Fair Trial Rights & Right to Silence: Fundamental Human Rights

for all?

Alan BeckleyAssociate Investigator, CEPS

Evaluation Manager, University of Western Sydney

Fair Trial Rights & Right to Silence: Fundamental

Human Rights for all?

1.Handout to consider2.History – Policing and Fair Trial

Rights3.Human Rights & Policing: Operational

Impacts4.Australia: Democratic rights and

freedoms5.Right to a Fair Trial6.Rules of Natural Justice7.Right to Silence

History – Policing and Fair Trial Rights

• Office of Constable dates back to 11th Century• Metropolitan Police Force,1829 ‘new police’• Peel’s Nine Principles of Policing – Police Constable:

– ‘7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.’

• Police Powers - Explicit human rights dimensions in:• Operational Police Powers:

• Arrest; Search; Seizure; Detention; Move on; Questioning; Charging; Police Bail; Evidence Brief

• Administrative Police Powers:• Policy making & procedures• Exercise of discretion – Licences, Inspectorate functions• Decisions which affect people

Democratic rights and freedoms: About Australia (apply to all)

1. Right to a fair trial2. Informed of the charges laid against

them 3. Judicial officer independent of the

executive government and legislature 4. Tried before a jury (where appropriate)

5. Not compelled to provide self-incriminating testimony

6. Legal aid services (where appropriate)

7. Legal professional privilege8. Right of appeal is available

Democratic rights and freedoms: About Australia 1. Right to a fair trial2. Informed of the charges laid against

them 3. Judicial officer independent of the

executive government and legislature.

4. Tried before a jury 5. Not compelled to provide self-

incriminating testimony6. Legal aid services 7. Legal professional privilege8. Right of appeal is available

Democratic rights and freedoms

•Right to a fair trial– Right to a fair trial: ‘so elementary as to need

no authority to support it’ – Some factors:

• Presumption of innocence • No delay ‘without unreasonable delay’• ‘Equality of Arms’ – Equal protection + vulnerable persons protection – Availability of legal assistance– Evidence:

• Standard of evidence (criminal/civil law)• Access to specialist resources• Access to evidence AND ‘unused evidence’• Disclosure of evidence • (‘Adverse Inference’ such as Evidence of Alibi)

Rules of Natural Justice – Common Law

•Lawfully constituted Tribunal: –MUST BE FAIR–‘Accused’ must be: •Properly charged with offence [recognised within the legal/organizational system]•Informed of the grounds of the allegation•Given a proper opportunity to present their defence

•Other Issues:–Independent and impartial decision-maker•‘a judge should not sit to hear a case if in all the circumstances of the parties or the public might

entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it’.

–Police Commissioner’s power of dismissal - ‘loss of confidence’ •Early history in Victoria 1853 •Involvement of Police Unions

–Judge to give rationale behind decisions–‘Right to Silence’ – not forced to make self-incrimination statement–Closed court (in camera) = ‘Unconstitutional’–Access to potentially defamatory statements•Report from Police Inspector to his superior about a fellow officer

Democratic rights and freedoms: About Australia 

1. Right to a fair trial2. Informed of the charges laid against them 3. Judicial officer independent of

the executive government and legislature.

4. Tried before a jury (where appropriate) 5. Not compelled to provide self-

incriminating testimony6. Legal aid services (where appropriate) 7. Legal professional privilege8. Right of appeal is available

NSWPF – Wood Royal Commission

Reform of the NSW Police Service – Phase 1

ENFORCEMENT AGAINST CORRUPTION – various proactive initiatives were to be taken against corruption in the force:–‘Cleaning up the Service’ – disciplinary action against police officers who were ‘lazy, inept, corrupt or criminal’.–A revitalised Professional Responsibility command (Internal Affairs Department)–A Code of Conduct to ‘provide standards for officers of the Service to assess their performance and behaviour’.–Management of behaviour made more effective by removing the ‘overly legalistic, hierarchical, bureaucratic and punishment centred disciplinary process’ and making managers responsible for professional standards

Royal Commission – some outcomes

1. ‘Many have contended that governments have too easily appointed royal commissions with little regard for civil liberties issues … and resultant court cases that seek to limit the investigations …’

2. Police Officers’ ‘Bill of Rights’ rejected by Police Commissioners’ conference 1991.

3. Police Association of NSW – Protest Action– 1996 - Mass meeting and protest march on Parliament

House opposing abolition of appeal rights.– 1997 - Industrial, legal and political campaign

results in restoration of appeals against unfair dismissal.

4. Many police officers (380 listed for dismissal) dismissed without reference to rules of natural justice resulted in court cases and large payouts.  Subsequently review by the Industrial Relations Commission

5. Where officer dealt with by lesser disciplinary action, the Commissioner unable to exercise section 181(d)powers.

Democratic rights and freedoms: About Australia 

1.Right to a fair trial2.Informed of the charges laid against them 3.Judicial officer independent of the executive government and legislature.

4.Tried before a jury (where appropriate) 5.Not compelled to provide self-incriminating testimony

6.Legal aid services (where appropriate) 7.Legal professional privilege8.Right of appeal is available

Discussion Paper 41 (1998) - The Right to Silence

• 16th Century, England: – Constables required to bring a suspect before an examining justice as

soon as possible after arrest for interrogation. – A record of the interrogation, including the suspect’s refusal to answer

questions, was transcribed and presented at trial.• 17th Century, England

– Courts of Star Chamber and High Commission.

– Practice of compelling suspects to take an oath known as the “ex-officio oath” and, without formal accusation, to answer questions put by both the judge and the prosecutor.

