7 months ago


Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 81 The right to silence; and the right against self-incrimination: Article 6, European Convention on Human Rights The rationale for the right to silence and the right not to incriminate oneself includes protection of an accused against improper compulsion with a view to minimising the risk of a miscarriage of justice. Whether the risk of a miscarriage of justice has arisen will depend on all the facts. While the text of Article 6 does not specifically mention either the right to remain silent when being questioned by the police or the privilege against self-incrimination, these are ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’. 235 The assumption is that the prosecution proves its case without recourse to methods involving coercion or oppression. In particular, the right not to incriminate oneself is closely linked with the presumption of innocence and concerns respect for ‘the will of an accused person to remain silent’ (rather than use of compulsory powers to obtain real evidence, such as documents, breath, blood and urine samples and bodily tissue for the purposes of DNA testing). 236 ■ In Aleksandr Zaichenko v Russia, the applicant had only been informed of his right to remain silent after he had already made a self-incriminating statement even though it had been incumbent on the police to inform the applicant of the privilege against self-incrimination and his right to remain silent. In this instance, the Court held that the detriment the applicant suffered had not been remedied at the trial, and found that Article 6(1) had been violated. 237 ■ In Heaney and McGuinness v Ireland and Quinn v Ireland, the imposition of sanctions for failing to answer questions violated Article 6. The applicants had been arrested on suspicion of serious criminal charges and required under domestic law to answer questions put to them. Their refusal had led to each being convicted and sentenced to imprisonment for six months. The Court rejected the State’s argument that the domestic law in question was a proportionate response to the threat to public order posed by terrorism, considering that such concerns ‘cannot justify a provision which extinguishes the very essence of the applicants’ rights to silence and against self-incrimination’. 238 235 John Murray v the United Kingdom, judgment of 8 February 1996 at paragraph 45. 236 Saunders v the United Kingdom, judgment of 17 December 1996 at paragraph 69. 237 Aleksandr Zaichenko v Russia, judgment of 18 February 2010 at paragraphs 55-60. 238 Heaney and McGuinness v Ireland and Quinn v Ireland, judgments of 21 December 2000, at paragraphs 58 and 59 accordingly.

The European Convention on Human Rights and Policing Page 82 The use of statements obtained through deception, etc. can also give rise to questions as to whether the resultant evidence obtained can be fairly admitted in any subsequent trial. ■ In Allan v the United Kingdom, the applicant, who was suspected of involvement in a murder committed during a robbery, complained that the placing of a police informant in his cell for the specific purpose of eliciting from him information implicating him in the offences of which he was suspected violated Article 6. In finding that there had been a violation of fair hearing guarantees, the Court reiterated that the right to silence ‘serves in principle to protect the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police’. Thus ‘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’. In this case the Court was influenced in particular by the fact that the informant had been coached by the police and instructed to ‘push for what you can’, and therefore the informant could only be seen as an agent of the State who was de facto charged with interrogating the applicant. 239 Access to a lawyer The second fundamental concern in the questioning of suspects in police custody under Article 6 of the European Convention on Human Rights is access to a lawyer. A brief overview of CPT expectations helps explain recent developments in the case law of the Strasbourg Court, particularly in interpreting Article 6(3)(c) of the Convention. CPT Standards The protection of persons detained by the police on suspicion of having committed a criminal offence is of particular concern to the European Committee for the Prevention of Torture, the CPT. Its focus is upon prevention of ill-treatment; and to this end, it insists that as from the outset of detention, an individual should have the right to have the fact of detention notified to a third party; to be offered access to a lawyer; and to be accorded access to a doctor. These rights should be accorded any individual required to remain in detention, 239 Allan v the United Kingdom, judgment of 5 November 2002 at paragraphs 45-53.