CRIMINAL EVIDENCE AND HUMAN RIGHTS Criminal procedure in the common law world is being recast in the image of human rights. The cumulative impact of human rights laws, both inter- national and domestic, presages a revolution in common law procedural traditions. Comprising 16 essays plus the editors’ thematic introduction, this volume explores various aspects of the ‘human rights revolution’ in criminal evidence and procedure in Australia, Canada, England and Wales, Hong Kong, Malaysia, New Zealand, Northern Ireland, the Republic of Ireland, Singapore, Scotland, South Africa and the USA. The contributors provide expert evaluations of their own domestic law and practice with frequent reference to comparative experiences in other jurisdictions. Some essays focus on specific topics, such as evidence obtained by torture, the presumption of innocence, hearsay, the privilege against self-incrimination, and ‘rape shield’ laws. Others seek to draw more general lessons about the context of law reform, the epistemic demands of the right to a fair trial, the domestic impact of supra-national legal standards (especially the ECHR), and the scope for reimagining common law procedures through the medium of human rights. This edited collection showcases the latest theoretically informed, meth- odologically astute and doctrinally rigorous scholarship in criminal proce- dure and evidence, human rights and comparative law, and will be a major addition to the literature in all of these fields. Criminal Evidence and Human Rights Reimagining Common Law Procedural Traditions Edited by Paul Roberts and Jill Hunter OXFORD AND PORTLAND, OREGON 2012 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors and contributors severally 2012 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-172-6 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Acknowledgements The sixteen new essays comprising this collection were specially commis- sioned as part of a long-standing collaboration between the editors to develop comparative cosmopolitan perspectives on the law of criminal evidence and procedure. This phase of the project focuses on the expand- ing influence of human rights in common law criminal trials. In order to promote genuine dialogue and debate around these revolutionary develop- ments in criminal adjudication, and to share comparative experiences, we devised and ran two linked two-day contributors’ conferences, the first at UNSW in Sydney in April 2010, with a follow-up meeting in Nottingham that September. With a couple of unavoidable exceptions, all of the essays in this volume were aired in draft form at one or other of our contributors’ colloquia. Many evolved through successive drafts presented and debated at both meetings. The proof of this methodology is to be found in the prominent points of continuity and contrast, shared policy dilemmas, and cross-cutting themes featured in the following pages. The Sydney conference, entitled Criminal Evidence & Human Rights: Common Law Perspectives, was organised under the auspices of the UNSW Centre for Interdisciplinary Studies of Law and generously funded by the UNSW Faculty of Law. The Nottingham meeting on Criminal Evidence & Human Rights was supported by the award of the Society of Legal Scholars Annual Seminar 2010, with additional benefits-in-kind being contributed by the University of Nottingham School of Law. Without this financial sponsorship—increasingly viewed as a luxury in these straitened times— plus further funding from contributors’ own institutions to cover travel costs there would have been no conferences and no book. The support of UNSW, SLS and the University of Nottingham, in particular, is gratefully acknowledged. Christine Brooks (UNSW) and Jane Costa and Anne Crump (Nottingham) helped with conference organisation and administration with consummate efficiency. Everybody who attended the conferences contributed to the discussion, and therefore to the quality of the essays in this volume. We are grateful to them all. But we must single out for special thanks the seminar partici- pants, including colleagues in the earlier stages of their academic careers, who served as discussants at our two meetings. Theirs was a pivotal role, to introduce each draft paper and kick-start the general discussion with incisive comments, questions, queries and challenges, and this duty was dis- charged, without exception, with vigour and aplomb. Our locally-resident UNSW discussants were Jill Anderson, David Dixon, Gary Edmond, Rezana vi Acknowledgements Karim, Tyrone Kirchengast and Mehera San Roque. The Nottingham discussants were: Roderick Bagshaw (Oxford); Louise Ellison (Leeds); Dimitrios Giannoulopoulos (Brunel); Richard Glover (Wolverhampton); Laura Hoyano (Oxford); Imogen Jones (Manchester); Roger Leng (Warwick); Jenny McEwan (Exeter); Hannah Quirk (Manchester); Candida Saunders (Nottingham); and Tony Ward (Hull). Richard Hart was an enthusiastic supporter of this project from the out- set. Rachel Turner, Mel Hamill, Tom Adams and their colleagues at Hart Publishing have seen the manuscript through to publication with their char- acteristic friendly professionalism, encouragement and sound advice. Our greatest debt is owed to our contributors. We brought together twenty or so of the most eminent Evidence scholars and criminal procedur- alists in the common law world, and asked them to subject their work-in- progress to energetic roundtable debate, with no allowance for title, status or reputation. Every one of our contributors fully entered into the spirit of the enterprise and maintained their collaborative poise to the end, despite serial provocations from demanding editors. The bean-counters who today proliferate in higher education will never be able to put a price on the privi- lege of working with such an extraordinarily talented and collegial group of legal scholars drawn from all four corners of the globe. We learnt, at an advanced stage of the editorial process, of the sudden death of Craig Callen on 23 April 2011 after a short illness. Craig never had the opportunity to respond to the editors’ suggestions and queries on his draft manuscript. His edited chapter appears here as we hope he would have wanted and intended it. Craig Callen personified the creativity, indus- try, intellectual generosity and collegiality of truly first-rate scholars, and his friendship no less than his inventive contributions to the discipline will be greatly missed by our research group, as by many others in the legal academy. This volume is dedicated to Craig’s memory. PR JH Beeston, Birchgrove, Bonfire Night 2011 Dedication In memory of Professor Craig R Callen (1950–2011) Table of Contents Acknowledgements ................................................................................... v Dedication .............................................................................................. vii List of Contributors ................................................................................. xi Table of Cases ........................................................................................ xiii Table of Legislation ............................................................................. xxxi Introduction—The Human Rights Revolution in Criminal Evidence and Procedure ............................................................................1 Paul Roberts and Jill Hunter 1. A Constitutional Revolution in South African Criminal Procedure? .......................................................................... 25 PJ Schwikkard 2. Human Rights in Hong Kong Criminal Trials ................................... 55 Simon NM Young 3. Right to Counsel During Custodial Interrogation in Canada: Not Keeping Up with the Common Law Joneses ...............................79 Christine Boyle and Emma Cunliffe 4. Degrading Searches and Illegally Obtained Evidence in the Malaysian Criminal Justice System .................................................. 103 Salim Farrar 5. Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland .......................................................................119 John Jackson 6. The Exclusion of Evidence Obtained by Violating a Fundamental Right: Pragmatism Before Principle in the Strasbourg Jurisprudence ........................................................... 145 Andrew Ashworth 7. Normative Evolution in Evidentiary Exclusion: