Friday, November 02, 2007

A moment's silence

When a suspect held in police custody exercises his right to remain silent, does continued questioning amount to a breach of that right, and is a subsequent statement involuntary?

Two approaches to these issues are possible. First, a rule may be imposed making all police questioning unlawful once the suspect has exercised the right to silence. Secondly, further police questioning may be permitted, subject to a rule against cross-examination, with the ultimate criterion for admissibility being voluntariness.

The Supreme Court of Canada has chosen the latter alternative: R v Singh [2007] SCC 48 (1 November 2007), although only by a majority of 5-4. The majority held that the overriding consideration was the voluntariness of the challenged statement and that breach of the right to silence would prevent a conclusion that the statement had been made voluntarily. Whether the right to silence was breached depends on the balance to be struck, in the circumstances of each case, between the state’s interest in the effective investigation of crime, and the suspect’s “individual interests” in being protected from “the unfair use by the state of its superior resources” (para 45, citing R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151). Police persistence in questioning may raise the issue of voluntariness.

The minority in Singh held that the police should be required to respect the suspect’s exercise of the right to silence as it is a constitutional promise (para 97), and there is no evidence that this would hamper the police in the investigation of crime; but even assuming it would have that effect, a rule was preferable to reflect the importance of the right to silence (para 96). While acknowledging that the detainee may well change his mind over whether to exercise the right to silence, any such change must not be compelled by police persistence, which is what happened in this case (para 95).

This split over whether the facts of the case supported a doubt over the voluntariness of the statement shows how sensitive this balancing exercise is to elusive and personal judicial dispositions. It remains arguable that the more robust and predictable rule based approach is preferable where the issue is voluntariness.

In New Zealand there is currently a divergence in the Court of Appeal, between cases that seem to support a rule of no questioning after the suspect exercises the right to refuse to answer questions (R v Kai Ji [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (CA)), and cases where a balancing exercise seems to operate (R v Ormsby 8/4/05, CA493/04). The Chief Justice’s Practice Note on Police Questioning does not settle the issue, but it repeats the Judges’ Rule against cross-examination. Section 29 of the Evidence Act 2006 requires, without a balancing exercise, exclusion of statements “influenced by oppression” (which reflects the common law’s voluntariness rule), and in other respects leaves the matter of the propriety of police questioning to be determined by a balancing exercise under s 30. That provision applies, inter alia, to statements obtained in breach of the New Zealand Bill of Rights Act 1990. So, there is (Ormsby), or may be (Kai Ji) a balancing exercise under the Bill of Rights to determine whether there has been a breach of the right to silence, and, if there has, there is a balancing exercise (unless the rule against oppression applies) under s 30 to determine admissibility. In other words, balancing applies unless there is a reasonable doubt that the statement was influenced by oppression.

Apart from the accused’s right to a fair trial, which is an absolute right, balancing of other rights against each other and against other interests is well recognised. This is clear from the summary given by Lord Bingham in Procurator Fiscal (Scotland) v Brown [2000] UKPC D3 (5 December 2000), also called Brown v Stott:

“Effect has been given to the right not to incriminate oneself in a variety of different ways. The fifth amendment to the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself. The Indian Constitution (article 20(3)) provides that no person accused of any offence shall be compelled to be a witness against himself. The International Covenant on Civil and Political Rights 1966 provides in article 14(3)(g) that in determination of any criminal charge everyone shall be entitled to certain minimum guarantees, including a right not to be compelled to testify against himself or to confess guilt. The Canadian Charter of Rights and Freedoms confers on a person charged with an offence the right not to be compelled to be a witness in proceedings against himself in respect of that offence (section 11(c)). The New Zealand Bill of Rights Act 1990, in section 25(d), grants to everyone who is charged with an offence, in relation to the determination of the charge, certain minimum rights which include the right not to be compelled to be a witness or to confess guilt. The recently adopted constitution of South Africa grants rights to a suspect on arrest to remain silent and not to be compelled to make any confession or admission that could be used in evidence against him (section 35(1)(a) and (c)) and also a right to a fair trial, which includes rights to remain silent and not to testify during the proceedings and not to be compelled to give self-incriminating evidence (section 35(3)(h) and (j)). In contrast, the Universal Declaration of Human Rights 1948, in articles 10 and 11(1), grants a right to a fair trial in terms similar to the European Convention, but, like the Convention, contains no express guarantee of a privilege against self incrimination. Thus the right we have to consider in this case is an implied right. While it cannot be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied.

“The jurisprudence of the European Court very clearly establishes 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. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35, at paragraph 69 of the judgment; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR, 163, at paragraph 52 of the judgment.”

See also the discussion on this site of cases involving the right to silence: Em v R 4 October 2007; Carr v Western Australia 25 October 2007; R v Turcotte 5 October 2005; Tofilau v R 3 September 2007.

What is the point of having two balancing exercises, one determining whether there has been a breach of the right, and another to determine what are the admissibility consequences of any breach? The point is, from the perspective of criminal law and the admissibility of evidence, elusive, because in each balancing exercise the same matters weigh in favour of the public interest. If these public interest matters are outweighed by the suspect’s rights, then the next balancing exercise comes into play, and of course the suspect’s (now, the defendant’s) rights will again prevail. The public interest factors in each balancing exercise are, in terms like those stated by the majority in Singh, the community interest in effective investigation and prosecution of crime. Those interests will be expressed, by the time the case gets to trial, as the starting point for sentencing for the particular offence, if the defendant is convicted. In the end, there is no harm to the public interest in taking a more rigorous approach, without balancing, to determining whether there has been a breach of the right to silence, because the public interest will eventually be considered in the weighing exercise to determine the admissibility of the statement.

Also, if there are two balancing exercises, one at the investigatory stage and one at the trial stage, and if the investigation was carried out in circumstances of urgency where the public interest was high enough to outweigh the suspect’s right to silence, there would be no breach of his right; but if at his trial he faced a much less serious charge, carrying lower public interest factors, there would nevertheless be no breach of rights to weigh in favour of exclusion of his statement. This supports the inappropriateness of duplicating the balancing exercise, even where the public interest values change in weight.

In the different context where the question is whether the defendant committed an offence or was simply exercising his rights (see, for example, Brooker v R, blogged here 4 May 2007) the balancing exercise does have a purpose. The point in issue in such cases is whether the defendant breached another person’s rights, and the factors to be balanced are different from those discussed above. There is no two-tier balancing in cases like Brooker.

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