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Is the privilege against self-incrimination effective in protecting valid
interests?
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The privilege against self-incrimination stands in need of a convincing justification. To be sure, there is no shortage of eloquent testimonials to the hallowed place of the right to remain silent in the pantheon of Anglo-American liberties. But defenders of the privilege have yet to substantiate the misty rhetoric that cloaks the privilege in a haze of noble words.[10]
53 THIS CHAPTER TAKES ON THE TASK of piercing the “misty rhetoric” cloaking the privilege, by considering the interests which the privilege has been claimed to protect and whether they are valid reasons for the privilege’s retention. So that this is a meaningful discussion on a practical as well as theoretical level, an alternative to retaining the privilege is considered in chapter 3. Canada has abrogated the privilege by legislation and replaced it with an immunity from the use of the compelled self-incriminating disclosures.
54 The interests which the privilege is said to protect have been summarised by Justice Goldberg in the United States Supreme Court case Murphy v Waterfront Commission 378 US 52, 55 (1964):
The privilege against self-incrimination “registers an important advance in the development of our liberty – one of the great landmarks in man’s struggle to make himself civilized.” It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load”; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life”; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty”, is often “a protection to the innocent.”
55 We now deal in turn with each of the interests referred to in Murphy. These are
56 In Brown v Walker 161 US 591, 637 (1896), Justice Field (minority) attempted to explain what is cruel about compelling a person to choose between self-incrimination, perjury and contempt:
The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to every one, and needs no illustration. It is plain to every person who gives the subject a moment’s thought.
A sense of personal degradation in being compelled to incriminate one’s self must create a feeling of abhorrence in the community at its attempted enforcement.
57 Despite the “obviousness” of the cruelty of compelled self-incrimination, it is difficult to answer the following questions satisfactorily:
58 The cruel trilemma rationale links in with some of the other interests reflected in Murphy, such as preventing inhumane questioning techniques, obtaining reliable evidence, and securing the individual’s right to privacy. However, these are separate interests in their own right. The rationale does not appear to add anything of value to the other interests which the privilege is said to protect and, in the Commission’s view, does not by itself provide sufficient reason to retain the privilege.
59 New Zealand has an accusatorial or adversarial justice system which we adopted as part of the common law. Features of this system which intertwine with and give rise to the privilege include the following:
60 In inquisitorial justice systems (eg, France and Germany), the judge has an investigative as well as adjudicative role. Therefore, there is not so much a contest between the parties, but rather an emphasis on the judge establishing the truth. In this paper, the respective merits and disadvantages of the accusatorial and inquisitorial systems are not debated. Instead, an assumption is made that an inquisitorial system is unlikely to replace our current system; not least because of New Zealand’s historical and cultural imperatives. The issue for present discussion is whether the privilege is a desirable component of an accusatorial system. We turn now to the other interests which the privilege is said to protect in order to assess this.
61 In civil proceedings, the preference for an accusatorial system is not a directly relevant or strong justification for the privilege. However, it is conceivable that witnesses in civil proceedings might be pressured by State enforcement agencies to divulge self-incriminating information which could be used in criminal investigations and proceedings.
62 The privilege against self-incrimination has been described as “part of the common law of human rights” (Sorby v Commonwealth of Australia (1983) ALR 237, 249, and as a “fundamental bulwark of liberty, standing apart from other forms of privilege” (Pyneboard Pty Ltd v Australian Trade Practices Commission (1983) 45 ALR 609). Accordingly, it has been recognised in many human rights documents. For examples, see article 14(3)(g) of the International Covenant on Civil and Political Rights and ss 23(4)(b) and 25(d) of the New Zealand Bill of Rights Act 1990.[11]
63 It could be argued that the scope of “inhumane treatment and abuses” (referred to by Justice Goldberg in Murphy) is quite narrow, on the basis that “inhumane” reads down “abuses” as well as “treatment”. Therefore, the privilege’s role in preventing abuses may be limited to the most extreme interrogative abuses, such as torture and violence. However, this approach would be too literal, concentrating on the wording in Murphy, rather than on the ills which the privilege might assist in addressing. The rationale is capable of applying in a much wider range of cases, including when the witness has been subject to oppression, undue psychological pressure, or procedural abuses (eg, government “fishing expeditions”, questioning without providing legally required safeguards etc).
64 How can a claim of privilege prevent ill-treatment and abuses? Once the privilege is invoked, questioning may temporarily cease, enabling the questioner to re-examine the appropriateness of his or her approach and to provide the witness with information about why he or she is being questioned. In addition, the hiatus in questioning may also allow the person being questioned to take stock and consider his or her options. As the Commission recognised in Police Questioning (NZLC R31, 1994), para 95, in relation to criminal suspects:
The circumstances in which a suspect is placed will be many and varied. There will be circumstances in which it is in the interests of both guilty and innocent suspects to remain silent. Equally, there will be circumstances in which it is in suspects’ interests to answer questions. Either way, the circumstances may not be susceptible of quick assessment and the information disclosed as a basis for questioning, as well as the questions themselves, may reveal considerations which affect or alter a suspect’s decision.
