Failure by the police to advise a suspect – now the accused - of his right to legal advice can result in exclusion of evidence against him. This exclusion might also extend to evidence of things found as a consequence of what he said. That, while exciting, is not the thing that interests jurists. They are interested in the basis for exclusion of that evidence.
Is the basis for exclusion the need to ensure a fair trial, or is it the need to uphold broader policies such as the need to maintain control over the conduct of agents of the state and to prevent the administration of justice being brought into disrepute?
Why does the difference between these bases for exclusion matter? Because a different form of decision process is appropriate to each. On the one hand, there are decisions that proceed by way of application of rules. In these, if the right has been breached, exclusion of the tainted evidence is an automatic consequence. On the other hand, there are decisions that involve a balancing of competing interests. In these, the seriousness of a breach of the right is weighed against the public interest in holding the accused responsible for the alleged wrongdoing, and the balance is determined by applying a criterion of proportionality: whether exclusion of the tainted evidence would be a proportionate response by the court to the seriousness of the breach in this case.
The right to a fair trial is an absolute right, and it seems inapt to apply to it a decision process that involves balancing of competing interests. So it is necessary to know whether breach of the right gives rise to fair trial concerns, or to wider public policy concerns.
Cases noted here in previous blogs illustrate the different approaches. See the Index
, and in particular Carr v Western Australia (HCA,blogged 25 October 2007), R v Singh (SCC, 2 November 2007), and Gafgen v Germany (ECtHR, 3 July 2008).
In Salduz v Turkey  ECtHR 1542 (27 November 2008) the Grand Chamber addressed the consequences of a breach of this right (para 55):
This indicates some qualification on the need to give the suspect the information about his right to legal advice ("... as a rule ... unless ... compelling reasons to restrict this right"), and if the circumstances of the case are such that the right has been breached this means that there would be "in principle" irretrievable prejudice if the evidence is admitted. This comes close to a rule of exclusion. It would be a rule if the Court had said "The rights of the defence will, as a matter of principle be irretrievably prejudiced ...".
Supporting the view that the Court was not laying down a rule are the points made when the Court applies the "principles" to the present case (para 56 - 63). These are rather confusing as they include comments on matters the Court does not have to decide (58) and they refer to the applicant's youthfulness while also noting that the police procedure was being applied to everyone (60, 61). The Court focuses on how the breach of rights affected the applicant's trial (57, 58), in particular noting that the trial court treated the tainted statement as central evidence which other evidence in the case confirmed. This approach does not look like the application of a rule of exclusion.
If the decision process is not the application of a rule, it is not necessary to refer to breach of the right as going to the fairness of the trial. Policy fairness, not trial fairness, should be the context for the decision. However the Court, without defining trial fairness, considered that this breach did go to trial fairness.
I do not suggest that trial fairness is necessarily the wrong basis for the admissibility decision. A fair trial is one where the law is accurately applied to facts determined impartially. It could be argued that absence of legal advice might give rise to an unreliable statement, so that if the court relied on it that would skew the proceedings by causing partiality (giving improper weight to prosecution evidence). It could even be argued that such a statement would not be voluntary in the sense that the law requires, and that the use of such evidence would be of questionable reliability and would similarly render the trial partial.
The trouble with that view, focused as it is on the proper weight of the tainted evidence, is that questions of the weight of the evidence are usually for the tribunal of fact once the evidence is admissible. A coerced confession is not necessarily unreliable. Its rejection by the court is really a matter of public policy.
Courts in New Zealand tend to justify exclusion of evidence tainted by breach of the right to legal advice on unreliability grounds (see the cases mentioned in Fig 4 of my draft paper on improperly obtained evidence). Nevertheless, as that paper shows, the pattern of decisions follows that of decisions based on balancing of competing values. It seems to be a matter of the right results for the wrong reasons.