English Criminal Procedure under Article 6 of the European Convention on Human Rights: Implications for Custodial Interrogation Practices
Toney, Raymond J., Houston Journal of International Law
In the English legal system, the criminally accused has a general right to a fair trial by a jury of peers. The trial is a rigorous exercise in the regulation of the flow of information from and between the parties, information on which the jury ultimately will be required to make its finding of guilt or innocence. The trial is conducted in accordance with detailed rules governing the admissibility and use of evidence. Few would dispute that these rules are essential to ensure the fair trial to which the criminally accused is entitled.
The elaborate provisions regulating the flow of information at trial, however, are virtually absent at custodial interrogation, where the criminal suspect is most vulnerable, and which is arguably the single most critical phase of the criminal process. (1) In England, the methods by which the police acquire, develop, and use evidence at custodial interrogation raise very serious issues of procedural fairness and human rights. These methods can have a profound impact on the efficacy of custodial legal advice (2) and the fairness of the criminal process generally.
Unlike in the United States of America, international human rights norms have direct bearing on English rules of evidence and criminal procedure. This influence is achieved principally through England's participation in the European human rights system. Most important for the English criminal process are the decisions of the European Court of Human Rights ("EctHR"), which interpret and apply the European Convention on Human Rights ("Convention") (3) in individual cases. Indeed, English lawyers over the years have been highly enterprising in their use of the ECtHR and in invoking Convention rights in domestic courts. (4) With the coming-into-force of the Human Rights Act 1998 ("HRA"), (5) which incorporates much of the Convention into the domestic legal order, domestic litigants will have even greater opportunities to shape English criminal procedure using Convention law. (6)
In this article, I critically analyse and discuss two aspects of custodial interrogation in England that may offend the fair trial guarantees provided by Article 6 of the Convention. The first aspect involves the non-disclosure or misrepresentation of evidence by police during custodial interrogation. I will argue that this practice has severe prejudicial effects on the legal position of the suspect and the custodial legal adviser. The nondisclosure or misrepresentation of evidence deprives the suspect and the custodial legal adviser of factual information about the offence in question. This practice creates informational inequality and an imbalance of power between the suspect and the police. This imbalance of power may violate the Convention principle of "equality of arms," which requires that the accused be allowed to present his case "under conditions which do not place him at a substantial disadvantage vis-a-vis his opponent." (7) Closely linked to the principle of equality of arms is the Article 6(3)(b) right to "adequate facilities," (8) which requires that the accused be provided "with the results of investigations carried out throughout the proceedings." (9) At present, there are no statutory provisions governing the disclosure and use of evidence at custodial interrogation, and judicial pronouncements on the subject have been limited and contradictory.
The second aspect to be addressed is the right to effective legal assistance provided by Article 6(3)(c) of the Convention. (10) I advance two main arguments here. First, the right to effective legal assistance may be violated by the use of non-lawyers for advising suspects at custodial interrogation, or where qualified lawyers fail to adopt an adversarial posture at custodial interrogation. While the quality of custodial legal assistance in England has improved in recent years, law firms continue to use clerks, former police officers, and other non-lawyers to advise suspects at custodial interrogation. …