Rethinking the privilege against self-incrimination

Oxford Journal of Legal Studies

Volumn 27, Issue 2, 2007, Pages 209-232

  Redmayne, Mike ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 34547104400     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql001     Document Type: Article

References (176)

1. Children: Their Non-Accidental Death or Serious Injury (Criminal Trials) LC282 (2003) 3.5. Some of the Commission's proposals were adopted in the Domestic Violence, Crime and Victims Act 2004. Most significantly,s 5 creates an offence of allowing the death of a child.
2. United States Constitution, 5th Amendment; International Covenant on Civil and Political Rights, Art 14; Inter-American Convention on Human Rights, Art 8; Rome Statute of the International Criminal Court, Art 67(g). But cf. African Charter on Human and Peoples' Rights, Art 7; Arab Charter on Human Rights, Arts 6, 7.
3. Good critical accounts are D. Dolinko, 'Is there a Rationale for the Privilege Against Self-Incrimination?' (1986) 33 UCLA L Rev 1063
4. A.R. Amar, The Constitution and Criminal Procedure (1997) at ch 2
5. P. Roberts and A. Zuckerman, Criminal Evidence (2004) 408-26.
6. One recent analysis eschews any attempt to justify the privilege, opting instead for a purely descriptive - though nevertheless sophisticated - account: R.J. Allen and M.K. Mace, 'The Self-Incrimination Clause Explained and its Future Predicted' (2004) 94 J Crim L & Criminol 243.
7. Historical studies suggest that the scope and function of the privilege have shifted over time: R.H. Helmholz et al., The Privilege Against Self-Incrimination: Its Origin and Development (1997). While this flexibility may explain the privilege's longevity, the history does little to show why we should respect the privilege today.
8. Notably Brown v Stott [2003] 1 AC 681.
9. See also R v Kearns [2003] 1 Cr App R 7, [34]-[38].
10. The ECJ position is not discussed in this paper. Simply put, the court has adopted a very narrow view of 'incrimination', allowing compulsory questioning so long as answers will not directly incriminate the person questioned: Orkem v Commission [1989] ECR 3283.
11. For discussion, see J. Dine, 'Criminal Law and the Privilege Against Self-Incrimination' in S. Peers and A. Ward (eds), The EU Charter of Fundamental Rights (2004).
12. This privilege contains exceptions: See Police and Criminal Evidence Act 1984 (PACE), s 80 and C. Tapper, Cross and Tupper on Evidence (10th edn, 2004) 261-8.
13. Criminal Justice and Public Order Act 1994, s 35. See also ss 34, 36, 37.
14. The law on this point is not quite clear: See M. Hirst, Andrews and Hirst on Criminal Evidence (4th edn, 2001) 335-6
15. Tapper, above n 6 at 246-7.
16. The right not to answer questions pre-trial is also of obvious importance, but given that English law recognizes exceptions to this right (discussed below), it seems misleading to characterize it as central to the privilege.
17. See G. Van Kessell, 'European Perspectives on the Accused as a Source of Testimonial Evidence' (1998) 100 W Virginia L Rev 799,
18. and, for brief statements of practices in a wide range of other countries, C.M. Bradley (ed.), Criminal Procedure: A Worldwide Study (1999) 88 (China), 242 (Israel), 311 (Russia)
19. David Weissbrodt and Rüdiger Wolfrum (eds), The Right to a Fair Trial (Berlin: Springer, 1998) 289 (Zimbabwe), 343-4 ('Islamic countries'), 614-5 (Poland).
20. (1993) 16 EHRR 297. The privilege had earlier been recognized by the Commission, in a judgment which finds it to be a negative component of the right to free speech under Art 10: K v Austria (1992) Series A 255.
21. A good discussion of the ECHR case law is S. Treschel, Human Rights in Criminal Proceedings (2005) 340-59.
22. Funke, ibid at [44].
23. (1997) 23 EHRR 313.