65 The possibility that a witness may claim the privilege also encourages thorough investigative practices, ensuring that officials take account of all the available avenues of inquiry, rather than relying solely on the self-incriminating disclosures of the person being investigated. As Wigmore says:
Any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources . . . If there is a right to answer, there soon seems to be a right to the expected answer, – that is to a confession of guilt. Thus the legitimate use grows into unjust abuse; ultimately, the innocent are jeopardised by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognised. (para 2252)[12]
66 The European Commission on Human Rights has recognised that the privilege against self-incrimination is a component of a defendant’s right to a fair trial under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (in force on September 3 1953). In Ernest Saunders v United Kingdom (Report of the Commission No. 19187/91), the European Commission considered evidence-taking procedures leading up to the trial of Saunders, who was the former chief executive of Guinness plc. Statements taken by inspectors, acting under the statutory powers in s 432 of the Companies Act 1985 (UK) were admitted in the applicant’s subsequent trial for fraud offences.[13] The Commission held:
[T]he privilege against self-incrimination is an important element in safeguarding an accused from oppression and coercion during criminal proceedings. The very basis of a fair trial presupposes that the accused is afforded the opportunity of defending himself against the charges brought against him. The position of the defence is undermined if the accused is under compulsion or has been compelled.
67 Critics of the suggestion that the privilege prevents inhumane treatment and abuses have argued that there are alternative protections available (eg, Hon Justice Thomas “The So-Called Right to Silence” (1991) 14 New Zealand Universities Law Review 299, 322). In New Zealand, when a person is detained or arrested for a suspected offence, he or she has several rights under s 23 of the New Zealand Bill of Rights Act 1990. These are designed to prevent abuses of power by investigating officials (eg, the right to be told of the reasons for the arrest or detention, and the right to counsel).
68 The Commission does not believe that the existence of other safeguards removes the need for the privilege to prevent abusive investigative techniques. As recognised in para 64 above, the situations in which a person may be asked to give self-incriminating information are many and varied, and the extent and effectiveness of other safeguards provided will also vary. The rights contained in s 23 of the Bill of Rights Act arise only when a person has been arrested or detained under any enactment for an offence or suspected offence. Yet, a person may be compelled to make self-incriminating disclosures when there is no arrest or detention for an offence or suspected offence: see chapter 12 for several such examples. In those circumstances, the Bill of Rights Act protections will not be available, although the privilege will be claimable if the requisite element of compulsion is present.
69 In some investigative contexts, specific legislation may provide safeguards from abuse. For example, if a shareholder or director is examined by a liquidator under s 261 of the Companies Act 1993, he or she has the right to representation by counsel and the examination must be recorded in writing or on tape etc (s 265). However, these protections may not always be adequate to prevent investigative abuses. Counsel may be unavailable, inexperienced, or without sufficient knowledge to effectively advise the person who is being asked for information. In relation to video-taped interviews, taping does not prevent abusive questioning techniques occurring before the taped interview, and these may not be detectable in viewing the tape. Therefore, a person’s ability to claim the privilege will provide a useful backstop to other safeguards.
70 Recognising the possible availability of safeguards other than the privilege in questioning contexts, we consider that no one procedural safeguard can completely guarantee proper methods of questioning, but several different safeguards in combination may do so. Despite being only one in an inter-connecting series of safeguards, the privilege is required to prevent abuses.
71 The interest in ensuring the parties are equal has been criticised by Justice Thomas in the context of his article on criminal suspects and the right of silence, already cited in para 67. He said:
[T]here is no logic in maintaining a balance between prosecution and accused for its own sake, simply because there is no sound reason why the full resources of the state should not be directed to the task of preventing and arresting criminal activity. What is important is that those who are accused in that process receive a fair trial, and this may require that they be provided with resources to counter those available to the Crown. What it does not mean is that the accused, because he or she is at a disadvantage in relation to the state, should obtain a compensating “boost” unrelated to the imbalance in those resources. (309)
72 The Commission agrees that balance as an end in itself is not a justification for giving criminal suspects a compensatory “boost”. However, the interest in maintaining a fair State-individual balance reflects two other important concerns, which in some circumstances may justify the individual’s claim of privilege.
