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Inside the Bar |
This article discusses the admissibility of confessions and the right of silence.
The question arises for discussion whether the courts in Singapore when considering the admissibility of confessions obtained from accused persons whilst in police custody give effect to the the constitutional and
non-constitutional law doctrines that protect an individual to ensure that men held in custody are not exploited for the information necessary to condemn them, or whether the courts have construed the non-constitutional
provisions, strictly, and the constitutional law doctrines enshrined in the Constitution to safeguard the liberties of an individual, narrowly.
The Magna Carta of 1215 was not a constitution enforceable against King and Parliament. It was law that was accepted by King John. The Charter expressly forbids torture, but torture was part of the judicial procedures in
England. Torture was understood as justified especially in treason cases to obtain confessions.
In 1590 John Udall asserted that ‘by the law I need not answer’ the question whether he wrote a schismatical book. Chief Justice Anderson replied: ‘That is true, if it concerned the loss of your life.’
When a member of the Crown Council demanded that Udall take the oath ex officio, he replied that they had no law to make him ‘swear to accuse myself or others’. The Solicitor General protested stating that an Anglican was behaving like Catholic priests who say ‘there is no law to compel them to take an oath to accuse themselves’ but could not do anything else.
In 1615 Edward Peacham was accused of treason and interrogated, preliminary to trial. Eight officers of the Crown headed by the Attorney General Sir Francis Bacon reported to King James:
Upon these interrogatories, Peacham this day was examined before torture, in torture, between torture, and after torture; notwithstanding, nothing could be drawn from him, he still persisting in his obstinate and insensible denials and former answers. [See Bill of Rights: Irving Brant p 95.]
In 1637, the Star Chamber ordered John Lilburne to take the oath ex officio, swearing to answer to he knew not what. He replied:
I know it is warrantable by the law of God, and I think by the law of the land, that I may stand upon my just defence, and not answer to your interrogatories, and that my accusers ought to be brought face to face, to justify what they accuse me of. [See Bill of Rights: Irving Brant p 378.] [3 State Trials 1315]
For his refusal he was fined, whipped, pilloried and imprisoned until the Long Parliament in 1640 ordered him set free. In 1645 the House of Lords remitted his fine and ordered an inquiry into the legality of his trial. Upon
being satisfied that sentence was imposed not for refusing to take the oath and solely because it was ‘contrary to the laws of God, nature and the kingdom, for any man to be his own accuser’. The Lords vacated the sentence:
as illegal, and most injust, against the liberty of the subject, and law of the land, and Magna Charta, and unfit to continue upon record. [The Bill of Rights: Irving Brant p 379.]
In declaring that immunity from self-accusation was part of ‘the Law of the Land’ the House of Lords carried the privilege indefinitely back toward the Magna Charta as due process at common law – or as phrased by counsel, a
process required by the laws of God, of nature and the Kingdom. The Magna Charta arrived in Singapore in 1826 with the Second Charter of Justice.
The Common Law
At common law, out-of-court statements of an accused person were admissible against him at the trial without regard to the manner in which they had been obtained but a plea of guilty, however, was not to ‘proceed from fear,
menace or duress’ (McCormick on Evidence 3rd ed p 372).
In 1775, Lord Mansfield commented that ‘the instance has frequently happened, of persons having made confessions under threats or promises: the consequence as frequently has been, that such examinations and confessions have not
been made use of against them on their “trial”’ (Rudd’s Case (1775) 168 ER 160, 161).
In 1936, the US Supreme Court held that the admission in a criminal trial of an ‘involuntary’ confession violates due process and confessions would be held ‘involuntary’ and inadmissible even when their reliability is
established (Brown v Mississippi 297 US 278(1936)). Under Singapore law, this would mean the involuntary confession would not be ‘according to law’ within the meaning of Art 9 of the Constitution of Singapore.
