal Law Review 114; D Giannoulopoulos, ‘“North of the Border and across the Channel”: Custodial Legal Assistance Reforms in Scotland and France’ [2013] Criminal Law Review 369. 29   [2010] UKSC 43, [2010] 1 WLR 2601 [50] (Lord Hope DPSC). 30   See generally AL-T Choo, ‘Confessions and Corroboration: A Comparative Perspective’ [1991] Criminal Law Review 867; R Pattenden, ‘Should Confessions Be Corroborated?’ (1991) 107 Law Quarterly Review 317; M McConville, Corroboration and Confessions: The Impact of a Rule Requiring that No Conviction Can Be Sustained on the Basis of Confession Evidence Alone (Royal Commission on Criminal Justice Research Study No 13) (London, HMSO, 1993). 31   [2010] UKSC 43, [2010] 1 WLR 2601 [50]. 32   ibid [55]. 33   ibid [63]. 34   Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, [2011] 1 WLR 2435; HM Advocate v P [2011] UKSC 44, [2011] 1 WLR 2497; McGowan v B [2011] UKSC 54, [2011] 1 WLR 3121; Jude v HM Advocate [2011] UKSC 55, 2012 SC (UKSC) 222. See generally RM White and PR Ferguson, ‘Sins of the Father? The “Sons of Cadder”’ [2012] Criminal Law Review 357.



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Appeals) (Scotland) Act 2010 which, in particular, inserted section 15A into the Criminal Procedure (Scotland) Act 1995. Section 15A(3) provides: ‘The suspect . . . has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning’. This is subject to section 15A(8), which provides: In exceptional circumstances, a constable may delay the suspect’s exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor.

In England and Wales, where procedures for obtaining statements from suspects in police stations have been tightly regulated for some years,35 discussion of the privilege against self-incrimination is not prominent in case law concerning confession evidence, save for the occasional, and generally somewhat casual, reference to it. The focus of any discussion of what may have transpired in the police station tends to be on whether any relevant procedures have been violated, rather than, more generally, on any implications of the privilege. For example, the right of an arrestee to legal advice, described by the Court of Appeal as ‘one of the most important and fundamental rights of a citizen’,36 is encapsulated in section 58 of the Police and Criminal Evidence Act 1984. Section 58(1) declares: ‘A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time’. Section 58(4) further provides: ‘If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section’. Section 58 is supported by detailed provisions in Code C of the Codes of Practice issued pursuant to section 66. While these were considered significant innovations in their time, it is disappointing, as Giannoulopoulos points out, that there is evidence suggesting the possibility that they are not always being robustly enforced in more contemporary times.37 35   In particular, by relevant provisions of the Police and Criminal Evidence Act 1984 and Codes C and E issued pursuant to s 66 of the Act. 36   R v Samuel [1988] QB 615 (CA) 630 (Hodgson J). 37  D Giannoulopoulos, ‘“North of the Border and across the Channel”: Custodial Legal Assistance Reforms in Scotland and France’ [2013] Criminal Law Review 369, 383–84. See also IH Dennis, ‘Legal Advice in Police Stations: 25 Years On’ [2011] Criminal Law Review 1; P Pleasence, V Kemp and NJ Balmer, ‘The Justice Lottery? Police Station Advice 25 Years On from PACE’ [2011] Criminal Law Review 3; L Skinns, ‘The Right to Legal Advice in the Police Station: Past, Present and Future’ [2011] Criminal Law Review 19; V Kemp, Bridewell Legal Advice Study: Adopting a ‘Whole-Systems’ Approach to Police Station Legal Advice – BLAST II Final Report (London, Legal Services Research Centre, 2013): www.justice.gov.uk/downloads/publications/research-andanalysis/lsrc/blast-II-report.pdf; V Kemp, ‘PACE in the Real World’ [June 2013] Counsel 31. At the time of writing, fears are being expressed about the negative consequences that the proposals

88  Confessions and Inferences From Silence Court of Appeal jurisprudence establishes that a breach of the access to legal advice requirements may lead to the exclusion from evidence of any resulting confession under section 78(1) of the 1984 Act. Such exclusion, however, is by no means automatic, and is dependent on whether the defendant can be considered to have been tangibly disadvantaged by the breach. In R v Walsh,38 the Court of Appeal could see nothing in this case which could properly lead the court to the conclusion that the breach of section 58 made no difference; or in other words that it was likely that the appellant would have made the admissions in any event. The very highest it could be put, to our minds, was that it was perhaps uncertain whether or not the presence of a solicitor would have made any difference . . . In these circumstances . . . we consider that to admit the evidence would have such an adverse effect on the proceedings that the judge should have excluded it.39

In a similar vein, the Court of Appeal observed in R v Parris:40 It is to say the least likely that the presence of a solicitor . . . would have resulted in the appellant remaining silent. The fact that when a solicitor did eventually arrive the appellant declined to say anything supports this view. . . . If [this and certain other] matters had been present in the Judge’s mind he would, we believe, have concluded, and rightly concluded, that the admission of the evidence would operate unfairly and would have excluded it.41

By contrast, in R v Alladice,42 [h]ad the solicitor been present, his advice would have added nothing to the knowledge of his rights which the appellant already had . . . This is therefore a case where a clear breach of section 58 nevertheless does not require the Court to rule inadmissible subsequent statements made by the defendant.43

Similarly, in R v Dunford,44 the Court of Appeal held that the trial judge had not erred in declining to exclude the confession evidence in question under section 78(1), being ‘entitled to conclude from all that he had seen or heard for changes to the legal aid system in England and Wales would have if implemented (described in Ministry of Justice, Transforming Legal Aid: Delivering a More Credible and Efficient System (Consultation Paper CP14/2013) (London, Ministry of Justice, 2013): consult.justice.gov.uk/digitalcommunications/transforming-legal-aid/supporting_documents/transforminglegalaid.pdf). See, eg, General Council of the Bar, Bar Council Response to the Transforming Legal Aid: Delivering a More Credible and Efficient System Consultation (2013): www.barcouncil.org.uk/media/213867/ the_bar_council_response_to_moj_transforming_legal_aid_consultation.pdf. 38   R v Walsh (1989) 91 Cr App R 161 (CA). 39   ibid 163–64 (Saville J). 40   R v Parris (1988) 89 Cr App R 68 (CA). 41   ibid 73 (Lord Lane CJ). See also R v Samuel [1988] QB 615 (CA). 42   R v Alladice (1988) 87 Cr App R 380 (CA). 43   ibid 387 (Lord Lane CJ). 44   R v Dunford (1990) 91 Cr App R 150 (CA).

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that the solicitor’s advice would not have added anything to this particular appellant’s knowledge of his rights’.45 The notion that a confession obtained in breach of section 58 will not be excluded from evidence under section 78(1) if it is determined that the presence of a legal adviser would have ‘made no difference’, since the defendant would have made the confession in any event, is a problematic one. It is clear that such a determination can involve courts in a certain amount of post hoc rationalisation of events, the desirability of which may be questioned.46 Moreover, the compatibility with Salduz and Cadder of the law of England and Wales concerning section 58 breaches and their consequences, as just outlined, remains untested. If, as may be assumed, a confession obtained in breach of section 58 amounts to a confession obtained following a restriction of the right of access to a solicitor in the absence of ‘compelling reasons’ that made the presence of a solicitor impracticable, then the automatic exclusion from evidence of any confession obtained in breach of section 58 would seem to be required.47 1.3  Cautioning Suspects Paragraph 10.1 of PACE Code C provides: A person whom there are grounds to suspect of an offence . . . must be cautioned before any questions about an offence . . . are put to them if either the suspect’s answers or silence . . . may be given in evidence to a court in a prosecution.

The Court of Appeal appears to take the view that the privilege against selfincrimination lies at the heart of this requirement: The rationale of paragraph 10.1 of Code C is . . . to ensure that interviewees are informed of their rights, one of which is not to answer questions, and to inform them of the use which might be made of their answers in criminal proceedings. However, it seems to us that the principal purpose of such a procedure is to ensure, so far as possible, that interviewees do not make admissions unless they wish to do so and are aware of the consequences.48

In R v Kirk,49 where the defendant had made admissions following a breach of paragraph 10.1 of Code C, the Court of Appeal held that, ‘[b]ecause we cannot say that there are relevant admissions which would have come into   ibid 157 (Macpherson J).   For criticism of this approach, see M Doherty, ‘Judicial Discretion: Victimising the Villains?’ (1999) 3 International Journal of Evidence and Proof 44. 47   See IH Dennis, The Law of Evidence, 5th edn (London, Sweet & Maxwell, 2013) 244. 48   R v Gill [2003] EWCA Crim 2256, [2004] 1 WLR 469 [46] (Clarke LJ). 49   R v Kirk [2000] 1 WLR 567 (CA). 45 46

90  Confessions and Inferences From Silence existence [even] if the proper procedure had been followed’,50 the admissions should have been excluded from evidence under section 78(1). By contrast, in R v Gill,51 the Court of Appeal reached the opposite conclusion, remarking in a manner consistent with the approach taken in Alladice and Dunford: ‘We do not think that it is arguable that, if a caution had been administered, the appellants would have done anything different from what they did. They had time to consider their position’.52 1.4  Alternatives to Judicial Discretion It is clear that, even in respect of breaches of important rights which assist in protecting the privilege against self-incrimination, trial judges are invested with a considerable amount of discretion in determining whether any confessions obtained as a consequence of the breaches should be excluded from evidence. Section 78(1) undoubtedly offers less protection than does section 76(2), with trial judges not being required to adopt as proactive a stance in relation to the former as in relation to the latter. It is to be noted that section 76(3) makes the following provision concerning section 76(2): In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.

Presumably this means that, if the prosecution fails to do so, the confession will be excluded from evidence of the trial judge’s own accord. Where, however, no submission is made that evidence ought to be excluded under section 78(1), the trial judge would appear to be under no obligation to consider the issue of exclusion of his or her own accord.53 The Court of Appeal has even rejected the submission   ibid 573 (Kennedy LJ).   R v Gill [2003] EWCA Crim 2256, [2004] 1 WLR 469. 52   ibid [48] (Clarke LJ). See also R v Doyle [2002] EWCA Crim 1176; R v Senior [2004] EWCA Crim 454, [2004] 3 All ER 9. In Ridehalgh v Director of Public Prosecutions [2005] EWHC 1100 (Admin), [2005] RTR 26, it was held that a conversation between a police inspector and the defendant had ‘amounted simply to a conversation and not to an interview within the definition of the Code of Practice’ (ibid [19] (Gibbs J)), and thus the failure to caution the defendant prior to the conversation had not constituted a breach. If, however, this was wrong, ‘it does seem . . . inevitable that the justices would have reached precisely the same decision about the defendant’s guilt in any event. It is difficult if not impossible to see how any unfairness could have arisen by the admission of that conversation. The defendant was himself a police officer, and once he was cautioned he not only freely admitted precisely the same matters as he had done in the previous conversation, he elaborated upon them. There could have been no unfairness’ (ibid [20]). 53   R v Goldenberg (1988) 88 Cr App R 285 (CA) 289 (Neill LJ): ‘It does not appear . . . that . . . any submission was made to the judge at the trial to the effect that the evidence should be excluded in accordance with section 78. In these circumstances it does not appear to us that it would be right for this Court to give effect to a submission which depends on the failure of a judge to exclude evidence by a discretion which at the trial he was not asked to exercise’. 50 51

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that[,] where . . . there is . . . flagrant abuse by the police of their powers in breach of PACE, the judge has a duty to intervene and should exclude [the evidence] of his own motion . . . That does not mean that if he feels it appropriate the judge should not make a pertinent enquiry of the advocate in the jury’s absence in certain circumstances, but beyond that he need no[t] go.54

Moreover, the appellate courts have exhibited a marked reluctance to provide guidelines for the exercise of the section 78(1) discretion. The following comment is typical: ‘It is undesirable to attempt any general guidance as to the way in which a judge’s discretion under section 78 . . . should be exercised. Circumstances vary infinitely’.55 Furthermore, ‘[t]he Court of Appeal does not set aside the exercise of the trial judge’s discretion under section 78 unless it concludes that the decision to admit the confession was unreasonable in the Wednesbury sense’.56 The law on the exclusion of confession evidence in England and Wales is therefore reliant to a considerable degree on judicial discretion, with its associated vagaries. By contrast, the United States continues to adhere to a general rule prohibiting the admission in evidence of a confession obtained without ‘Miranda warnings’ having been administered. Miranda v Arizona57 is a landmark decision of the US Supreme Court. ‘Prior to Miranda’, that Court has noted, ‘we evaluated the admissibility of a suspect’s confession under a voluntariness test’.58 Miranda heralded a fundamental change in approach, with the Court holding as follows:

  R v Raphaie [1996] EWCA Crim 374, [1996] Criminal Law Review 812 (CA) (Stephens J).   R v Samuel [1988] QB 615 (CA) 630 (Hodgson J). See also R v Jelen (1989) 90 Cr App R 456 (CA) 465 (Auld J): ‘The circumstances of each case are almost always different, and judges may well take different views in the proper exercise of their discretion even where the circumstances are similar. This is not an apt field for hard case law and well-founded distinctions between cases’. 56   Thompson v The Queen [1998] AC 811 (PC) 838 (Lord Hutton). See also R v O’Leary (1988) 87 Cr App R 387 (CA) 391 (May LJ); R v Christou [1992] QB 979 (CA) 989 (Lord Taylor CJ). The concept of ‘Wednesbury unreasonableness’ was explained in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) 229 (Lord Greene MR): ‘[D]iscretion must be exercised reasonably. Now what does that mean? . . . [A] person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”’. Thus, the Court of Appeal will overturn a trial judge’s decision not to exclude confession evidence under s 78 only if he or she failed to consider matters which should have been considered, or took into consideration irrelevant matters. 57   Miranda v Arizona 384 US 436 (1966). See generally S O’Doherty, ‘Miranda Rights – A View across the Pond’ (2004) 168 Justice of the Peace 647; LS Wrightman and ML Pitman, The Miranda Ruling: Its Past, Present, and Future (New York, Oxford University Press, 2010); JJ Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the Balance between Freedom and Order (New York, Oxford University Press, 2011) ch 3; ME Cammack, ‘The United States: The Rise and Fall of the Constitutional Exclusionary Rule’ in SC Thaman (ed), Exclusionary Rules in Comparative Law (New York, Springer, 2013) 24–28. 58   Dickerson v United States 530 US 428, 432–33 (2000) (Rehnquist CJ). 54 55

92  Confessions and Inferences From Silence [W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.59

Congress subsequently enacted legislation designed to overrule Miranda and reintroduce a simple voluntariness test. This provided: In any criminal prosecution brought by the United States or by the District of Columbia, a confession . . . shall be admissible in evidence if it is voluntarily given. . . . If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence . . .60

It was further provided that ‘in determining the issue of voluntariness . . . all the circumstances surrounding the giving of the confession’ must be con­ sidered, including whether Miranda warnings had been administered. Crucially, this consideration ‘need not be conclusive on the issue of voluntariness of the confession’.61 The US Supreme Court, examining this legislative enactment in Dickerson v US,62 noted that it ‘explicitly eschews a requirement of preinterrogation   Miranda v Arizona 384 US 436, 478–79 (1966) (Warren CJ).   18 USC § 3501(a). 61   18 USC § 3501(b). 62   Dickerson v United States 530 US 428 (2000). See generally Y Kamisar, ‘Foreword: From Miranda to § 3501 to Dickerson to . . .’ (2001) 99 Michigan Law Review 879; PG Cassell, ‘The Paths Not Taken: The Supreme Court’s Failures in Dickerson’ (2001) 99 Michigan Law Review 898; SJ Schulhofer, ‘Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment Exceptionalism’ (2001) 99 Michigan Law Review 941; DA Strauss, ‘Miranda, the Constitution, and Congress’ (2001) 99 Michigan Law Review 958; WJ Stuntz, ‘Miranda’s Mistake’ (2001) 99 Michigan Law Review 975; RA Leo, ‘Questioning the Relevance of Miranda in the Twenty-First Century’ (2001) 99 Michigan Law Review 1000; SR Klein, ‘Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure’ (2001) 99 Michigan Law Review 1030; GC Thomas III, ‘Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases’ (2001) 99 Michigan Law Review 1081; CD Weisselberg, ‘In the Stationhouse after Dickerson’ (2001) 99 Michigan Law Review 1121; L Magid, ‘Deceptive Police Interrogation Practices: How Far Is Too Far?’ (2001) 99 Michigan Law Review 1168; WS White, ‘Miranda’s Failure to Restrain Pernicious Interrogation Practices’ (2001) 99 Michigan Law Review 1211; P Mirfield, ‘Miranda Exclusionary Rule Re-Affirmed: US v Dickerson’ (2001) 5 International Journal of Evidence and Proof 61. 59 60

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warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect’s confession’.63 The Court held ‘that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress’ in this way.64 Furthermore, it was considered that there was insufficient justification for the Court itself to overrule Miranda, since ‘Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture’.65 In spite of the US Supreme Court’s commitment to Miranda in Dickerson, the years since the decision in Miranda have seen its scope being confined (for example, through readiness to find an implied waiver of the right to silence66) and exceptions to the Miranda exclusionary rule (such as a ‘public safety’ exception67) being recognised.68 Courts outside the United States have tended to view Miranda very much as a home-grown product that has little relevance to them. For example, the Privy Council, considering the guarantee in section 5(2)(c)(ii) of the Constitution of Trinidad and Tobago of the right   530 US 428, 442 (2000) (Rehnquist CJ).   ibid 432. 65   ibid 443. 66  eg, Berghuis v Thompkins 130 S Ct 2250 (2010). See also Salinas v Texas 133 S Ct 2174 (2013). 67   New York v Quarles 467 US 649, 655, 657–58 (1984) (Rehnquist J): ‘there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence . . . [T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evid­ ence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them’. It appears that an internal FBI memorandum providing guidance to agents about interrogating terrorism suspects advises as follows (www.nytimes. com/2011/03/25/us/25miranda-text.html): ‘The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case. Depending on the facts, such interrogation might include, for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post [sic] an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks’. See generally KA Petty, ‘A Different Kind of Criminal? Miranda, Terror Suspects, and the Public Safety Exception’ (2012) 4 Elon Law Review 175. Discussion of the issue has arisen recently in relation to the Boston Marathon bombing case: see, eg, Y Kamisar, ‘The “Public Safety” Exception to Miranda Then and Now’: blog.oup.com/2013/05/public-safety-exception-mirandaquarles-tsarnaev-boston/. 68   See generally Y Kamisar, ‘The Rise, Decline, and Fall (?) of Miranda’ (2012) 87 Washington Law Review 965; F Schauer, ‘The Miranda Warning’ (2013) 88 Washington Law Review 155; Y Kamisar, ‘A Rejoinder to Professor Schauer’s Commentary’ (2013) 88 Washington Law Review 171. 63 64

94  Confessions and Inferences From Silence of a person arrested or detained ‘to retain and instruct without delay a legal adviser of his own choice and to hold communication with him’, held: Fundamental as the rights of a suspect to communicate with his lawyer are it does not follow that such rights can only be given due recognition by an absolute exclusionary rule such as was enunciated in Miranda . . . The rigidity of the Miranda rule is underlined by counsel’s concession that, if applicable . . . [w]hatever the statement contained it would have to be excluded, and that would be so even in the case of a trivial breach. Such an absolute rule does not easily fit into a system based on English criminal procedure. At the time of the enactment of the constitutional guarantees the settled practice in England and Trinidad and Tobago was that the judge had a discretion to admit or exclude a voluntary confession obtained in breach of the Judges’ Rules. In these circumstances their Lordships are satisfied that it would not be right now to hold the judge’s discretion to admit or exclude a confession was entirely abolished by the relevant constitutional provision.69

The Privy Council went on, however, to emphasise that, while ‘not every [constitutional] breach will result in a confession being excluded’, the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. . . . The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.70

More recently, the Supreme Court of India stated firmly in a major decision: [T]he protection to the accused against any self-incrimination guaranteed by the Constitution [of India] is very strongly built into the Indian statutory framework and we see absolutely no reason to draw any help from the Miranda principles for providing protection against self-incrimination to the accused.71

In England and Wales, the idea of giving further effect to the privilege against self-incrimination by introducing automatic exclusionary rules that are of a more specific nature than section 76(2) tends not to command much support. The Report of the Runciman Royal Commission on Criminal Justice in 1993 considered a proposal ‘that there should be an absolute rule that a confession should be inadmissible unless made or confirmed in the presence of a solicitor’.72 This proposal did not find favour with the Commission, which 69   Mohammed v The State [1999] 2 AC 111 (PC) 121 (Lord Steyn). See generally D O’Brien and V Carter, ‘“Don’t Look Back”: The Exclusion of Evidence and the Constitutional Rights of the Accused. A Caribbean Commonwealth Perspective’ (2000) 4 International Journal of Evidence and Proof 45. 70  [1999] 2 AC 111, 124. For a US discussion of ‘constitutional privileging’, see M Coenen, ‘Constitutional Privileging’ (2013) 99 Virginia Law Review 683. 71   Kasab v State of Maharashtra [2012] INSC 476 [455] (Alam J). 72   Royal Commission on Criminal Justice, Report (Cm 2263) (London, HMSO, 1993) 61.

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reasoned that it might have the effect of excluding perfectly reliable confessions from evidence.73 The Commission’s reasoning seems to miss the point. An inevitable consequence of any rule designed to ensure that unreliable evidence is inadmissible is the exclusion of some reliable evidence. The more rigid and absolute – and therefore the more protective – the rule, the more likely this is to happen. The question to be confronted, surely, is whether the introduction of the absolute rule under consideration may be justified in the special context of confession evidence, the admission of which has resulted in so many major miscarriages of justice in the past. 1.5  Police Informants The judgment of the European Court of Human Rights in Allan v UK 74 illustrates another context in which the Court considers that the privilege against self-incrimination might be engaged. When Allan was on remand in custody on suspicion of having committed a robbery, the police received information that Allan had been involved in a murder. The Chief Constable accordingly granted authority for the cell and visiting areas used by Allan to be fitted with audio and video equipment. When Allan was arrested for the murder he exercised his right to remain silent. Recordings were made of Allan’s conversations with, inter alia, H, a police informant who was placed in Allan’s cell for the purpose of eliciting information from him. Allan argued, inter alia, that the use of the evidence of these recordings violated article 6(1). The Court emphasised that, in discharging its essentially supervisory functions, it saw itself as performing an essentially reactive role, since, ‘[w]hile Art 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law’.75 The Court described the principle to be applied as follows: While the right to silence and the privilege against incrimination are primarily designed to protect against improper compulsion by the authorities and the obtaining of evidence through methods of coercion or oppression in defiance of the will of the accused, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused has been   ibid 62.   Allan v United Kingdom (2002) 36 EHRR 12. See generally S Nash, ‘Surreptitious Interrogation and Notions of Fairness: Allan v United Kingdom’ (2003) 7 International Journal of Evidence and Proof 137. 75   (2002) 36 EHRR 12 [42]. See also, eg, Schenk v Switzerland (1988) 13 EHRR 242 [46]; Sorokins and Sorokina v Latvia App no 45476/04 (ECtHR, 28 May 2013) [110]; Martin v Estonia App no 35985/09 (ECtHR, 30 May 2013) [81]. 73 74

96  Confessions and Inferences From Silence directly overborne in some way. The right, which . . . is at the heart of the notion of a fair procedure, serves in principle to protect the freedom of a suspected person to choose whether to speak or to remain silent under police questioning. Such freedom of choice is effectively undermined in a case in which, the suspect having elected to remain silent during questioning, the authorities use subterfuge to elicit from the suspect confessions or other statements of an incriminatory nature which they were unable to obtain during such questioning and where the confessions or statements thereby obtained are adduced in evidence at trial.76

Applying this to the facts at hand, the Court observed that in his interviews with the police following his arrest the applicant had, on the advice of his solicitor, consistently availed himself of his right to silence. H, who was a longstanding police informer, was placed in the applicant’s cell in Stretford Police Station and later at the same prison for the specific purpose of eliciting from the applicant information implicating him in the offences of which he was suspected. The evidence adduced at the applicant’s trial showed that the police had coached H and instructed him to ‘push him for what you can’. . . . [T]he admissions allegedly made by the applicant to H, and which formed the main or decisive evidence against him at trial, were not spontaneous and unprompted statements volunteered by the applicant, but were induced by the persistent questioning of H, who, at the instance of the police, channelled their conversations into discussions of the murder in circumstances which can be regarded as the functional equivalent of interrogation, without any of the safeguards which would attach to a formal police interview, including the attendance of a solicitor and the issuing of the usual caution. While it is true that there was no special relationship between the applicant and H and that no factors of direct coercion have been identified . . . the applicant would have been subject to psychological pressures which impinged on the ‘voluntariness’ of the disclosures allegedly made by the applicant to H: he was a suspect in a murder case, in detention and under direct pressure from the police in interrogations about the murder, and would have been susceptible to persuasion to take H, with whom he shared a cell for some weeks, into his confidence. In those circumstances, the information gained by the use of H in this way may be regarded as having been obtained in defiance of the will of the applicant and its use at trial impinged on the applicant’s . . . privilege against self-incrimination. Accordingly, there has been in this respect a violation of Art 6(1) of the Convention.77

When this case came before it subsequently as R v Allan,78 the Court of Appeal expressed the view that the Strasbourg Court had ‘correctly analysed the case’79 and that ‘[i]t would be strange if the law were otherwise than as decided by [that Court]’, adding:

  (2002) 36 EHRR 12 [50].   ibid [52]–[53]. 78   R v Allan [2004] EWCA Crim 2236. 79   ibid [117] (Hooper LJ). 76 77

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One of the functions of the caution is to make it clear that what a suspect says may be used in evidence. The presence of a solicitor or friend should additionally ensure that the suspect understands the questions, knows the importance of his answers and the seriousness of the occasion. The requirements of audio recordings introduced to overcome problems associated with actual (or unfounded allegations of ) ‘verballing’ by police officers now ensure an accurate record of questions and answers. Audio recordings have done much also to overcome problems associated with actual ‘inducements’ (or unfounded allegations that inducements were made). . . . Allowing an agent of the state to interrogate a suspect in the circumstances of this case bypasses the many necessary protections developed over the last twenty years.80

