Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions

451 Pages·2012·1.27 MB·English

by  Paul Roberts

CRIMINAL EVIDENCE AND HUMAN RIGHTS
Criminal procedure in the common law world is being recast in the image
of human rights. The cumulative impact of human rights laws, both inter-
national and domestic, presages a revolution in common law procedural
traditions. Comprising 16 essays plus the editors’ thematic introduction,
this volume explores various aspects of the ‘human rights revolution’ in
criminal evidence and procedure in Australia, Canada, England and Wales,
Hong Kong, Malaysia, New Zealand, Northern Ireland, the Republic of
Ireland, Singapore, Scotland, South Africa and the USA. The contributors
provide expert evaluations of their own domestic law and practice with
frequent reference to comparative experiences in other jurisdictions. Some
essays focus on specific topics, such as evidence obtained by torture, the
presumption of innocence, hearsay, the privilege against self-incrimination,
and ‘rape shield’ laws. Others seek to draw more general lessons about
the context of law reform, the epistemic demands of the right to a fair
trial, the domestic impact of supra-national legal standards (especially the
ECHR), and the scope for reimagining common law procedures through
the medium of human rights.
This edited collection showcases the latest theoretically informed, meth-
odologically astute and doctrinally rigorous scholarship in criminal proce-
dure and evidence, human rights and comparative law, and will be a major
addition to the literature in all of these fields.

Criminal Evidence and
Human Rights
Reimagining Common Law
Procedural Traditions
Edited by
Paul Roberts
and
Jill Hunter
OXFORD AND PORTLAND, OREGON
2012
Published in the United Kingdom by Hart Publishing Ltd
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Acknowledgements
The sixteen new essays comprising this collection were specially commis-
sioned as part of a long-standing collaboration between the editors to
develop comparative cosmopolitan perspectives on the law of criminal
evidence and procedure. This phase of the project focuses on the expand-
ing influence of human rights in common law criminal trials. In order to
promote genuine dialogue and debate around these revolutionary develop-
ments in criminal adjudication, and to share comparative experiences, we
devised and ran two linked two-day contributors’ conferences, the first at
UNSW in Sydney in April 2010, with a follow-up meeting in Nottingham
that September. With a couple of unavoidable exceptions, all of the essays
in this volume were aired in draft form at one or other of our contributors’
colloquia. Many evolved through successive drafts presented and debated
at both meetings. The proof of this methodology is to be found in the
prominent points of continuity and contrast, shared policy dilemmas, and
cross-cutting themes featured in the following pages.
The Sydney conference, entitled Criminal Evidence & Human Rights:
Common Law Perspectives, was organised under the auspices of the UNSW
Centre for Interdisciplinary Studies of Law and generously funded by the
UNSW Faculty of Law. The Nottingham meeting on Criminal Evidence &
Human Rights was supported by the award of the Society of Legal Scholars
Annual Seminar 2010, with additional benefits-in-kind being contributed
by the University of Nottingham School of Law. Without this financial
sponsorship—increasingly viewed as a luxury in these straitened times—
plus further funding from contributors’ own institutions to cover travel
costs there would have been no conferences and no book. The support of
UNSW, SLS and the University of Nottingham, in particular, is gratefully
acknowledged. Christine Brooks (UNSW) and Jane Costa and Anne Crump
(Nottingham) helped with conference organisation and administration with
consummate efficiency.
Everybody who attended the conferences contributed to the discussion,
and therefore to the quality of the essays in this volume. We are grateful
to them all. But we must single out for special thanks the seminar partici-
pants, including colleagues in the earlier stages of their academic careers,
who served as discussants at our two meetings. Theirs was a pivotal role,
to introduce each draft paper and kick-start the general discussion with
incisive comments, questions, queries and challenges, and this duty was dis-
charged, without exception, with vigour and aplomb. Our locally-resident
UNSW discussants were Jill Anderson, David Dixon, Gary Edmond, Rezana
vi Acknowledgements
Karim, Tyrone Kirchengast and Mehera San Roque. The Nottingham
discussants were: Roderick Bagshaw (Oxford); Louise Ellison (Leeds);
Dimitrios Giannoulopoulos (Brunel); Richard Glover (Wolverhampton);
Laura Hoyano (Oxford); Imogen Jones (Manchester); Roger Leng
(Warwick); Jenny McEwan (Exeter); Hannah Quirk (Manchester); Candida
Saunders (Nottingham); and Tony Ward (Hull).
Richard Hart was an enthusiastic supporter of this project from the out-
set. Rachel Turner, Mel Hamill, Tom Adams and their colleagues at Hart
Publishing have seen the manuscript through to publication with their char-
acteristic friendly professionalism, encouragement and sound advice.
Our greatest debt is owed to our contributors. We brought together
twenty or so of the most eminent Evidence scholars and criminal procedur-
alists in the common law world, and asked them to subject their work-in-
progress to energetic roundtable debate, with no allowance for title, status
or reputation. Every one of our contributors fully entered into the spirit of
the enterprise and maintained their collaborative poise to the end, despite
serial provocations from demanding editors. The bean-counters who today
proliferate in higher education will never be able to put a price on the privi-
lege of working with such an extraordinarily talented and collegial group of
legal scholars drawn from all four corners of the globe.
We learnt, at an advanced stage of the editorial process, of the sudden
death of Craig Callen on 23 April 2011 after a short illness. Craig never
had the opportunity to respond to the editors’ suggestions and queries on
his draft manuscript. His edited chapter appears here as we hope he would
have wanted and intended it. Craig Callen personified the creativity, indus-
try, intellectual generosity and collegiality of truly first-rate scholars, and
his friendship no less than his inventive contributions to the discipline will
be greatly missed by our research group, as by many others in the legal
academy. This volume is dedicated to Craig’s memory.
PR JH
Beeston, Birchgrove,
Bonfire Night 2011
Dedication
In memory of
Professor Craig R Callen
(1950–2011)

Table of Contents
Acknowledgements ...................................................................................v
Dedication ..............................................................................................vii
List of Contributors .................................................................................xi
Table of Cases ........................................................................................xiii
Table of Legislation .............................................................................xxxi
Introduction—The Human Rights Revolution in Criminal
Evidence and Procedure ............................................................................1
Paul Roberts and Jill Hunter
1. A Constitutional Revolution in South African
Criminal Procedure? ..........................................................................25
PJ Schwikkard
2. Human Rights in Hong Kong Criminal Trials ...................................55
Simon NM Young
3. Right to Counsel During Custodial Interrogation in Canada:
Not Keeping Up with the Common Law Joneses ...............................79
Christine Boyle and Emma Cunliffe
4. Degrading Searches and Illegally Obtained Evidence in the
Malaysian Criminal Justice System ..................................................103
Salim Farrar
5. Human Rights, Constitutional Law and Exclusionary
Safeguards in Ireland .......................................................................119
John Jackson
6. The Exclusion of Evidence Obtained by Violating a
Fundamental Right: Pragmatism Before Principle in
the Strasbourg Jurisprudence ...........................................................145
Andrew Ashworth
7. Normative Evolution in Evidentiary Exclusion: Coercion,
Deception and the Right to a Fair Trial ..........................................163
Paul Roberts
8. Ozymandias On Trial: Wrongs and Rights in DNA Cases ..............195
Jeremy Gans