In Rogers v Richmond (365 US (1961)), the Supreme Court held that a court assessing voluntariness could not even consider the fact that police tactics would not tend to produce a false confession. The opinions condemned
‘overbearing the will’ as revealed by the ‘totality of circumstances’ as a response to ‘fundamental unfairness’ because ‘ours is … not an inquisitorial system’.
More significantly, the court identified two competing policies, which apply with equal force to Singapore:
In 1966, the Supreme Court in the case of Miranda v Arizona (1966) 384 US 436 said:
A recurrent argument, made in these cases is that society’s need for interrogation out-weighs the privilege. This argument is not unfamiliar to this Court. See eg Chambers v Florida (1940) 309 US 227, 240-41, 84 Law Ed 716, 724, 60 SCt 472. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individuals when confronted with the power of Government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged.
The Supreme Court of India in DK Basu v State of Bengal (AIR 1997 SC 610, 622) touched on the competing policies and said:
It is being said in certain quarters that with more and more liberalization, and enforcement of fundamental rights, it would lead to difficulties in detection of crimes committed … by soft peddling interrogations. If Court lay too much emphasis on protection of fundamental rights and human rights, such criminals may go scot free … crime would go unpunished … the society would suffer. The concern is genuine and the problem is real … a balanced approach is needed to meet the ends of justice … The cure cannot, however, be worse than the disease itself … Using any form of torture for extracting any kind of information would neither be right nor just nor fair … State terrorism is no answer to combat terrorism.
The court then asked and answered the question, ‘How do we check the abuse of police powers?’, and said: ‘Transparency of action and accountability are two possible safeguards which this Court must insist upon’ and added: ‘With
a view to bring in transparency, the presence of the counsel of the arrested at some point of time during interrogation may deter the police from using third degree methods during interrogation.’ (p 621)
Before the Constitution
Singapore law before the Constitution came into force reconciled the competing policies by providing:
The elaborate procedure spelt out for magistrates in s 124 of the Code ensured that an individual would not be exploited for the information necessary to condemn him unless it is voluntarily made to the satisfaction of a
judicial officer.
After the Constitution
The provisions of the law that now limit police investigations and police efforts to obtain incriminating information from helpless individuals are as follows:
Section 122(5)
The first question is whether confessions made by persons in police custody are admissible under s 122(5) of the Criminal Procedure Code when the court is satisfied that the statements were made voluntarily notwithstanding s 26
of the Evidence Act which reads:
Subject to any express provision in any written law, no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against the person.
Section 26 recognises the dangers of giving a free hand to the police to record confessions and must be read together with s 124 of the Criminal Procedure Code which empowers magistrates to record confessions in the exercise of
judicial power. If the confession is not recorded by a magistrate it cannot be proved.
The question is whether the general words in s 122(5) of the Criminal Procedure Code: ‘Where any person is charged with an offence any statement, whether it amounts to a confession or not or is oral or in writing, made at any
time, whether before or after that person is charged and whether in the course of a police investigation or not, by that person to or in the hearing of any police officer of or above the rank of sergeant shall be admissible at his
trial in evidence …’ amount to an ‘express provision in a written law’ that permits confessions made to police officers whilst the person is in custody to be proved against the person in the face of s 26 of the Evidence Act, and s
124 of the Criminal Procedure Code on the ground that it was made voluntarily.
It is submitted that the express words in s 26 of the Evidence Act and s 124 of the Criminal Procedure Code cannot be taken away by the general words in s 122(5) of the Code, having regard to the protection given to individuals
by Art 9 of the Constitution and the duty placed on the courts to construe existing laws by Art 162.
Voluntariness: The Constitutional Standard
The constitutionalisation of the voluntariness standard in America has a convoluted history because of state and federal Constitutions but that is not a sufficient reason for our courts to ignore the developments of the law in
this area since Singapore has a written Constitution and has a judiciary that is a forerunner.
