United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 100. Fair Trial Guarantees
Section J. Compelling accused persons to testify against themselves or to confess guilt
The UK LOAC Manual (2004) states in its chapter on prisoners of war:
The capturing power may ask further questions [from prisoners of war] to obtain tactical or strategic information but the prisoner of war cannot be forced to disclose any such information … No physical or mental torture or any other form of coercion may be used to obtain information. Nor may those who refuse to answer be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
The manual further explains:
No moral or physical coercion may be exerted on a prisoner of war to induce him to admit his guilt of any offence charged. This rule would exclude, for example, the use of hypnosis, drugs and oppressive methods of questioning.
In its chapter on the protection of civilians in the hands of a party to the conflict, the manual states:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … no one shall be compelled to testify against himself or to confess guilt.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the right of the accused not to be compelled to testify against himself.”
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held – for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue.
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
Article 11 (Monitoring of procedures to prevent torture or other forms of ill-treatment)
Right to silence
England, Wales and Northern Ireland
109. In response to the judgement of the European Court of Human Rights in John Murray v. United Kingdom, the Government introduced provisions prohibiting the drawing of inferences from silence where no prior access to legal advice has been granted. These were contained in the Youth Justice and Criminal Evidence Act 1999, and replicated for Northern Ireland at article 36 of the Criminal Evidence (Northern Ireland) Order 1999. Commencement of the provisions in England and Wales and in Northern Ireland will follow necessary revision of the PACE Codes [Codes of Practice issued under the Police and Criminal Evidence Act 1984]. However, in both jurisdictions administrative arrangements have been in place for some time to ensure compliance with the judgement.
110. In Scotland, regardless of whether a legal adviser is present, no inferences can be drawn as to the credibility of the suspect’s evidence on any matter about which he declined to say anything while being interviewed, cautioned, or charged by the police.
Article 15 (Admissibility of confession evidence)
England and Wales
278. As explained in paragraphs 121–123 of the initial report, under both statutory and common law, a confession that may have been obtained by oppression is inadmissible in the United Kingdom as evidence against the person who made that confession. When considering the admissibility of a confession the court must have in mind the provisions of sections 76 and 78 of the Police & Criminal Evidence Act 1984. Under section 76, the court must exclude a confession if it was or may have been obtained by oppression or in consequence of anything said or done which was likely to render a confession unreliable. Under section 78, the court may exclude a confession if, having regard to all the circumstances, its admission as evidence would have an unfair effect on the proceedings. Human Rights legislation (ECHR [1950 European Convention on Human Rights] article 3 as incorporated through the Human Rights Act 1998) also provides that the court may exclude a confession if it was obtained in violation of convention rights.
279. Although the PACE Act 1984 does not extend to Scotland, the same principle, that evidence of a confession obtained by oppression is inadmissible, also applies in Scotland.
280. Section 76 of the Terrorism Act provided for the admissibility of confession evidence in scheduled offences going before a Diplock court in Northern Ireland. The first annual report by Lord Carlisle, the Independent Reviewer of the Terrorism Act, suggested that consideration be given to the need for section 76 to continue to exist. Following a consultation exercise, Ministers were satisfied that practice had developed to the point similar to the PACE standard for confession evidence and, in July 2002, section 76 was repealed. The United Kingdom is not satisfied that section 76 was of itself a breach of the Convention. Nor does the United Kingdom accept that a provision in Northern Ireland different from the rest of the United Kingdom is an inherent breach of the Convention. Within the United Kingdom, different bodies of law apply in England and Wales, Scotland, and Northern Ireland.
In 2004, in a written answer to a question concerning the 1984 Convention against Torture, the UK Minister of State, Home Office, stated:
The Government unreservedly condemn the use of torture and have made it an important part of their foreign policy to pursue its eradication worldwide. The Government are not aware of any proceedings in a UK court in which any statement which is established to have been made as a result of torture has been invoked as evidence, except against a person accused of torture.
