Silence and Confessions: The Suspect as the Source of Evidence

273 Pages·2014·2.705 MB·English

by  Susan Easton (auth.)

Silence and Confessions
Silence and Confessions
The Suspect as the Source of Evidence
Susan Easton
Reader in Law, Brunel Law School, UK
© Susan Easton 2014
Softcover reprint of the hardcover 1st edition 2014 978-1-137-33381-0
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First published 2014 by
PALGRAVE MACMILLAN
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registered in England, company number 785998, of Houndmills, Basingstoke,
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Palgrave Macmillan in the US is a division of St Martin’s Press LLC,
175 Fifth Avenue, New York, NY 10010.
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the United Kingdom, Europe and other countries
ISBN 978-1-349-46239-1 ISBN 978-1-137-33382-7 (eBook)
DOI 10.1057/9781137333827
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For Blake, Holly, Teddy and Brio
Contents
Acknowledgements x
Table of Statutes x i
Table of Cases x iii
1 Introduction 1
2 The Debate on the Right to Silence 5
Introduction 5
Silence in court 9
Silence during police interrogation 1 1
The debate on the right to silence 1 2
The Criminal Evidence (Northern Ireland) Order 1 9
The Home Office Working Group on the Right to Silence 2 2
The attack on the right to silence in the 1990s 23
Advance disclosure 26
The statutory duty to answer questions 2 8
Silence at common law 32
Conclusion 33
3 The Impact of the Criminal Justice and Public Order
Act 1994 3 4
Introduction 34
Silence in court 34
Pre-trial silence 38
Interpreting Section 34 44
The effect of legal advice 49
Exercising the right to silence 56
Conclusion 60
4 The Influence of International Human Rights
Standards on the Treatment of Suspects 61
Introduction 61
The key sources of international human rights law 61
The European Convention on Human Rights 6 7
The interrogation of suspects 71
Conditions in detention and extended detention 7 5
vii
viii Contents
The privilege against self-incrimination and the
presumption of innocence 80
Conclusion 86
5 The Legal Framework of Interrogation 87
Introduction 87
The audio and visual recording of interviews 88
Access to legal advice 91
The quality of legal advice 94
Informal interviews 97
Voluntary confessions 99
Exclusionary discretion 102
Vulnerable suspects 105
Miranda v Arizona and its legacy 1 16
The experience of Canada 124
Conclusion 126
6 False Confessions 128
Introduction 128
Miscarriages of justice 129
Reviewing miscarriages of justice 135
Waiver: the dangers of speaking 138
False confessions 143
The typology of false confessions 150
Tunnel vision in interrogations 153
The dynamics of interrogation 156
Conclusion 164
7 Suspects and ‘Suspect Communities’ 167
Introduction 167
Policing Northern Ireland 168
Detention and questioning in Northern Ireland 1 71
The use of emergency powers 173
Contemporary counter-terrorism measures 178
Control Orders and TPIMs 180
The use of Schedule 7 and Section 44 181
The disparate impact of counter-terrorism measures 184
The policing of black and minority ethnic communities 1 88
Conclusion 192
8 The Body as Evidence 194
Introduction 194
Contents ix
The provision of forensic science services 1 97
The admissibility of DNA evidence 1 99
The privilege against self-incrimination 2 04
Obtaining and retaining bodily samples 2 14
Conclusion 222
9 Conclusion 224
Introduction 224
Corroboration of confession evidence 2 25
Future directions 230
Bibliography 232
Index 247
Acknowledgements
I would like to thank Julia Willan and Harriet Barker at Palgrave
Macmillan for their editorial assistance. I am also very grateful to the
production staff for their assistance. I have also benefited from discus-
sions of the ideas in this book with staff and students at Brunel Law
School.
x
Table of Statutes
Access to Justice Act 1999 95
Anti-social Behaviour, Crime and Policing Act 2014 182
Anti-Terrorism, Crime and Security Act 2001 78
Children Act 2004 111
Civil Authorities (Special Powers) Act (Northern Ireland) 1922 174
Companies Act 1985 29–30, 84
Coroners and Justice Act 2009 112
Counter-Terrorism Act 2008 131, 180
Crime and Disorder Act 1998 35
Crime and Security Act 2010 220
Criminal Appeal Act 1968 135
Criminal Appeal Act 1995 26, 136
Criminal Evidence Act 1898 9–10
Criminal Justice (Amendment) Act 2009 (Republic of Ireland) 17
Criminal Justice Act 1967 12, 27, 31
Criminal Justice Act 1982 10
Criminal Justice Act 1984 (Republic of Ireland) 17–19
Criminal Justice Act 1987 30
Criminal Justice Act 1988 228
Criminal Justice Act 1991 189
Criminal Justice Act 2003 27–28, 70, 131, 146, 217
Criminal Justice and Immigration Act 2008 59
Criminal Justice and Police Act 2001 217–18
Criminal Justice and Public Order Act 1994 9–11, 20, 23, 27, 29, 33–56,
60, 71, 79–81, 93, 99, 142, 189, 217, 228
Criminal Procedure and Investigations Act 1996 9, 26–8, 31, 132
Criminal Procedure Code (Amendment) Act 1976 (Singapore) 16, 154
DNA Fingerprint Act 2005 (United States) 200
Equality Act 2010 189
Evidence (Amendment) Act 2013 (New South Wales) 19
Financial Services Act 1986 29
Human Rights Act 1998 1, 3, 9, 61, 67–9, 81
Innocence Protection Act 2004 (United States) 134
Justice and Security (Northern Ireland) Act 2007 176–7
Justice for All Act 2004 (United States) 217
Legal Aid, Sentencing and Punishment of Offenders Act 2012 146
xi