In Bram v U States (1897) 168 US 532, the Supreme Court commented that whenever an issue arises as to the voluntariness of a confession, the issue is controlled by that portion of the Fifth Amendment to the Constitution
‘… commanding that no person shall be compelled in any criminal case to be a witness against himself …’ because the Constitution embodied the common law rule of voluntariness. In Brown v Mississippi (1936) 297 US 278, the
court held that a conviction resting upon a confession extracted by brutality and violence violated the accuser’s general right to due process guaranteed by the 14th Amendment, ie the rough equivalent of our Art 9. In Blackburn
v Alabama (1960) 361 US 199, the court stated that ‘a complex of values underlies the stricture against use by the State of confessions which, by way of convenient shorthand this Court terms “involuntary”’.
There is therefore good reason for saying that s 121(2) of the Criminal Procedure Code is ‘law’ within the meaning of Art 9(1) of our Constitution, in the interests of a fair trial. In any event it is ‘existing law’ which must
be construed to bring it into harmony with the Constitution (Art 162).
Right to Silence
In PP v Mazlan bin Maidun & Anor (Criminal Case No 28/1989 92SC201.Doc), the two accused were jointly charged with murder. The first accused was arrested on 28 March 1988 at about 6.20pm. He made a s 122(6) statement to
the police at 10.30pm and two s 121(2) statements on 5 April 1988 and 8 April 1988.
The first accused challenged the admissibility of his s 122(6) statement and the two s 121 statements on the grounds that they were not made voluntarily. The accused was not sent to a magistrate but was sent to a doctor before and after the statements were recorded, clearly on the basis that voluntariness is established by proving that there is no physical injury.
The first accused made various allegations of assault and manipulations against the police and said the officers had described to him how the deceased could have been stabbed. He also said that between 28 March 1988 and 5 April
1988 he was interrogated by police officers on several occasions. The court in its judgment considered the admissibility of the statements in the context of a right to silence.
The undisputed evidence was that the s 121 statements were recorded without the accused being told that he had the right to decline to say anything which would have a tendency to expose him to a criminal charge or to a penalty
or forfeiture. The first accused said that had he been so informed he would not have made the two s 121(2) statements.
The prosecution submitted that s 121 statements obtained without a caution being administered were admissible under s 122(5) since there is no requirement in the section to administer a caution and relied on the cases decided
earlier to that effect.
In PP v Chandran & Ors (1989) CLASNEWS No 3 p 11 at p 14, LP Thean J and Chao Hick Tin JC held:
Quite apart from this question whether or not the warning was properly administered to the second deceased, there is the more general question as to whether there is any requirement that the warning must be administered to an accused before he gives his statement. We do not think there is anything in section 121 that requires that this be done.
With respect, it was a textual reading of the section without regard to the historical roots and the constitutional provisions.
Rajendran J, in Mazlan’s case, however, said:
Section 121(2) of the CPC sets out the so-called ‘right of silence’ enjoyed by suspects when interrogated by the police. It is expressed in the Latin maxim nemo debet se ipsum prodere and has been described by the Privy Council in Haw Tua Tau v PP [1981] 2 MLJ 49 at 50 as one of the fundamental rules of justice within the meaning of the word ‘law’ in Article 9(1) of the Constitution. Article 9(1) provides that no person shall be deprived of his life or personal liberty save in accordance with law. Since that right is a constitutional right, an accused or a suspect should, in our view, be cautioned of his right to decline to make an incriminating statement notwithstanding that sub-s (2) of s 121 does not specifically require that any such caution be administered. In our view a statute should be construed in such a way as will give effect to a constitutional right.
The learned judge briefly referred to past practice which required a caution to be administered, adding:
By reason of Article 4 if the provisions of s 122(5) are inconsistent with the Constitution these provisions, to the extent of inconsistency will be void. To admit a statement under s 122(5) without respect to the right of silence contained in s 121(2) of the CPC would create an inconsistency.
