scholarly journals The Right to Silence and the Pendulum Swing: Variations in Canadian and Scottish Criminal Law

2020 ◽  
Vol 1 (3) ◽  
pp. 291-313
Author(s):  
Kathryn M. Campbell
Keyword(s):  
Law Enforcement ◽  
Fair Trial ◽  
European Convention ◽  
Criminal Cases ◽  
Pendulum Swing ◽  
Canadian Law ◽  
Right To Silence ◽  
The Supreme Court ◽  
The Right ◽  
Constitutional Protections

The right to silence is afforded to suspects in criminal cases as part of a number constitutional protections contained within Canadian law through the Charter of Rights and Freedoms. It is closely linked to other such rights, including the right to counsel, the right against self-incrimination and the presumption of innocence. Moreover, in some cases, the denial of this right has resulted in convictions in error through false confessions and wrongful convictions. Decisions by the Supreme Court in Canada in recent times can be viewed as a slow encroachment onto individual Charter rights in favour of the needs of law enforcement. In Scotland, until recently, while afforded a right to silence suspects could still be questioned for up to six hours without a lawyer present. While other measures existed to protect an individual’s right to a fair trial, such practices were out of step with the European Convention on Human Rights Article 6(1) right to a fair trial. In the decision in Cadder v HMA, greater protections to suspects were introduced regarding the right to silence and the right to counsel, and the Criminal Justice (Scotland) Act 2016 later consolidated the relevant law on this matter. The focus of this paper will be to examine how the right to silence in both Canadian and Scottish law has evolved through statute and case law and the implications of this for law enforcement practices, the protection of rights and the safety of convictions.

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.

9. Article 6: The right to a fair trial

2018 ◽  
Author(s):  
David Harris ◽  
Michael O’Boyle ◽  
Ed Bates ◽  
Carla Buckley
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Public Hearing ◽  
Legal Assistance ◽  
Criminal Cases ◽  
Reasonable Time ◽  
Criminal Charge ◽  
The Right

This chapter discusses Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial in both criminal and non-criminal cases. In all cases, it guarantees the right to a fair and public hearing trial within a reasonable time by an independent and impartial tribunal established by law. There are particular guarantees for persons subject to a criminal charge, including the right to be presumed innocent, to be informed of the charge, to adequate time and facilities to prepare the accused’s defence, to legal assistance, to examine and cross-examine witnesses, and to an interpreter.

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

scholarly journals Pierādījumu pārbaude kriminālprocesā

2021 ◽  
pp. 550-559
Author(s):  
Oskars Kulmanis ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Cases ◽  
National Courts ◽  
European Court ◽  
The Supreme Court ◽  
Court Proceedings ◽  
The Republic ◽  
The Right ◽  
Court Hearing

The article addresses specific aspects of the principle of equality of arms, which is one of the fundamental principles that secures the rights of an accused person in court proceedings in criminal cases. It outlines one particular aspect laid down in Article 6 § 3 (d) of the European Convention of Human Rights, that is, the right of an accused person to examine witnesses against him. Another important aspect which concerns the rights of an accused person to examine the witnesses against him is an obligation for the national courts to justify convictions with the evidence verified in a court hearing. The Supreme Court of the Republic of Latvia and the European Court of Human Rights have emphasized several important practices of principle of fair trial which determine the justification of convictions with the evidence that has not been verified in court proceedings in criminal cases.

scholarly journals A New Model of Appeal Proceedings in Criminal Cases: Acceleration v. Fairness? A Few Remarks from the Perspective of the Standards of Protecting Human Rights

2021 ◽  
Vol 30 (4) ◽  
pp. 187
Author(s):  
Małgorzata Wąsek-Wiaderek
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Appellate Court ◽  
Political Rights ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Supreme Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
First Time

<p>The purpose of this study is to present and evaluate the main changes to the appeal proceedings model introduced in the last few years to the Polish criminal proceedings in order to accelerate it and, thereby, satisfy the requirements of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The article presents arguments supporting the thesis whereby these have weakened the right of the defendant to appeal against the judgement. Under the currently applicable regulations, it is permissible that an appellate court may impose a penalty for the first time which cannot be subject to an effective appellate review. Such a solution may raise doubts as to its compliance with Article 14 (5) of the International Covenant on Civil and Political Rights. The article also formulates a thesis whereby the newly introduced measure – a complaint against the cassatory judgement of the appellate court – contrary to preliminary fears, has not in fact “blown up” the system of appeal measures in the Polish criminal proceedings. At the same time, despite the relatively small scope of its use, it may contribute to strengthening the appeal – as opposed to the revisory – model of appellate proceedings and thus accelerating the criminal proceedings. This thesis is based on the research of all complaints brought to the Supreme Court in 2016–2019.</p>

scholarly journals Joseph A. Greenaway Jr. Lecture Series on Law and Justice Speak at Your Own Peril

