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4 The Way Forward: Confession Evidence Across Borders

4 The Way Forward: Confession Evidence Across Borders

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8.4 The Way Forward: Confession Evidence Across Borders



343



own choosing, will not be necessary in order to apply the guidelines of the ECtHR

or the HR Committee.

The position of the suspect of foreign offences is somewhat unique. If they are a

foreign national they should receive a right to the services of an interpreter. If they

are a young or otherwise vulnerable person, they should receive a right to the

presence of an independent third person. Significantly, they should receive an

entitlement to effective legal representation. But, in this respect, a person being

questioned about foreign offences is clearly at a disadvantage, where effective legal

representation would require receiving legal advice from a lawyer who is familiar

with the legal system where the charges originated. The establishment of a

Eurodefence body that can be called upon to give legal advice in transnational

cases would be a significant step forwards.

A primary concern may be means tested (or free) legal representation at surrender hearings, which are custodial in nature. In England, the rules that previously

allowed independent means tested legal advice in relation to all extradition hearings

were abolished. However, there is a recommendation for the reintroduction of such

rules. In addition, there is clearly an argument for access to some form of free legal

representation for suspects who participate in their own investigation—particularly

where foreign rules may be confusing to themselves and even to a local defence

lawyer of own choosing, if there is one.

Foreign legal advice does not necessarily have to be given in person. By the

formation of a defence lawyer’s network such as ‘Eurodefence’ (or even

‘Interdefence’), foreign suspects at police stations, or their local legal representatives, could access a free duty lawyer call centre to obtain advice from a lawyer who

has in depth knowledge of the foreign system in question. Other options for a call

centre could include video-link or face-time facilities.

There is an argument that suspects being interviewed voluntarily do not have the

same basis to claim a right to access free legal advice as persons being interviewed

in a custodial setting. Any right to access legal advice must be balanced against the

community interest in the police being able to obtain unguarded statements from

suspects and even economic concerns. However, in transnational cases it is arguable that some form of effective legal representation is necessary to ensure that the

suspect understands the nature of the right to silence and the right against selfincrimination in the context of the system producing the charges and running the

prosecution.

The significance of an effective right to legal advice prior to the first official

interrogation of a suspect or accused person, in addition to the importance of

making audio or audio-visual recordings of questioning, attaches to all criminal

proceedings, whether national, transnational or international.



344



8.4.2



8 Balancing the Right to Silence in Transnational Criminal Cases



The European Investigation Order



The European Investigation Order (EIO) was adopted on 3 April 20145; and

participating Member States have until 22 May 2017 to implement the directive.6

Taking precedence over mutual legal assistance,7 the EIO Directive goes part of the

way to determining some of the issues discussed in the previous chapters that arise

in relation to forum and form of requests for international cooperation in the

gathering of evidence—many of which can lead to challenges in relation to the

jurisdictional cross-admissibility of evidence in criminal trials. The United Kingdom will be taking part in the measure; though Denmark and Ireland are not.8

As a starting point, the EIO does not modify Member States’ obligations to

respect either fundamental rights or fundamental legal principles. Article 1(2) provides that the EIO shall be executed in accordance with the principle of mutual

recognition; though under art. 4 the obligation to execute does not modify the

executing state’s obligation to respect fundamental rights. Likewise, art. 9 provides

that the executing state shall recognise the requested measure and ensure its

execution; unless this would be contrary to fundamental principles.

In relation to fundamental rights, in recitals 12 and 39, states are reminded of the

obligation to respect fundamental rights, referring specifically to the Title VI

Charter, Art 6 TEU, international law and international agreements. In particular,

in recital 12, Member States should ensure full respect for defence rights in art.

48 Charter, while acknowledging that these rights may be limited in accordance

with proportionality. Under art. 11, it is a clear ground for non-recognition or

non-execution of an EIO that there are substantial grounds to believe that the

investigative measure in question would be incompatible with art. 6 TEU and the

Charter; though not if an alternative measure is possible in accordance with art. 10

(2) of the Directive.