Thus, both the European Court of Human Rights and the domestic courts would appear to be of the view that circumventing proper interview procedures to obtain incriminating statements violates the privilege against selfincrimination. It is of note that, somewhat unusually, the Strasbourg Court sought in its judgment to derive guidance from Canadian81 and Australian82 jurisprudence, which, in circumstances such as these, has adopted the test of whether the relevant self-incriminating statement was ‘elicited’ from the suspect. The Supreme Court of Canada provided detailed guidance in R v Broyles83 on the concept of ‘elicitation’, noting that, while these were not exhaustive, there were essentially two sets of factors to be considered: The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information . . . or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation. The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk? (emphasis added)

  ibid [122].   R v Broyles [1991] 3 SCR 595; R v Liew [1999] 3 SCR 227. 82   R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, [1998] HCA 1. See generally E Stone, ‘The Law of Confessions in Theory and Practice: Swaffield and Pavic’ (1999) 3 International Journal of Evidence and Proof 57; L Martinez, ‘Confessions and Admissions to Undercover Police and Police Agents’ (2000) 74 Australian Law Journal 391; A Palmer, ‘Applying Swaffield: Covertly Obtained Statements and the Public Policy Discretion’ (2004) 28 Criminal Law Journal 217; A Palmer, ‘Applying Swaffield Part II: Fake Gangs and Induced Confessions’ (2005) 29 Criminal Law Journal 111. See also, more recently, Tofilau v The Queen [2007] HCA 39; Em v The Queen [2007] HCA 46. 83   R v Broyles [1991] 3 SCR 595. 80 81

98  Confessions and Inferences From Silence The Court also noted that it might be relevant to consider ‘the instructions given to the state agent for the conduct of the conversation’.84 There is no doubt that these guidelines provide a valuable framework within which to place the factual circumstances of individual cases for evaluation. As always, however, the application of an open-textured test in different cases, no matter how detailed or carefully crafted the relevant guidelines, may well produce results that do not appear easily reconcilable. In the latest major authority in the area, Bykov v Russia,85 where the applicant complained that ‘he had been tricked by the police into making selfincriminating statements in his conversation with V and that the court had admitted the record of this conversation as evidence at the trial’,86 the Grand Chamber of the Strasbourg Court did not find a violation of article 6(1). Distinguishing Allan on a basis that is not perhaps entirely clear,87 the Court observed that the applicant had not been under any pressure to receive V at his ‘guest house’, to speak to him, or to make any specific comments on the matter raised by V. Unlike the applicant in the Allan case . . . the applicant was not detained on remand but was at liberty on his own premises attended by security and other personnel. The nature of his relations with V – subordination of the latter to the applicant – did not impose any particular form of behaviour on him. In other words, the applicant was free to see V and to talk to him, or to refuse to do so. It appears that he was willing to continue the conversation started by V because its subject matter was of personal interest to him. Thus, the Court is not convinced that the obtaining of evidence was tainted with the element of coercion or oppression which [proved decisive] in the Allan case . . .88

The Court also took account of the fact that the recording in question had ‘played a limited role in a complex body of evidence’.89 Thus, [h]aving examined the safeguards which surrounded the evaluation of the admissibility and reliability of the evidence concerned, the nature and degree of the alleged compulsion, and the use to which the material obtained through the covert operation was put, the Court finds that the proceedings in the applicant’s case, considered as a whole, were not contrary to the requirements of a fair trial. It follows that there has been no violation of Article 6 § 1 of the Convention.90   ibid 611 (Iacobucci J).   Bykov v Russia App no 4378/02 (ECtHR Grand Chamber, 10 March 2009). 86   ibid [84]. 87   JD Jackson, ‘Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 139. 88   Bykov v Russia App no 4378/02 (ECtHR Grand Chamber, 10 March 2009) [102]. 89   ibid [103]. 90   ibid [104]–[105]. Referring to Bykov, the UK Supreme Court held in Kinloch v HM Advocate [2012] UKSC 62, [2013] 2 WLR 141 ‘that it has not been suggested that there was any coercion or trickery by the police which, if it had been present, might have led to the conclusion that the appellant did not receive a fair trial’: ibid [22] (Lord Hope DPSC). 84 85

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1.6  ‘Safety Interviews’ A final example of a scenario in which the Court of Appeal of England and Wales considers that the privilege against self-incrimination might be engaged concerns ‘safety interviews’. In R v Ibrahim,91 the Court described such interviews as follows: Those suspected of terrorist offences, if rightly suspected, are likely to be able to provide assistance to investigating officers performing their responsibilities for public safety. An interview process which, so far as possible, enables the police to protect the public is a necessary imperative. These interviews are variously described as ‘safety interviews’, or ‘urgent’ or ‘emergency interviews’. The suspect is interviewed for information which may help the police to protect life and prevent serious damage to property to be obtained. The question whether the results of such interviews should then be used as evidence against the suspects, impinging as it sometimes may on the principles governing protection against self-incrimination, is delicate.92

The defendant argued, inter alia, as follows: One of the broad submissions to [the trial judge] was that the safety interviews should be excluded on public policy grounds. The argument, in summary, was that the routine admission of these interviews into evidence against a defendant would make it more likely that suspects would refuse to answer questions relating to public safety issues. Thus the risks to the public as a result of the police remaining in ignorance of material facts would be increased rather than diminished.93

In a passage worth quoting in full, the Court of Appeal responded in the following terms: The circumstances in which it is directed by a senior police officer that safety interviews should take place are operational, in short, how best, in a situation of immediate urgency, to secure public safety. The pursuit of this objective with a suspect who is invited to provide the police with relevant information may produce crucial evidence incriminating him in the offence for which he has been detained, or indeed other offences. The admission of the safety interviews or their fruits . . . in evidence at a subsequent trial is subject to the ordinary principles governing a fair trial, and the over-arching provisions in section 78 of . . . PACE . . . Much would turn on the nature of the warning or caution, if any, given by the police to the suspect. Thus, for example, if the suspect were to be assured in terms that any information provided by him would not be used against him, that would provide a powerful argument against the admission of incriminating evidence 91   R v Ibrahim [2008] EWCA Crim 880, [2009] 1 WLR 578. See generally P Mendelle and AN Bajwa, ‘How Safe Are Safety Interviews?’ (2009) 173 Criminal Law and Justice Weekly 132; P Mendelle and AN Bajwa, ‘How Safe Are Safety Interviews?’ [April 2010] Counsel 24. 92   [2008] EWCA Crim 880, [2009] 1 WLR 578 [33] (Sir Igor Judge P). 93   ibid [34].

100  Confessions and Inferences From Silence obtained in consequence. Much, too, may turn on whether the interviews produce evidence directly relevant to the charge which led to the suspect’s original detention, or whether the first connection that the prosecution may establish against him with any offence arises directly from his full co-operation with them during the course of the safety interview. As ever, these will be fact specific decisions, to be made in the overall circumstances of each individual case. What however is clear is that the legislative structure does not preclude the use of the evidence obtained in safety interviews and, given the existing safeguards available to a defendant and the obligation on the trial judge to make the judgment necessary to enable him to exercise his discretion under section 78 of PACE, it would be wholly inappropriate for this court to impose the kind of self-denying ordinance which the submission based on public policy grounds would require.94

Again, the Court of Appeal appears content to rely on trial judges to determine on a case-by-case basis whether to exercise their exclusionary discretion in favour of exclusion. The law of England and Wales is not, however, alone in giving prominence to ‘public safety’ concerns in this context. It may be noted that the Miranda exclusionary rule in the United States is subject to an exception which, broadly speaking, allows for the admissibility in evidence of a confession obtained in circumstances in which ‘public safety’ concerns are considered to have overridden the requirement to administer Miranda warnings.95 2.  ADVERSE INFERENCES FROM SILENCE

Over the past two decades, the law of England and Wales has introduced legislation allowing the trier of fact in a criminal trial to draw adverse inferences from the defendant’s failure to provide information in a variety of circumstances.96 Such failure might have occurred prior to trial, or might occur at trial. In Murray v UK97 the European Court of Human Rights expressed the view that specific instances involving legal compulsion to speak, in which maintaining silence would itself amount to a criminal offence or contempt of court, could be distinguished from a statutory provision allowing adverse inferences to be drawn from silence.98 The Court conceded, however, that a degree of indirect compulsion would be inherent in any régime allowing adverse inferences to be drawn from silence: ‘Admittedly a system which warns the accused . . . that adverse inferences may be drawn   ibid [36].   See n 67 above.   See generally M Redmayne, ‘English Warnings’ (2008) 30 Cardozo Law Review 1047. For a discussion of the background to these changes, see S Easton, The Case for the Right to Silence, 2nd edn (Aldershot, Ashgate, 1998) ch 2. 97   Murray v United Kingdom (1996) 22 EHRR 29. 98   ibid [48]–[49]. 94 95 96

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from a refusal to provide [information], when taken in conjunction with the weight of the case against him, involves a certain level of indirect compulsion’.99 Indeed, there might well be circumstances in which a person would consider the possibility of adverse inferences being drawn from his or her refusal to provide information to constitute a more serious sanction than the possibility of a ‘mere’ criminal conviction for such refusal. 2.1  Pre-Trial Silence 2.1.1  Failure to Mention Facts Later Relied Upon Acknowledged to constitute ‘a notorious minefield’100 or at least ‘a very difficult area’,101 section 34 of the Criminal Justice and Public Order Act 1994 allows a ‘court or jury, in determining whether the accused is guilty of the offence charged’, to ‘draw such inferences from the failure as appear proper’102 where evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact; or (c) at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be . . .103

These provisions do not apply ‘[w]here the accused was at an authorised place of detention at the time of the failure’ and ‘he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed’.104 Even if it were to be conceded that cautioning a suspect in England and Wales that ‘it may harm your defence if you do not mention when questioned   ibid [50].   R v B [2003] EWCA Crim 3080 [20] (Dyson LJ). 101   R v Bresa [2005] EWCA Crim 1414 [51] (Waller LJ). 102   Criminal Justice and Public Order Act 1994, s 34(2). 103   ibid s 34(1). 104   ibid s 34(2A). 99

100

102  Confessions and Inferences From Silence something which you later rely on in Court’105 might constitute indirect compulsion to speak, it might be argued that the compulsion is to produce exculpatory, rather than inculpatory, evidence. Therefore, the argument might continue, whatever concerns might be raised by section 34 are not concerns related to the privilege against self-incrimination. This argument is not entirely convincing. For one thing, the caution may not be fully under­stood by a suspect, even one who appears to understand it.106 Moreover, even where the caution is correctly understood and an effort is made to provide exculpatory information only, this exculpatory information may well be inextricably linked with self-incriminating information. Section 34 and its implications have been extensively considered by the courts and in the academic literature.107 On the one hand, the fact that a suspect provided the police with a prepared statement containing a full account of a fact later relied upon in his or her defence, but otherwise remained silent, has been treated by the Court of Appeal as sufficient to prevent adverse inferences from being drawn.108 Furthermore, robust (if complex109) directions to the jury are required, pointing out in particular that an adverse inference can be drawn only if the only sensible explanation for the failure to mention the fact in question is that the defendant had no answer or none that would withstand scrutiny.110 On the other hand, there has been widespread criticism of the principle that, in order to prevent adverse inferences from being drawn, any reliance on legal advice to remain silent must have been not only genuine but also reasonable.111 This is com105   Police and Criminal Evidence Act 1984 Code C, para 10.5, issued pursuant to the Police and Criminal Evidence Act 1984, s 66. 106   A research study found that ‘[p]olice officers and legal advisers both expressed doubts about the extent to which suspects understand the content and implications of this statement. . . . [E]ven if police officers explained the caution in lay terms, they expressed a degree of scepticism about whether suspects fully comprehended it’: T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (London, Home Office, 2000) 27. See also J Lindsay, ‘We Caution You – This Is English but You Might Not Understand It’, The Times (London, 25 April 2006) Law, 4. 107   See, eg, AL-T Choo, Evidence, 3rd edn (Oxford, Oxford University Press, 2012) 127–40. For a discussion of attempts to legislate along similar lines in New South Wales, see S Odgers, ‘Removing the Right to Silence in the Police Station’ (2013) 37 Criminal Law Journal 75. 108   R v Knight [2003] EWCA Crim 1977, [2004] 1 WLR 340; R v Turner [2003] EWCA Crim 3108, [2004] 1 All ER 1025. 109   The Court of Appeal has noted that ‘it is a matter of some anxiety that, even in the simplest and most straightforward of cases, where a direction is to be given under Section 34 it seems to require a direction of such length and detail that it seems to promote the adverse inference question to a height it does not merit’: R v Bresa [2005] EWCA Crim 1414 [4] (Waller LJ). 110   Condron v United Kingdom (2000) 31 EHRR 1; Beckles v United Kingdom (2002) 36 EHRR 13. 111   R v Howell [2003] EWCA Crim 1, [2005] 1 Cr App R 1; R v Knight [2003] EWCA Crim 1977, [2004] 1 WLR 340; R v Hoare [2004] EWCA Crim 784, [2005] 1 WLR 1804. See generally D Wolchover, ‘Serving Silent Suspects – Part 1’ (2011) 175 Criminal Law and Justice Weekly 71; D Wolchover, ‘Serving and Saving Silent Suspects – Part 2 (2011) 175 Criminal Law and Justice Weekly 86; D Wolchover, ‘Serving and Saving Silent Suspects – Part 3 (2011) 175 Criminal Law and Justice Weekly 104.



