Vol. 25 No. 3 (March 2015) pp. 40-42
THE PRIVILEGE AGAINST SELF-INCRIMINATION by Andrew L-T Choo. Portland, OR: Hart Publishing. 2014. 152 pp. Hardback $76.45. ISBN: 978-1-84113-317-1.
Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: firstname.lastname@example.org.
The author, professor of law at the City University of London and private-practice attorney, seeks to fill a void by offering what he claims is the first “book-length treatment of the operation of the privilege against self-incrimination in criminal proceedings in England and Wales” (p. vii), although other jurisdictions are included as well. The ideas presented here were inspired by the author’s participation in several conferences and publication of a chapter on the topic. The bulk of material utilized in the text comes from laws and legal cases, and the author recognized assistance from a plethora of colleagues in the legal academy.
Chapter 1 begins by using a definition of self-incrimination taken from a 2006 New Zealand law. In tracing the history of the principle, Choo finds that it was utilized in common law court as early as 1568; it was found in the Star Chamber in 1580; and that its employment expanded in the sixteenth and seventeenth centuries as the role of defense counsel developed. He examines both epistemic and non-epistemic justifications. Whereas the former concerns protecting the innocent from wrongful conviction, the latter emphasizes upholding values such as individual dignity. Criticisms of non-epistemic justifications include unclear boundaries in use of the self-incrimination, protection of the guilty, and denial that any hardship occurs by compelling testimony or confessions. In comparing the privilege against self-incrimination in different nations, Choo notes that while a company may invoke the privilege in England and Wales, only individual persons possess the privilege under the American Constitution.
Chapter 2 probes how the European Court of Human Rights (ECHR) has regarded the privilege against self-incrimination and weighs the impact of its rulings on cases in England and Wales. For instance, in the 1993 FUNKE V. FRANCE ruling, the ECHR reasoned that the defendant was denied the privilege against self-incrimination through being compelled to incriminate himself. In the 1996 SAUNDERS V. UNITED KINGDOM case, the ECHR justified the privilege against self-incrimination as an implied right in the European Convention on Human Rights. However, in later rulings like ALLEN V. UNITED KINGDOM in 2002 and WEH V. AUSTRIA in 2004, the ECHR rejected claims that a violation of one’s privilege against self-incrimination can occur before being charged with or prosecuted for a criminal offense. While Choo finds that both the ECHR and the domestic courts of England and Wales agree that the “privilege against self-incrimination will be engaged where it is sought to use compelled self incriminating information in evidence in a subsequent criminal trial” (p. 34), he asserts that the lack of derivative-use immunity in England and Wales is inconsistent with legal systems elsewhere.
The purpose of Chapter 3 is to identify what information is covered by the privilege against self-incrimination. The author initially reviews cases in England and Wales and in the United States. In focusing on [*40] American constitutional law, he assesses how the privilege has been interpreted in cases dealing with voice, handwriting, and sobriety testing. Subsequently, courts in Australia, New Zealand, Canada, India are surveyed along with the International Criminal Tribunal for the Former Yugoslavia. Choo contends that other than “information contained in answers provided in response to compulsory questioning, there is little agreement on what information the privilege against self-incrimination might cover” (p. 61).
The intention of Chapter 4 is to consider whether the privilege against self-incrimination takes precedence over legislative intent. Through an analysis of cases decided by the European Court of Human Rights, Canadian courts, and by courts in England and Wales, Choo uncovers a balancing approach in the application of law to self-incrimination claims, which emphasizes placing priorities on different conditions and circumstances. As a result, none of the latter courts recognizes an absolute right of protection from self-incrimination.
In Chapter 5, Choo probes instances of indirect compulsion. In the area of questioning suspects, Choo notes that England and Wales have tight control over how confessions can be used as evidence in criminal proceedings. Though the United States Supreme Court ruling in MIRANDA V. ARIZONA (1996) constituted a landmark case in exclusion of confession evidence, Choo argues that MIRANDA has been weakened with exceptions. Further, courts “outside the United States have tended to view MIRANDA very much as a home-grown product that has little relevance to them” (p. 93). He also relays cases covering issues such as legal advice, cautioning suspects, police informants, and “safety interviews.” Finally, he discovers that the trend over the last two decades in England and Wales has been to permit drawing adverse inferences from a defendant’s failure to provide information in criminal trials.
In the Conclusion, the author states the obvious about the book’s findings: there is disagreement on the content and effect of the privilege against self-incrimination. Partly as a result of that, and due to what he regards as existing strong pre-trial protections, Choo opines, “perhaps not much would be lost if the status of the privilege against self-incrimination as an implied right were abandoned altogether or at least downplayed” (p. 120).
While other books have focused on the privilege against self-incrimination, most do so within the domestic framework of American constitutional law. In their 1997 work, Charles Gray et al. evaluate the origins of the privilege using international examples. Whereas Steven Salky’s 2009 study offers a practical guide to the use of the privilege, Phillippa Jane Roles’ 2010 book is an indictment of how the privilege has been interpreted in contrast to its original purpose.
There are a few contradictions inherent in Choo’s book. First, though there are very organized lists of cases and legislation by country at the front of the text, the placement of the section on England and Wales in each chapter is inconsistent. Second, while both epistemic and non-epistemic considerations are discussed at the outset, the overwhelming majority of examples consist of the former. This orientation leads to a book which is strong on the technical nature of the privilege against self-incrimination, but which does not effectively convey the indignity of [*41] violations to it. Third, it is quizzical that the author would seek to justify his specific focus on the privilege at the start and then end the text by proposing to minimize its status as an implied right. While acknowledging its value nonetheless, a chapter depicting the moral and social consequences of injustices caused by denying the privilege against self-incrimination would have added to the length and quality of the text.
Gray, Charles M., R.H. Helmholz, John H. Langbein, and Eben Moglen. 1997. THE PRIVILEGE AGAINST SELF-INCRIMINATION: ITS ORIGINS AND DEVELOPMENT. Chicago: University of Chicago Press.
Roles, Phillippa Jane. 2010. THE PRIVILEGE AGAINST SELF-INCRIMINATION: NEMO TENETUR PRODERE SEIPSUM: MISINTERPRETED AND MISAPPLIED. Saarbrucken, Germany: Lambert Academic Publishing.
Salky, Steven M. 2009. THE PRIVILEGE OF SILENCE: FIFTH AMENDMENT PROTECTION AGAINST SELF-INCRIMINATION. Washington, DC: American Bar Association.
ALLEN V. UNITED KINGDOM, 35 EHRR CD289 (2002).
FUNKE V. FRANCE, 16 EHRR 297 (1993).
MIRANDA V. ARIZONA, 384 U.S. 436 (1966).
SAUNDERS V. UNITED KINGDOM, 23 EHRR 313 (1996).
WEI V. AUSTRIA, 40 EHRR 37 (0-11) (2004).
Copyright 2015 by the author, Samuel B. Hoff.