Is the Rule Against Self-Incrimination Becoming Less Important in Common Law Jurisdictions?

Over the past twelve months, there has been significant discussion of attempts by the United States Supreme Court to limit the protections, which interogatees enjoy under Miranda v Arizona. In three cases during the 2009-2010 term, a majority of the justices held that individuals must positively invoke their right to silence, that the ‘Miranda Warning’ need only be ‘reasonably conveyed’ and that, after fourteen days, the police may interrogate, without an attorney, an individual who has previously invoked his right to counsel.

Given the historical importance of Miranda, and the level of public notoriety that the case achieved, there has unsurprisingly been a considerable amount of criticism aimed at the High Court Justices. Quite a apart from the substantive jurisprudential arguments, many observers have lamented the fact that the United States, which was once the torchbearer for the right against self-incrimination, now has instituted a system whereby it will be comparatively easy for prosecutors to admit coerced evidence.

But is the United States really going it alone in limiting the protections, which are granted to interrogatees?

On October 6th, 2011, the United Kingdom’s Supreme Court delivered its 4-1 majority opinion in the case of Ambrose Harris (Procurator Fiscal), HM Advocate v G. Here, an individual was apprehended and questioned by police before being brought to a station. He argued that questioning him without access to a lawyer before he arrived at the station violated his right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), as interpreted and applied in Salduz v. Turkey. A majority of the Court, however, disagreed, stating that it was only when an individual is taken to a police station that the suspicions against him are seriously investigated and thus it is at that point that incriminating statements made without the presence of a lawyer can prejudice a fair trial. The fact that an individual might say something incriminating before he is at the police station and without a lawyer present does not automatically mean that his Article 6 rights have been violated.

As in Berghuis v. Thompkins, the logic employed by a majority of the UK justices in Ambroise appears at times to stretch credibility.  Just as it is difficult to accept that a interogatee should have to speak in order to invoke his or her right not to speak, so too it’s hard to see why the protections of Article 6 ECHR should not have applied in this instance. In particular, there is no explanation why, if the underlying rationale for access to a lawyer is to avoid police coercion, the right does not equally (or perhaps even more so) apply to instances of questioning outside of a police station. Surely, there are more opportunities for the police to bend the rules in an external environment, especially where the institutional safeguards of a police station will not apply? If judges are actually committed to excluding testimony and confessions, which have been obtained by coercive tactics, surely this end will not be achieved by drawing arbitrary bright line rules, which do not contemplate the myriad circumstances in which the police may question a suspect.

In reality, the recent decisions in both the United States and the United Kingdom appear to be as much the products of a judiciary becoming increasingly skeptical of exclusionary rules, as they are attempts to correct defective legal reasoning. That, perhaps more so that any anomalies in the logic of the courts, should be the real concern for those of us concerned with due process rights.