24. s 436. This section hog since been amended.
25. Above n 13 at [67].
26. See also Shannon v UK, no 6563/03, 4 October 2005.
27. E.g. JB v Switzerland [2001] Crim LR 748.
28. Above n 13 at [68]-[69].
29. Youth Justice and Criminal Evidence Act 1999, s 59.
30. Law Commission, above n 1, para 3.6.
31. Sedley refers to the current provisions on compulsory questioning, where answers cannot be used in evidence, as the 'worst of all possible worlds': S. Sedley, 'Wringing Out the Fault: Self-Incrimination in the 21st Century' (2001) 52 NILQ 107, 120.
32. (2001) 33 EHRR 12.
33. Offences Against the State Act 1939, s 52.
34. Above n 20 at [54]-[55].
35. Above n 4.
36. s 172(2)(a).
37. Above n 4 at 721.
38. Ibid at 705-6.
39. Above n 16.
40. (2004) STC 911. See also IJL v United Kingdom (2001) 33 EHRR 11
41. R v Allen [2002] 1 AC 509
42. R v Hertfordshire CC, exp Green Industries Ltd [2000] 2 WLR 373.
43. (2005) 40 EHRR 37. See also Rieg v Austria, no 63207/00, 24 March 2005
44. Middleton v Bath Magistrates' Court [2005] EWHC 607. The Court in Weh, at [42], reconciles the decision with Funke on the grounds that Funke was effectively 'charged' with a criminal offence within the autonomous meaning of 'charge' adopted by the court.
45. Ibid [44].
46. Ibid [53]-[54].
47. Ibid [54].
48. Ibid, joint dissenting opinion of judges Lorenzen, Levits and Hajiyev.
49. Murray v United Kingdom (1996) 22 EHRR 29
50. Condron v United Kingdom [2001] 31 EHRR 1.
51. See ibid;
52. Beckles v United Kingdom (2003) 36 EHRR 13
53. Telfner v Austria (2002) 34 EHRR 7.
54. See I.H. Dennis, The Law of Evidence (2nd ed, 2002), 141
55. T. Ward and P. Gardner, 'The Privilege Against Self Incrimination: In Search of Legal Certainty' [2003] EHRLR 387.
56. Cf. Treschel, above n 11 at 354, who defends the case law on slightly different grounds.
57. Cf. Schmerber v California, 384 US 757 (1966).
58. The Supreme Court of Canada, however, has on occasion been inclined to include physical evidence within the ambit of the privilege: R v B (SA) [2003] 2 SCR 678.
59. Their retention is more problematic: See R v CC South Yorkshire, ex p Marper [2004] UKHL 39
60. 'DNA of 37% of Black Men Held by Police', The Guardian, 5 January 2006
61. D. Lazer (ed.), DNA and the Criminal Justice System: The Technology of Justice (2004), pt 2.
62. See R.S. Gerstein, 'Privacy and Self-Incrimination' (1970) 80 Ethics 87.
63. Breath and urine are perhaps borderline examples.
64. PACE, ss 61, 63.
65. Road Traffic Act 1988 (RTA), ss 6, 7.
66. It is worth noting that English law does not allow 'intimate samples' such as blood samples to be taken by force: PACE, s 62.
67. For discussion of these issues, in the context of DNA samples, see Lazer, above n 39.
68. See A. Wertheimer, Coercion (1987).
69. Above n 16.
70. See also Serves v France (1999) 28 EHRR 265.
71. See Wertheimer, above n 46.
72. Wertheimer does recognize a thin sense of coercion: We can say that the state coerces whenever it creates legal duties (ibid at 186-7). But this is not the sense in which the ECtHR uses the term: It seems to have in mind a thicker understanding of coercion.
73. The main ground for distinguishing the contempt of court power from the criminal sanction is that it is purely instrumental and does not impose censure. That distinction is important, but is irrelevant here.