– Failure to either take the oath or answer questions attracted severe sanctions, including torture.

– Practice was held to be unlawful in the early seventeenth, both courts abolished in 1641.

• 19th Century England:– Judicial distrust of confession evidence was widespread– The right to silence developed as a judicial response to this distrust. – The development of the right to remain silent at trial is frequently

attributed to the practices of the English• 19th Century, NSW:

– Criminal Law and Evidence Amendment Act 1891 (NSW) - preserved the defendant’s right to remain silent at trial by providing that the defendant was a competent but not a compellable witness.

The Right to Silence - 2013

For change Against change• ‘.. Scales of justice tilted towards

common sense’ (NSW Government press release)

• 1994 legislation in UK ‘notorious minefield’ yet no effect on conviction rates (Berg, 2013)

• Changes will make trials ‘more efficient’ (Greg Smith, NSW Attorney-General)

• Right to silence ‘over-reaction to tyranny’ (AFP magazine, 2000)

• Eight pieces of legislation passed in Commonwealth legislation limiting right to silence including anti-illegal immigrant bill (Berg, 2013)

New Law in NSW: Evidence Amendment (Evidence of Silence) Act 2013 passed in March – operative date TBA.Berg, C. (2013) Anything you don’t say may be used against you. ABC. http://www.abc.net.au/unleashed/4594424.html

NSW – new law* on the Right to Silence. • Standard police caution now reads: ‘You are not obliged to say

anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court’.

• Juries allowed to ‘draw an unfavourable inference’ from silence

Not compelled to provide self-incriminating testimony

Privilege against self-incrimination’ or ‘Right to Silence’)

• No overall constitutional protection for right to silence in Australia but common law right is recognised by courts in several cases and Treaties.

• BUT:– Requirement for police to provide a ‘duty report’, AND

– Coercive powers of Royal Commissions and Police Independent Oversight Bodies•61+ Royal Commissions into Policing in Australia 1963-2012

•Most police independent oversight bodies in Australia and New Zealand have coercive powers of investigation

Independent Police Independent Oversight Bodies in New Zealand and Australia: Coercive powers

Country, State/ Territory

Police Oversight Body

Legislation Power to hold Investigative Hearings?

Coercive investigative powers?

New Zealand Independent Police Conduct Authority

Independent Police Conduct Authority Act 1988

Yes Yes. Compelled to answer incriminating questions – No

Commonwealth & ACT

ACLEI Law Enforcement Integrity Commissioner Act 2006

Yes Yes

  Commonwealth Ombudsman

Ombudsman Act 1976 Yes Yes. Compelled to answer incriminating questions – No

New South Wales

PIC Police Integrity Commission Act 1996

Yes Yes.

  NSW Ombudsman Ombudsman Act 1974 Yes Yes. Compelled to answer incriminating questions – No

Northern Territory

NT Ombudsman Ombudsman Act 2009 Yes Yes.

Queensland CMC Crime and Misconduct Act 2001

Yes Yes

South Australia

PCA (1) Police (Complaints and Disciplinary Proceedings) Act 1985

No Yes. Compelled to answer incriminating questions – No

Tasmania Integrity Commission

Integrity Commission Act 2009

Yes Yes

Victoria IBAC Police Integrity Act 2008 (2)

Yes (2) Yes (2)

Western Australia

CCC Corruption and Crime Commission Act 2003

Yes Yes

Source: Den Heyer, G & Beckley, A. (2013) Police Independent Oversight in Australia and New Zealand. Police Practice and Research Journal. (in production)Table 4: External Oversight of Complaints against Police in Australia: A Cross-Jurisdictional Comparison. Source: Adapted from CJC, 1995. (1) Legislation was introduced in South Australia on 20 December 2012 to amend the police independent oversight body to a cross-public sector oversight body called The Office of Public Integrity to be implemented in 2013. (2) Information obtained relating to the Office of Police Integrity while in transition to IBAC.

Not compelled to provide self-incriminating testimony (Privilege against self-incrimination’ or ‘Right to Silence’)

• Rationale to have coercive powers: – Royal Commissions in 1970s and 80s recognised investigative tools were required for effective investigations

– Success of Royal Commissions “ensured that there was public support for ongoing bodies with special powers to combat these menaces”• ‘ … the Royal Commission [on child sexual abuse] will need coercive powers. The

Royal Commission into Police Corruption in the New South Wales Police Service in 1997 showed it is impossible to penetrate a code of silence and protection without coercive powers’.

• ‘Use Immunity’: – Self-incriminating evidence from person (not corporation) gathered from use of coercive investigation powers cannot be used to prove a case in subsequent criminal trial, BUT if in subsequent trial witness gives different evidence possibly prosecuted for perjury

Not compelled to provide self-incriminating testimony(Privilege against self-incrimination’ or ‘Right to Silence’)

• ‘Cruel trilemma of self-accusation, perjury or contempt’:1. Make admissions that can be used to prosecute them2. Lie and therefore risk punishment for making false

statements3. Refuse to speak and face a prosecution for defying

a lawful order

• ‘Double Jeopardy’• Common Law ‘immunities’• Rules about investigative questioning and admissibility of admissions

Fair Trial Rights & Right to Silence: Fundamental

Human Rights for all?

•Conclusion:–All police officers, whether dealing

with the rights of members of the community or internally with colleagues should be aware of and respect fair trial rights and the right to silence.

Alan Beckley | Evaluation Manager

Office of Widening Participation University of Western Sydney |Locked Bag 1797

Penrith 2751

T: 02 9678 7604 | F :02 9678 7575| E: A.Beckley@uws.edu.au | W:

www.uws.edu.au