Human rights law

by Stephen Grosz, Bindman & Partners

Silence is goldenThe courts are alive with the sound of silence.

The European Convention on Human Rights does not expressly mention the privilege against self-incrimination or the right to remain silent but the Strasbourg Court (ECHR) has said that they 'lie at the heart of the notion of fair procedure under article 6': Saunders v United Kingdom (1997) 23 EHRR 313, para.

68.

The right to silence may exclude answers obtained under compulsion.

It does not exclude the admission in criminal proceedings of material obtained using other compulsory powers '...but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing': Saunders, para.

69.

The ECHR has recognised that the compulsory obtaining of information might be essential for the regulation of, for example, financial services.

But the fairness of its use must be determined in the light of circumstances.

The ECHR recognised that inferences may be drawn from an accused's silence in certain circumstances: Murray v United Kingdom (1996) 22 EHRR 29, para 45.

In Brown v Procurator Fiscal (Appeal No.

1652/99, 4 February 2000), the Scottish High Court of Justiciary had to consider the admissibility, in a drink-driving prosecution, of Ms Brown's admission that she had been driving her car.

The admission was obtained under section 172(2) of the Road Traffic Act 1988, which obliged the keeper of a vehicle to identify the driver who is alleged to be guilty of a road traffic offence.

For the High Court, section 172(2) was not intended to fulfil any general regulatory purpose in the public interest, but compelled an individual to give evidence against himself, for the purpose of proving one of the elements of an offence.

Consequently, the High Court ruled, the procurator fiscal could not rely on the admission.

The case is pending before the Privy Council.In R v Hertfordshire County Council, ex parte Green Environmental Industries (17 February 2000), the House of Lords considered whether a local authority could compel the lessee of a site containing unlicensed waste to give information 'for the purposes of discharge of its functions as a waste regulation authority' under the Environmental Protection Act 1990.

One of those functions was investigation of whether the lessee should be prosecuted, and the appellants argued that they could not be compelled to answer questions without an assurance that the answers would not be used in a prosecution.

Lord Hoffmann saw nothing wrong in the obtaining of evidence which might be urgently needed for the broad purpose of the protection of health and safety.

However, he recognised that a privilege against self-incrimination meant that a person could not be compelled to undergo inquisition at trial, and that he had a right to silence during any pre-trial investigation.

But in this case the request for information was not made as part of the criminal proceedings or investigation, and it did not require admission of liability.

Most important, it would not prejudice the fairness of any trial, since the accused could still seek exclusion of his answers under section 78 of the Police and Criminal Evidence Act 1984.

Lord Hoffmann made clear that post-2 October 2000, a judge in a criminal trial will have to exercise his section 78 discretion with article 6(1) in mind.The issue arose in a different way in L v United Kingdom ([2000] EHRLR 66, 7 September 1999).

L's child was admitted to hospital having ingested methadone, according to L accidentally.

The local authority brought care proceedings, in which the mother commissioned and adduced an expert's report dealing with the frequency with which one of her children might have consumed methadone.

The expert found no evidence of habituation to the drug, but went beyond his remit to express doubts about the applicant's account of the incident.

The police obtained disclosure of the report for the purpose of investigating whether L had deliberately administered the drug.

The House of Lords upheld the disclosure order: Re L (Minors) (Police Investigation: Privilege) [1997] AC 16.

The police decided not to prosecute.

L claimed before the ECHR that disclosure of the report to the police infringed her privilege against self-incrimination.

The ECHR declared L's subsequent application inadmissible, holding that the obligation to produce the report was to be distinguished from coercion on the accused to give evidence against herself.

It was in the same category as other material, independent of the will of the accused, which might be obtained using compulsory powers.

The court observed in particular that the expert did not interview L or pass on any confidences from her, but referred to hospital notes.

The position may be different where a report contains confidential information obtained by the expert interviewing the suspect.Finally, in Condron v United Kingdom, the ECHR dealt with the drawing of inferences from silence at police interview under section 34 of the Criminal Justice and Public Order Act 1994.

Two heroin addicts were arrested on suspicion of possession with intent to supply.

At the police station, their solicitor took the view that they were in the early stages of withdrawal and were not fit to be interviewed.

They were cautioned and on his advice gave 'no comment' interviews.

At trial both applicants gave in evidence explanations which they had not mentioned in these interviews.

They said they had made no comment to police questions on their solicitor's advice.

The judge failed to direct the jury that they could only draw an adverse inference if, in spite of any evidence relied on to explain his silence (or the absence of any such evidence) they could conclude that the silence could only sensibly be attributed to the defendants' having no answer, or none which would stand up to cross-examination.

The Court of Appeal held that this omission did not render the applicants' conviction unsafe.The ECHR reiterated that the right to silence is not absolute (see Murray), but that particular caution was needed when an accused's silence could be used against him.

It could never be the sole or main ground of conviction, but might be taken into account in situations which clearly call for an explanation from the defendant.

Unlike Murray, the applicants here gave evidence at trial to explain their silence.

The fact that this was the advice of their lawyer - and his presence at the interview is an important factor in the fairness equation - must be given due weight.

The drawing of inferences by juries could be compatible with article 6 - Murray involved trial by judge alone - but mode of trial was a factor relevant to determining the overall fairness of the proceedings.

In the circumstances the Court concluded that the jury should have been directed that it could draw an inference only if it was satisfied that the applicants' silence was to be attributed to their having no, or no credible, answer.

For the ECHR this direction was necessary rather than desirable.

Because juries give no reasons for their decisions it was impossible to ascertain what weight was given to the silence.

The Court of Appeal could not, therefore, assess properly whether the jury considered it conclusive of their guilt.

The Court concluded that the violation of article 6 was not, therefore, saved by the Court of Appeal's decision.

'In the [European] Court's opinion, the question whether or not the rights of defence guaranteed to an accused under article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness.' Since it was not possible to know what the jury had concluded, the incorrect direction could not be remedied by speculation on appeal.

'In the circumstances the jury was not properly directed and the imperfection in the direction could not be remedied on appeal.

Any other conclusion would be at variance with the fundamental importance of the right to silence.'Stephen Grosz is a partner at London-based Bindman & Partners