Further, the EIO Directive has enacted a rebuttable presumption of mutual trust

in recital 19; though implementation of the rebuttable presumption is not strictly

obligatory. Under recital 19, a presumption of compliance by other Member States

with EU law and fundamental rights (referring to ‘mutual confidence’) is rebuttable.

Therefore, if the executing authority has substantial grounds for believing that

execution would result in a breach of a fundamental right and to execute the EIO

would be to “disregard its obligations concerning the protection of fundamental

rights” then execution should be refused. This wording goes some way to ending a

conclusive presumption of mutual trust in relation to gathering evidence in criminal



5



Directive of the European Parliament and of the Council of the European Union regarding the

European Investigation Order in criminal matters, 2014/41/EU, OJEU L 130/1, 1 May 2014

(hereinafter EIO Directive 2014/41/EU).

6

Art. 36, EIO Directive 2014/41/EU.

7

Recital 35, EIO Directive 2014/41/EU.

8

Recitals 43–45, EIO Directive 2014/41/EU.



8.4 The Way Forward: Confession Evidence Across Borders



345



matters, but does not fully ensure that the rebuttable presumption is effective for the

individuals who are the subject of the EIO.

In relation to fundamental legal principles, additionally under art. 11, it is a

ground for non-recognition or non-execution of an EIO if the same measure would

not be authorised under the domestic law of the executing state (unless an alternative measure is available under art. 10(2)). Thus, while under art. 9 the preference

and significance of forum regit actum is established, the locus regit actum principle

is maintained as a ‘default’ position. In fact, in relation to a covert investigation

measure, the law of the executing state always applies. While the EIO Directive

clearly makes the issuing state law a priority to the greatest extent possible, the

effect of art. 9 is that the position according to mutual legal assistance is not greatly

changed and cooperating states will still meet the same challenges when their

procedural rules are at odds with each other. Many of the same differences

encountered today in relation to the right to silence and the gathering of confession

evidence will remain.

The EIO includes specific measures that may allow for the questioning of

suspects and accused persons. Under recitals 25 and 26, as a potential effective

alternative to an EAW, the EIO may/should be used for obtaining evidence from a

suspect or accused by a temporary transfer to the issuing state or by conducting a

video conference hearing. However, if the suspect or accused is to be prosecuted,

including standing trial, the EAW should be used. Under recital 24, extra conditions

may need to be stipulated and/or agreed on in relation to various measures,

including temporary transfer, video-conference hearings and covert surveillance.

Article 22 provides for the temporary transfer of persons already in custody with

their consent, if their presence is required for the gathering of certain evidence.

Article 24 provides that an EIO may be used to allow for the ‘hearing’ of a suspect

or accused person by video conference or audio-visual transmission by the ‘competent authority’ of the issuing state, with the consent of that person. Under the

provisions of sub-paragraph 5, the hearing is to be conducted according to the

issuing state’s laws and the suspect or accused should be notified in advance of the

procedural rights that shall accrue to him or her. However, a ‘competent authority’

of the executing state must be present to ensure the identity of the person being

heard and to ensure that the hearing is conducted in accordance with fundamental

legal principles in the executing state. Therefore, there appears to be a potential

conflict of laws that has not been resolved by the Directive. Thus, states are being

left to resolve potential or actual problems between themselves, much as they

would under mutual legal assistance. Of significance, while it is certainly a step

in the right direction that the individual being heard will be notified in advance of

their procedural rights, this measure needs to be supported by additional measures

securing effective legal representation for suspects or accused persons. The same

may be said in relation to witnesses who might become or become suspects or

accused persons in the course of questioning. In reality, states will have to consider

whether all potential suspects are questioned with the rights of a suspect or accused

person (and with effective legal representation), so that the resources that are



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8 Balancing the Right to Silence in Transnational Criminal Cases



invested in arranging these types of hearings are not lost in the event that a

reasonable suspicion may be formed during the questioning.

Other articles worthy of mention include art. 4(b), which allows administrative

authorities to use the EIO in relation to an infringement where criminal proceedings

may result. The exact wording and scope of the provision in unclear. However, if

this provision is to be read consistently with the jurisprudence of the ECtHR it

means that where criminal proceedings are anticipated a violation of art. 6 ECHR

will occur if compulsory administrative powers are used to obtain selfincriminating information.9 Further, if criminal proceedings are not on foot and

self-incriminating statements are obtained under administrative compulsory powers, the use of the statements as evidence in subsequent criminal proceedings

against the maker will also amount to a violation of art. 6.10 This demonstrates

the difficulty of using administrative powers in relation to criminal proceedings.

In accordance with art. 6 of the Directive, an EIO may be issued in cases where

the measure sought would also be available in like domestic cases. Member States,

therefore, are prevented from forum shopping.

Based on the above, in conclusion, the EIO Directive settles certain debates and

develops broad principles in relation to international cooperation in gathering

evidence in the EU, though many of the same challenges that are present under

mutual legal assistance still exist. The EIO needs to be supported by further

measures such as developing the right of a suspect or accused person the subject

of an EIO to access effective legal representation, for example, by establishing a

Eurodefence office. Given the complexities that still exist, the need for such an

office is highlighted.



8.4.3



The European Public Prosecutor’s Office



Article 86 of the Treaty on the Functioning of the EU (TFEU) provides for the

establishment of the European Public Prosecutor’s Office (EPPO)—envisaged as a

supranational body aimed at prosecuting financial crime affecting EU interests.

Article 86 stipulates that the EPPO will be established out of Eurojust. However,

before the EPPO becomes a reality there are still many questions that require

answering. It appears as though a decentralised model is the preferable one,

whereby each state has delegated prosecutors who act as national prosecutors in

national cases, as well as prosecuting proceedings that are related to EPPO prosecutions. Although the EPPO will be a supranational body, appeals will presumably

be heard in the national appellate courts.



9



See [ECtHR] Weh v Austria, Application no. 38544/97, 8 April 2004 [43–45 and 50]; and see

Chap. 1, Sect. 1.2.2 and Chap. 2, Sect. 2.3.2.4.

10

See [ECtHR] Weh v Austria, Application no. 38544/97, 8 April 2004 [43–45 and 50]; and see

Chap. 1, Sect. 1.2.2 and Chap. 2, Sect. 2.3.2.4.



8.4 The Way Forward: Confession Evidence Across Borders



347



Along with Chap. 6, this chapter has highlighted some areas of differences and

potential difficulties between legal systems that will also have to be addressed in the

course of creating the EPPO. In relation to the right to silence and the right against

self-incrimination alone, real divergences exist that may be problematic in transnational EPPO cases and also from the point of view of consistency in and between

EPPO prosecutions being conducted in different states.

As discussed at paragraph 2 above, administrative compulsory informationgathering powers and the legitimacy of using evidence in a criminal trial that was

gathered from a suspect in an administrative investigation; the way in which the

accused person’s pre-trial silence may be used to establish guilt; the manner in

which the evidence of the interview between the police and the accused may be

raised at trial; and rules about the admissibility of improperly and unlawfully

gathered evidence are all areas which separate an English from a Danish criminal

trial. In addition, these differences have influenced the form of pre-trial due process

that is considered appropriate and fair in the respective systems. Further, the

accruing of pre-trial procedural rights in the two systems has been evidently

influenced by the structure of pre-trial proceedings and differences in the understanding of when a suspect must be ‘charged’ and what that actually means (see

Chap. 1 Appendix, Table 1.1). These differences exist despite the fact that the

systems in both countries operate within the framework of the ECHR and by and

large apply the fair trial rights under art. 6. The meaning of ‘fairness’ and the

significance of the gravity of an accused’s criminal offending to the fairness of

relying on improperly or unfairly obtained evidence is also a matter that needs to be

clarified to ensure that any harmonisation of procedural rules is consistent with the

ECtHR’s case law.