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pounded by the fact that, to prevent the drawing of inferences, it may be necessary for the defence to suggest that there were good reasons for the advice, but doing so may be interpreted as a waiver of legal professional privilege, so that the defendant, or the legal adviser, may be cross-examined on whether there were additional, tactical reasons for the advice.112 That the European Court of Human Rights does not appear to regard this as problematic is suggested by the following comments: [T]he fact that the applicants were subjected to cross-examination on the content of their solicitor’s advice cannot be said to raise an issue of fairness under Article 6 of the Convention. They were under no compulsion to disclose the advice given, other than the indirect compulsion to avoid the reason for their silence remaining at the level of a bare explanation. The applicants chose to make the content of their solicitor’s advice a live issue as part of their defence. For that reason they cannot complain that the scheme of section 34 of the 1994 Act is such as to override the confidentiality of their discussions with their solicitor.113

Thus, not only might section 34 be considered to subject suspects to indirect compulsion at the pre-trial stage, but it is liable to subject those who do remain silent to further indirect compulsion at trial. 2.1.2  Failure to Make Appropriate Advance Disclosure Section 3(1)(a) of the Criminal Procedure and Investigations Act 1996 requires that the prosecution

112   R v Seaton [2010] EWCA Crim 1980, [2011] 1 WLR 623 [43] (Hughes LJ): ‘A defendant who adduces evidence that he was advised by his lawyer not to answer questions but goes no further than that does not thereby waive privilege. . . . After all, the mere fact of the advice can equally well be made evident by the solicitor announcing at the interview that he gives it then and there, and there is then no revelation whatever of any private conversation between him and the defendant. . . . But a defendant who adduces evidence of the content of, or reasons for, such advice, beyond the mere fact of it, does waive privilege at least to the extent of opening up questions which properly go to whether such reason can be the true explanation for his silence’. See also R v Hall-Chung [2007] EWCA Crim 3429. 113   Condron v United Kingdom (2000) 31 EHRR 1 [60]. It is also to be noted that, in R v HallChung [2007] EWCA Crim 3429, the Court of Appeal emphasised that trial judges have a responsibility to protect defendants in this context (ibid [19] (Moses LJ)): ‘That is not to say that the circumstances in which [legal professional privilege] was waived and how that waiver is sought to be deployed by the Crown are not important factors which the judge must consider in deciding whether to exclude . . . a line of cross-examination . . . pursuant to section 78 [of the Police and Criminal Evidence Act 1984]. A judge must not assume that the Crown is entitled to take advantage of the waiver in every case, where, as a matter of law, it has been waived. He must exercise independent judgment as to whether it is fair to permit the prosecution to exploit that waiver’. Moreover, it is entirely possible that in practice juries will be sympathetic to defendants who remained silent on the advice of their solicitors. As has been noted (R Pattenden, ‘Silence: Lord Taylor’s Legacy’ (1998) 2 International Journal of Evidence and Proof 141, 152): ‘In practice we may find that jurors are less critical than judges of defendants who remained silent on their solicitor’s advice. Jurors may think that if they were arrested they would not try to second-guess their lawyer’.

104  Confessions and Inferences From Silence disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused . . .

Where ‘the prosecutor complies with section 3 or purports to comply with it’,114 ‘the accused must give a defence statement to the court and the prosecutor’.115 What constitutes a ‘defence statement’ is set out in detail in the first three subsections of section 6A: (1)  . . . a defence statement is a written statement – (a) setting out the nature of the accused’s defence, including any particular defences on which he intends to rely, (b) indicating the matters of fact on which he takes issue with the prosecution, (c) setting out, in the case of each such matter, why he takes issue with the prosecution, (ca) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and (d) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose. (2)  A defence statement that discloses an alibi must give particulars of it, including – (a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given; (b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given. (3) For the purposes of this section evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.   Criminal Procedure and Investigations Act 1996, s 5(1)(b).   ibid s 5(5). See generally RL Denyer, ‘The Defence Statement’ [2009] Criminal Law Review 340; C Taylor, ‘The Evolution of the Defence Statement’ (2010) 74 Journal of Criminal Law 214; A Samuels, ‘Advance Disclosure by Defence’ (2011) 175 Criminal Law and Justice Weekly 259; Lord Justice Gross and Lord Justice Treacy, Further Review of Disclosure in Criminal Proceedings: Sanctions for Disclosure Failure (2012): www.judiciary.gov.uk/Resources/JCO/Documents/Reports/ disclosure_criminal_courts.pdf; D Ormerod, ‘A Further Review of Disclosure’ [2013] Criminal Law Review 97; A Owusu-Bempah, ‘Defence Participation through Pre-Trial Disclosure: Issues and Implications’ (2013) 17 International Journal of Evidence and Proof 183; C Taylor, ‘The Disclosure Sanctions Review: Another Missed Opportunity?’ (2013) 17 International Journal of Evidence and Proof 272. 114 115

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In the event of conduct such as failure to give a defence statement (or giving one after the specified period), setting out inconsistent defences in a defence statement, or relying on a matter at trial which was not mentioned in the defence statement, ‘the court or any other party may make such comment as appears appropriate’116 and ‘the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned’.117 A detailed obligation arising even where the prosecution simply purports to comply with its obligation to make disclosure, and which could result in adverse comment and adverse inferences in the event of non-compliance or even inadequate compliance, could certainly be interpreted as imposing compulsion to provide information. In R v Rochford,118 however, the Court of Appeal considered that section 6A left the privilege against self-­ incrimination intact: Do[es] . . . the defendant’s privilege against self-incrimination survive section 6A? The answer to that is ‘Yes’. What the defendant is required to disclose by section 6A is what is going to happen at the trial. He is not . . . obliged to incriminate himself if he does not want to. [That is a] fundamental [right] and [it has] certainly not been taken away by section 6A . . .119

The reasoning here, again, appears to be that any compulsion to provide information that the provisions might impose is compulsion to provide exculpatory information which would eventually be produced at trial in any event.120 Yet it must be remembered that, even if the information disclosed does not incriminate the defendant directly, it may do so indirectly by leading the police or prosecution to uncover incriminating information, with the   Criminal Procedure and Investigations Act 1996, s 11(5)(a).   ibid s 11(5)(b). 118   R v Rochford [2010] EWCA Crim 1928, [2011] 1 WLR 534. 119   ibid [21] (Hughes LJ). See also, in respect of information provided on a case progression form completed pursuant to the Criminal Procedure Rules, R (Firth) v Epping Justices [2011] EWHC 388 (Admin), [2011] 1 WLR 1818 [22]–[23] (Toulson LJ): ‘It does not infringe against the principle that a defendant is not required to incriminate himself for the court to require that the nature of the defence is made plain well before the trial. Of course, any requirement for disclosure of the nature of the defence must be a fair requirement, in the sense that it must not be extracted from a defendant in circumstances where the prosecution have no case and are trying to adopt Court of Star Chamber processes to try to build a case, but the rules are designed to make sure that this does not occur. So, I would reject the broad proposition that any requirement that a defendant should disclose his or her hand before trial is inherently repugnant’. See generally R Gibbs, ‘Be Careful of What You Say’ [2011] 4 Criminal Bar Quarterly 7; D Rhodes, ‘The Truth Is Out There’ (2011) 155 Solicitors’ Journal 17. But cf R v Newell [2012] EWCA Crim 650, [2012] 1 WLR 3142 (see generally LH Leigh, ‘Admissions in PCMH Statements’ [2012] 5 Archbold Review 9; R Munday, ‘Case Management, Disclosure and the Rules of Evidence, or (With Apologies to Ogden Nash) “What’s Newell, Pussycat?”’ (2012) 176 Criminal Law and Justice Weekly 377). 120   See also Royal Commission on Criminal Justice, Report (Cm 2263) (London, HMSO, 1993) 97–98: ‘We do not . . . believe that a requirement on the defence to disclose the substance of their case sooner rather than later infringes the right of defendants not to incriminate themselves. . . . The matter is simply one of timing’. 116 117

106  Confessions and Inferences From Silence consequence that the defendant will have assisted the prosecution in incriminating him- or herself.121 Moreover, as noted above, the extent to which information can neatly be compartmentalised into that which is potentially incriminating and that which is not is far from clear. Richardson has observed: As to the privilege against self-incrimination, it is said that the defendant is not being compelled [by the defence disclosure provisions] to say anything incriminating. This is naïve. Compelling a defendant to identify that which is in dispute inevitably involves forcing him to admit that which is not in dispute.122

2.1.3  Failure to Account for Particular Facts Section 36 of the Criminal Justice and Public Order Act 1994 provides that ‘such inferences from the failure or refusal as appear proper’123 may be drawn where the following conditions are satisfied. First, a person is arrested by a constable, and there is – (i) on his person; or (ii) in or on his clothing or footwear; or (iii) otherwise in his possession; or (iv) in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object . . .124

Secondly, ‘that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable’.125 Thirdly, ‘the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark’.126 Fourthly, ‘the person fails or refuses to do so’.127 Finally, ‘in any proceedings against the person for the offence so specified, evidence of [the above four] matters is given’.128 The above provisions ‘apply to the condition of clothing or footwear as they apply to a substance or mark thereon’.129 They do not, however, ‘apply unless the accused was told in ordinary language by the constable when mak121   A Owusu-Bempah, ‘Defence Participation through Pre-Trial Disclosure: Issues and Implications’ (2013) 17 International Journal of Evidence and Proof 183, 195. 122   J Richardson, ‘A “Just” Outcome: Losing Sight of the Purpose of Criminal Procedure’ [2011] Journal of Commonwealth Criminal Law 105, 117. 123   Criminal Justice and Public Order Act 1994, s 36(2). 124   ibid s 36(1)(a). 125   ibid s 36(1)(b). 126   ibid s 36(1)(c). 127   ibid s 36(1)(d). 128   ibid s 36(1). 129   ibid s 36(3).

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ing the request . . . what the [consequence] would be if he failed or refused to comply with the request’.130 Equally, they do not apply ‘[w]here the accused was at an authorised place of detention at the time of the failure or refusal’ and ‘he had not been allowed an opportunity to consult a solicitor prior to the request being made’.131 In a similar vein, section 37 provides that ‘such inferences from the failure or refusal as appear proper’132 may be drawn where the following conditions are satisfied. First, ‘a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed’;133 secondly, ‘that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence’;134 thirdly, ‘the constable informs the person that he so believes, and requests him to account for that presence’;135 fourthly, ‘the person fails or refuses to do so’;136 and, finally, ‘in any proceedings against the person for the offence, evidence of [the above four] matters is given’.137 These provisions ‘do not apply unless the accused was told in ordinary language by the constable when making the request . . . what the [consequence] would be if he failed or refused to comply with the request’.138 Equally, they do not apply ‘[w]here the accused was at an authorised place of detention at the time of the failure or refusal’ and ‘he had not been allowed an opportunity to consult a solicitor prior to the request being made’.139 The Court of Appeal has observed that section 36, unlike section 34, invites no comparison between the statement in interview and the evidence at the trial, since section 36 contains no parallel to the question under section 34(1) of whether it was reasonable for the defendant to mention a particular fact: reasonableness usually being judged from the starting point of whether the fact was mentioned at the trial. The sole question under section 36 is whether the defendant did ‘account for’ the presence of the substance, as put to him by the officer.140

On the one hand, therefore, the sphere of operation of sections 36 and 37 is far more limited than that of section 34, the suspect being requested to ‘account for’ very specific matters only. On the other hand, while section 34   ibid s 36(4).   ibid s 36(4A).   ibid s 37(2). 133   ibid s 37(1)(a). 134   ibid s 37(1)(b). 135   ibid s 37(1)(c). 136   ibid s 37(1)(d). 137   ibid s 37(1). 138   ibid s 37(3). 139   ibid s 37(3A). 140   R v Compton [2002] EWCA Crim 2835 [32] (Buxton LJ). 130 131 132

108  Confessions and Inferences From Silence specifically invites, on its face, the disclosure of exculpatory matters, sections 36 and 37 are not so limited. In this respect they might be said to engage the privilege against self-incrimination to a greater degree than does section 34. 2.2  Silence at Trial Section 35(3) of the Criminal Justice and Public Order Act 1994 provides that the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

Particular safeguards are incorporated in the provision in section 35(1)(b) that such inferences may not be drawn if ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’, and in the requirement in section 35(2) that the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment with a jury, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.141 141   This is accompanied by specific provisions in the Consolidated Criminal Practice Direction. In cases where the accused is legally represented, para IV.44.2 provides that ‘if, at the conclusion of the evidence for the prosecution, the accused’s legal representative informs the court that the accused will give evidence’, which ‘should be done in the presence of the jury’, then ‘the case should proceed in the usual way’. Para IV.44.3 provides: ‘If the court is not so informed, or if the court is informed that the accused does not intend to give evidence, the judge should, in the presence of the jury, inquire of the representative in these terms: “Have you advised your client that the stage has now been reached at which he may give evidence and, if he chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from his failure to do so?”’. Para IV.44.4 provides: ‘If the representative replies to the judge that the accused has been so advised, then the case shall proceed. If counsel replies that the accused has not been so advised, then the judge shall direct the representative to advise his client of the consequences set out in paragraph IV.44.3 and should adjourn briefly for this purpose, before proceeding further’. If the accused is not legally represented, para IV.44.5 provides that ‘the judge shall, at the conclusion of the evidence for the prosecution and in the presence of the jury, say to the accused: “You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the jury may draw such inferences as appear proper. That means they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?”’.



