means to protect the dignity and security of the accused but also to uphold the procedural rights of the defence which have been shown to be crucial not just at trial but from the moment that criminal investigations are initiated and the suspect has to answer allegations.
1.4.3. The Privilege against Self-Incrimination.
Individuals accused of crimes have a right against self-incrimination at all stages of a criminal case or delinquency proceeding. Suspects are entitled to refuse to answer any question or produce any document that might incriminate them. It has also been suggested that the right to claim the privilege against self-incrimination may protect individuals from unlawful coercive methods used to obtain confessions (Neumann 2004 p.3). Redmayne suggests that this privilege is ‘one of the more puzzling rules of criminal procedure’ as it places restrictions on criminal investigating by stipulating that no suspect can be required to provide evidence that could incriminate him or her at trial. They cannot be held in contempt of court for not answering questions or providing documents to the prosecution (2006 p.209).
McInerney points out that the privilege is viewed as incorporating three separate though linked elements; namely the privilege against self-incrimination afforded to witnesses in criminal, civil or non-judicial investigative proceedings, the right of a defendant not to give evidence at trial and the right to silence of a suspect in the pre-trial criminal investigation (2014 p.102). He added, that the right not to incriminate oneself, is important and needed in all stages of criminal investigation as it affords a kind of ‘equality of arms’ between the State and individual suspects (ibid., p138). It should noted, however, that bodily samples, unlike testimony can be obtained by force. PACE ss.61 & 63 allow the police to take non-intimate samples and fingerprints.
Article 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This means that the investigating authorities must not use any undue psychological or physical pressure, direct or indirect to obtain a confession. Any
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confessions acquired which violate Article 7 of the Covenant should be inadmissible under domestic law. However, such evidence can be used to demonstrate that torture or other prohibited means has been used. If this happens, the State must prove that the statements were actually given willingly by the accused. Finally, the right not to self- incriminate means that negative inferences cannot be drawn from the defendant’s silence (Zhang 2009 p.42). Redmayne comments that the European Court of Human Rights (EctHR) makes this privilege an integral part of a fair trial in Article 6 but that it is not always easy to know what the extent of this privilege is in practice and that Uk courts have used this uncertainty to make decisions that would seem at odds with the stance taken by Strasbourg (2007 p.210).
The right of silence is closely related to the privilege against self- incrimination, as the latter concerns the threat of coercion in order to make an accused yield certain information, whereas the former concerns the drawing of adverse inferences when an accused fails to testify or to answer questions and not specifically mentioned in the European Convention. Their close relationship to the right to a fair trial under the Convention was confirmed in the Court’s judgment, citing the U.N.’s ICCPR (1966), which declares the privilege in Article 14(3)(g). The general right to a fair trial is dealt with in Article 6 (1) which also contains a short list of additional rights that are applicable only in criminal cases. That short list does not include the privilege against self- incrimination. The ECHR has interpreted the right of silence as encompassing the right not to self-incriminate, both having strong links to the presumption of innocence and underpinning the need to protect the accused from ‘improper’ police compulsion and miscarriages of justice (Croquet 2008 p.220).
The privilege against self-incrimination made an unexpected and faltering entry into European human rights law. In 1993 the Court heard the case of Funke v. France (10828/84)32. Having entered Funke’s house with a warrant, French customs officers found evidence of foreign bank accounts and ordered Funke to produce bank statements
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for these, which he would not do. Funke was subsequently prosecuted and convicted for this refusal and given a fine which increased every day he continued to refuse. Funke applied to the Court, alleging that as he had been asked to produce evidence that could incriminate him, he had not had a fair trial. Ashworth comments that this was a novel claim, given the limitations of the rights stated in Article 6; however, the Court found in favour of Funke, and thus incorporated the right not to self-incriminate into its jurisprudence; finding that Article 6 (1) had been breached. The scope of this right, it rationale and origins were not discussed by the Court (2008 p.757).
The cornerstone of the protection against self-incrimination is best demonstrated in Saunders v. UK (1997)33. This case explained that the right exists for the protection of the accused by the improper compulsion of the authorities, thereby contributing to the avoidance of the miscarriages of justice. Redmayne believes that ECtHR case law does show how the privilege operates in practice, also in regard to how inferences are drawn from a suspect’s silence which the Court believes does not infringe the privilege but needs to be done very cautiously (2007 p.214).
The two important rationales of this right are ethics and reliability. The former is to prevent any incentive being given for using strategies involving deception, inducement, threats or brutality to extract information from a suspect. If statements acquired in this way are given credence in court, then the investigating authorities might be tempted to use them and violate the integrity and dignity of the suspect. For this reason, the right against self-incrimination acts as a limitation on the behaviour of the police during the investigation. Acquiring evidence through detection is arguably more difficult than extracting information through coercion, so putting legal sanctions on this is essential to preserve human rights (Mittal 2013 p.78).
The second rationale is that it stops a nervous but innocent person from making a false statement under duress and being wrongly suspected. The environment in which
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investigation takes place can be very stressful for a suspect; they may feel afraid of authority figures like the police, isolated and the suspect will be aware of the expectations of the interrogating officer. All these factors can result in a suspect yielding information which can be incriminating, prejudice their case and even be completely wrong. Even in situations where the suspect is guilty, the right not to self-incriminate acts as a protection against any possible aggravation of the offence by concealment of evidence or misrepresentation. A further protection is that the accused will not have motives read into any statements they might make (ibid.,). It could be said then that the privilege against self-incrimination is largely based on allowing the individual to protect their personal integrity and to be protected from coercion during the process of investigation.