Wringing out the Fault
For at the common law . . . his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men.
William Blackstone, Commentaries
If you were sitting down today to set out the principles of a good system of criminal justice, with a blank sheet of paper and all the wisdom of hindsight at your disposal, you would probably start, as I would, with the principle that nobody is to be convicted of anything unless the court is sure of their guilt. You would probably go on, as I would, to say that it is for the prosecutor to prove the case for conviction and not for the accused to prove his or her innocence. You might be surprised to learn that this particular heritage of the freeborn Briton is barely two centuries old; but the European Court of Human Rights has made it clear that the presumption of innocence is today as much a part of Continental inquisitorial systems as it is of accusatorial systems like ours.
At this point one might pause. What is to be allowed to contribute to the proof of guilt? Previous convictions, for example? Few things can point more tellingly to the likelihood of guilt than the fact that the accused has committed a similar crime half a dozen times before. The reason such evidence is generally excluded is not that it is irrelevant: it is that it is so relevant that it is likely to eclipse everything else in the case. But because of the real possibility that it is only the defendant’s record that has caused him or her to be singled out for suspicion and prosecution, or to eliminate mistake on the prosecutor’s part by showing method on the defendant’s, from time to time such evidence is admitted, and we might want to adopt both the rule and the exceptions. A rigid inclusionary or exclusionary rule would inevitably create injustices.
Then how about the accused person’s silence, whether at interview or in court? The law now allows this, too, to contribute to the proof of guilt, provided juries are given strict warnings first to eliminate any innocent explanation for the silence and then to ensure that there is other credible evidence of guilt. This development has been intelligibly contested by advocates of civil liberties, but its best justification is that it probably does no more than corral within safe bounds something that the common sense of juries has always led them to do.
Meanwhile, still writing on the blank sheet, one would have to turn to things the accused himself has said which point to his guilt. (Both for convenience of syntax and in recognition of reality, my paradigmatic defendant is a man.) An admission of guilt is about as significant as evidence gets. But, like a string of previous convictions, it can mislead. It may have been made in fear or distress in order to put an end to an ordeal; it may have come from a compulsive confessor; it may have been made in the hope of securing bail or facing a reduced charge. Well within the lifetimes of many in the United Kingdom, it may have been extracted by brutality or simply fabricated. So one would certainly put into the system the safeguards now spelled out in the codes appended to the Police and Criminal Evidence Act (1984) to ensure that police interviews are conducted without oppression or improper inducement, that live recordings of them are made and that courts have the power to exclude admissions improperly obtained.
But why only a power? Why not a duty to exclude such evidence? A duty of exclusion seems to follow straightforwardly enough, not least because it will deprive police misconduct of any reward. The problem is the unauthorised phone tap or raid or random search, perhaps undertaken mistakenly rather than maliciously, which turns up damning evidence of serious crime. What principle forbids a society to use such evidence to prosecute wrongdoers? The easy answer – the rule of law – turns back on itself once it is accepted that the detection and prosecution of crime are also part of the rule of law. The answer arrived at not only by appellate courts throughout the common law world but also by the European Court of Human Rights is that there is no principled answer. If you want a principle, it has to be either the common law’s historic view that evidence is evidence no matter how it is obtained – a licence and an encouragement to the authorities to break the law – or the bald exclusionary principle adopted in 1961 by the United States Supreme Court and since then under almost constant siege. Both the United Kingdom and the European Court of Human Rights have settled into an uneasy position between the two poles, recognising that while in some cases the breach of legality will be so marginal as not to matter or so serious that it cannot decently be overlooked, in others it has to be painfully weighed against the importance of the evidence it has produced. The persisting difficulty is that there is no legal calibration of the scales.
But the common law itself always made one crucial exception: the rule that it did not matter how evidence had been obtained did not apply to confessions. Here judges historically have taken it on themselves to exclude unfairly obtained admissions of guilt; and this self-conferred power has been raised to a higher-order principle by a statutory requirement in the Police and Criminal Evidence Act to exclude confession evidence which the Crown cannot prove to have been obtained in circumstances which cast no serious doubt on its reliability. I doubt, in the light of the bitter judicial experiences of recent decades, whether one would want the model system to retreat an inch from this position.
