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Post-charge Questioning

Human Rights Watch considers that the broadening of police post-charge questioning powers may be a reasonable measure only if accompanied by robust safeguards. The current provisions in Counter-Terrorism Bill 2008 do not provide for such safeguards. We are concerned about the broad scope to draw adverse inferences from failure or refusal to answer questions. The scope envisioned violates the right to silence and the prohibition against self-incrimination. We also regret that the bill lacks critical safeguards against oppressive questioning.

As currently drafted, the bill would allow a senior police officer (with the rank of superintendent or above) to authorize post-charge questioning in terrorism cases for up to 24 hours. A justice of the peace, who is a lay magistrate, must authorize further questioning for periods of up to five days. ¹² Nothing in the bill limits the amount of times a justice of the peace may authorize consecutive five-day periods. The justice of the peace must be satisfied that such questioning is necessary and will occur in the context of an investigation that is being conducted diligently and expeditiously. Questioning would also be allowed after a person has been sent to trial.¹³ 

Cause 34 (subsection 8) amends the Criminal Justice and Public Order Act (CJPOA) 1994 to allow the court to draw adverse inferences if, upon post-charge questioning, a person charged with a terrorism offense:

• Failed to or refused to answer questions about any objects, substances or marks on his person, in or on his clothing or footwear, in his possession, or in any place in which he was at the time of arrest;
• Failed to or refused to account for his presence at a particular place.

Human Rights Watch is of the view that drawing adverse inferences from a failure or refusal to answer questions fundamentally undermines the right to silence and the prohibition on self-incrimination guaranteed under article 6 of the European Convention on Human Rights and article 14 of the International Covenant on Civil and Political Rights. We believe that attributing probative value to silence alone, undermining the free choice of an accused to exercise his or her right to silence, effectively shifts the burden of proof to the accused, and undermines the presumption of innocence.

We believe that after an accused has been charged, the obligation to respect the will of the accused person to remain silent is of even greater importance. At that moment, the right to an effective defense, including through exercising the right to silence, enters a critical phase. The accused is facing trial and may be in pre-trial detention. In that context, permitting negative consequences to flow from exercising the right to silence becomes more coercive than in the pre-charge context. After much consideration, we have concluded that permitting any adverse inferences to be drawn in the context of post-charge questioning would be incompatible with the right to a fair trial.

We acknowledge that UK law currently permits adverse inferences to be drawn from silence and that allowing adverse inferences to be drawn from a failure to mention questions about objects or marks, or presence, would mirror the position for pre-charge questioning under the CJPOA 1994.

We are also aware that the European Court of Human Rights has held that in certain circumstances adverse inferences can be drawn from silence during pre-charge questioning and at trial. Human Rights Watch takes the view that the scope for interference with the right to silence in the European Court’s jurisprudence is too broad.

Nonetheless, the European Court of Human Rights has also been clear that any infringement on the right to silence and prohibition against self-incrimination must not involve improper compulsion or the use of evidence obtained through methods of coercion which defies the will of the accused.

We note that the statute of the International Criminal Court—the authoritative articulation of international criminal justice norms—explicitly guarantees the right to silence during the investigation and at trial “without such silence being a consideration in the determination of guilt or innocence.”¹⁴ The UN Human Rights Committee expressed concerns in 1995 that the scope for drawing adverse inferences from silence in the UK’s CJPOA violates provisions of article 14 of the International Covenant on Civil and Political Rights ¹⁵

It is our understanding that a Home Office Working Group on the Right to Silence in 1989 and the Royal Commission on Criminal Justice in 1993 came to the same conclusion.¹⁶  We also note that a parliamentary inquiry in Victoria, Australia, concluded in 1999 that legislative changes with respect to the right to silence along the lines of the CJPOA carried an unacceptable risk of miscarriages of justice.¹⁷

Human Rights Watch welcomes the amendment adopted in the House of Commons to require that all post-charge interrogation sessions be subject to video- and audio-recording; we are, however, concerned that the Home Secretary may order otherwise (clause 37). It is unclear under what conditions the Home Secretary may order exceptions, or to what kind of review this decision would be subject.

The bill provides for codes of practice to be drawn up on post-charge questioning. We regret that amendments proposed in the House of Commons to ensure that such codes of practice explicitly require the presence of a lawyer during post-charge questioning, and impose a time limit on questioning to prevent oppressive interrogations were not adopted. These are in our view critical safeguards that should be included in the text of the bill.

Unless amended to ensure protection against interference with the right to silence and the prohibition on self-incrimination, and against oppressive questioning in the terms proposed in the Commons amendments above, Human Rights Watch believes clauses 34-39 should be struck from the bill.

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