The rights of a person charged or accused with particular reference to his right to silence and his presumption of innocence in view of the rules of inference

Abstract

The introduction to this dissertation explains briefly certain concepts that are vital in order for one to understand better the rights of a person charged or accused. Without Criminal Law no crime would exist, since there can be no crime without law. Where statute provides for crime and its punishment, any alleged offender may be charged or accused with the commission of such offence. Since after proceedings are brought to an end, a sentence is passed on the person charged or accused that will be likely to determine his future, such person acquires certain rights from the moment of arrest or detention. These rights have to subsist throughout the whole tier of the proceedings against him. Two basic rights enshrined within the right to a fair trial are the presumption of innocence and the fight to silence. Chapter One goes through the rights of persons detained, arrested, charged or accused as formerly protected under the Maltese criminal justice system that was predominantly accusatorial in nature. This Chapter also brings out the distinction between accusatorial and inquisitorial systems in order to make one think which would be better from the two. Chapter Two then goes through the new amendments to the Maltese Criminal Code which have overthrown the previous system by upsetting the right to silence and the presumption of innocence and seemingly shifting the burden of proof from the prosecution to the person charged or accused. It tries to find positive introductions of provisions, but to no avail, since the two new good concepts have been included with too much conditions and may be stretched and manipulated in order to benefit the prosecution and the injured party or alleged victim of an offence. These two concepts are the right of a person detained or arrested to consult with an advocate or legal procurator, and the new rights acquired by the injured party or alleged victim of an offence. Chapter Two also looks at the protection of the rights of a person charged or accused under the English system which we have always followed, and which has been the inspiration for the Maltese legislator. It looks at the American criminal justice system which is similar to the one the Maltese legislator has decided to discard, and which is a major Common Law, accusatorial system. It also looks at the protection of the person charged or accused under the Italian criminal justice system which has become predominantly accusatorial in nature .. Chapter Three goes through The Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the Rome Statute and looks at the way these international instruments protect the presumption of innocence and the right to silence of the person charged or accused. Of particular relevance in this context are the European Convention on Human Rights and the Rome Statute, since they have effective enforcement mechanisms. Although the European Convention does not expressly protect the right to silence, the European Court of Human Rights has repeatedly stated that it is one of the basic rights that needs protection in order that the trial of a person charged or accused is fair. The Rome Statute on the other hand not only lays down black on white that the right to silence is a fundamental right to a person charged or accused but goes a step further by stating that where a person charged or accused exercises his right to silence, no positive inferences of guilt may be drawn from it. This leads one to believe that the new amendments to the Maltese criminal justice system are likely to be in breach of international instruments. The Conclusion comments on the three Chapters mentioned above. Even positive intentions of the legislator have been tainted and over-stretched with these amendments, which are likely to be in breach of international instruments. The right to legal consultation prior to police interrogation during arrest or detention can be delayed up to thirty-six hours. The right to legal assistance does not subsist during police interrogation. Furthermore, positive inferences of guilt may be deduced where such person exercises his right to silence and this necessarily implies that there is no presumption of innocence. The rights of alleged victims of offences have been included to an extent where they may even make submissions to the Criminal Court or the Court of Criminal Appeal regarding the sentence to be awarded to the person charged or accused. This may severely and manifestly jeopardise the objectivity and impartiality of the courts.