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The stipulation, in section 35(4), that section 35 ‘does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so’, makes it clear that there is no legal compulsion to testify. The effect of section 35(5)(a) is that refusal to answer a question ‘on the ground of privilege’ generally constitutes refusal with good cause. In the case of the privilege against selfincrimination, however, this is subject to section 1(2) of the Criminal Evidence Act 1898, which provides: Subject to section 101 of the Criminal Justice Act 2003 (admissibility of evidence of defendant’s bad character), a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings.

The effect of the above, therefore, is that the possibility of adverse inferences in the event of an accused’s failure to testify may constitute compulsion (albeit not compulsion in the form of a legal requirement) to incriminate him- or herself in relation to the offence(s) with which he or she is currently charged. Case law has further established that the protection from adverse inferences that is afforded by section 35(1)(b) is rather limited,142 the Court of Appeal noting in R v Friend 143 that it could not be said that the trial judge had ‘applied the wrong test’ in determining the applicability of section 35(1) (b) ‘if only because there is no right test’.144 In R v Dixon,145 the Court recently endorsed146 the following statement of principle articulated earlier by the Court in R v Tabbakh:147 The question posed by s 35 is a wide question for the judgment of the Judge. It is plainly not sufficient that the defendant suffers from some . . . physical or mental condition; it must be a . . . condition which is such [as] to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed . . . in a 142  See generally A Owusu-Bempah, ‘Judging the Desirability of a Defendant’s Evidence: An Unfortunate Approach to s 35(1)(b) of the Criminal Justice and Public Order Act 1994’ [2011] Criminal Law Review 690. 143   R v Friend [1997] 1 WLR 1433 (CA). See generally S Sharpe, ‘Vulnerable Defendants and Inferences from Silence: Part 1’ (1997) 147 New Law Journal 842; S Sharpe, ‘Vulnerable Defendants and Inferences from Silence: Part 2’ (1997) 147 New Law Journal 897. 144   [1997] 1 WLR 1433, 1442 (Otton LJ). 145   R v Dixon [2013] EWCA Crim 465, (2013) 177 JP 361. See generally D Wurtzel and P Cooper, ‘Making It Meaningful’ [August 2013] Counsel 23. 146   [2013] EWCA Crim 465, (2013) 177 JP 361 [52] (Treacy LJ). 147   R v Tabbakh [2009] EWCA Crim 464, (2009) 173 JP 201.

110  Confessions and Inferences From Silence Crown Court trial by the jury. The purpose of s 35(1)(b) is clearly to enable the Judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence.148

The Court also takes the view that instances of ‘undesirability’ might well be reduced by the fact ‘that greater use of intermediaries is likely to occur in addressing practical problems of communication and understanding’.149 Ultimately, a hallmark of the case law is the Court’s preparedness to accord considerable leeway to trial judges in determining the applicability of section 35(1)(b), and, consequently, the view that the question for the judge of whether it is appropriate to direct the jury that adverse inferences may be drawn ‘is a broad one with a wide margin of appreciation’.150 The Court, however, highlighted in R v Cowan 151 ‘certain essentials’152 of an adequate direction, and would appear to take seriously a failure to direct the jury on one of these essential elements.153 In contrast to the position in England and Wales, the US Supreme Court takes the view that the possibility of comment on, and adverse inferences from, a defendant’s trial silence is tantamount to the imposition of a penalty

  ibid [11] (Hughes LJ VP).   R v Dixon [2013] EWCA Crim 465, (2013) 177 JP 361 [58] (Treacy LJ). The Youth Justice and Criminal Evidence Act 1999, s 33BA, will, when brought into force, allow a defendant to be examined through an intermediary in certain circumstances. See generally P Cooper and D Wurtzel, ‘A Day Late and a Dollar Short: In Search of an Intermediary Scheme for Vulnerable Defendants in England and Wales’ [2013] Criminal Law Review 4. 150   R v Dixon [2013] EWCA Crim 465, (2013) 177 JP 361 [57] (Treacy LJ). 151   R v Cowan [1996] QB 373 (CA). See generally R Munday, ‘Cum Tacent Clamant: Drawing Proper Inferences from a Defendant’s Failure to Testify’ (1996) 55 Cambridge Law Journal 32; K Browne, ‘An Inference of Guilt?’ (1997) 141 Solicitors’ Journal 202. 152   [1996] QB 373, 381 (Lord Taylor CJ). 153  In R v Birchall [1998] EWCA Crim 177, the Court of Appeal quashed the conviction on account of the trial judge’s failure to direct the jury that they had to be satisfied that the prosecution had established a case to answer before drawing any inference from the defendant’s silence at trial. The fact that the prosecution considered that ‘there very plainly was a prima facie case’ was regarded as irrelevant, Lord Bingham CJ noting: ‘This court is reluctant to countenance the view that direction of a jury calls for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words will by no means always justify the upsetting of a jury’s verdict. Standard directions are, however, devised to serve the ends of justice and the court must be astute to ensure that these ends are not jeopardised by failure to give directions where they are called for. The drawing of inferences from silence is a particularly sensitive area. Many respected authorities have voiced the fear that section 35 and its sister sections may lead to wrongful convictions. It seems very possible that the application of these provisions could lead to decisions adverse to the United Kingdom at Strasbourg under Articles 6(1) and 6(2) of the European Convention on Human Rights unless the provisions are the subject of very carefully framed directions to juries. Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant’s failure to give oral evidence at his trial until they have concluded that the Crown’s case against him is sufficiently compelling to call for an answer by him. What was called the “fourth essential” in Cowan was correctly described as such. There is a clear risk of injustice if the requirements of logic and fairness in this respect are not observed’. But cf R v Hobson [2013] EWCA Crim 819, [2013] 2 Cr App R 27. 148 149



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for exercising the privilege against self-incrimination.154 The Court has reasoned that comment on the refusal to testify . . . is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. . . . [T]he Fifth Amendment . . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.155

In a similar vein, the position of the Supreme Court of Canada has been stated clearly as follows: Just as a person’s words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt. To use silence in this manner is to treat it as communicative evidence of guilt. To illustrate this point, suppose an accused did commit the offence for which he was charged. If he testifies and is truthful, he will be found guilty as the result of what he said. If he does not testify and is found guilty in part because of his silence, he is found guilty because of what he did not say. No matter what the non-perjuring accused decides, communicative evidence emanating from the accused is used against him. The failure to testify tends to place the accused in the same position as if he had testified and admitted his guilt . . . [T]his is tantamount to conscription of selfincriminating communicative evidence . . . In order to respect the dignity of the accused, the silence of the accused should not be used as a piece of evidence against him or her.156

154  See generally T Sampsell-Jones, ‘Making Defendants Speak’ (2009) 93 Minnesota Law Review 1327; J Bellin, ‘Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants’ Trial Silence’ (2010) 71 Ohio State Law Journal 229; DP Judges and SJ Cribari, ‘Speaking of Silence: A Reply to Making Defendants Speak’ (2010) 94 Minnesota Law Review 800. 155   Griffin v California 380 US 609, 614–15 (1965) (Douglas J). This reasoning has been firmly criticised by M Redmayne, ‘English Warnings’ (2008) 30 Cardozo Law Review 1047, 1085: ‘It is true that the US Supreme Court in Griffin argued that judicial comment on failure to testify is “a penalty imposed by courts for exercising a constitutional privilege,” but that view has little to be said for it. Would one want to argue that the admissibility of a confession is a penalty imposed for the exercise of the right to free speech?’. 156   R v Noble [1997] 1 SCR 874 [75] (Sopinka J). See generally P Healy, ‘More Protection for the Silent Accused in Canada: Noble’ (1998) 2 International Journal of Evidence and Proof 247; I Laing, ‘R v Noble: The Supreme Court and the Permissible Use of Silence’ (1998) 43 McGill Law Journal 637; DM Paciocco and L Stuesser, The Law of Evidence, 6th edn (Toronto, ON, Irwin Law, 2011) 307–10. See also R v Prokofiew 2012 SCC 49, [2012] 2 SCR 639, on which see generally D Libman, ‘Prokofiew: The Need for Instructions on Trial Silence in Cut-Throat Defence Cases’ (2012) 96 Criminal Reports (6th) 83; D Stuart, ‘Prokofiew: Reading Down Section 4(6) of Canada Evidence Act to Leave Instructions on Trial Silence to Unfettered Discretion of Trial Judges’ (2012) 97 Criminal Reports (6th) 10. For the position in Australia, see A Ligertwood and G Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts, 5th edn (Chatswood, NSW, LexisNexis Butterworths, 2010) paras 5.117–5.133.

112  Confessions and Inferences From Silence 3.  CONCLUDING COMMENTS

While the discussion in preceding chapters has focused on situations in which failure to provide potentially self-incriminatory information would itself constitute a criminal offence, this chapter has provided a brief sketch of other possible instances of compulsion. Such compulsion may arise from pressure, whether direct or indirect, that is placed on suspects in police interviews or ‘informal’ interviews, or from the possibility of adverse comment or adverse inferences in the event of failure to provide particular information. On occasion, adverse inference provisions appear designed to elicit exculpatory rather than inculpatory information, but it would be a mistake, as we have seen, to assume that any concerns related to the privilege against self-incrimination are therefore absent. Focusing on legal compulsion to provide potentially self-incriminatory information tells only part of a more complex story. It is important that the privilege as analysed in earlier chapters be viewed alongside more indirect compulsion to provide such information, and in the context of the wider right to silence, on which much has already been written by others.

6 Concluding Thoughts

O

NE’S RIGHT NOT to be compelled to provide information that could reasonably lead to, or increase the likelihood of, the prosecution of oneself for a criminal offence is considered to be a fundamental common law right. Despite the supposed importance of the privilege against self-incrimination, there is little agreement on its content or effect. Neither the Strasbourg jurisprudence nor the domestic jurisprudence can very easily be rationalised. This is due in no small part to a lack of care or consistency in the articulation of principles by the courts. The European Court of Human Rights may proclaim optimistically that its conception of the privilege is consistent with doctrinal analysis in other jurisdictions, but the various comparative surveys undertaken in this book cast substantial doubt on the existence of any international consensus. Domestic juris­ prudence on the privilege against self-incrimination as it pertains to criminal proceedings features a number of interesting, if occasionally frustrating, decisions of the Court of Appeal, but lacks an authoritative recent decision of the House of Lords or Supreme Court that, in the style of the Supreme Court’s hearsay decision in R v Horncastle,1 might make a determined effort to engage with issues of principle and integrate comparative perspectives. Rationales for the privilege against self-incrimination may be epistemic, premised on the prevention of false self-incrimination, or non-epistemic, premised on the prevention of ‘cruel’ or otherwise unacceptable self-­ incrimination. Debate on the proper scope of suggested non-epistemic rationales for the privilege has long been a feature of academic scholarship on the privilege. Equally, there is little agreement on the extent to which legal systems currently accommodate non-epistemic rationales for the privilege, or indeed on the extent to which they should do so. Where an individual who is potentially entitled to claim the privilege is neither a defendant nor a suspect, the rationales for the privilege may apply with even less force. ‘It seems unlikely’, as Roberts and Zuckerman have observed, ‘that the law would ever 1   R v Horncastle [2009] UKSC 14, [2010] 2 AC 373. See generally AL-T Choo, ‘Criminal Hearsay in England and Wales: Pragmatism, Comparativism, and Human Rights’ (2013) 17 Canadian Criminal Law Review 227.

114  Concluding Thoughts have extended the testimonial privilege to a mere witness if it had not already afforded a privilege against self-incrimination to suspects and the accused’.2 Logically, ‘[t]he first question which arises in an individual case . . . is not whether [any relevant] statutory exceptions to the principle against selfincrimination properly apply, but whether the principle itself is engaged at all’.3 A self-incriminating answer provided in response to a question clearly engages the privilege, but beyond this the question of precisely what ‘information’ is covered by the privilege remains unclear, with little agreement across jurisdictions as to the scope of the privilege in this respect. The European Court of Human Rights4 and the Court of Appeal of England and Wales5 have hinted at the idea that the privilege may apply only to material considered in itself incriminating rather than merely ‘neutral’, but the Trial Chamber of the ICTY in Prosecutor v Delalic6 expressly disassociated itself from such a view. Furthermore, we have seen, for example, that, in comparison with Canada, New Zealand appears to place far more into the category of material that the privilege definitely does not cover. Logically, the view that one takes of what constitutes ‘information’ for the purpose of the privilege should depend on one’s conception of the rationale(s) for the privilege. It is possible to view the New Zealand approach, which rules out the applicability of the privilege to any pre-existing material, as being focused exclusively on epistemic concerns. The result that the US Supreme Court reached in US v Hubbell,7 if not the Court’s reasoning, is explicable on a similar basis. In reaching its conclusions in Funke v France8 and JB v Switzerland 9 that the privilege attached to pre-existing documents which had been specified with relative precision in official demands for their production, the Strasbourg Court implicitly relied on non-epistemic justifications for the privilege, albeit without explicit elucidation. The court having determined that the privilege is engaged (or applicable) on the facts of the case, its next step then is to examine the fate of any statutory provisions designed to abrogate the privilege. Here there are, pursuant to the jurisprudence of the European Court of Human Rights, one of two limbs to consider. Consideration of the first limb arises in the event of an individual’s refusal to provide information that might be used against him or her in a future prosecution in respect of which he or she might currently be considered to be sufficiently in peril. If he or she were to be prosecuted for 2   P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 311. 3   R v S(F) [2008] EWCA Crim 2177, [2009] 1 WLR 1489 [18] (Lord Judge CJ). 4   Jalloh v Germany (2006) 44 EHRR 32. 5   R v S(F) [2008] EWCA Crim 2177, [2009] 1 WLR 1489. 6   Prosecutor v Delalic (Trial Chamber of the ICTY, 19 January 1998). 7   US v Hubbell 530 US 27 (2000). 8   Funke v France (1993) 16 EHRR 297. 9   JB v Switzerland App no 31827/96 (ECtHR, 3 May 2001).



