- Smith v Director of the Serious Fraud Squad (1992) 3 All ER 456, 463 (per Lord Mustill).
- Cohen v Hurley 366 US 117 (1961).
- Murphy v Waterfront Commission 378 US 52 (1964).
- Miranda v Arizona 384 US 436, 460 (1966).
- Ullmann v United States 350 US 422, 446 (1956).
- Ibid 426.
- S v Daniels 1983 (3) SA 275 (A).
- Harris v Southcote and Moreland (1751) 2 Ves Sen 389, 394.
- R v Scott (1856) Dears 2B 47, 61; Livingstone v Murray (1830) 9 Shaw 161 (Scotland).
- Pyneboard (Pty) Ltd v Trade Practices Commission (1983) 152 CLR 328, 346; Sorby v Commonwealth (1983) 57 ALJR 248, 261.
- Re Worrel, ex parte Cossans (1820) 1 Buck 531, 540.
- Saunders v UK (1997) 23 EHRR 313 para 68.
- United States Constitution (1791), Fifth Amendment: ‘no person shall be compelled in any criminal case to be a witness against himself.
- Just how heavily the state may burden the Fifth Amendment is unclear. The Supreme Court has until now failed to establish a standard. The court decisions from the Warren era suggest that all burdens on the Fifth Amendment are forbidden, while more recent decisions have barred only those burdens automatically imposed by the state on the exercise of the Fifth Amendment. See Jenkins v Anderson 447 US 231, 236 (1980); Lakeside v Oregon 435 US 333 (1978) 339.
- P Lushing ‘Testimonial Immunity and the Privilege Against Self-incrimination: A Study in Isomorphism’ (1982) 73 J Crim L and Criminology 1690, 1697 (no language in the Court's self-incrimination opinions… indicates that the privilege ever bends under the weight of competing interests). According to New Jersey v Portash 440 US 450 (1979) 459 and Fisher v United States 425 US 391, 400 (1976), when the constitutional privilege arises in its most pristine form, interest-balancing is unnecessary and impermissible. The Fifth Amendment, unlike the Fourth, does not give way before reasonableness. See Ullmann (note 5 above) 454 (the Constitution places the right to silence ‘beyond the reach of government’).
- Miranda (note 4 above) 460.
- In select cases, the US Supreme Court has used absolutist language to reject a state burden imposed upon the accused's exercise of his Fifth Amendment trial right to silence: Griffin v California 380 US 609 (1965) (‘the fifth amendment absolutely bars comment upon a defendant's failure to testify’); US v Jackson 390 US 570, 583 (1968) (‘Congress cannot impose a penalty in a manner that needlessly penalises the assertion of a constitutional right’).
- Michigan v Tucker 417 US 433, 444 (1974) (declaring the Miranda safeguards to be mere prophylactic measures without constitutional authority).
- Y Kasimar ‘Equal Justice in the Gatehouse and Mansions of the American Criminal Procedure’ (1980) Police Interrogations and Confessions 27.
- The major criticisms of the Act are based on revised traditional justifications for the existence of silence, see D Birch ‘Suffering in Silence: A Cost-Benefit Analysis of Section 34 of the Criminal Justice and Public Order Act’ (1999) Crim LR 769; G Branston ‘The Drawing of an Adverse Committal from Silence’ (1998) Crim LR 189; I Dennis ‘The Criminal Justice and Public Order Act 1994’ (1995) Crim LR 4; P Mirfield ‘Two Side-Effects of Section 34 to 37 of the Criminal Justice and Public Order Act 1994’ (1995) Crim LR 612; N O'May ‘The Criminal Justice and Public Order Act 1994’ (1995) Legal Action 10.
- The South African constitutional right is a relative right subject to justifiable limitation (s 36). Nevertheless a number of valuable lessons may be derived from the American constitutional experience.
- Section 25(3)(d) of the interim Constitution uses the same language as the American Fifth Amendment and reads in relevant part: ‘… and not to be a compellable witness against himself or herself.
- Section 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996 (‘the 1996 Constitution’) provides that ‘Every accused person has a right to a fair trial, which includes the right-… (j) not to be compelled to give self-incriminating evidence…’.
- Boesak v The State 2001 (1) SA 912 (CC); S v Brown 1999 (2) SACR 453 (W); Osman v Attorney-General, Transvaal 1998 (2) SACR 493 (CC).
- HL Packer ‘Two Models of the Criminal Process’ (1964) 113 Univ Pennsylvania LR 1. ‘Due process’ is a negative model because it places limitations on state regulatory powers by emphasising procedural human rights. ‘Crime control’ is a positive model which emphasises administrative efficiency by abolishing unnecessary protective procedural rules.