Article 30(1) of the proposal for an EPPO presented by the European Commission on 13 July 201311 suggests that admissibility of evidence shall be determined

in every EPPO proceedings in reference to the accused person’s fundamental fair

trial rights, regardless of whether an ‘admissibility’ procedure exists in the national

procedure or not. As discussed in the previous chapters of this book, by reference to

the criminal procedure in Denmark and England and Wales, the traditional lack of a

procedure questioning the admissibility of evidence (other than in relation to a lack

of caution about the right to silence) in Denmark compared to the relative significance of tests of admissibility in English law, reflect the way that various limitations and protections of procedural rights in criminal proceedings demonstrate a

continuity in balancing rights throughout the investigation and the trial. By requiring an admissibility proceeding to take place in all EPPO prosecutions, regardless

of the legal tradition of the trial state, may be to impose an additional check in those

systems that throws the criminal procedure out of balance. Nevertheless, a breach of

fundamental rights may be something that would devalue evidence in the process of

free evaluation in those states, so that the result is not so different. This potential

weighting in favour of the accused would have less significance if all the EU



11



COM (2013) 534 final.



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8 Balancing the Right to Silence in Transnational Criminal Cases



member states involved in the EPPO were applying the same minimum standards

for a fair trial.



8.4.4



Reinforcing Procedural Rights in International

Cooperation Outside the EU



Among the lessons learned from the European experience of international cooperation is that a closer level of assistance in transnational criminal cases is optimal if it

is established upon the trust-building foundation of common minimum standards of

procedural fairness. In other words, effectiveness is best achieved by engaging with

fairness.

It may be over-ambitious to model mutual legal assistance in criminal matters at

the international level directly on the European design. However, in addition to the

current focus on highly controversial issues such as the death penalty and antitorture measures, as a matter of secondary prioritisation the HR Committee may

consider launching a project that focuses on developing an international roadmap of

procedural rights in pre-trial proceedings.12 This would focus harmonisation efforts

on key issues such as translation and interpretation; being informed of the accusations and of the right to silence; effective legal advice, including some form of free

legal advice if necessary, for all suspects being questioned in relation to foreign

offences; and a right for persons in detention to communicate with a relative,

employer and consular advisors. The UN Human Rights Council (HRC) has a

working group on arbitrary detention, which has published statements about the

procedural rights mentioned here.13 In addition, the UN HR Committee’s Special

Rapporteur on the promotion and protection of human rights and fundamental

freedoms while countering terrorism also deals with aspects of a fair trial in a

report presented to the UN General Assembly on 6 August 2008.14 However, a

more specific approach to particular key rights may assist the international cooperation process outside Europe.



12



See Resolution of the Council of 30 November 2009 on a roadmap for strengthening procedural

rights of suspected or accused persons in criminal proceedings, OJEU C 295/1, 4 December 2009.

13

See in particular the Body of principles for the protection of all persons under any form of

detention or imprisonment, adopted by the UN General Assembly on 9 December 1988.

14

Scheinin (2008).



8.5 Concluding Remarks



8.5



349



Concluding Remarks



A trial may be rendered unfair if confession evidence or evidence of the accused’s

pre-trial silence has been gathered in another system, due to differences in the way

procedural rights such as the right to silence operate in cooperating national

systems. Nevertheless, judicial practice in Denmark, England and Wales and

Australia indicates that domestic courts will generally be flexible in relation to

using evidence that has been obtained abroad in a manner that is considered

irregular according to the national law. This is on the proviso that the evidence

has not been gathered abroad by members of their own national authorities and that

there was no unlawful or abusive coercion involved. The courts tend to be flexible

regardless of whether the foreign state comes under the ICCPR or the ECHR; and

regardless of the significance of the irregularity on the operation of the right to

silence. However, Danish courts will not accept confession evidence obtained in

absence of cautioning about the right.

Due to a greater level of trust and obligation to cooperate within the EU, the

authorities in Denmark and England and Wales may be more willing to cooperate

with authorities from other European/EU states; and certainly the obligations

involved in mutual recognition (including the EIO) will encourage EU states’

willingness to cooperate with each other. Therefore, it is arguable that investigators

and prosecutors within the EU (and to some extent outside the EU) can achieve the

greatest amount of effectiveness in transnational proceedings by simply taking a

practical approach and using international cooperation, with the help of networks

such as Eurojust, to obtain evidence gathered by foreign agencies. Due to the

flexible approach of the national courts, often this may be successful, without

paying attention to the detail of how fundamental rights, such as the right to silence,

might be infringed. However, decisions that are more recent indicate that the

national courts are becoming aware of the need to apply the minimum standards

set by the ECtHR, especially judgments of the Grand Chamber. In addition, the

minimum standards developed by the ECtHR are arguably applicable in the law of

some states, such as in Denmark, as part of the incorporation of the ECHR.

Despite the tendency towards flexibility, it is nevertheless always preferable to

base effectiveness in gathering evidence on a sound theoretical foundation. This can

be achieved by ensuring that the pathways to international cooperation remain open

because they operate on a well-founded presumption of mutual trust, or on the

acknowledgement of the challenges that are involved in relation to fundamental

rights. Thus, effectiveness is achieved through fairness. This will add to the

legitimacy of the criminal justice systems involved.



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8 Balancing the Right to Silence in Transnational Criminal Cases



References

Home Office (UK) (2014) Extradition: processes and review. https://www.gov.uk/guidance/extra

dition-processes-and-review. Accessed 15 Jan 2014

Sheinin M (2008) Report of the Special Rapporteur on the promotion and protection of human

rights and fundamental freedoms while countering terrorism, A/63/223. Available via the

Office of the High Commissioner for Human Rights. http://www.ohchr.org/EN/Issues/Terror

ism/Pages/Annual.aspx. Accessed 15 Jan 2014

UK Parliament Human Rights Joint Committee (2011) Fifteenth report: the human rights implications of UK extradition policy, 22 June 2011. http://www.publications.parliament.uk/pa/

jt201012/jtselect/jtrights/156/15602.htm. Accessed 15 Jan 2014



Table of Cases



Australia

Adam v The Queen [2001] HCA 57

Antoun v The Queen [2006] HCA 2

Azzopardi v The Queen [2001] HCA 25

Bunning v Cross [1978] HCA 22

Clarke v The Queen [2007] HCA 39

Coates v R [2005] HCA 1

Coco v The Queen [1994] HCA 15, (1994) 179 CLR 427

Collins v The Queen (1980) 31 ALR 257

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985]

HCA 6

Cornwall v The Queen [2007] HCA 12

Das v Victorian Human Rights and Equal Opportunity Commission [2009]

