5. The Right to Silence and the Privilege against Self-Incrimination

2021 ◽  
pp. 115-141
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Case Law ◽  
European Convention ◽  
Public Order ◽  
Substantial Body ◽  
Legal Advice ◽  
Right To Silence ◽  
The Right ◽  
Court Of Appeal

Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law. The manner in which the Court of Appeal has resolved the issue of silence on legal advice has been subjected to particular criticism. The operation of section 34 has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury. The implications for the privilege against self-incrimination of statutory provisions that criminalize the failure to provide information to law enforcement authorities are also considered.

5. The Right to Silence and the Privilege against Self-Incrimination

Evidence ◽  
2018 ◽  
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Case Law ◽  
European Convention ◽  
Public Order ◽  
Substantial Body ◽  
Legal Advice ◽  
Right To Silence ◽  
The Right ◽  
Court Of Appeal

Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law. The manner in which the Court of Appeal has resolved the issue of silence on legal advice has been subjected to particular criticism. The operation of section 34 has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury. The precise extent to which the privilege against self-incrimination applies to real evidence also remains uncertain and is an issue requiring resolution.

coercive questioning (that is, where a suspect's silence can be used in evidence against him or her) can be used in matters under s (as amended) of the Official Secrets Act 1911. There are also wide powers under the Companies Act 1985 to require officers and agents of companies to assist inspectors appointed to investigate the company. Refusal to answer questions can be sanctioned as a contempt of court 431) and as a criminal offence 447). A person can also be required to answer questions to him or her by a acceptances of them under the Drug Trafficking Offences Act 1986. The closest English law comes to creating a duty to give one's name and address is the power given to the police under s 25(3) of PACE 1984 (above). Effective abolition of the right silence The Government ignored the recommendations of the Runciman Commission and, in ss 34-37 of the CJPO 1994, effectively abolished the right to silence. 'Abolished' may be too strong a word because everyone still has the right to remain silent in the same circumstances as they did before the 1994 Act; what has changed is the entitlement of a judge or prosecuting counsel to make adverse comment on such a silence. The issue has now been addressed by the European Court of Human Rights (ECtHR). The leading case is Condron v UK [2000] Crim 679. In 2000, two convicted drug dealers won a landmark ruling in Europe that the UK Government's curbs on the right to silence denied them a fair trial. The ECtHR in Strasbourg stated that, where juries are allowed to draw adverse inferences from silence under police questioning, they must be properly directed by the judge. In a key finding, it ruled that the Court of Appeal should look not just at whether a conviction was 'safe', but also at whether a defendant received a fair trial. The ruling will be likely to lead to other appeals. The case, backed by Liberty, the human rights group, was brought by William and Karen Condron, who were convicted of supplying drugs in 1995. The pair, who did not answer police questions, were jailed for four years. The ECtHR said that the jury had not been properly directed. As a result, the couple's right to a fair trial, as guaranteed by Art 6 of the European Convention on Human Rights, was breached. It awarded each defendant £15,000. Silence could not be regarded as 'an absolute right', the court said, and drawing inferences was not itself in breach of the right to a fair trial, but caution was needed. The jury should have been directed that, ' .. .if it was satisfied that the applicants' silence...could not sensibly be attributed to their having no answer, or none that would stand up to cross-examination, it should not draw an adverse inference'. The law report from Times appears below.

2012 ◽  
pp. 415-419
Keyword(s):  
Human Rights ◽  
Drug Trafficking ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Right To Silence ◽  
The Government ◽  
The Uk ◽  
The Right ◽  
Court Of Appeal

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Risk and the European Convention on Human Rights: Towards a New Approach

2009 ◽  
Vol 11 ◽  
pp. 353-375 ◽  
Author(s):  
Christopher Hilson
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Nuclear Radiation ◽  
European Convention ◽  
Access To Justice ◽  
Public Concern ◽  
Initial Attempt ◽  
Liberal Conception ◽  
European Court ◽  
The Right

Abstract The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.

Passive Proselytism

2021 ◽  
Vol 9 (2-3) ◽  
pp. 244-269
Author(s):  
Christine Carpenter
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Freedom Of Religion ◽  
Article 9 ◽  
European Court ◽  
The Right

Abstract Article 9 of the European Convention on Human Rights protects the right to freedom of religion and conscience. The language of Article 9(1) has been interpreted by the European Court of Human Rights as including protections for acts of proselytism, when properly committed and respectful of the rights and freedoms of others. This was the view taken in the foundational Article 9 case of the Court, Kokkinakis v. Greece. In the decades since Kokkinakis, however, the view of the Court on proselytism appears to have shifted, in particular in Article 9 cases involving religious garments. This article seeks to determine whether the Court is consistent in its views on proselytism between these religious garment cases and earlier examples of Article 9 case law.

22. The Right to Free Elections

2017 ◽  
Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey
Keyword(s):  
Human Rights ◽  
Electoral Systems ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Democratic Legitimacy ◽  
Right To Vote ◽  
The Right

This chapter examines the protection of the right to free elections in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of Protocol 1 and highlights the increasing number of complaints of violations of this Article, which indicates that the Strasbourg Court is giving fresh emphasis to this provision as essential to the foundations of democratic legitimacy of the State. The chapter also discusses case-law on the nature of the legislature, electoral systems, the right to vote, and the right to stand for election.

8. Freedom to protest and police powers

2020 ◽  
pp. 138-160
Author(s):  
Richard Clements
Keyword(s):  
Human Rights ◽  
Common Law ◽  
European Convention ◽  
Public Order ◽  
Police Powers ◽  
Reasonable Suspicion ◽  
The Right

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter is all about the freedom to protest and police powers. Freedom to protest is protected by common law, statute, and the European Convention on Human Rights. The questions looked at here consider issues such as public order law; the right to protest; the right to freedom of peaceful assembly; and police powers to arrest and search on reasonable suspicion.

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