Human Rights, Serious Crime and Criminal Procedure - College of ...

Why bother with Rights when Public Safety is at risk?the State (in the form of police and prosecution) and thedefence. In most situations it is the police who hold the practicalpower over the suspect, 19 and without an array of proceduralprotections there is the danger that law enforcement agenciesmight take advantage of the weak position of suspects at a timethat is crucial to the construction of the case. Not all suspectsexercise their right to have a lawyer present; even if that right isexercised, there are always times at which there may be interactionbetween police and suspect without a lawyer being present;and even if a lawyer is present, he or she may have insufficientinformation on which to base sound advice, or may fail toprotect the client against unfair tactics. The result may be unfairpractices or unreliable evidence which might detract from theoverall goal of maximum accuracy.(v) Constraints on the pursuit of accuracyA fourth objection is that Bentham's system assigns no significanceat all to fairness considerations, for example, whetherevidence obtained in certain ways should be excluded from atrial, or whether it is fair to draw adverse inferences from asuspect's refusal to answer questions. Since much of the discussionin the remainder of the chapter is on this theme, I will saylittle more at this stage. But Bentham's view was strong:rectitude or accuracy should not give way to alleged considerationsof fairness, except in the extreme case of communicationsbetween priest and penitent, where he recognised that the priestshould not be compelled to testify to what was said.C. PROCESS VALUES ANDLEGITIMACYThis last objection to Bentham's view casts the spotlight back onthe idea of fairness. What is the kernel of this idea, and are theregood reasons for insisting on it? The answer to this question isthe main focus of the remaining parts of this lecture. For thepresent it is appropriate to consider what other values onemight expect criminal procedure to serve, besides maximumaccuracy of outcomes. The claims of four other values—publicparticipation; communication; upholding victims' rights; andupholding basic protections for defendants—may be consideredbriefly.(i) Public participationThe value of public participation lies in ensuring that criminaljustice is not administered purely by lawyers or officials, that it