Concluding Thoughts  115

the refusal, under the legislative provision criminalising such refusal, would this prosecution be unfair? Consideration of the second limb arises where self-incriminating information has been successfully compelled and it is sought to use this in evidence in support of a subsequent prosecution. Would this prosecution be unfair? R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd 10 and R v S(F) 11 illustrate the apparent lack of enthusiasm on the part of the courts of England and Wales for the first limb. This ambivalence is ironic given that immunity from providing the information is at the very core of the protection afforded by the privilege. Such immunity is a direct and immediate implication of the privilege. The courts’ marginalisation of the privilege not to respond suggests a reluctance on their part to endorse protection of the privilege per se, implicitly encouraging instead a situation in which, notwithstanding the privilege, the information is provided, with reliance then being placed on the possibility of trial judges’ use of the discretion to exclude improperly obtained evidence, available under section 78(1) of the Police and Criminal Evidence Act 1984, to exclude evidence of the compelled information.12 In short, the reasoning appears to be: why not let the respondent provide the information, because any unfairness can in any event be taken into account in the way in which the information is then dealt with? This, of course, is a convenient strategy in view of the latitude that section 78(1) invests in trial judges, reducing any pressure on the appellate courts to formulate finely nuanced principles for application in particular cases. A crucial and controversial question then arises. Assuming the privilege to be engaged, but abrogated by a statutory provision, must a finding that the article 6(1) right to a fair trial has been violated automatically follow? In other words, would a prosecution for refusing to provide the information (limb one), or a prosecution in which information provided is used (limb two), automatically be unfair? The answer, in the light of recent Strasbourg and domestic jurisprudence, would appear to be ‘No’. As chapter four above demonstrated, it has been held to be quite acceptable for courts to take countervailing considerations into account and to engage in a balancing process to determine whether article 6(1) has ultimately been violated. Unfortunately, the courts have not always been careful or consistent in their articulations of precisely how such a process is to be undertaken. The case law is essentially reactive, lacking in analytical rigour and not providing much helpful guidance 10   R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412 (HL). 11   R v S(F) [2008] EWCA Crim 2177, [2009] 1 WLR 1489. 12   See, eg, R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412 (HL) 421 (Lord Hoffmann): ‘Nor does the obligation to give the information prejudice the fairness of a possible trial, since the accused would still have the protection of section 78 of the Act of 1984’.

116  Concluding Thoughts for trial judges in future cases. Such an approach is by no means unique to the jurisprudence of the European Court of Human Rights or the courts of England and Wales. We saw that the Canadian courts adopt a similar balancing approach to applying the privilege in particular cases. A consequence of accepting that, ultimately, it is all a matter of balancing is that other questions such as what the privilege might cover in the first place assume somewhat less importance. Does it really matter what the precise scope and content of the privilege are – the courts might reason to themselves – if there is ultimately a balancing test to be applied? Indeed, courts might choose to accord the privilege the widest scope possible, thereby appearing to take it seriously, but safe in the knowledge that this does not necessarily mean that they must subsequently find an article 6(1) violation. It might be possible, for example, to declare that the privilege covers the widest range of pre-existing material, only then to allow the privilege potentially to be ‘balanced away’. This is the approach taken in Canada. Equally, it might be tempting not to become unduly concerned about making a correct determination of whether an individual was, at the relevant time, ‘charged with a criminal offence’ in the autonomous sense, and to assume that he or she was so charged, as such a finding would not ultimately be crucial. In R v Kearns,13 as we saw in chapter four, the Court of Appeal determined that, even if, contrary to its view, the privilege were to be considered to be engaged on the facts of the case, the same conclusion that there was no violation of article 6(1) would be reached following a process of balancing. It becomes all too easy for courts to become tempted to rely on the balancing process as a substitute for proper analysis of considerations pertaining to the privilege per se. Indeed, as the judgment of the Grand Chamber of the European Court of Human Rights in O’Halloran and Francis v UK14 and the decision of the Supreme Court of Canada in R v SAB15 demonstrate, consideration of ‘first principles’ – such as the extent of any risk of false self-incrimination – can feature as part of the balancing process. While this book has treated instances of legal compulsion to provide potentially self-incriminatory information as representing the core of the privilege against self-incrimination, these must be considered alongside situations in which an individual might perceive indirect compulsion to provide such information. Chapter five examined a number of such ‘indirect’ abrogations of the privilege against self-incrimination. Another ‘implied’ right in article 6, the right to silence, pursuant to which no inferences should be drawn from a suspect’s or defendant’s failure to provide information, has 13   R v Kearns [2002] EWCA Crim 748, [2002] 1 WLR 2815. See also, very recently, Beghal v Director of Public Prosecutions [2013] EWHC 2573 (Admin). 14   O’Halloran and Francis v United Kingdom (2007) 46 EHRR 21. 15   R v SAB 2003 SCC 60, [2003] 2 SCR 678.

Concluding Thoughts  117



been eroded by a complex body of statutory provisions permitting such inferences to be drawn in certain circumstances. To varying degrees, these provisions may be considered to constitute indirect compulsion to speak. Indeed, the circumstances may be such that a person may well regard the possibility of adverse inferences being drawn from his or her refusal to provide information as constituting a more serious sanction than the possibility of a ‘mere’ criminal conviction for such refusal. Occasionally, too, the privilege against self-incrimination has reared its head in situations in which its deployment might not have been entirely expected. An example is provided by the decision of the House of Lords in R v Mushtaq.16 In a similar vein, whilst the key concern of the privilege may be with compulsion to co-­operate rather than with the use of force, the Grand Chamber of the European Court of Human Rights held in Jalloh v Germany,17 somewhat redundantly, that the use of a particularly severe form of force may engage the privilege even if the facts simultaneously justify a finding that article 3 (freedom from inhuman or degrading treatment) has been violated. On occasion, therefore, invocations of the privilege may appear to be driven by a perceived need to provide justification for a finding that particular action is unacceptable, or to reinforce such a finding. The privilege against self-incrimination provides a convenient label with which to do so. A recurrent theme of this book has been that, even in situations involving the core concern of the privilege (compulsion to provide potentially selfincriminatory information on pain of a criminal sanction), the Strasbourg Court’s jurisprudence lacks analytical rigour. The Court has effectively ‘reverse-engineered’ the privilege from the general right to a fair trial without really confronting the threshold question of why compelled selfincrimination is inherently objectionable. The case law portrays the privilege as a funda­mental human right and attempts to offer justifications for it. When analysed, however, the justifications for the privilege as offered appear superficial, consisting of generalised statements about the inappropriateness of gather­ing criminal evidence through coercion or oppression in defiance of the will of the suspect. It is perhaps unsurprising that an implied right such as the privilege against self-incrimination does not, in reality, afford as much protection as the Strasbourg Court’s rhetoric might imply. In recent times, even the express right guaranteed by article 6(3)(d) to a person charged with a criminal offence ‘to examine or have examined witnesses against him’ has come to be interpreted by the Court in a flexible manner.18 It might be   R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513.   Jalloh v Germany (2006) 44 EHRR 32.   See the judgment of the Grand Chamber of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom (2011) 54 EHRR 23 and, generally, AL-T Choo, ‘Criminal Hearsay in England and Wales: Pragmatism, Comparativism, and Human Rights’ (2013) 17 Canadian Criminal Law Review 227. 16 17 18

118  Concluding Thoughts considered paradoxical if an implied right in article 6 were to provide more robust protection than an express one. The (perhaps deliberately) imprecise nature of the privilege has allowed the Strasbourg Court to exploit the concept of self-incrimination as a fundamental human right as expediency dictates. Summers argues that the Court ‘has chosen to rely on the privilege against self-incrimination rather than afford the defence a true adversarial role in the investigation phase’19 such that ‘[t]here is a danger . . . that the importance of the privilege against selfincrimination is exaggerated precisely in order to obscure the deficiencies of the institutional position of the defence during the investigative phases of the proceedings’.20 Jackson considers that ‘the conclusion reached in [Allan v UK21] might be justified not so much because the authorities violated the privilege against self-incrimination but more because the suspect was not afforded the institutional safeguards designed to facilitate his informed participation in the criminal process’.22 It is obviously unsatisfactory if, as seems to be the case, the privilege is effectively being deployed, ex post facto, as partial compensation for inadequately regulated evidence-gathering. What place ought there, then, to be for a privilege which does not appear to have firm theoretical foundations and which can appear to be a device deployed by courts when it is convenient for them to do so? Of course, ‘the absence of a satisfactory theoretical basis for the privilege would by no means establish that it should be abolished’.23 To assess how much the privilege might actually contribute to the criminal justice system, let us engage in the following exercise. Suppose that, notwithstanding the absence of convincing non-epistemic justifications for the privilege against selfincrimination, we were to accord the privilege the widest scope possible, accepting that it applies to information of any type at all, whether ‘preexisting’ or not. Suppose further that, as recommended in chapter four above, we were to abandon the flexible balancing exercise that is currently the hallmark of determinations of whether a finding that the privilege is engaged should lead ultimately to a holding that article 6(1) has been violated. We might, in pursuance of the objective of adopting a bolder approach to such determinations, consider declining to give effect to the privilege only in cases analogous to O’Halloran and Francis v UK – that is, where, broadly speaking, the primary concern of the legislation that abrogated the privilege 19   SJ Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Oxford, Hart Publishing, 2007) 155. 20   ibid 163. 21   Allan v United Kingdom (2002) 36 EHRR 12. 22   JD Jackson, ‘Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 142. 23   D Dolinko, ‘Is There a Rationale for the Privilege against Self-Incrimination?’ (1986) 33 UCLA Law Review 1063, 1147.



Concluding Thoughts  119

appears to have been with individuals who voluntarily embarked on some lawful activity that presented a serious risk to public health and safety. Only if such a scenario was involved could a court hold that the privilege was ‘overridden’ (although, even then, it would need to exercise very considerable caution before so holding). What would be the practical consequence of adopting these strategies? The answer would appear to be: very little. In the considerable number of situations in which ‘use immunity’ is now available (and in which, as recommended in chapter two above, ‘derivative-use immunity’ should also be available), the privilege would by definition be inapplicable. This then leaves only those situations in which legislation does not grant use immunity. Here, the privilege will be engaged, but there may be circumstances in which, along the lines suggested above, it will properly be considered to be overridden. Again, the fact that the privilege might make only a modest contribution does not necessarily imply that it should be abolished. On the contrary, one might argue that it points to the conclusion that the privilege should, along the lines of the hypothetical exercise above, be accorded the widest scope possible. The criminal justice system would then be seen to be taking seriously (or at least as seriously as possible) a right that its rhetoric insists is a fundamental one. It would be doing so without substantially compromis­ing the public interest in bringing offenders to conviction. Be that all as it may, perhaps the key point to be derived from the preceding analyses is this: It is misguided to expect the privilege to perform a major role in regulating pre-trial criminal process. As a mechanism for regulating evidence-gathering in criminal investigations, the privilege against selfincrimination is flanked by substantive rights in the European Convention on Human Rights, notably the (qualified) right to privacy guaranteed by article 8 and the (absolute) right to freedom from torture and inhuman or degrading treatment guaranteed by article 3. These are unarguably import­ ant protections for (amongst others) suspects in criminal proceedings. What is required now is more careful, contextual evaluation of the types of information which might justifiably be demanded from suspects on pain of criminal sanction for non-compliance.24 In precisely what circumstances should this be permitted? How severe can the sanctions for non-compliance be? What protections should be available? How should the relevant procedures be regulated? As Sedley writes: [P]recisely because obligatory answers necessarily involve an invasion of auto­ nomy, there has to be a cogent case for each such measure. And because there is already an element of oppression in the mere compulsion to answer, strong protections (of a kind now familiar from Code C to the Police and Criminal Evidence 24   See, to similar effect, LM Seidman, Silence and Freedom (Stanford, CA, Stanford University Press, 2007) 116.

120  Concluding Thoughts Act 1984) are necessary to ensure that the dignity of the individual is not further compromised.25

The existence of robust pre-trial regulation would enable courts to get on with the job of assessing the fairness of ‘trials’ – whether these be prosecutions launched on the basis of failure to provide information, or on the basis of compelled information – in the round, while deflecting the criticism that they are failing to define with greater precision the scope and content of the privilege against self-incrimination.26 To the extent that dedicated pre-trial protections are in place, and are routinely supervised and enforced, perhaps not much would be lost if the status of the privilege against self-incrimination as an implied right were abandoned altogether or at least downplayed. Zuckerman argued in 1986 that ‘[w]hat the suspect needs is not a lofty and impractical right [against self-incrimination] but a meaningful and effective protection from abuse and distortion’.27 Almost three decades later, this remains entirely true.

