IAN WINTER QC YOU NEVER SAW A FISH ON THE WALL WITH ITS MOUTH SHUT THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE DECISION OF THE COURT OF APPEAL IN R V K [2009] EWCA CRIM 1640 ISSUE NINE WINTER 2009 PUBLISHED BY CLOTH FAIR CHAMBERS CLOTH FAIR CHAMBERS Nicholas Purnell QC Richard Horwell QC John Kelsey-Fry QC Timothy Langdale QC Ian Winter QC Jonathan Barnard Clare Sibson Cloth Fair Chambers specialises in fraud and commercial crime, complex and organised crime, regulatory and disciplinary matters, defamation and in broader litigation areas where specialist advocacy and advisory skills are required. 2 CLOTH FAIR CHAMBERS IAN WINTER QC YOU NEVER SAW A FISH ON THE WALL WITH ITS MOUTH SHUT1 THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE DECISION OF THE COURT OF APPEAL IN R V K [2009] EWCA CRIM 1640 ISSUE NINE WINTER 2009 PUBLISHED BY CLOTH FAIR CHAMBERS 1 Unreliably attributed to Sally Berger but the true origin is unclear. King John, pressured by the barons and threatened with insurrection, reluctantly signs the great charter on the Thames island of Runnymede CLOTH FAIR CHAMBERS he fish on the wall has its mouth open unreliable testimony produced as a result of it. because it couldn’t resist the temptation to open it when the occasion appeared to Had paragraph 38 of Magna Carta remained the law, which justify doing so. There are few convicted could have been the case even once the use of torture had defendants who likewise could resist the been outlawed2, the question over the admissibility of the temptation to open their mouths and accused’s statement would not have been whether the Tthereby assist their prosecutors with their own words. The statement had been compelled but whether there was frequency with which this happens and the value attached supporting evidence as to its truth. by prosecutors and indeed jurors to the accused’s own words has not diminished the jurisprudential disquiet at Paragraph 39 of Magna Carta enshrined into English law requiring a suspect to answer questions, notwithstanding what became known as the principle of due process, the probative value that such answers may give. “No free man shall be seized or imprisoned, or stripped of his This of course is because it has long been understood rights or possessions, or outlawed or exiled, or deprived of his that an element of compulsion is capable of rendering standing in any other way, nor will we proceed with force even the most apparently cogent admission unreliable. against him, or send others to do so, except by the lawful At Runneymede in 1215 King John (under a degree of judgment of his equals or by the law of the land.” compulsion agreed to include) at paragraph 38 of Magna Carta the fundamental principle that, This was made clear by Edward III’s Statute, the Liberty of Subject 1354, the only clause of which stated, “In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses “That no Man of what Estate or Condition that he be, shall be to the truth of it.” put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer Interestingly, although appreciating that compulsion, by due Process of the Law.” usually in the form of torture, was capable of rendering a confession unreliable and something that required Neither of these Statutes rendered the statement of an corroboration, Magna Carta did not render torture induced accused person inadmissible as a result of it having been confession evidence inadmissible because of the use of compelled since due process of law at that time allowed torture: it rendered it inadmissible only where it was courts to compel confessions from suspects. A special unsupported and as such was unreliable. Magna Carta warrant was obtained from James I, in 1605, to authorise the therefore outlawed reliance upon the product of the torture of Guy Fawkes, for example. The use of torture was torture unless that product was supported by credible not abolished in England until the 1640’s and even then the evidence as to its truth. English jurisprudence advanced in practice of ‘peine forte et dure’, whereby stones were placed 1215, not by recognising that torture was inhumane and on a suspect’s chest to encourage him to enter his plea, contrary to the rights of man but, by recognising that a continued and was only abolished in 1772. It was the defendant should not be convicted upon the basis of excesses of the Star Chamber and High Commission during 5 2 Article 5 of the Universal Declaration of Human Rights 10.12.1948. CLOTH FAIR CHAMBERS the seventeenth century that focused attention upon the to incriminate himself. The twelve bishops were accused of manner in which the