One of the interesting bits of human rights law that is implicit in Part 2 of the Charter is the law about when these rights are gained and lost. People under criminal investigation and prosecution have lots and lots of rights:
21(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her. (5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with. (6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to appear- (a) for trial; and (b) at any other stage of the judicial proceeding; and (c) if appropriate, for execution of judgment. (7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.
25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and (c) to be tried without unreasonable delay; and (d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and (f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978…
This lengthy list of rights can prove problematic for law enforcement, who have to keep track of what they are meant to say and do.
Famously, the four warnings set out by the US Supreme Court in Miranda v Arizona have appeared on cards that police carry around so that they don’t read the wrong rights. Ernesto Miranda himself, following his retrial, conviction and sentence for rape, made a living selling signed copies of Miranda cards. He was killed in a bar fight in 1976. And, according to my comparative criminal procedure teacher, the police officer who arrested the alleged killer at the scene picked a Miranda card out of Miranda’s own pocket and read the man his rights (which he exercised.) So, Justice White was not entirely correct when he famously lamented, in his dissent, that the Miranda ruling would free killers to kill more victims who are “are uncertain, unnamed and unrepresented in this case.”
The other solution is the holdings of overseas courts that not all criminal process rights are automatic and mandatory. Rather, some of them have to be asserted – e.g. habeus corpus – and many of them can be waived, e.g. the right to be given a legal aid lawyer if eligible. There are lots of overseas cases on whether assertion and waiver apply for particular rights, how assertion and waiver can occur and the state’s duties to work out exactly what is happening. Behind these questions is a difficult policy question about whether criminal process rights are the responsibility of the state or the individuals who have them. The really controversial part of Miranda is its holding that defendants don’t have to assert their right to silence or to a lawyer; rather, they always have those rights until they are expressly and unequivocally waived, in practice by signing an express waiver form. Other countries, including Australia and Canada, don’t go so far, requiring assertions in some cases and permitting implicit and equivocal waivers in others.
But can Australians and Canadians gain American-style waiver rights through the use of the police’s own tool?: a rights card. Continue reading