25   S Sedley, ‘Wringing Out the Fault: Self-Incrimination in the 21st Century’ (2001) 52 Northern Ireland Legal Quarterly 107, 125. See also S Sedley, Ashes and Sparks: Essays on Law and Justice (Cambridge, Cambridge University Press, 2011) 119. 26   cf CM Bradley, ‘The Emerging International Consensus as to Criminal Procedure Rules’ (1993) 14 Michigan Journal of International Law 171 (arguing that robust pre-trial regulation justifies more flexible supervision of criminal investigations by trial judges). 27   AAS Zuckerman, ‘The Right against Self-Incrimination: An Obstacle to the Supervision of Interrogation’ (1986) 102 Law Quarterly Review 43, 70.

Appendix 1 The following are extracts from examples of legislative provisions that preserve the privilege against self-incrimination. Weights and Measures Act 1985, section 81 (1)  Any person who – (a) wilfully fails to comply with any requirement properly made of him by an inspector under section 38, 39 or 40 above, or (b) without reasonable cause fails to give to any inspector acting in pursuance of this Act any other assistance or information which the inspector may reasonably require of him for the purposes of the performance by the inspector of his functions under Part II, III, IV or VI of this Act or under this Part of this Act, shall be guilty of an offence. (2) . . . (3) Nothing in this section shall be construed as requiring a person to answer any question or give any information if to do so might incriminate him. (4) . . . Property Misdescriptions Act 1991, schedule 1 Paragraph 5 (1) A person who – (a) intentionally obstructs an officer of an enforcement authority acting in pursuance of this Schedule, (b) without reasonable excuse fails to comply with a requirement made of him by such an officer under paragraph 3(1) above, or (c) without reasonable excuse fails to give an officer of an enforcement authority acting in pursuance of this Schedule any other assistance or information which the officer may reasonably require of him for the purpose of the performance of the officer’s functions under this Schedule, shall be guilty of an offence.

122  Appendix 1 (2) . . . (3) . . . (4) . . . Paragraph 8 Nothing in this Schedule requires a person to answer any question or give any information if to do so might incriminate him. Data Protection Act 1998, schedule 7, paragraph 11 (1) A person need not comply with any request or order under section 7 to the extent that compliance would, by revealing evidence of the commission of any offence, other than an offence under this Act or an offence within sub-paragraph (1A), expose him to proceedings for that offence. (1A) The offences mentioned in sub-paragraph (1) are – (a) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath), (b) . . ., or (c) . . . (2) . . . Consumer Protection from Unfair Trading Regulations (SI 2008/1277), regulation 23 (1) Any person who – (a) intentionally obstructs an officer of an enforcement authority acting in pursuance of these Regulations, (b) intentionally fails to comply with any requirement properly made of him by such an officer under regulation 21, or (c) without reasonable cause fails to give such an officer any other assistance or information which he may reasonably require of him for the purpose of the performance of his functions under these Regulations, is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale. (2) . . . (3) Nothing in this regulation shall be construed as requiring a person to answer any question or give any information if to do so might incriminate him.

Appendix 1  123



Textile Products (Labelling and Fibre Composition) Regulations (SI 2012/1102), regulation 16 (1) Any person who – (a) intentionally obstructs an officer of an enforcement authority acting in pursuance of the EU Regulation or these Regulations, (b) intentionally fails to comply with any requirement properly made of him by such an officer under regulation 13, or (c) without reasonable cause fails to give such an officer any other assistance or information which he may reasonably require of him for the purpose of the performance of his functions under the EU Regulation or these Regulations, is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale. (2) . . . (3) Nothing in this regulation is to be construed as requiring a person to answer any question or give any information if to do so might incriminate him.

Appendix 2 The following are extracts from examples of legislative provisions granting ‘use immunity’ in respect of compelled information. Employment Agencies Act 1973, section 9 (2A) Subject to subsection (2B), a statement made by a person in compliance with a requirement under this section may be used in evidence against him in criminal proceedings. (2B) Except in proceedings for an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath), no evidence relating to the statement may be adduced, and no question relating to it may be asked, by or on behalf of the prosecution unless – (a) evidence relating to it is adduced, or (b) a question relating to it is asked, by or on behalf of the person who made the statement. Companies Act 1985, section 434 (5) An answer given by a person to a question put to him in exercise of powers conferred by this section . . . may be used in evidence against him. (5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies – (a) no evidence relating to the answer may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (5B) Subsection (5A) applies to any offence other than – (a) an offence under section 2 or 5 of the Perjury Act 1911 (false state­ ments made on oath otherwise than in judicial proceedings or made otherwise than on oath); or (b) . . .; or (c) . . .

Appendix 2  125



Companies Act 1985, section 447A (1) A statement made by a person in compliance with a requirement under section 447 may be used in evidence against him. (2) But in criminal proceedings in which the person is charged with a rele­ vant offence – (a) no evidence relating to the statement may be adduced by or on behalf of the prosecution, and (b) no question relating to it may be asked by or on behalf of the prosecution, unless evidence relating to it is adduced or a question relating to it is asked in the proceedings by or on behalf of that person. (3) A relevant offence is any offence other than the following – (a) an offence under section 451, (b) an offence under section 5 of the Perjury Act 1911 (false statement made otherwise than on oath), or (c) . . ., or (d) . . . Insolvency Act 1986, section 433 (1) In any proceedings (whether or not under this Act) – (a) a statement of affairs prepared for the purposes of any provision of this Act which is derived from the Insolvency Act 1985, (aa) a statement made in pursuance of a requirement imposed by or under Part 2 of the Banking Act 2009 (bank insolvency), (ab) a statement made in pursuance of a requirement imposed by or under Part 3 of that Act (bank administration), and (b) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act, may be used in evidence against any person making or concurring in making the statement. (2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies – (a) no evidence relating to the statement may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

126  Appendix 2 (3) Subsection (2) applies to any offence other than – (a) an offence under section 22(6), 47(6), 48(8), 66(6), 67(8), 95(8), 98(6), 99(3)(a), 131(7), 192(2), 208(1)(a) or (d) or (2), 210, 235(5), 353(1), 354(1)(b) or (3) or 356(1) or (2)(a) or (b) or paragraph 4(3) (a) of Schedule 7; (b) an offence which is – (i) created by rules made under this Act, and (ii) designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State; (c) an offence which is – (i) created by regulations made under any such rules, and (ii) designated for the purposes of this subsection by such regulations; (d) an offence under section 1, 2 or 5 of the Perjury Act 1911 (false statements made on oath or made otherwise than on oath); or (e) . . . Company Directors Disqualification Act 1986, section 20 (1) In any proceedings (whether or not under this Act), any statement made in pursuance of a requirement imposed by or under sections 6 to 10, 15 or 19(c) of, or Schedule 1 to, this Act, or by or under rules made for the purposes of this Act under the Insolvency Act 1986, may be used in evidence against any person making or concurring in making the statement. (2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies – (a) no evidence relating to the statement may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (3) Subsection (2) applies to any offence other than – (a) an offence which is – (i) created by rules made for the purposes of this Act under the Insolvency Act 1986, and (ii) designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;

Appendix 2  127



(b) an offence which is – (i) created by regulations made under any such rules, and (ii) designated for the purposes of this subsection by such regulations; (c) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or (d) . . . Building Societies Act 1986, section 57 (5) An answer given by a person to a question put to him under the foregoing provisions of this section may be used in evidence against him. (5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies – (a) no evidence relating to the answer may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (5B) Subsection (5A) above applies to any offence other than – (a) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); (b) . . .; or (c) . . . Criminal Justice Act 1987, section 2 (8) A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him – (a) on a prosecution for an offence under subsection (14) below; or (b) on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it. (8AA) However, the statement may not be used against that person by virtue of paragraph (b) of subsection (8) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution. ... (14) A person who, in purported compliance with a requirement under this section –

128  Appendix 2 (a) makes a statement which he knows to be false or misleading in a material particular; or (b) recklessly makes a statement which is false or misleading in a material particular, shall be guilty of an offence. Companies Act 1989, section 83 (6) A statement by a person in compliance with a requirement imposed under this section may be used in evidence against him. (6A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies – (a) no evidence relating to the statement may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (6B) Subsection (6A) applies to any offence other than – (a) an offence under section 85; (b) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); (c) . . .; or (d) . . . Competition Act 1998, section 30A A statement made by a person in response to a requirement imposed by virtue of any of sections 26 to 28A may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings – (a) in giving evidence, he makes a statement inconsistent with it, and (b) evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf. Financial Services and Markets Act 2000, section 174 (1) A statement made to an investigator by a person in compliance with an information requirement is admissible in evidence in any proceedings, so long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question.

Appendix 2  129



(2) But in criminal proceedings in which that person is charged with an offence to which this subsection applies or in proceedings in relation to action to be taken against that person under section 123 – (a) no evidence relating to the statement may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution or (as the case may be) a regulator, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (3) Subsection (2) applies to any offence other than one – (a) under section 177(4) or 398; (b) under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); (c) . . .; or (d) . . . Terrorism Act 2000, schedule 5 Paragraph 13 (4) A statement by a person in response to a requirement imposed by an order under this paragraph – (a) . . . (b) may be used in evidence against him only on a prosecution for an offence under paragraph 14. Paragraph 14 (1) A person commits an offence if, in purported compliance with an order under paragraph 13, he – (a) makes a statement which he knows to be false or misleading in a material particular, or (b) recklessly makes a statement which is false or misleading in a material particular. Proceeds of Crime Act 2002, schedule 6, paragraph 2 (3) An answer given by a person in pursuance of . . . a requirement [to answer a question] may not be used in evidence against him in criminal proceedings. (4) Sub-paragraph (3) does not apply – (a) on a prosecution for an offence under section 5 of the Perjury Act 1911 . . . or

130  Appendix 2 (b) on a prosecution for some other offence where, in giving evidence, he makes a statement inconsistent with it. (5) But an answer may not be used by virtue of sub-paragraph (4)(b) against a person unless – (a) evidence relating to it is adduced, or (b) a question relating to it is asked, by him or on his behalf in the proceedings arising out of the prosecution. Nationality, Immigration and Asylum Act 2002, section 139 (1) Information provided by a person pursuant to a requirement under section 134 or 135 shall not be admissible in evidence in criminal proceedings against that person. (2) This section shall not apply to proceedings for an offence [of failing, without reasonable excuse, to provide the Secretary of State with the information specified in a notice: section 137]. Companies (Audit, Investigations and Community Enterprise) Act 2004, schedule 7, paragraph 3 (1) A statement made by a person in compliance with a requirement imposed under paragraph 1 may be used in evidence against the person. (2) But in criminal proceedings – (a) no evidence relating to the statement may be adduced by or on behalf of the prosecution, and (b) no question relating to it may be asked by or on behalf of the prosecution, unless evidence relating to it is adduced or a question relating to it is asked in the proceedings by or on behalf of that person. (3) However, sub-paragraph (2) does not apply to proceedings in which a person is charged with – (a) an offence under paragraph 5 below (false information), or (b) an offence under section 5 of the Perjury Act 1911 . . . (false statement made otherwise than on oath).

Appendix 3 The documents required to be produced in US v Hubbell,1 listed in an Appendix2 to the Supreme Court’s opinion, were as follows: ‘A. Any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to Webster Hubbell, his wife, or children from January 1, 1993 to the present, including but not limited to the identity of employers or clients of legal or any other type of work. B. Any and all documents reflecting, referring, or relating to any direct or indirect sources of money of other things of value received by or provided to Webster Hubbell, his wife, or children from January 1, 1993 to the present, including but not limited to billing memoranda, draft statements, bills, final statements, and/or bills for work performed or time billed from January 1, 1993 to the present. C. Copies of all bank records of Webster Hubbell, his wife, or children for all accounts from January 1, 1993 to the present, including but not limited to all statements, registers and ledgers, cancelled checks, deposit items, and wire transfers. D. Any and all documents reflecting, referring, or relating to time worked or billed by Webster Hubbell from January 1, 1993 to the present, including but not limited to original time sheets, books, notes, papers, and/or computer records. E. Any and all documents reflecting, referring, or relating to expenses incurred by and/or disbursements of money by Webster Hubbell during the course of any work performed or to be performed by Mr Hubbell from January 1, 1993 to the present. F. Any and all documents reflecting, referring, or relating to Webster Hubbell’s schedule of activities, including but not limited to any and all calendars, day-timers, time books, appointment books, diaries, records of reverse telephone toll calls, credit card calls, telephone message slips, logs, other telephone records, minutes, databases, electronic mail messages, travel records, itineraries, tickets for transportation of any kind, payments, bills, expense backup documentation, schedules, and/or any other document or database that would disclose Webster Hubbell’s activities from January 1, 1993 to the present.   US v Hubbell 530 US 27 (2000).   ibid 46–49.