The learned judge, giving the decision of the trial court of two judges, cautioned:
In our view s 122(5) must be construed in a way that will give effect to the right of silence contained in s 121(2) of the Criminal Procedure Code.
The court decided that the statements which were recorded were inadmissible in evidence, since the first accused was not only not told of his right of silence but was wrongly told that he was:
bound to tell the truth, the whole truth and nothing but the truth, to the police.
The learned judge also took into consideration the fact that two of the statements were recorded after the first accused had been in police custody for eight days and 11 days respectively and said:
… we felt that it would not be safe for us to admit those statements as evidence even if the caution had in fact been correctly interpreted to the first accused.
Reference to the Court of Criminal Appeal
The Attorney-General certified three points of law for the consideration of the Court of Criminal Appeal.
The Court of Criminal Appeal ([1993] 1 SLR 512) answered all the questions as follows:
The Court of Criminal Appeal was of the view that:
… the right of silence has never been regarded as subsumed under the principles of natural justice. It is a rule which originated as being largely evidential in nature. The court was not prepared to elevate an evidential rule to constitutional status without it having been given explicit expression in the Constitution.
Rajendran J who had observed that two of the statements were made on the eighth and eleventh day after the first accused was arrested did not discuss the constitutional right in Art 9(3) which provides that when a person is
arrested, he shall be allowed to consult and be defended by counsel. Counsel would no doubt have advised the accused of his right to be silent. Rajendran J also did not refer to the provisions of Art 162 of the Constitution which
required him to read s 121(2) of the Criminal Procedure Code to bring it in harmony with Art 9(1) and Art 9(3) of the Constitution or to Art 9(4) which restricts the time a person can be detained after arrest. The Attorney-General
was also content to limit himself to s 121 and Art 9(1).
Rajendran J was a Deputy Public Prosecutor and subordinate court judge for many years prior to his elevation. He had an intimate knowledge of police questioning and what such questioning constitutes, and the history and
workings of the Criminal Procedure Code. He threw out the statements but amended the charge and convicted the first accused on other evidence and sentenced the first accused to death.
Section 121
A proper consideration of s 121 of the Criminal Procedure Code which is all about police examination of persons supposed to be acquainted with the facts and circumstances of a case requires some understanding of the methods and
tactics used by the police during questioning or else discussing ‘… police questioning without knowing what such questioning is really like … is playing Hamlet without the ghost’ (‘Confessions and the Court’, Michigan Law Review
Vol 79 p 891).
More than one Constitutional right and related non-constitutional law play a role in limiting police interrogations. Justice Frankfurter identified two fundamental competing policies.
Voluntariness has been described as an effort to strike a balance between these two opposite poles, but Kamisar, drawing on police interrogation manuals, interrogation techniques and sophisticated theories of psychological
manipulation underlying those techniques, makes it clear that ‘reasonable means … to make the questioning effective’ and ‘overreaching individuals’ are not opposite poles but more often ‘intersecting circles’.
If the police may tear suspects from homes, friends and neighbours, put them in an ‘interrogation room’ without informing them of their right to keep silent and shut out the ‘outside’ they can ‘exploit’ suspects for information
‘necessary to condemn them’ can they not?… Evidently an uncounselled, uninformed suspect all alone in an interrogation room is not deemed ‘helpless’ … At what point is he rendered ‘helpless’ or ‘exploitable’? [‘Confessions and the
Court’, Michigan Law Review Vol 79 p 868]
Conclusion
It would appear that the Court of Criminal Appeal was not told of the action taken by the House of Lords in 1645 in the case of John Lilburne, whose plight has been narrated earlier. The Law Lords subsumed the right of silence as due process at common law. It is accordingly a fundamental rule of natural justice that formed and forms part and parcel of the common law of England at the commencement of the Constitution of Singapore (Ong Ah Chuan [1981] AC 670).
KS Rajah, SC
Criminal Practice Committee
Law Society of Singapore
E-mail: ksrajah@harryelias.com.sg