- Averill v UK (2000) Crim LR 683; Condron v UK (2000) Crim LR 679.
- Discussion Paper 96, Project 73 (April 2001) 50–80.
- Twining v New Jersey 211 US 78, 109 (1908); Palkov v Connecticut 302 US 319, 325–26 (1937); R v Rhodes (1898) 1 QB 77, 83; R v Sparrow (1973) 1 WLR 488, 494.
- This tendency stands in sharp contrast to the opening sentence of the 1789 version of the American Constitution, which states the purpose of the Constitution as being: ‘To establish justice, ensure domestic tranquillity, provide for common defence and promote the general welfare’. This sentence expresses the utilitarian ideal of promoting the well being of the nation as a whole rather than the protection of individual human rights.
- The last 50 years has seen the introduction of various human rights instruments: the Universal Declaration of Human Rights (1948), the International Covenant of Economic, Social and Cultural Rights (1966), the European Convention on Human Rights (1953), and the English Human Rights Act, 1998.
- HLA Hart Essays in Jurisprudence and Philosophy (1983) 182, 195 (‘rights-based theories cannot compare to the clarity and detailed certainty of utilitarianism’).
- Funke v France (1993) 16 EHRR 297, 326 (conjuring a right to silence from art 6(1) but making no mention of its parameters); Saunders v UK( 1997) 23 EHRR 313 (a right to silence does not allow for a balancing of interests as it is an integral feature of a right to a fair trial which by its very nature cannot be subject to a limitation); Murray v UK (1996) 22 EHRR 29, 45 (the right is a generally recognised international standard which lies at the heart of the notion of a fair procedure under art 6).
- Environment Protection Authority v Caltex Refining Co (Pty) Ltd (1993) 178 CLR 477.
- WN Hohfeld ‘Some Fundamental Legal Concepts as applied in Judicial Reasoning’ (1914) 23 Yale LJ 16. See also M Radin ‘A Re-statement of Hohfeld’ (1938) 51 Harvard LR 1141.
- Hohfeld (note 34 above) 32.
- Ibid.
- Ibid 33.
- R Dworkin ‘Taking Rights Seriously’ in AWB Simpson (ed) Oxford Essays in Jurisprudence (1973) 202, 213 and R Nozick ‘Philosophical Explanations’ in AWB Simpson (ed) Oxford Essays in Jurisprudence (1981) 490–95.
- K.R Greenawalt ‘Silence as a Moral and Constitutional Right’ (1981) 23 William and Mary LR 15–71.
- Ibid 19; 20–33; 34–43.
- Ibid 27–31.
- Ibid 59.
- WV Schaefer The Suspect and Society Hamilton ed (1967) 59–60.
- HJ Friendly ‘The Fifth Amendment Tomorrow: The Case for Constitutional Change’ (1968) 37 Univ Cinncinati LR 671, 680.
- S Hook Common Sense and the Fifth Amendment (1957) 73, 121.
- C McCormick ‘Some Problems and Developments in the Admissibility of Confessions’ (1946) 24 Texas LR 239, 277.
- House of Lords Debate on the Criminal Law Revision Committee 11th Report, Cmnd 4991 (1972).
- R v Bodkin Adams (unreported) (1957) quoted in the House of Lords Debate.
- Livingstone v Murray (1830) 9 Shaw 161.
- Malloy v Hogan 378 US 1, 19 nl7 (1964).
- Boyd v US 116 US 616, 631–32 (1886).
- House of Lords Debate (note 47 above) 1608.
- G Horowitz ‘The Privilege Against Self-incrimination: How did it Originate?’ (1958) 31 Temple LQ 121, 143.
- E Ratushny ‘Is there a Right Against Self-incrimination in Canada?’ (1973) 19 McGill LJ 1,2.
- Hart (note 31 above) 201, 205–09 (providing an incisive defence against the criticism that utilitarianism is a maximising philosophy in which the individual has no intrinsic worth except as a point or fragment within the total aggregate of community happiness).
- AAS Zuckerman The Principles Of Criminal Evidence (1989) (attributing the English courts' lacklustre support of a right to silence not only to the awareness of the practical problems which would result from a strong enforcement of the right but also to its weak rational foundation).