74. See above n 7.
75. PACE, s 62; Code D 3.17.
76. For the opposite conclusion, see Griffin v California, 380 US 609 (1965).
77. For reliability based accounts of the privilege, see Amar, above n 3
78. I.H. Dennis, 'Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination' (1995) 54 Cambridge LJ 342
79. see also Dennis, above n 36 at ch 5. A problem with this approach is that, like the moral equivalence arguments about bodily samples taken by force, it seems to run separate values together.
80. R v Howell [2003] Crim LR 405
81. R v Becouarn [2005] UKHL 55.
82. See generally D. Hamer, 'The Privilege of Silence and the Persistent Risk of Self-Incrimination: Part I' (2004) 28 Crim LJ 160.
83. See above n 3.
84. See the passage from Saunders, quoted at n 17 above.
85. D.A. Nance, 'Civility and the Burden of Proof' (1994) 17 Harvard J Law & Public Policy 647
86. A. Donagan, 'Justifying Legal Practice in the Adversary System' in D. Luban (ed.), The Good Lawyer: Lawyers' Roles and Lawyers' Ethics (1983).
87. K. Greenawalt, 'Silence as a Moral and Constitutional Right' (1981) 23 William & Mary L Rev 15.
88. See S. Greer, 'The Right to Silence, Defence Disclosure, and Confession Evidence' (1994) 21 J Law & Soc 102, 107-9
89. also M. Zander's note of dissent in Royal Commission on Criminal Justice, Report (1993) at 221.
90. See G.H. Gudjonsson, 'Psychological Vulnerability: Suspects at Risk' in D. Morgan and G. Stephenson (ed.), Suspicion and Silence: The Right to Silence in Criminal Investigations (1994)
91. Royal Commission on Criminal Justice, above n 60 at 54-5.
92. Support for this model can be found in A.W. Alschuler, 'A Peculiar Privilege in Historical Perspective' in Helmholz, above n 3
93. Amar, above n 3.
94. D.J. Seidmann and A. Stein, 'The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege' (2000) 114 Harvard L Rev 431.
95. A similar argument had been explored, and found unconvincing, in M.S. Green, 'The Privilege's Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the State' (1999) 65 Brooklyn L Rev 627, 647-8.
96. For criticism, see Green, ibid;
97. G. Van Kessell, 'Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right to Silence' (2002) 35 Indiana L Rev 925
98. Roberts and Zuckerman, above n 3 at 422-5.
99. See Van Kessell, above n 4 at 833-5. France here follows other continental jurisdictions.
100. See T. Bucke, R. Street and D. Brown, The Right of Silence: The Impact of the CJPOA 1994 (2000) at 34-6.
101. See R v Lucas [1981] QB 720.
102. See Bucke et al., ohove n 66
103. J. Jackson, M. Wolfe ond K. Quinn, Legislating Against Silence: The Northern Ireland Experience (2000).
104. For considered support for the cruel choices argument, see Greenawalt, above n 59 at 39
105. D. Luban, Lawyers and Justice: An Ethical Study (1988) 192-7. It is worth noting that even with the privilege against self-incrimination, defendants face difficult choices. A guilty defendant relying on a defence of self-defence is likely seriously to weaken his defence by not testifying, yet testifying will involve either perjury or self-incrimination.
106. Rationale of Judicial Evidence, vol 5, 230.
107. Similarly, Seidmann and Stein suggest that moral reasons for supporting the privilege against self-incrimination can carry little weight in the context of the criminal process: Above n 63 at 454-5.
108. R v Nathaniel [1995] 2 Cr App R 565.
109. A (FC) and others (FC) v Secretary for the Home Department [2005] UKHL 71. The emphasis on common law values in securing this result is particularly significant.