So we have reached a position in relation to routine police interviewing in which self-incrimination is acceptable because – and only because – it cannot be used in court unless it has demonstrably occurred in risk-free conditions. Those conditions include voluntariness, but the suspect may be volunteering an explanation because he has been warned that an adverse inference may be drawn from unexplained silence, and to that measured extent there is pressure to speak. For my part I do not find this morally or ethically repugnant, and as a trial judge I encountered no evidence (apart from the still unresolved problem of suspects whose solicitors advise them without good reason to remain silent) that it worked injustice.
With self-incrimination now strictly monitored where it matters most, in the police station, you might wonder what is left to worry about. The answer is quite a lot. Let us go back for a moment to the ideal system. We can agree that nobody should have to account for themselves simply to satisfy an inquisitive official, and therefore that nobody’s refusal to do so should be taken to connote that they have been up to no good. This much we can ascribe to the fundamental right to be let alone; but that right has nothing directly to do with self-incrimination: it is dealt with by the larger and different right of silence. We may also be able to agree that, in cases where officialdom has good grounds for suspecting you of an offence and tells you what these grounds are, not only what you say but what you don’t say in response may be relevant at trial.
But a moment’s reflection suggests that there is more to life in a developed democracy than this. A large number of private activities regulated by the state, albeit with the back-up of criminal sanctions, depend on the honesty and self-discipline of those concerned: financiers handling large sums of other people’s money, or drivers who like a drink. Such people from time to time may be required to account for themselves either to public officials or to opponents in litigation. What is to happen when such a person, compulsorily answering entirely legitimate enquiries from someone who up to that point had no particular reason to suspect them of crimes, or whose suspicions lacked proof, makes an incriminating admission? In bare principle, you could take one of three attitudes. You could say that both the question and the answer are writ in water because there is a fundamental principle that people cannot be required to incriminate themselves. Or you could recognise that the regulatory regime has a legitimate need for answers to such questions but prohibit the use of these answers in court. Or you could decide not only that there is a legitimate need for answers but that if these answers afford proof of criminality they should be put before a jury like any other evidence.
The first of these approaches, the total exclusion of incriminating questions, has the virtue of universality and of apparent simplicity. I say ‘apparent’ because in practice there are few questions to which an incriminating answer is not possible, and it is frequently only the person being questioned who knows whether the answer will in fact incriminate him. It also has the vice that, an old and never very watertight vessel, it is today leagues adrift from its anchorage and listing badly. The third approach, total admissibility, dovetails with the central purpose of particular legal regimes backed by criminal sanctions: to be able to prosecute people who abuse a privileged position. Its downside, at least where the equivalent of PACE procedures is not in place, is the risk of oppression and malpractice in pursuit of admissions. The second approach – you can ask the question but can’t use the answer – has the vices of both and the virtues of neither. It does nothing to protect the innocent from oppression or therefore from unjust administrative sanctions: to do that, strong procedural controls are needed. But by shutting out every forensic use of incriminating answers obtained under legal compulsion, however careful and controlled the procedure by which they have been obtained, it protects the guilty from conviction. Even so, I shall have to return to this eccentric proposition because, remarkably, it is the impasse into which the modern law of human rights in Europe has been driven.
To see how this has come about it is necessary to unravel a long skein of history. As often happens, a significant part of this history consists of the participants’ own beliefs about it. Blackstone held that the privilege against self-incrimination was an inalienable part of the Englishman’s heritage: ‘No man is to be examined to prove his own infamy.’ It is found as a judicial maxim as early as 1568, stated plainly by Chief Justice Dyer on behalf of the Court of Common Pleas. The redoubtable John Lilburne, at his trial for high treason in 1649, said to the court: ‘By the laws of England I am not to answer questions against or concerning my selfe,’ and Justice Keble reassured him: ‘You shall not be compeld.’ Dalton’s Countrey Justice in 1618 claimed it as a maxim of the common law, and Barlow’s Justice of the Peace in 1745 asserted that, by keeping the accused out of the witness box, the maxim showed the law of England to be a law of mercy. In fact there was nothing peculiarly English about it: it was a widespread legacy of the medieval jus commune and had roots deep in the law of the early Church in Europe and the near East. In today’s world it has become a shield which protects corporations from having to divulge their own wrongdoing to the state, by whose licence they exist, and an elephant trap for public agencies trying to combat crime. How has this happened?