1 2

132  Appendix 3 G. Any and all documents reflecting, referring, or relating to any retainer agreements or contracts for employment of Webster Hubbell, his wife, or his children from January 1, 1993 to the present. H. Any and all tax returns and tax return information, including but not limited to all W-2s, form 1099s, schedules, draft returns, work papers, and backup documents filed, created or held by or on behalf of Webster Hubbell, his wife, his children, and/or any business in which he, his wife, or his children holds or has held an interest, for the tax years 1993 to the present. I. Any and all documents reflecting, referring, or relating to work performed or to be performed [for] or on behalf of the City of Los Angeles, California, the Los Angeles Department of Airports or any other Los Angeles municipal Governmental entity, Mary Leslie, and/or Alan S Arkatov, including but not limited to correspondence, retainer agreements, contracts, time sheets, appointment calendars, activity calendars, diaries, billing statements, billing memoranda, telephone records, telephone message slips, telephone credit card statements, itineraries, tickets for transportation, payment records, expense receipts, ledgers, check registers, notes, memoranda, electronic mail, bank deposit items, cashier’s checks, traveler’s checks, wire transfer records and/or other records of financial transactions. J. Any and all documents reflecting, referring, or relating to work performed or to be performed by Webster Hubbell, his wife, or his children on the recommendation, counsel or other influence of Mary Leslie and/ or Alan S Arkatov, including but not limited to correspondence, retainer agree­ments, contracts, time sheets, appointment calendars, activity calendars, diaries, billing statements, billing memoranda, telephone records, telephone message slips, telephone credit card statements, itineraries, tickets for transportation, payment records, expense receipts, ledgers, check registers, notes, memoranda, electronic mail, bank deposit items, cashier’s checks, traveler’s checks, wire transfer records and/or other records of financial transactions. K. Any and all documents related to work performed or to be performed for or on behalf of Lippo Ltd (formerly Public Finance (HK) Ltd), the Lippo Group, the Lippo Bank, Mochtar Riady, James Riady, Stephen Riady, John Luen Wai Lee, John Huang, Mark W Grobmyer, C Joseph Giroir, Jr, or any affiliate, subsidiary, or corporation owned or controlled by or related to the aforementioned entities or individuals, including but not limited to correspondence, retainer agreements, contracts, time sheets, appointment calendars, activity calendars, diaries, billing statements, billing memoranda, telephone records, telephone message slips, telephone credit card statements, itineraries, tickets for transportation,



Appendix 3  133 payment records, expense receipts, ledgers, check registers, notes, memoranda, electronic mail, bank deposit items, cashier’s checks, traveler’s checks, wire transfer records and/or other records of financial trans­ actions.’

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Index All cases, legislation and institutions cited refer to the law and institutions of England and Wales unless otherwise indicated. absolute privilege, 61, 62–63   Canada, 74    case law, 70–74    judicial discretion, 94–95   see also balancing; right to a fair trial abrogation, 15–16, 62, 79    absolute privilege, 62–63    adverse inferences from silence, 100–11   ECtHR, 114–15    human rights violations and, 21   indirect abrogation:     cautioning suspects, 89–90     judicial discretion, 90–95     police informants, 95–99     questioning suspects, 80–89     safety interviews, 99–100    statutory provision, 114–15    unfair prosecutions, 115–16 Allen, 52 applicability:    existence of relevant safeguards, 65    nature and degree of compulsion, 64–65    use to which information is put, 65    weight of public interest, 65 Ashworth, 69–70 Australia:   material covered:     ‘testimonial’/‘non-testimonial’ distinction, 56–57    restriction of privilege from companies, 20    ‘use immunity’, 36 balancing individual rights and societal interests, 66, 77, 78–79, 115–16    Canada, 74–78, 116     adversarial relationship between parties, 75      likelihood of abuse of power, 76      risk of unreliable confessions, 75      whether subjected to coercion, 75    case law, 70–74    excessive reliance on, 67    Hong Kong, 68–69    whether to give effect to privilege, 64   see also public interest

Barroso, 8 Bentham, 3, 6, 9 Blunt v Park Lane Hotel, Ltd, 13 Canada:    adverse inference from silence, 111    balancing considerations, 116     adversarial relationship between parties, 75      likelihood of abuse of power, 76      risk of unreliable confessions, 75      whether subjected to coercion, 75    compelled information, 39–40     derivative-use immunity, 36, 38      use immunity, 35–36, 38, 58   elicitation, 97    material covered, 114      products of the body, 58      products of the mind, 58    right to a fair trial, 58    right to silence, 111    scope, 58, 74   Supreme Court:     duty of co-operation, 12    use immunity, 35–36, 38, 58 cautioning suspects, 89–90 Civil Evidence Act 1968, 13 civil proceedings, 13 Companies Act 1985, 24, 78 compelled information, 39–40    case law, 47–48    derivative-use immunity, 36–38    epistemic justifications, 52    European Court of Human Rights, 44–45   India, 59    indirect compulsion, 116–17     inferences from silence, 100–11     questioning suspects, 80–100    International Criminal Tribunal for the Former Yugoslavia, 60–61    United States, 50–52, 54–55    ‘use immunity’, 34–35 compulsory self-incrimination, 1, 55    in court, 1    outside court, 1    United States, 7

150  Index confessions, 4, 42, 87   balancing:     Canada, 75    case law, 88–89    coerced-compliant false confessions, 5    coerced-internalised false confessions, 5    controls over admittance in court, 81–84    exclusion of confession evidence:     India, 94     judicial discretion, 90–91     Miranda warnings, 91–93     Trinidad and Tobago, 93–94    judicial discretion, 90–95    police informants, 95–96    Scots law, 86    voluntary false confessions, 5 Counter-Terrorism Act 2008, 101 courts:    importance of transparency, 40 Criminal Evidence Act 1898, 109 Criminal Justice Act 2003, 109 Criminal Justice and Public Order Act 1994, 101, 103, 106, 108 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, 86–87 Criminal Procedure (Scotland) Act 1995, 87 derivative-use immunity, 35–38 defiance of the will, 24–25, 117    European Court of Human Rights, 43–44    obtaining confessions, 84, 95–96    obtaining documents, 44 documents acquired pursuant to a warrant, 42    European Court of Human Rights:      obtaining materials in defiance of the will, 43    pre-existing materials, 43–44    use of force, 44 Dworkin, 3, 67 Employment Agencies Act 1973, 34 Environmental Protection Act 1990, 30, 32 epistemic justifications, 2, 3–5    compelling information, 52   physical evidence:     handwriting, 55     sobriety testing, 55–56     voice, 54–55    protection of the innocent, 3, 5    reliability of evidence, 3, 5, 53    wrongful conviction, 3 European Convention on Human Rights, 8–9, 20    being charged in an autonomous sense, 23    excessive use of force, 44–45    inhuman or degrading treatment, 8–9    legal advice, 84–86

   precedence of privilege, 62    protection of privacy, 9    right not to incriminate oneself, 24, 42    right to a fair trial, 20    right to defend oneself, 84–86    right to silence, 24 European Court of Human Rights:    approach to privilege, 21, 63–70    ECtHR case law, 63–70    compelled information, 44–45    defiance of the will, 43–44    influence on domestic courts, 21   introduction, 22–23   key judgments:     Funke v France, 23–24     Saunders v UK, 24–26 evidence:   handwriting, 55    regulated evidence-gathering, 118    reliability of evidence, 3, 5, 53    sobriety testing, 55–56   voice, 54–55 Evidence Act 2006 (NZ), 1, 19, 21, 57–58    definition of ‘self-incrimination’, 1 failure to provide accurate information, 40    case law, 30–33     administrative investigations, 31–32     criminal and administrative investigations distinguished, 31–33       financial investigations, 32     criminal investigations, 32     extrajudicial inquiries, 31–32   prosecutions, 27–33     ECtHR case law:       post-Funke v France, 27–30 Funke v France (ECtHR), 23–24    charges in the autonomous sense, 23    influence on courts of England and Wales, 23–24    pre-existing information, 43, 114    right to a fair trial, 23 general principles:   companies, 19     United States, 19    incrimination of spouses and civil partners, 15    influence of international human rights law, 20–21    no judicial discretion to withhold, 15–16    UK criminal law, 14–15    witnesses’ entitlement to privilege, 17     New Zealand, 18 Giannoulopoulos, 87 Glover, 79

Human Rights Act 1998, 20–21 inaccurate information, see failure to provide accurate information India:    Brain Electrical Activation Profile (BEAP) testing, 59    compelled information, 59    scope of privilege, 59 information, 21   Australia, 56–57   Canada, 58   definition, 42    ECtHR approach, 43–46    identification of documents covered, 52    incriminating information, 46, 49   India, 59    International Criminal Tribunal for the Former Yugoslavia, 60–61    neutral information, 46, 49    New Zealand, 57–58    pre-existing materials, 42–43      documents acquired pursuant to a warrant, 43      documents obtained in defiance of the will, 44     incriminating information, 46, 49     neutral information, 46, 49    United States, 50–56   see also failure to provide accurate information Insolvency Act 1986, 33, 46, 73–74 International Covenant on Civil and Political Rights, 20   International Criminal Tribunal for the Former Yugoslavia (ICTY):    compelled information, 60–61   handwriting, 60–61    neutral information, 60    testimonial evidence, 60 Jackson, 118 Jalloh v Germany (ECtHR), 8   balancing, 64    inhuman or degrading treatment, 44    right to a fair trial, 63–64    use of force, 44–45, 117 judicial discretion:   abrogation, 90–95    absolute privilege, 94–95    determining value of confessions, 90    exclusion of confession evidence, 91    no judicial discretion to withhold, 15–16    public interest, 68 jurisdictional inconsistencies, 113, 117–18 legal advice, access to, 84–89   breach, 88

Index  151    case law, 88–89    exclusion of evidence, 88    Police and Criminal Evidence Act 1984, 87   Scotland, 86–87 legal frameworks:    common law of England and Wales, 113     duty of co-operation, 12–13     general immunities, 11     general principles, 13–21     right to silence, 11    civil proceedings, 13–14    Civil Evidence Act 1968, 13   see also Evidence Act 2006 (NZ); Police and Criminal Evidence Act 1984 legal recognition:   origins, 2   rationales, 2 legislative intent, 62    precedence of privilege, 62 Mace, 52 McCrudden, 7–8 miscarriages of justice, 3, 25    absolute privilege, 95    collection and use of forensic evidence, 77    epistemic considerations, 3    protection of the innocent, 3, 25, 78–79    unreliable confessions, 81 Motor Vehicle Act 1979 (British Columbia, CA), 39 New Zealand, 18    Evidence Act 2006, 21     definition of ‘self-incrimination’, 1     information, 57     scope, 57    material covered, 57–58, 114    witnesses’ entitlement to privilege, 18 non-epistemic justifications, 2    affront to human dignity, 6, 8    criticisms of, 8, 9    moral integrity of criminal justice system, 7    politico-moral judgments, 6    respect for personal autonomy, 8   variation, 6 Pardo, 52 Phillips v News Group Newspapers Ltd, 16 Police and Criminal Evidence Act 1984, 34, 37–38, 47, 50, 72, 115    confession evidence, 81, 88    right to legal advice, 87 police informants, 95–98 pre-existing materials:    case law, 46–50    documents acquired pursuant to a warrant, 43–44    incriminating information, 46, 49, 114

152  Index pre-existing materials (cont):    neutral information, 46, 49, 114   see also information presumption of innocence, 25 privilege as an international standard, 24 protection of the innocent:    epistemic justifications, 3, 5, 25    miscarriages of justice, 3, 25, 78–79 public interest:    decision to give effect to privilege, 63, 64    judicial discretion, 68 questioning:    access to legal advice, 84–89    mandatory exclusion of evidence:     obtained using oppression, 82    unreliable confession evidence, 81 R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd:    compelled information, 30, 32, 34, 37, 115 rationales for current support of privilege, 2, 113    epistemic justifications, 2, 3–5      protection of the innocent, 3, 5      reliability of evidence, 3, 5, 53     wrongful conviction, 3    non-epistemic justifications, 2      affront to human dignity, 6, 8     criticisms of, 8, 9      moral integrity of criminal justice system, 7     politico-moral judgments, 6      respect for personal autonomy, 8     variation, 6 Redmayne, 44 Regulation of Investigatory Powers Act 2000, 48 Report of the Runciman Royal Commission on Criminal Justice 1993, 94–95 right to a fair trial:    absolute privilege and, 63–64, 70–71   Canada, 58    Funke v France (ECtHR), 23–24    Jalloh v Germany (ECtHR), 63–64 right to silence, 11    adverse inferences, 100–01     Canada, 111      judge’s discretion to direct jury, 110     pre-trial silence, 101–08     silence at trial, 108–11     US, 110–11    failure to account for particular facts, 106–08      failure to make appropriate advance disclosure, 103–06    failure to mention facts later relied upon, 101–04   status, 24

Road Traffic Act 1988, 71 Roberts, 12, 78, 113–14 safety interviews, 99–100 Saunders v UK (ECtHR), 24–26   balancing, 78–79    compelled information, 34    defiance of will, 25    influence on courts of England and Wales, 24–26    miscarriages of justice, 25    pre-existing material, 42–43    presumption of innocence, 25    privilege as an international standard, 24    protection of the innocent, 25    status of the right to silence, 24 Scots law:    corroboration of confession evidence, 86–87 Sedley, 119 spouses, 13    incrimination of, 15 Summers, 118 United States:    compelled information, 50–52, 54–55   compulsion:     subpoena ad testificandum, 7     subpoena duces tecum, 54    exclusion of confession evidence:     Miranda warnings, 91–93   information, 50–56   physical evidence:     handwriting, 55     sobriety testing, 55–56     voice, 54–55    restriction of privilege from companies, 19    right to silence, 11     adverse inferences, 110–11    ‘use immunity’, 37 US v Hubbell (USA):    compulsory disclosure, 51    material covered, 52, 114    pre-existing documents, 51    reliability of evidence, 53 use immunity:    compelled information, 34–35    Employment Agencies Act 1973, 34–35 use of force, 44    documents acquired pursuant to a warrant, 44    inhuman or degrading treatment, 44–45 wrongful convictions, see miscarriages of justice Youth Justice and Criminal Evidence Act 1999, 34 Zuckerman, 12, 78, 113–14, 120