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Title: The right to silence and access to legal assistance during police interrogation
Authors: Gatt, Edward (1997)
Keywords: Self-incrimination
Legal services
Criminal law
Police questioning
Criminal procedure
Issue Date: 1997
Citation: Gatt, E. (1997). The right to silence and access to legal assistance during police interrogation (Master's dissertation).
Abstract: The investigation of a crime is one of the most difficult and important stages throughout the whole process of a criminal law system. The outcome of a criminal trial is deemed to depend heavily on the manner in which the investigation is conducted. It is in the interest of society at large to ascertain that the methods of investigation used are indeed the very best and that all those individuals deemed to pose a threat to the community, are well "filtered" at the investigative stage. Using the proper techniques during the investigation will help the prosecutor to prove his case beyond reasonable doubt; however, in trying to establish an adequate investigative machinery we must never forget the rights pertaining to every single individual. An important and albeit controversial privilege enjoyed by a suspect is the right to silence. The privilege against self-incrimination operates in two contexts: the investigation and the trial; however, although the linkage is acknowledged this thesis reviews the right to silence during the investigation. Furthermore, a number of criminal law systems have attached the issue of the protection of the rights enjoyed by a suspect during the investigation stage with the presence of one's lawyer. The first chapter discusses the general principles of criminal procedure which contribute to the right to silence. The presumption of innocence, the burden of the prosecution to prove beyond reasonable doubt and the privilege against self incrimination he in the roots of the right to silence in the face of police questioning. The second chapter deals with the present English approach after the amendments to the Criminal Justice and Public Order Act, 1994. There is grave concern that the restrictions imposed on the right to silence will expose suspects to greater pressure from the police and increase the risk of false confessions. Moreover, given that inferences may be drawn from one's silence during police questioning, lawyers present during the interview have a greater responsibility - indeed their presence at the police station has become indispensable. The third chapter reviews the United States system. This latter system requires that the suspect be properly informed of his rights to silence and to legal assistance prior to any police questioning. Unless the Miranda warnings are administered by the questioner, any statement made by the suspect will not be admissible as evidence during the trial proceedings. The European Court of Human Rights has also shown its commitment in trying to strengthen the right to silence. Although not included in the wording of Article 6 of the Convention , recent judgments of the Court place the right to silence and the right to legal assistance during police interrogation within the meaning of a "fair hearing". This line of thought indicates that signatory states should be very attentive as to the procedure adopted in their statutes: Finally the last chapter goes through the Maltese position regarding the right to silence during the police questioning. The Police Code of Practise for the Interrogation of Arrested Persons makes direct reference to the right to silence and the cautions that should be administered during the interview. Surely the voluntariness of a confession as protected in our Criminal Code will not allow that one's right to silence is not respected. In the conclusion of this thesis I have made a number of proposals, amongst which I have proposed the introduction of legal assistance during police interrogation.
Description: LL.D.
Appears in Collections:Dissertations - FacLaw - 1958-2009

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