- American and English libertarian justifications for silence are identical. For the English view, see S Easton The Right to Silence Avesbury 2 ed (1996); JD Jackson ‘The Right to Silence: Judicial Response to Parliamentary Encroachment’ (1994) 57 MLR 270; M Zander ‘How Will the Right to Silence be Abolished?’ (1993) 143 NLJ 1710; EW Thomas ‘The So-Called Right to Silence’ (1991) NZULR 229; AAS Zuckerman ‘Procedural Fairness During Police Interrogation and the Right to Silence’ (1990) J Crim L 499.
- DW Louisell ‘Criminal Discovery and Self-incrimination’ (1965) 53 California LR 89, 95.
- Greenawalt (note 39 above) 34–8.
- I Dennis ‘Instrumental Protection, Human Rights or Functional Necessity’ (1995) 54 Cambridge LJ 359.
- DD Ellis ‘A Comment on the Testimonial Privilege of the Fifth Amendment’ (1970) 55 Iowa LR 838–39.
- C Fried ‘Privacy’ (1968) 77 Yale LJ 475.
- 381 US 479,484 (1965); Tehan v US 382 US 406,416 (1966) per Stewart J (‘the privilege stands as a protection for…the right of each individual to be let alone’).
- US v Grunewald 353 US 391, 446 (1957) per Frank J.
- LG Ratner ‘Consequences of Exercising the Privilege Against Self-incrimination’ (1957) 24 Univ Chicago LR 488–89.
- DJ Galligan ‘The Right to Silence Reconsidered’ (1988) 41 Current Legal Problems 69, 88.
- A grant of indemnity allows the prosecution to sidestep the silence principle and to compel self-incriminatory testimony. The witness is obliged to surrender privacy in return for immunity against a criminal sanction (s 204 of the Criminal Procedure Act 51 of 1977).
- WJ Stuntz ‘Self-incrimination and Excuse’ (1988) 86 Columbia LR 1234 (‘if the [silence principle] is designed to protect privacy…its application would turn on the nature of the disclosure…[and] not on the criminal consequences of disclosure’).
- 318 US 332 (1943) 347.
- J Bentham The Rationale of Judicial Evidence Bowring ed (1843) Book IV, IX parts IV, VI, VIII, Chapter III, § 4.
- Royal Commission on Criminal Procedure Cmnd 8092 (1981) para 1.24.
- 291 F 646 (SDNY 1923) 649.
- Ellis (note 61 above) 843.
- (1935) AC 462, 481. See also S v Zuma 1995 (2) SA 652 (CC) para 36.
- Tehan v US (note 63 above) 415.
- R v Noble (1997) 146,148 DLR (4th) 385, 418; 43 CRR (2d) 233.
- JH Stephen A History of the Criminal Law in England (1883) 442.
- DB Ayers ‘The Fifth Amendment and the Inference of Guilt from Silence’ (1980) 78 Michigan LR 850.
- JH Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law McNaughton ed (1961) § 2281; 296 n2.
- Friendly (note 44 above) 691.
- For example, United States Senator McCarthy's anti-communist witch hunt during the 1950s and the Apartheid regime's attempt to label all political opponents as communists during the 1980s.
- It may be noted that neither the cruelty nor the privacy argument logically supports a rule barring the use of adverse inferences drawn from the accused's silence. For example, in Murray v UK (note 32 above) the European Court held that the drawing of adverse inferences from silence is not a breach of art 6(1) of the European Convention on Human Rights.
- S Moston et al ‘The Incidence, Antecedents and Consequences of the Use of the Right to Silence during Police Questioning’ (1993) 3 Criminal Behaviour and Mental Health 30; S Moston et al ‘The Effects of Case Characteristics on Suspect Behaviour during Questioning’ (1992) 32 British J Criminology 23; M McConville et al ‘The Role of Interrogation in Crime Discovery and Conviction’ (1982) 22 British J Criminology 165–66.
- Kasimar (note 19 above) 27.
- J Gordon ‘The Concept of Human Rights: The History and Meaning of its Politicization’ (1998) Brooklyn J of Int L 699 (arguing that a rights-based principle may become dangerous because it invokes ethical ideas which it claims to be universal and absolute; and that it becomes concerned with the distinction between absolute righteousness and absolute wrongfulness but may distort morality by providing a justification for inflicting suffering in much the same way that claims of righteousness have justified the bloodiest acts of holy wars). The right to silence invokes a similar sentiment. It triggers an emotional defence and draws an absolute battle line but provides no rational justification for its elevated status.
- The inflexibility of a constitutional right is illustrated by Black J's opinion in Grunewald v US 353 US 391, 425–26 (1957): ‘I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them’.
- Note 27 above and accompanying text.
- 211 US 78, 113 (1908).
South African Journal on Human Rights
Volume 18, 2002 - Issue 4