confession was obtained as opposed to endorsing an allegedly treasonous petition and were asked the use to which the confession was put. how they pleaded. They refused to answer. The court did not require them to do so thereby setting a precedent for the In the seventeenth century opponents of the Star Chamber principle that a man could not be required to plead to an identified the Latin maxim ‘nemo tenetur se ipsum accusare’ allegation and thereby incriminate himself. (‘no man is bound to accuse himself’) as the principle upon which to fight the injustice of the Star Chamber. The Latin These principles were taken by the Puritans to America maxim does not of course translate as ‘the right to remain where they became incorporated into the American silent’ since it is specifically restricted to the right not to Constitution. Hence the Fifth Amendment to the United accuse oneself. If to ‘excuse’ means to provide the reasons States Constitution, ratified in 1791, which states that, why someone is not responsible for something then to ‘accuse’ means to provide the reasons why someone is “No person…shall be compelled in any criminal case to be a responsible for something. By operation of the maxim, a witness against himself”. man is not to be compelled so that he himself provides the reasons, or evidence, as to his guilt. So it was that the long road from Magna Carta, some six hundred years in length, diverted the test for admissibility At that time the judge of the Star Chamber required an from an assessment of the unreliability of the compelled accused to answer a series of interrogatories designed to testimony and the existence of material supportive of it, to extract a confession. It presented the accused with the cruel an assessment of the existence of the compulsion itself. trilemma of being condemned if he refused to answer, being Compelled testimony became inadmissible because of the condemned for perjury if he lied or being condemned if he mere fact of the compulsion, however reliable the admitted the crime. In 1637 John “Freeborn” Lilburne was testimony might in fact be. This was undoubtedly the more arrested for disseminating Puritan literature and brought noble a justification and one that led in due course to the before the Star Chamber. He was asked how he pleaded. outlawing of torture and other forms of compelling Lilburne refused to answer, demanded to be presented with confessions but it was also one that led to situations where the charges and challenged the right of the Chamber to courts were deprived of a person’s account of events in compel his plea. The Star Chamber refused to entertain his circumstances that produced injustice. It was time to embark submissions and imprisoned him. He was brought back to on the long road back from the principle that no man is the Star Chamber and asked again how he pleaded; he still bound to accuse himself. refused to answer. He was then flogged with a three- thonged whip, dragged behind an ox cart and pilloried at Parliament came to appreciate that situations arise where, Westminster. He still refused to answer claiming that his unless information can be procured from an individual, it is right not to answer was his birth right. impossible to achieve a just disposal of an action. The clearest example of this relates to the identity of the driver In 1642 the trial of the twelve bishops established the of a car responsible for an accident, even a death, but who precedent in English law that a man could not be compelled was not apprehended at the scene. The ability of a court to 6 CLOTH FAIR CHAMBERS do justice in relation to that event may often be wholly including but not limited to the following; s.114(4) frustrated by an inability to demand from the suspected Medicines Act 1968, s.30(6) Fair Trading Act 1973, .21(2) driver (and owner of the vehicle) the identity of the person Slaughterhouses Act 1974, s.165(3) Consumer Credit Act driving it at the relevant time. 1974, .81(3) Weights and Measures Act 1985, s.47(2) Consumer Protection Act 1987, the Property There are many such situations. In s.177 of the Bankruptcy Misdescriptions Act 1991, s.109B(5) Social Security Act 1849 Parliament enacted that the Bankruptcy Court had Administration Act 1992, Sch. 2 Timeshare Act 1992, power to “summon the bankrupt before it, and, if necessary Paragraph 11 of Sch. 7 of the Data Protection Act 1998, s.71 compel his attendance by warrant, and that it should be lawful Environmental Protection Act 1990 for which see R v for the Court to examine the bankrupt…touching all matters Hertfordshire CC, ex parte Green [2000] 2 AC 412U, relating to his trade…”.