VSC 381

Davis v The Queen [2001] HCA 25

Dawson v The Queen [1961] HCA 74

Dietrich v The Queen [1992] HCA 57

Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 52627

Director of Public Prosecutions (NSW) v Attallah [2001] NSWCA 171

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry,

Mining and Energy Union [2015] FCA 47

DPP v Cook [2006] TASSC 75

DPP v Phillip Andrew Bayley (No. 3) [1996] SASC 5807

Driscoll v The Queen [1977] HCA 43

Dupas v The Queen [2012] VSCA 328

Edwards v The Queen [1993] HCA 6

Em v The Queen [2007] HCA 46

EPA v Caltex [1993] HCA 74

© Springer International Publishing Switzerland 2016

F.M.W. Billing, The Right to Silence in Transnational Criminal Proceedings,

DOI 10.1007/978-3-319-42034-9



351



352



Table of Cases



Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67

Foster v The Queen (1993) 67 ALJR 550

George v Rockett [1990] HCA 26

Hamberger (Employment Advocate) v Williamson and CFMEU [2000] FCA 1644

Hamilton v Oades [1989] HCA 21

Hammond v The Commonwealth of Australia (1982) 152 CLR 188

Heatherington v The Queen [1994] HCA 19

Hill v The Queen [2007] HCA 39

JB v Regina [2012] NSWCCA 12

Jones v R [2005] NSWCCA 443

Kelly v The Queen [2004] HCA 12

King v McLellan (1974) VR 773

King v The Queen (1986) 15 FCR 427

KMJ v. Tasmania [2011] TASCCA 7

Lee v NSW Crime Commission [2013] HCA 39

Lee v The Queen [1998] HCA 60

Lee v The Queen [2014] HCA 20

Mann v Carnell [1999] HCA 66

The Queen [2005] HCA 68

Marks v The Queen [2007] HCA 39

McDermott v The Queen [1948] HCA 23; (1948) 76 CLR 501

McKinney v The Queen [1991] HCA 6

Michael George Valentine v Technical and Further Education Commission &

Anor [2007] NSWCA 208

Nicholls v The Queen [2005] HCA 1

Palmer v The Queen [1998] HCA 2

Papakosmas v The Queen [1999] HCA 37

Petty and Maiden v The Queen [1991] HCA 34

PGA v The Queen [2012] HCA 21

Pollard v The Queen [1992] HCA 69

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9

Rees v. Kratzmann (1965) 114 CLR 63

Ridgeway v The Queen [1995] HCA 66

R v Amad [1962] VR 545

R v Anderson [2002] NSWCCA 141

R v Barrett [2007] VSCA 95; (2007) 16 VR 240

R v Burt [2000] 1 Qd R 28

R v Carr [1972] 1 NSWLR 608

R v Clarke (1997) 97 A Crim R 414

R v Dalley [2002] NSWCCA 284

R v Esposito (1998) 105 A Crim R

R v Frangulis [2006] NSWCCA 363

R v GH [2000] FCA 1618; (2000) 105 FCR 419

R v Horton (1998) 45 NSWLR 426

R v Hughes [2000] HCA 22



Table of Cases



R v Ireland (1970) 126 CLR 321

R v Kempley (1944) 18 ALJR 118

R v L [1998] NSWSC 225

R v Lee (1950) 82 CLR 133

R v Lowe [1997] 2 VR 465

R v M [2002] QCA 486; (2002) A Crim R 324

R v Mario Perfili [1995] VSC 222

R v Medcalfe [2002] ACTSC 83

R v Phan (2001) 123 A Crim R 30

R v Phung and Huynh [2001] NSWSC 115

R v Pimental [1995] NSWCCA 401

R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519

R v Schaeffer [2005] VSCA 306

R v Sean Sonnet (Ruling No. 2) [2011] VSC 551

R v Sharp (2003) 143 A Crim R 344

R v Simmons; R v Moore (No. 3) [2015] NSWSC 189

R v Smith [1984] 1 NSWLR 462

R v Suckling [1999] NSWCCA 36

R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 15

R v Tang [2008] HCA 39

R v Taylor [1999] ACTSC 47

R v Thomas [2006] VSCA 165

R v Ul-Haque [2007] NSWSC 1251

R v Villar; R v Zugecic [2004] NSWCCA 302

R v Walker [2000] NSWCCA 130

R v XY [2013] NSWCCA 121

R v Yammine and Chami [2002] NSWCCA 289

RPS v The Queen (2000) 199 CLR 620

Rush v Commissioner of Police [2006] FCA 12

Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316

Sonnet v The Queen [2010] VSCA 315

Sorby v Commenwealth [1983] HCA 10

The Queen v Joseph Terrence Thomas [2006] VSCA 165

The Queen v Stephen Albert Hutton [2011] VSC 484

The Queen v Willis (Ruling No. 1) [2015] VSC 261

Thorson v Pine (2004) 139 FCR 5

Tofilau v The Queen [2007] HCA 39

Van Der Meer v The Queen (1988) 35 A Crim R 232

Weininger v The Queen [2003] HCA 14

Weissensteiner v The Queen [1993] HCA 65

X7 v Australian Crime Commission [2013] HCA 29

Zhao v Commissioner of the Australian Federal Police [2014] VSCA 137



353



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