Rights of police and the individual are complex and not clearly defined.

Press, 5 August 1980, Page 17

Rights of police and the individual are complex and not clearly defined.

A person who is being questioned at a New Zealand police station can say at any time: “Are you going to arrest me?’ 9 If the answer is no he can say: “Then I’m going home," and walk out. But this apparently simple resolution is only the fringe of a most complex matter. DOUGLAS McKENZIE has been looking into some aspects of it. Today’s article considers the position overseas. Tomorrow the New Zealand view will be outlined.

Few aspects of criminal procedure provoke as much dissension as the question of police interrogation • of suspects, according to two lecturers in law at the University of Birmingham, John Baldwin and Michael McConville, in a recent article printed in the “Criminal Law Review,” London.

The remarks of these two academics refer to conditions in England and Wales, but within quite close limits they could apply to New Zealand as well, where the position is also far from clear.

“The rules which govern interrogation in England and Wales are imprecise and very commonly misunderstood; the way the rules are applied are not known,” write Baldwin and McConville.

“Ignorance and suspicion hold sway and facts are virtually non-existent. Part of the reason for this situation' is that police officers fear an erosion of their powers, though privately many of them acknowledge that strict adherence to the rules is rare.”

The authors go on: “The secrecy with which the police conduct interrogations, however, readily. creates a suspicion that the rules are not merely being broken but that existing practices are unfair and coercive. “The truth of the matter is that no area of criminal procedure cries out more for examination, if not reform, yet few rre as shrouded in secrecy.” The suspect who walks out of a police interrogation must remember that this action is likely to tell heavily against him in the court’s mind if he should be charged. Equally, the police officer who arrests him just to continue to hold him for questioning may find himself in a civil action for wrongful arrest.

Baldwin and McConville declare that the rules governing access to a lawyer are not as widely understood as might be thought; and they quote the relevant parts of the Judges’ Rules and accompanying administrative directions:

The preamble to the Judges’ Rules states that they do not affect the principle that: ”... every person at any stage of an investigation should- , be able to : communicate and to consult' privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the

processes of investigation or the administration of justice by his doing so.” This is reinforced by the accompanying administrative directions, which emphasise: “A person in custody should be allowed to speak on the telephone, to his solicitor or to his friends provided that no hindrance is reasonably likely to be caused to the processes of investigation, or the administration of justice by his doing so.” Although the rules and directions do not have the force of law, failure to observe them may mean that answers and statements are excluded from evidence in subsequent criminal proceedings. Whether evidence is in fact excluded in such circumstances is a matter within the discretion of the trial judge. But a group of British lawyers has stated: “The police in this country need not tell the suspect of his right to have a lawyer present at his interview, and in practice the police often take advantage of the loophole provided by the Judges’ Rules to prevent a solicitor from communicating with his client until

after a statement has been made.” The authors quote several responses of defendants who said that they had asked to consult a solicitor. “I said I had nothing to say to them until I had consulted a solicitor. They said. ‘You’ll see one when you get to court, that’s soon enough, I asked to make a telephone call and they said, ‘No’. I only asked once to see my solicitor and they said, *Oh this is the Dorchester Hotel, would you take a three-course lunch as well?”

“The police refused to let me see a solicitor. They said. ‘We’re not refusing, just don’t get out of that chair’.” “I was definitely denied the right to contact my solicitor. I asked to telephone at 4.30 p.m. but they didn’t allow this until 6.05 p.m., by which time he’ had gone home.”

Baldwin and McConville say among their conclusions: The present Lord Chief Justice is reported to have said

that any rule requiring a solicitor’s presence during police interrogation would be “quite unacceptable,” and, in general, judges have been reluctant to exclude evidence obtained in breach of existing rules. Yet there can be no room for complacency. One difficult area of interrogation concerns the right of a suspect to select what he will talk about. The United Kingdom Criminal Law Revision Committee reported in 1972 (and its work is again under close study by the Royal Commission on Criminal Procedures): We propose to restrict greatly the so-called ‘right of silence’ enjoyed by suspects when interrogated by the police or by anyone charged with the duty of investigating - offences or charging offenders. By the right of silence in this connection we mean the rule that, if the suspect, when being interrogated, omits to mention some fact which would exculpate him, but keeps this back till the trial the court or jury may not infer that his evidence on this issue at the trial is untrue.

Under our proposal it will be permissible to draw this inference if the circumstances jfetify it. The suspect will still have the ‘right of silence’ in the sense that it is no offence to refuse to answer questions or tell his story when interrogated; but if he chooses to exercise this right, he will risk having an adverse inference drawn against him at his trial. “Since one cannot tell for certain what effect it has on the jury when the accused tells a story in court which he did not mention to the police when questioned the practical importance of the restriction on comment concerns what the judge may say in summing up.