110. R v Mullen [2000] QB 520.
111. See generally, A. Ashworth and M. Redmayne, The Criminal Process (3rd edn, 2005) at 314-33.
112. On difficulty of justifying such compulsion, see S. Levinson, 'Testimonial Privileges and the Preferences of Friendship' [1984] Duke LJ 631
113. G. Fletcher, Loyalty: An Essay on the Moralitv of Relationships (1993) at 79-82.
114. Cf. J. Shklar, Ordinary Vices (1984) at 155-61.
115. Given the wide reach of terrorist offences, which include many inchoate crimes, there will be few situations where informing the police does not involve incrimination.
116. 'Bomb Suspect's Relatives Remanded in Custody', The Guardian, 9 May 2003
117. 'Wife of July 21 "Bomber" Faces Court', The Guardian, 11 August 2005.
118. The quotation is from H. Bosmajian, The Freedom Not to Speak (1999) 130.
119. Fletcher puts the objection in very similar terms in Loyalty, above n 76 at 81.
120. J. Kupperman, Character (1991) 11.
121. For further discussion of the notion of personal integrity, see, e.g. J.E.J. Altham and R. Harrison (eds), World, Mind and Ethics: Essays on the Philosophy of Bernard Williams (1995) at 170-84, 210-16.
122. A possible counter-argument is that relationships and friendship are goods which the state should support, whereas independent moral evaluation is not. This seems implausible.
123. As Raz puts it: '[w]e care not merely about having our wants satisfied, but about having reosonable wants. We value our lives, judge them to be successful, in proportion to their being occupied with worthwhile pursuits... This is why the notion of a person's well being is sufficiently independent of that person's wants and desires to leave room for the notion of duties to oneself'. J. Raz, Ethics in The Public Domain: Essays in the Morality of Law and Politics (1994) at 38.
124. On this theme see also Raz, Engaging Reason: On the Theory of Value and Action (2002) at ch 13.
125. Raz, Ethics, ibid at 365
126. see also A. Wertheimer, 'Liberty, Coercion and the Limits of the State' in R.L. Simon (ed.), The Blackwell Guide to Social and Political Philosophy (2002) 55.
127. This is the current approach to the witness privilege against self-incrimination: See R v Boyes (1861) 1 B & S 311
128. Khan v Khan [1982] 2 All ER 60.
129. The law does recognize various 'role' privileges, such as journalist privilege (see P. Murphy, Murphy on Evidence (8th edn, 2003) at 500-9. These are not central to the argument as they do not necessarily involve incrimination.
130. See Levinson, Fletcher, above n 76.
131. See Luban, above n 69 at 197
132. Greenawalt, above n 59 at 39.
133. For discussion of whether there is a duty to confess see A. Donagan, 'The Right not to incriminate Oneself' in E.F. Paul, F.D. Miller and J. Paul, Human Rights (1984).
134. While Donagan rejects the 'rigorist' doctrine that there is a duty to report one's offending to the authorities, he admits that there may be exceptions (for example, where someone else as been convicted), and he may allow that there is a duty to confess when properly questioned by the authorities. Greenawalt, above n 53, is also ambivalent, but in accepting that there is a duty to repair wrongs done to others he probably accepts that there is a duty to confess the more serious mala in se to the authorities, because other forms of reparation for such wrongs will rarely be possible.
135. In support of a duty to confess, see R.A. Duff, Trials and Punishments (1986) 132
136. R. Bronaugh, 'Is There a Duty to Confess?' and S. Levinson, 'Comments on Bronaugh' in 98(1) APA Newsletters 86.
137. For the argument that such a duty may be culturally variable, see K. Winston, 'On the Ethics of Exporting Ethics: The Right to Silence in Japan and the US' (2003) 22 Criminal Justice Ethics 1.
138. Good accounts are A. Simester, 'Why Omissions are Special' (1995) 1 Legal Theory 311
139. P. Smith, 'Omission and Responsibility in Legal Theory' (2003) 9 Legal Theory 221
140. V. Tadros, Criminal Responsibility (2005) at ch 7.
141. Terrorism Act 2000, Sch 7; see R v Hundal and Dhaliwal [2004] 2 Cr App R 19. See also ss 44 and 116 of the Act, creating a duty to stop one's car antecedent to a stop and search.