2020 ◽  
Vol 9 (1) ◽  
pp. 1-15
Author(s):  
Joseph A. Greenaway
Keyword(s):  
United States ◽  
The United States ◽  
First Century ◽  
Public Order ◽  
The United Kingdom ◽  
Right To Silence ◽  
The Supreme Court ◽  
Law And Justice ◽  
The Right ◽  
Constitutional Protections

AbstractThis lecture given at Birmingham City University School of Law, March 21, 2019 considers the origins of the right to silence in the jurisprudence of the Supreme Court of the United States and compares the constitutional protections against self-incrimination with those of the United Kingdom. It notes that the effect of the changes introduced by the Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act of 1994 is that there is now a fundamental divergence in approach between the two jurisdictions and concludes that as the twenty first century progresses, defendants on both sides of the Atlantic will be less likely to exercise their rights without consequence and then when they do choose to speak it will be at their peril.

scholarly journals The practice of the Supreme Court and the decisions of the European Court concluding violations of artic - le 3 of the Convention

2020 ◽  
pp. 413-417
Author(s):  
Alla Radzivill
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
European Convention ◽  
European Court ◽  
The Supreme Court ◽  
Effective System ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right

Law enforcement practice of the Supreme Court in cases involving torture in the light of the standards of the European Court ofHuman Rights. The article is devoted to the study of individual legal positions of the Supreme Court, their coordination with the practiceof the European Court of Human Rights. The author emphasizes that the decisions of the European Court should serve as precedents,which will make it impossible to produce diametrically opposite decisions on similar categories of cases. Analysis of the problem ofcriminal responsibility for torture allows us to form conclusions and suggestions that are important for the development of the theoryof criminal law and the improvement of law enforcement practice.The article deals with the issues related to the peculiarities of the interpretation and application of Article 3 of the European Conventionon Human Rights of the European Court of Human Rights. In particular, the scope of Article 3 has been analyzed; it has been de -fined, what is necessary to understand under concepts of torture, inhuman or degrading treatment or punishment. Substantive and proceduralaspects of violations of the prohibition of torture have been revealed, as well as positive and negative obligations of a state to providethe effective protection of the right. The standards of the appropriate assessment of ill-treatment and the main aspects of judicial qualificationof a particular form of mistreatment as torture have been analyzed. The procedural guarantees, which must be provided for each personat the stage of pre-trial investigation, non-observance of which leads to a breach of Article 3 of the Convention, have been determined.Creation of the effective system of protection of human rights and its efficiency is analysed in relation to the crime of “torture”in the context of European Convention on human rights, which must be in future stored and taken for basis for a further improvementand systematization of the single European standards in area of human rights.

scholarly journals On the Issue of Inadmissibility of Infringing the Right to a Fair Trial of Criminal Cases under the Guise of Protecting State Sovereignty

2017 ◽  
Vol 4 (3) ◽  
pp. 176-182
Author(s):  
A A Timoshenko
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Political Rights ◽  
Criminal Cases ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The author examines the issue of the prospects for the direct application of human rights standards in the regulation of criminal procedural activity. In this regard, the key attention is paid to the provisions of art. 14 of the International Covenant on Civil and Political Rights, as well as art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the right to a fair trial of criminal cases. It is assumed that only a fair and impartial court is able to ensure the progressive development of society, its stability and security of citizens. Based on the analysis of the main possible ways of further development of the criminal procedural legislation, one of which is related to the increase of formal requirements for criminal procedural activity, and the other - with increased attention to the natural-legal principles of the application of the law, preference is given to the second approach. Based on the analysis of the monuments of world jurisprudence, the study of the history of the formation of international human rights law, it is concluded that it is impossible to overcome the progressive movement towards the triumph of the humanitarian status of the person recognized by the international community. In this regard, the Constitutional Court of the Russian Federation, assessing the correctness of the European Court of Human Rights interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, should be guided by world standards. In addition, there is a need for widespread respect for the need to respect the right to a fair trial.

scholarly journals The Relationship between the Constitutional Right to Silence and Confessions in Nigeria

2014 ◽  
Vol 6 (2-3) ◽  
pp. 189-211
Author(s):  
Esa O. Onoja
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
Criminal Cases ◽  
Legal Rules ◽  
Right To Silence ◽  
The Common ◽  
Constitutional Right ◽  
The Right ◽  
The Relationship

Abstract The extraction of confessions from suspects under torture by security agents is a notorious fact in Nigeria. Ironically, the Constitution of the country guarantees a right to silence, but courts in Nigeria predicate the admissibility of confessions on the common law-based Judges Rules and Evidence Act 2011 without linking it to the constitutionally guaranteed right to silence. This article reviews the legal rules on the admissibility of confessions in Nigeria and contends that without attaching constitutional flavour to the admissibility of confessions, the legislature and the courts in Nigeria unwittingly water the ground for the systemic extraction of confession from suspects in custody in Nigeria. The article suggests that the courts in the country consider the implication of the guarantee of the right to silence in the country’s constitution in the determination of the admissibility of confessions to promote fair trial in criminal cases in the country.

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