“Briefly, he may invite the jury, in considering the weight which they should give to the accused’s evidence,, to take into account the fact that, by-not men-

tioning his story to the police, he has deprived them of the opportunity of investigating it. The judge may also, apparently, say simply that the jury may take the accused’s failure to give his explanation into account when they are considering the weight to give to his evidence in court, without having to add that the reason for this is that he has deprived the police of the opportunity to check his story; But in several cases it has been held that it is a misdirection to suggest that the jury may infer that the story told in court is false because, if it had been true, the accused would naturally have told it to

the police when they questioned him. “In our opinion it is wrong that it ’should not be permissible for the jury or magistrates’ court to draw whatever inferences are reasonable from the failure of the accused, when interrogated, to mention a defence which he puts forward at his trial. To forbid it seems to us to be contrary to common sense and, without helping the innocent, to give a'n unnecessary advantage to the guilty. “Hardened criminals often take advantage of the present rule to refuse to answer any questions at all, and this may greatly hamper the police and even . bring their in-

vestigations to a halt. Therefore, the abolition of the restriction would help justice.

“Some lawyers seem to think that it is somehow wrong in principle that a criminal should be under any kind of pressure to reveal his case before his trial. The reason seems ~to be that it is thought to be repugnant — or, perhaps rather, ‘unfair’ — that a person should be obliged to choose between telling a 5 lie and incriminating himself. Whatever the reason, this is a matter of opinion and we disagree,” said the committee.

But the change proposed by the committee would also mean a change to the celebrated caution that the police must give to a suspect at certain times during an investigation. The committee said: “If our proposal to allow adverse inferences to be drawn from the accused’s silence is accepted, it follows that the requirements of the Judges’ Rules to caution a suspect must be abolished or' replaced by different kinds of warnings or intimiations.” The caution includes the statement: “You are not obliged to say anything unless you wish to do so,” and adds the warning that anything said may. be given in evidence. The committee comments: “It is of no help to an innocent person to caution him to the effect that he is not obliged to make a statement. Indeed, it might deter him from saying something which might serve to exculpate him. On the other hand the caution often assists the guilty by providing an excuse for keeping back a false story ■. until it _ becomes difficult to expose its falsity. “In fact, the caution seems to stem from the ancient fallacy to which we referred earlier that ‘fairness’ in criminal trials requires that a guilty person should not be allowed to convict himself too easily. In any event practised criminals have little respect for the caution. “It is illogical that, when the police have a duty to question persons for the purpose of discovering whether and by whom an offence has been committed, they should be required to tell a person being questioned that he need not answer.”

It may be mentioned here that the often-quoted Judges’ Rules date back to 1912, when the judges, at the request of the Home Secretary, drew up some rules as guides for police officers. The rules have not the force of law; they are administrative directions aiming at the fair administration of justice. The present United Kingdom rules were issued in January, 1964, to replace the four rules originally issued in 1912 and the five added in 1918. However, in New Zealand the 1964 amendment has not been adopted. The Australian Law Reform Commission has also been looking into matters of police restraint. It recommended that 'where a person was under

restraint he was to be informed of that fact and the reasons for it. He was to be advised of his rights about access to relatives and friends, consultation with a lawyer, and the answering of questions. The commission considered the question of how long a custodial investigation might take. Were police to be unfettered as to time, or should there be time constraints? It is well established at common law that ■ the power of the police (and private citizens) to arrest exists only for the purpose of taking the suspect before a court to be dealt with according to law. The corollary is that detention will become unlawful if there is unreasonable delay in doing so. The commission is of the opinion that there ought to be a precise time limit set for police custodial investigation. Its proposal is that questioning should not be for longer than four hours (there is no such limitation in New Zealand). After that time the person must be either released or charged. In calculating the fourhour time limit no account is taken of direct travel time to the police station, or time spent arranging communication with the relatives, friends or lawyer of the person in custody. The commission recommends that persons in custody be notified of their rights before any questioning starts. . They should be told that they are in custody, why they are in custody, and what their rights are, in the first place in respect to the answering of questions, access to friends and relatives, and access to a lawyer; and subsequently, if the occasion arises, in relation to identification parades, bail, and the like. A person’s right to consult a lawyer during a pre-trial police investigation, the commission remarks, is a traditionally claimed civil right to which almost universal obeisance is paid in principle, but which is greeted with very great circumspection in practice by law enforcement authorities. The “right” has no constitutional or statutory backing in Australia. It cannot be said to have more than the most marginal support from the common law. This is to be contrasted with the situation in the United States. There, the constitution gives. backing for the accused to be warned that he has a right to remain silent; to be' warned that he has the right to the presence of an attorney; and to be told that, if he does not know or cannot afford an attorney, one will be appointed for him.

'’Police secrecy creates suspicion’