Criminal Evidence and Human Rights

Reimagining Common Law Procedural Traditions

Paul Roberts, Jill Hunter, Paul Roberts, Jill Hunter

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319463
• Edition: 1
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

Criminal procedure in the common law world is being recast in the image of human rights. The cumulative impact of human rights laws, both international 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, methodologically astute and doctrinally rigorous scholarship in criminal procedure and evidence, human rights and comparative law, and will be a major addition to the literature in all of these fields.

1

A Constitutional Revolution in South African Criminal Procedure?

PJ SCHWIKKARD

INTRODUCTION

DURING THE 1990s South African criminal procedure law underwent root-and-branch reform as part of the new post-Apartheid state’s radical reconstruction of political institutions. Until 1995 the vast majority of South Africans were—literally—disenfranchised. Legal positivism prevailed, and the only criterion of trial fairness was formal compliance with the rules. Indefinite detention without trial was tolerated and the means of obtaining evidence had little impact on evidentiary issues of admissibility or trial fairness.

The year 1990 marked a profound change in the political climate in South Africa. An intense period of negotiation culminated in the acceptance of the principle of constitutional supremacy and, on 27 April 1995, the country held its first democratic elections with universal adult franchise. The interim Constitution of 1993¹ was superseded in 1996 by a permanent Constitution with a justiciable Bill of Rights. However, a genuine ‘revolution’ in criminal procedure requires more than just institutional reform and drafting new laws. South Africa has one of the highest income disparities in the world, with a relatively small middle class sandwiched between the substantial majority of the population, which is impoverished, and a super-rich elite. In formal terms, there has been a rights revolution which has made a major impact on the rules of criminal evidence. This chapter considers the extent of that impact, and its limitations.²

1. THE CONSTITUTIONAL REVOLUTION

According to standard comparative law taxonomies, South Africa has a ‘mixed’ legal system, comprising Roman-Dutch substantive law and procedural law derived from the common law tradition. Modern South African criminal procedure law is essentially statutory,³ but courts are referred to the English common law as it stood on 30 May 1961 (the day before South Africa became a republic) to fill in any gaps in statutory coverage. Since 1993, statutes and common law precedents must now also be tested against the Constitution and the Bill of Rights. This includes a very detailed specification of the right to a fair trial, which is discussed in the next section. In addition, various other constitutionally-entrenched rights continue to reshape the content and form of the criminal justice system, including the rights to equality,⁴ dignity,⁵ life,⁶ freedom and security of the person,⁷ privacy,⁸ freedom of religion,⁹ freedom of expression,¹⁰ property,¹¹ and access to information.¹²

Rights declared in the Bill of Rights are subject to the following general limitations clause, contained in section 36 of the Constitution:¹³

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

The limitations clause plays a significant role in balancing the competing interests inherent in any criminal justice system. Section 39 of the Constitution provides courts with further general guidance on the interpretation of substantive rights:

(1) When interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

The Constitutional Court has expounded on the effect of section 39. Although the starting point will always be the text of the Constitution,¹⁴ the court has advocated a generous and purposive interpretation to the text so as to ‘give… expression to the underlying values of the Constitution’.¹⁵ The purpose of the right is ascertained by identifying the interests that the right seeks to protect,¹⁶ in the light of South Africa’s distinctive political history, as so eloquently explained in Shabalala v Attorney-General of the Transvaal:¹⁷

[T]he Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible… It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.

The Constitutional Court stressed the importance of generously interpreting the content of constitutional rights as widely as the text will allow.¹⁸ This should mean that the party bearing the burden of establishing a rights infringement bears a relatively light burden in contrast to the party who seeks to have the right restricted. However, as we will see, there are numerous instances where the courts have elected not to take a generous approach in respect of either the content or the purpose of the right. This cramped approach qualifies the extent to which one may legitimately speak of a constitutional revolution in South African evidence law.

2. THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL

The Apartheid State had used law in general, and the criminal justice system in particular, as powerful tools of political coercion and social control. It was therefore not surprising that the new Bill of Rights made explicit provision, in section 35 of the Constitution, for the protection of the rights of arrested, accused and detained persons. Section 35(1) guarantees to ‘[e]veryone who is arrested for allegedly committing an offence’ the rights to silence and freedom from compelled confession, access to court, and prompt charge or release ‘if the interests of justice permit, subject to reasonable conditions’. Section 35(2) contains the rights for all detained persons (including sentenced prisoners) to be informed promptly of the reason for their detention; access to competent legal advice ‘at state expense, if substantial injustice would otherwise result’; access to court to challenge the lawfulness of their detention; to conditions of detention that are ‘consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment’; and to communicate with family members and doctors and religious counsellors of their own choosing.

Section 35(3) then sets out the following, distinctively South African version of the ‘right to a fair trial’, adapted from familiar provisions in international human rights law such as ICCPR Article 14 and ECHR Article 6:

(3) Every accused person has a right to a fair trial, which includes the right—

(a) to be informed of the charge with sufficient detail to answer it;

(b) to have adequate time and facilities to prepare a defence;

(c) to a public trial before an ordinary court;

(d) to have their trial begin and conclude without unreasonable delay;

(e) to be present when being tried;

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;

(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;

(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.

Section 35(4) stresses that information must be provided in a language that the suspect, accused or detainee understands—a significant proviso in a jurisdiction as linguistically diverse as South Africa. Finally, section 35(5) specifies a generic exclusionary rule pertaining to evidence obtained in violation of the constitution:

Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

Section 35’s right to a fair trial is possibly unique in its coverage and detail. This reflects acute consciousness of past abuses and the sterility of positivist definitions. It was only three years before the advent of democracy that the Appellate Division described the concept of trial fairness in the following restrictive terms:

[A court of appeal] does not enquire whether the trial was fair in accordance with ‘notions of fairness and justice’, or with ‘the ideas underlying … the concept of justice which are the basis of all civilised systems of criminal administration’. The enquiry is whether there has been an irregularity or illegality that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated and conducted. … What an accused person is entitled to is a trial initiated and conducted in accordance with those formalities, rules and principles of procedure which the law requires. He is not entitled to a trial which is fair when tested against abstract notions of fairness and justice.¹⁹

In its very first judgment, in S v Zuma, the Constitutional Court resoundingly rejected this positivist approach. It held that the constitutional right to a fair trial embraced ‘a concept of substantive fairness’ that ‘required criminal trials to be conducted in accordance with just those ‘notions of basic fairness and justice’.²⁰ The Court also he...