73 The first of these concerns is the individual’s right to be free from intrusion by the State, unless good cause can be shown for it. This concern is acknowledged in Justice Goldberg’s statement in Murphy, quoted in para 54. The witness’s affairs are his or her own concern and, in the absence of compelling reasons to the contrary, should be free from State intervention (Entick v Carrington (1765) 19 State Tr 1029). The privilege enables individuals to resist demands for self-incriminating information which constitute unwarranted intrusions by State representatives. As the number of information gathering powers which remove or restrict the privilege contained in Appendix B illustrates, there are many situations in which Parliament has decided that the State’s need for information outweighs the individual’s right to be left alone.
74 The second concern, in keeping with the accusatorial system, is to ensure that there is a fair contest between equal parties in proceedings. The alternative is domination by the strongest, most influential or wealthiest which, in a contest between the State and the individual would usually, although not invariably, be the State.[14] When a person claims the privilege in an investigation, fairness and equality are fostered by requiring the State representative to re-examine the information-gathering approach, possibly provide further information before the individual will make the disclosures sought, and conceivably gather evidence independently of compelled assistance from the individual. The need for balance and the requirement that the State must mount its case independently of the individual is most relevant in the context of criminal investigations and proceedings, where the State makes allegations and prosecutes the defendant.
75 The concern to maintain a fair State-individual balance will not normally be a compelling reason for the privilege when the State is not one of the parties to investigations or proceedings. However, the privilege may sometimes operate to prevent the State from obtaining evidence from disclosures made in those contexts to use in other investigations or proceedings in which it is a party; for example, by preventing the disclosure of the information in court when representatives of the State are present.
76 The interest in maintaining a fair State-individual balance should not be confused with the proposition that whether or not the privilege applies in a particular context depends on balancing competing considerations. That is a separate idea and one which is based on a misunderstanding of the privilege against self-incrimination. When the prerequisites for the privilege’s application in a given context have been met, the privilege should not be qualified by competing considerations. As discussed in chapter 5, the privilege is reflected in the Bill of Rights Act 1990 and cannot be lightly limited or removed: see s 5 of the Act. Furthermore, as Herman observes, the balancing approach contains risks:
[T]hat those who strike the balance will do so either carelessly or with their thumb on the scale, and that those who observe the balancing either will give it less scrutiny or will accept the results with silent resignation. (527)
77 In Brown v Walker, Justice Field said:
The common law privilege was intended to reflect the values inherent in individual sovereignty. These values are autonomy, dignity and privacy. Underlying them are separate interests in bodily integrity and mental integrity (repose, peace of mind, and control of information about one’s self). (637)
78 Privacy and similar values can be protected by a successful claim to the privilege, because the claim protects a person from disclosing personal knowledge or information, and also prevents the use and dissemination of that information in proceedings. Therefore, the privilege safeguards privacy in a way that subsequent exclusion of improperly obtained confessions cannot.
79 Privacy interests are not absolute. Obviously, the weight accorded to them must be balanced against other community interests and needs. This is recognised in s 6 of the Privacy Act 1993, which contains privacy principles governing access to and for the collection, storage and security of personal information. The principles are not absolute but allow for non-compliance in certain circumstances, for example, to avoid prejudice to the maintenance of the law, including the prevention, investigation, and detection of offences.
80 The need to balance competing interests, in order to ascertain whether privacy rights will prevail in any given case, does not lead to the conclusion that the privilege’s role in protecting privacy interests is unfounded. It merely indicates that those interests do not always predominate, particularly in the law enforcement context.
81 Some critics of the privacy interest supporting the privilege dispute its application to documents, on the basis that they are inanimate objects, as distinct from part of a person’s consciousness:
[I]t is not easy to see how an interest in mental privacy justifies privilege for pre-existing documents. Can the argument for freedom from intrusion into consciousness coherently extend to a decision to hand over something that exists independently of the suspect’s consciousness.[15]
82 There may be good arguments for removing the privilege for pre-existing documents, and this issue will be discussed further in chapter 8. However, we suggest that there is a recognisable privacy interest in preventing disclosure of pre-existing documents. Conceivably, outside access to pre-existing written information may sometimes be more intrusive and damaging to the individual than verbal disclosures. For example, when a person is compelled to show his or her personal diary to another person, there will be a sense of violation and intrusion.
83 In chapter 9, we consider the applicability of the privacy rationale to corporations and suggest that bodies corporate have interests in maintaining confidentiality akin to privacy. However, the personal aspect of feeling intruded upon, experienced by human beings, is clearly not present when a corporate body is required to produce documentation about its operations.
84 A person who is asked questions which could lead to criminal prosecution or a civil penalty is faced with a choice of lying, telling the truth, keeping silent or a mixture of all three. Witnesses in proceedings risk penalties for contempt of court for failing to answer questions. Given these choices, some people will perjure themselves by telling self-protecting lies. The existence of the right of silence and the privilege means that there is another option – that of remaining silent.