142. Lunt v DPP [1993] Crim LR 534.
143. See further R. Stone, The Law of Entry, Search and Seizure (4th edn, 2005) at 35-7.
144. See, in this respect, Duff's suggestion, above n 88 at 134-5, that the privilege marks our unease about the legitimacy of censure.
145. For discussion of public harm, see J. Feinberg, The Moral Limits of the Criminal Law Volume 1: Harm to Others (1984) 63-4, 221-5,
146. and Volume 4: Harmless Wrongdoing (1988) 33-7
147. also J. Gardner and S. Shute, 'The Wrongness of Rape' in J. Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series (2000) 195-6, 215-17.
148. But for an example, see R v Dunlop [2001] 2 Cr App R (S) 133.
149. See Van Kessell, above n 10.
150. See generally D. Pritchard, 'Testimony' in A. Duff et al. (eds), The Trial on Trial. Volume 1: Truth and Due Process (2004).
151. This is ultimately Feinberg's argument for criminalizing such 'accumulative' harms. See Harmless Wrongdoing, above n 93 at 225-6.
152. A point sometimes denied: See ibid, 224.
153. See C.D. Broad, 'On the Function of False Hypotheses in Ethics' (1915-16) 26 International J Ethics 377
154. J.S. Fishkin, The Limits of Obligation (1982) 97-149. The problem is not only that it is not obvious why the hypothetical behaviour of others should affect the moral quality of an action, but also that even if one accents some form of ethical generalization principle, there is a question about the description of the action from which we generalize in order to assess its negative effects. If everyone refused to testify as a witness when asked to, the system would collapse; but if everyone refused to testify as a witness only when they thought the prosecution was unjustified, or conflicted with a strong personal commitment, it is not obvious that the results would be particularly terrible.
155. See A.J. Simmons, 'The Principle of Fair Play' and 'Fair Play and Political Obligation: Twenty Years Later' in Justification and Legitimacy: Essays on Rights and Obligations (2001).
156. Cf. G. Klosko, Political Obligations (2005) esp 26-36, 223-50.
157. The major exception is spousal privilege: See n 6 above.
158. It is very difficult to justify, except on pragmatic grounds, there not being a wider exception than the one created by spousal privilege (cf. R v Pearce [2002] 1 Cr App R 39).
159. See generally Levinson, above n 76.
160. See 'Judge Stands by Contempt Jailing', The Times, 12 March 1989
161. R v Renshaw, The Times, 23 Tune 1989.
162. See A. Cretney and G. Davis, 'The Significance of Compellability in the Prosecution of Domestic Assault' (1997) 37 Brit J Criminol 75
163. HMCPSI, Violence at Home: A Joint Thematic Inspection of the Investigation and Prosecution of Cases Involving Domestic Violence (2004) 86-96.
164. See the dissenting judgment of Judge Martens in Saunders, above n 13,
165. and Dennis, above n 36, 172-5.
166. Above n 4 at 75-6.
167. Saunders, above n 13
168. Heaney, above n 20.
169. They might also be seen as accepting other exceptions to the liberal status quo, such as strict liability and reverse onus provisions: See R.A. Duff, 'Strict Liability, Legal Presumptions, and the Presumption of Innocence' in A. P. Simester (ed.), Appraising Strict Liability (2005) 138-41 (though Duff distinguishes drivers from factory owners in this respect).
170. See also R v Wholesale Travel Group Inc [1991] 3 SCR 154, 227-33; the discussion here is useful for the careful attention given to the notion of 'acceptance' of a regulatory regime.
171. See Simmons, 'The Principle of Fair Play', above n 100.
172. See Wholesale Travel, above n 107.
173. Above n 1.
174. Ibid 6.11.
175. See now the Domestic Violence, Crime and Victims Act 2004, s 5.
176. Above n 1 at 3.5, 5.22.