Humanitarian law and criminal jurisprudence

Access to legal advice after arrest under UK law:

From the Address of the Attorney General President's Counsel Mohan Peiris before the Medico-Legal Society Scientific Session held in Colombo recently:

"I focus today on the inadequacies in the criminal procedure and evidence that have impacted on our assessment elsewhere by other authorities such as EU when they seek to assess us for suitability to obtain for instance GSP plus.

In the light of my experience in dealing with criticisms made of the implementations of our conventions obligations by various institutions, I have pondered over and surveyed the horizons for solutions and criminal procedure and evidence seem to be one of the right domains that need revisions and let me revisit some of the inadequacies and compare them to the United Kingdom which has long since modernized its criminal laws to suit the changing tided while we still remain saddled with ancient codes and age old practices which are totally unsuited to the present day, said the Attorney General.

Though I throw open these suggestions to you as possible reforms, we would welcome deliberations since I hope we can better our performances by orienting our laws and suitably amending them to keep abreast of the welcome developments abroad, he said.

What are these developments? Chapter Eleven of the Code of Criminal Procedure Act deals with investigation of offences and nowhere in those provisions has access to legal advice once a person is arrested being stipulated. As a result recording of statements takes place often times without the presence of legal representation. Should we have legal representation at the time of recording of statements as a mandatory requirement? Can we make derogations for exceptional circumstances when we have introduced access to legal advice? If we introduce these changes, should there be a dilution of the rights of suspects such as the ability of a prosecutor to use the statement made in the course of investigation as substantive evidence?

The United Kingdom has guaranteed right to have access to legal advice on detention- in England Police and Criminal Evidence Act of 1984 (universally known as PACE) and the Codes of Practice issued there under regulate and govern the arrest, detention, recording of statements and confessions of a suspect. These two instruments place due process safeguards on the exercise of the powers that the police possess. These due process safeguards include the placing in statutory form of the variety of liberties and privileges to be enjoyed by the citizen.

Particularly noteworthy are Section 56 and 58 of the PACE.

Serious

Section 56 is the right to have someone informed that a person has been arrested; Section 58 is the right to have access to legal advice. Both these rights can be suspended for similar reasons; namely the person has to have been arrested for a serious arrest able offence and the delay or suspension has to be authorized by an officer of superintendent rank or above.

Detentions with authorizations exist in our law for serious offences but the right to access to legal advice has not been taken seriously enough by us except the constitutional guarantee in Article 13 (3) of the Constitution that accords to a person accused of an offence to be represented by counsel at his trial. In two cases R v Samuel (1988) and R v Parris (1989) - convictions of accused were quashed by the Court of Appeal in England because the police did not make available to the accused these due process rights at the investigation stage.

Even the Grand Chamber of European Court of Human Rights last year stated in the celebrated case of Salduz v Turkey (2008) ECHR 1542, that for the Article 6 fair trial right to be 'practical and effective', Member States must allow a suspect access to a lawyer at the initial stage of police interrogation no matter how serious the charge.

This 'fundamental right' offers protection against ill-treatment, reduces the risk of a miscarriage of justice and promotes equality of arms and respect of the suspect's privilege against self-incrimination. If the right is denied, the defence 'will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction' (ibid. at [55]). An exception is recognized for particular circumstances in which there are compelling reasons for access to a lawyer to be delayed. The right of access to a lawyer may be waived by the suspect, but the state must prove unequivocally that the waiver was of the suspect's own free will (ibid. at [59]).

There are other compelling reasons as to why access to legal representation has to become the norm in Sri Lanka. When the Thirty Fifth Session of the United Nations Committee against Torture considered Sri Lanka's 2nd Periodic Review, there was an exhortation that we should take effective measures to ensure that fundamental legal safeguards for persons detained by the police are respected, including the right to inform a relative, access to a lawyer and a doctor of their own choice, and the provision of information about their rights.

Our emergency regulations and provisions of Prevention of Terrorism Act No 48 of 1979 as amended are cited as laws that give extraordinary powers of arrest and detention to State Officers and often facilitate torture.

All these allegations are levelled against the State of Sri Lanka ad nauseam by other agencies such as the EU in the context more particularly of GSP plus.

By implementing safeguards such as right to inform a relative and access to legal representation at the investigating stage, it is my firm view that the litany of allegations against us can be averted by the changes I have proposed on the lines of PACE and the Codes of Practice. I am sure that the Bar is going to welcome the inclusiveness of the legal fraternity in the investigative stages.

Crime control

While strengthening the rights of suspects in this way, crime control which paves the way for the greater good of the community has also got to be taken into account and the rights of accused at the trial stage have to be diluted as a result.

What is the trade off once this right is given?

Section 34 of the Criminal Justice and Public Order Act (CJPO) 1994 provides an answer to this question. It states that when an accused person relies later at his trial on a fact that he has not mentioned when he was cautioned, court can draw adverse inferences from his silence at the pre-trial stage.

I suggest that we enact this provision into our law, Some might argue that if this provision is enacted, it would amount to an erosion of his right to silence at the pre-trial stage. As you are aware, the right to silence is a right against self-incrimination. The doctrine arose in the pronouncement of the 19th century Judges which echoed the revulsion of the community against the practice of the Court of Star Chamber compelling persons brought before it to testify against themselves on oath. This privilege has taken a beating in many a jurisdiction and section 34 of Criminal Justice and Public Order Act (CJPO) of England is an example of its derogation.