In 2006, in response to a question concerning, inter alia, “the Government’s intention … not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture”, the UK Government stated:
Evidence obtained as a result of any acts of torture by British officials, or with which British authorities were complicit, would not be admissible in criminal or civil proceedings in the UK. It does not matter whether the evidence was obtained in the UK or abroad.
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Use of torture …
54. An appeal by the British Government to the House of Lords on the use of torture evidence arose as a result of individual appeals by 10 of the individuals who were certified and detained under the ATCS [Anti-terrorism, Crime and Security] Act. On 8 December 2005, the Law Lords ruled that there is an exclusionary rule precluding the use of evidence obtained by torture. The effect of this ruling is simply to replace the British Government’s stated policy, namely, not to rely on evidence which is believed to have been obtained by torture by an “exclusionary” rule of law.
113. As regards paragraph 17 of the concluding observations (“The State party should reconsider, with a view to repealing it, the principle that juries may draw negative inferences from the silence of accused persons. This is to ensure compliance with the rights guaranteed under article 14 of the Covenant.”), the key question in addressing this issue is, whether the power to draw inferences from a person’s silence is compatible in principle with the right not to incriminate oneself. It is important to note that, while the ECtHR [European Court of Human Rights] has made clear that the right to silence and privilege against self incrimination is at the heart of a fair trial, and particular caution is required by a domestic court before it can invoke an accused’s silence against him, that Court has also made clear that the right is not absolute and that it must be considered in the context of the particular circumstances of each case.
114. The ECtHR has stated, in Murray v UK (1996 22 EHRR 29) that whether the drawing of adverse inferences from an accused’s silence infringes article 6 of the ECHR [European Convention on Human Rights] is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight to be attached to them by national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.
115. It is also important to note that, under British law, an inference cannot be drawn simply from failure to answer police questions. An inference may only be drawn if the defendant fails to answer police questions and then also fails to testify at trial, or if the defendant fails to mention something, which, in the circumstances existing at the time, he could reasonably have been expected to mention, and which he then seeks to rely upon in his defence at trial. The aim of the British legislation is to discourage an accused from fabricating a defence late in the day and to encourage the accused to make a speedy disclosure of any genuine defence or fact which may go to establishing a genuine defence. It is not to secure convictions at the expense of defendant’s rights.
116. The British Courts will have due regard to the requirements of article 6 of the ECHR and to the overall fairness of proceedings in determining whether to invoke an accused’s silence against a defendant. This was demonstrated in the recent case of R v Becouarn , UKHL 55, in which the House of Lords found that the recommended direction on drawing inferences was sufficiently fair to defendants, emphasizing as it did that the jury had to conclude that the only sensible explanation for a defendant’s failure to give evidence was that he had no answer to the case against him, or none that could have stood up to cross-examination. It was noted that trial judges had full discretion to adapt the direction if they considered that by doing so it would provide the best guidance to a jury and the fairest representation of the issues.
117. The Government considers that the ability to draw negative inferences from an accused’s silence under British law cannot be said to be, on its face, a breach of article 14, and that each case will be subject to the supervisory scrutiny of the Courts to ensure that the requirements of a fair trial are met. The arrangements therefore will remain in place.
Right of silence
526. The Criminal Justice and Public Order Act 1994, which came into force in England and Wales on 10 April 1995, introduced provisions similar to those in Northern Ireland. They preserve the right of a suspect to remain silent when questioned by the police but permit inferences to be drawn from silence if:
- A suspect has, without reasonable explanation, failed to tell the police something which he later uses in his defence;
- A defendant does not give evidence on his own behalf at trial;
- A suspect fails to account for his presence at a particular time and place or to account for objects, substances or marks on his person at the time of his arrest;
- There are important safeguards to this which can be found in paragraph 387 of the fifth periodic report.
527. Following the ECHR case of Murray (1996), these safeguards were further enhanced by section 58 of the Youth Justice and Criminal Evidence Act 1999. This amended the Criminal Justice and Public Order Act 1994 provisions to prevent inferences being drawn if a suspect has not had the opportunity to speak to a solicitor and PACE [Police and Criminal Evidence Act] Code C was amended accordingly with effect from 1 April 2003.