Human rights law and the rights of accused persons (2)

The next frontier between the police’s quest to bring suspected persons accused of crime to book, and the rights of such persons, is the police interview.

This is a crucial stage for suspects as it has a far-reaching effect on whether an individual will have a fair trial.

It is therefore a critical stage not only for the police but also for suspects and to a larger extent, the general public for the criminal justice system to have credibility.

The methods deployed in that exercise must be fair and human rights compliant.

This will in turn boost public confidence in the vital role of apprehending, arresting and the eventual prosecution of persons suspected of crime.

Before the police questioning begins in earnest, certain procedural safeguards have been invented to make the exercise of human rights compliant.

As alluded to in previous write-ups, there is an uneasy tension between the police’s power and duty in maintaining law and order and the rights of persons accused of crime.

To maintain a fair and reasonable balance between these opposite and competing ends, there have come to be established principles of what is fair questioning.

This is ostensibly designed to forestall instances of police misconduct.

In some situations, the police might bend the rules to ensure that they achieve a successful prosecution, especially when there is pressure on them to achieve results.

There is a possibility that some errant policemen will deploy unlawful methods in their desire to secure convictions.

Caution

Immediately before the commencement of the interview, a caution has to be read to the suspect.

The suspect has to be told that he has a right to remain silent and also that if he chooses to answer questions, whatever answer proffered may be used as evidence in court.

This caution has to be made in a language that the suspect understands and if the suspect does not speak or understand English, an interpreter has to be provided.

This has to be done in the presence of an independent person whose role is mainly to ensure that the rights of the suspect are not compromised.

In my experience, this is not always the case as it seems there is a practice of allowing serving police officers to act as ‘independent witnesses’ during interrogations.

In instances where the independent witness is a member of the public, there has also evolved a practice where some are used repeatedly by the police.

Thus, they become familiar with the police thereby compromising their effectiveness.

In the case of vulnerable suspects such as juveniles, independent witnesses must be truly independent to ensure that their rights are protected.

Rights to lawyer

By far, the greatest procedural safeguard of the rights of suspected persons during police questioning is the right to a lawyer.

The significance of persons suspected of a crime having a lawyer to sit in the interview cannot be underestimated.

This is because a lawyer will ensure that nothing untoward or unlawful takes place concerning the questioning.

It is a constitutional right for accused persons not to self-incriminate but there are instances where this occurs in cases where accused persons are questioned without a lawyer.

A lawyer’s presence also deters the police from obtaining evidence through illegal means.

These include but are not limited to coercion, torturing, and suggesting answers to suspects.

Sometimes suspects confess to having committed the offence after being deprived of food or sleep.

Even though a court can refuse to admit a confession if it is proved in a mini-trial on the challenge that it was not obtained voluntarily, many such challenges fail at trial simply because it is the word of the interviewing officer against that of the accused and invariably, the police are given the benefit of the doubt, especially if they are backed by a compromised ‘independent witness’.

Confessions must be diligently scrutinised, especially in cases where there is evidence of torture and beatings.

Solution

The solution to these problems is to have codes of conduct governing police questioning along the lines of those used in England as a result of the Police and Criminal Evidence Act (PACE).

Of particular help would be the adoption of the codes that mandate police questioning to be recorded and videotaped.

This would provide judges with objective evidence as to whether a confession had been unlawfully extracted as the total happenings at the police station would be available to the judge to make an informed decision.