Why adverse inferences? - reasons are two fold.

I advance two reasons for adverse inferences to be drawn because of the accused's failure to mention a material fact at the investigative stage which he testifies to at the trial stage.

First-there is a gut reaction that anyone who was innocent would trust the police and would want to explain things to them as soon as possible.

Secondly-although in the past a very few police officers have misbehaved, the protection we would give in the amendments such as caution and access to legal advice would create a culture that no suspect who is innocent has anything to fear. Therefore it is illogical for an accused to argue that no adverse inference cannot be drawn.

In fact the provision governing right to silence in Sri Lanka is Section 110 (2) of the Code of Criminal Procedure Act No. 15 of 1979 which provides-

Such person shall be bound to answer truly all questions relating to such case put to him by such officer or inquirer other than questions which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

From the above it is obvious the suspect enjoys statutory immunity not to answer questions only as regards questions that have a tendency to incriminate him. On questions of non confessional nature, he enjoys no right to silence. There it is obligatory that he bares it all including his defences.

Therefore there is nothing wrong in principle in allowing an adverse inference to be drawn against a person at his trial if he delays mentioning his defence till the trial.

England has done this by statute in 1994 and so has Singapore by its amendment to its Criminal Procedure Code in 1976. It is time we followed suit. But there is a flip side to right to access to a lawyer.

What if an accused takes up the position he remains silent because his counsel advised him to do so? These are questions that are bound to arise in the future. In the case of Argent (1997), the Court of Appeal in England has declared in unequivocal terms that legal advice does not give the accused immunity from an adverse inference but the Court or Jury can take into account that he was under legal advice to remain silent. Confession evidence - should it become admissible? What if a suspect proceeds to answer questions incriminating him?

Section 25 of the Evidence Ordinance bars the reception in evidence of a confession made to a police officer and renders that evidence inadmissible. Our Evidence Ordinance was derived from the Indian Evidence Act 1872, which was drafted by Sir James Fitzjames Stephen. Stephen Explained in his "Introduction to the Indian Evidence Act" that such a strict stance was adopted to "prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody".

Restriction

The position adopted by Stephen was noticeably different from the common law in England, as Stephen was probably of the view that the Indian police were far more corruptible than their English counterparts and more inclined to use torture to extract confessions. These assumptions concerning the police were imported into Sri Lanka's statutory regime.

6. Subject to the above restrictions on the use of police statements, the common law voluntariness test was statutorily enacted in S 24 of the evidence Ordinance, which states that.

A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

Amendments proposed

I propose and recommend that we move away from the remnants of this culture that haunted Stephen - the draftsman of the Evidence Ordinance. Today we have the torture Act that manifests our commitment to criminalize the conduct of police officers who use oppression and torture to extract confessions.

The concern in regulating the conduct of police officers will be addressed to a great extent by the access we will provide statutorily of legal advice both before and during police interrogation and that is certainly a safeguard against police misconduct that led Stephen into enacting Section 25.

Once these proposals are debated and deliberated upon, I propose that we repeal Section 25 and by amendments to the Code of Criminal Procedure Code and Evidence Ordinance.

A Radical Change

All statements made in the presence of a police officer above a particular rank would become admissible as evidence at the accused's trial. I propose we bring these amendments subject to two provisos to this general rule: namely the voluntariness test: and the need for the police, in recording the statement, to comply with the due process rules which would be modelled upon the UK's PACE and Codes of Practice.

This is certainly a radical departure and once caution is administered and legal representation is accorded to a suspect at the police statement, it is futile to retain Section 25 in the Evidence Ordinance.

A corresponding change I suggest would be made to the Code of Criminal Procedure Act in that Chapter Eleven of the Code dealing with investigations will be overhauled and Section 110 of the Code will have the important statement that all statements made by an accused person will become admissible at his trial. Prosecution will use such a statement that had been obtained under caution if it incriminates the accused in the form of a confession or admissions. Such evidence will constitute an exception to hearsay.

But there would be a proviso to ensure voluntariness requirement that will ensure that the evidence is reliable. - Section 24 with modifications suit conditions will be retained as the bench mark to determine voluntariness of the confessions.

There are ancillary amendments that we may have to make while we ponder and deliberate upon these changes I have advocated today. While we thus protect the rights of accused, we also ensure the propriety of police investigation bearing in mind as our ultimate goals crime control and the elimination of all this negative assessments that are being made against the state of criminal justice in the country. In the end if I may sum up the radical changes I have proposed to criminal justice in the country, it goes as follows:

1. We will bring in fundamental safeguards such as the right to access legal representation at the pre-trial stage.

2. Statements would be recorded in the presence of legal counsel by administering caution.

3. The suspect has no right to silence on non confessional matters.

4. Adverse inferences would be drawn for failure to mention a material fact in the statement. This will be on the lines of Section 34 of PACE.

5. We admit accused's statement to police and prosecution can rely on the truth of it provided it is voluntary and all pre trial safeguards were given to him. Section 24 of the Evidence Ordinance with necessary modifications could still serve as the benchmark to test voluntariness.

6. As a result Section 110 of the Code of Criminal Procedure Act would consequently be amended and Section 25 of the Evidence Ordinance would be repealed.

It is hoped that the suggested change would contribute in large measure to the criminal jurisprudence of our country and help to significantly improve our Human Rights record in keeping with the standards prescribed by International Humanitarian Law.