85 In the Commission’s view, the extent to which individuals actually avoid telling deliberate and calculated self-protecting lies by claiming the privilege is limited. It is difficult to predict the thought processes of witnesses under suspicion. The existence of protection may not prevent the need to lie. This is because people may calculate that appearing to co-operate, while in fact lying, would be less damaging to their interests than remaining silent. Invocation of the privilege may carry with it the suggestion that there is something to hide. Furthermore, in order to remove all risk of detection, a person may still be tempted to lie, or destroy or physically alter evidence, even if the privilege or an immunity is available.
86 The interest which the privilege protects – of obtaining reliable evidence – is more persuasive when there is some element of compulsion (either overt or inherent) in the particular situation which leads a person to make unreliable statements in response to the pressure. In face-to-face criminal investigations, for example, the context and nature of the questioning carry a risk that the resulting confession may be unreliable.[16] The Commission examined the right of silence and confessions in the criminal investigation context in Criminal Evidence: Police Questioning (NZLC PP21, 1992) and will produce a final report on the topic in the coming year.
87 In addition to any actual inducements offered to suspects to make false confessions, individual character traits, disability, or the suspect’s current state of mind, may make him or her more susceptible to misleading the questioner. In particular, young suspects may be more likely than adults to submit to the pressure exerted during an interview, while at the same time being potentially less aware of the right to remain silent or of the privilege against self-incrimination.[17]
88 The concern to obtain reliable evidence is less relevant in some other contexts in which the privilege can at present be claimed. If, for example, a document is already in existence at the time of the demand, there is likely to be less risk that the evidence produced will be unreliable than if an enforcement officer extracts an oral confession from a suspect. This is because the document exists independently of any compulsion. The person required to produce the document is not so likely to succumb to immediate pressure and give false evidence.[18]
89 Bodies corporate are in a different position from individuals when being questioned by officials, although individual officers or members may be intimidated into giving false evidence on their own behalf.[19] The reliability rationale is also less persuasive when it is applied to people outside an investigative context. In proceedings, the witness gives evidence in front of others and, if he or she is a party, may be represented by counsel. The potential liability to contempt is not perhaps as immediate as the pressure which individuals may experience during questioning at the police station.
90 In the face of an official investigation, or in circumstances where there is a risk of civil penalty if the witness makes self-incriminating disclosures, he or she may be
91 Silence can be consistent with innocence. For a number of reasons, an innocent person may not wish to try to persuade the official of his or her innocence. These include, fear, confusion, disability, poor communication skills, unawareness of the circumstances leading to investigation, and the attitude of the investigator.[20] These reasons might also apply when the person is asked to produce documents. For example, the document might contain something adverse which wrongly suggests culpability.
92 Much of the criticism of the right of silence and the privilege against self-incrimination focuses on the protection of the innocent and the conviction of the guilty. In relation to the right of silence, Justice Thomas, for example, suggests that it is frequently the hardened and the guilty who remain silent and successfully escape detection and punishment:
[T]he right works for the guilty. The compliant, the weak and the impulsive admit their guilt. Sophisticated, experienced and hardened criminals, or those receiving legal advice early enough, use the rule to their advantage and so avoid conviction. Suspects in certain kinds of cases invariably remain silent. Persons charged with dealings in drugs are an example. (304)
93 This is a serious objection to the right of silence, but one which does not appear to have been substantiated. In three surveys conducted in 1992, the Commission tested the assumptions that hardened criminals have greatest recourse to, and benefit most from, silence before and at trial (in these contexts the right of silence rather than the privilege against self-incrimination). The three surveys explored the right of silence at a police station, silence before and at jury trials, and the right of silence before and at trial recorded by Crown solicitors in cases in which they were involved. The results of these surveys were largely supportive of each other and showed that
94 The survey results raise the possibility that, in practice, the jury might draw inferences adverse to a defendant from his or her silence. Therefore, remaining silent may not assist the innocent to avoid conviction or liability to a civil penalty. This may provide some support for the idea that silence is a hollow right. However, we suggest that the situation is not so clear-cut, for a number of reasons.
95 First, the results do not show
There is no basis for concluding that most innocent or guilty people who remain silent are either acquitted or convicted. Assuming that most people who are convicted are guilty, and given the significant correlation between silence and conviction in the survey results, it follows that many guilty people are not evading conviction by remaining silent.
96 Second, even if a few guilty people avoid detection by remaining silent, there is no real way of knowing what effect removing the right of silence and the privilege against self-incrimination would have on crime detection rates or on interrogation and case preparation methods.[22]
97 Third, the privilege is not essential for all or most innocent witnesses, and it may not help the innocent more than the guilty. Rather, it can help some innocent people. The acquittal or vindication of those people is important, and the privilege’s role in this respect should be preserved.
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