Two days ago, in Salduz v Turkey  ECHR 1542, the Grand Chamber of the European Court of Human Rights unanimously overruled one of its lower chambers, in a case concerning a young man accused of breach of Turkey’s anti-terrorism laws through his alleged involvement with the PKK. Seventeen year-old Yusuf Salduz, arrested on suspicion of being involved in a PKK demonstration and hanging an illegal banner (“Long Live Leader Apo”) from a bridge, was interrogated for two days by government security officers. In accordance with the then Turkish security laws, he was not allowed a lawyer, though he was told of his right to remain silent. He confessed to the allegations and gave samples of his handwriting, which an expert report was unable to conclusively match with the banner. After his charge, he retracted the confession, but was convicted on evidence including the confession, a further expert report and evidence from his alleged partners in PKK-support.
But the facts scarcely matter. At issue was this ECHR right:
6.3 Everyone charged with a criminal offence has the following minimum rights:… (c) to defend himself in person or through legal assistance of his own choosing…
The terms of this right appear to speak about the trial itself. The ECtHR has held that it (and its allied fair hearing right) can have implications for pre-trial interrogation, but that requirement was couched in terms of flexible reasonableness standards:
National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances…
But not any more:
[T]he Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 [the ECHR fair hearing right] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6… The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.
[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him
What was startling about Miranda, and is startling about Salduz, is the mandatory nature of the rule: no lawyer (and no waiver) = no admissible confession. Indeed, the link between the two cases runs deep indeed. Salduz, like Miranda, bases its rule explicitly on the privilege against self-incrimination:
In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial.. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused… Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination.
And Salduz, like Miranda, takes a narrow view of what can count as a waiver of the right to a lawyer:
The Court further recalls that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial… However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance… Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent.
All of this is most exciting in Victoria, where Miranda has never been the rule. It’s true that all Australian jurisdictions have statutes that give detainees a right to communicate with a lawyer, but the fragility of this rule was shown in the Thomas case, when Cummins J took a very pre-Salduz reasonable limits approach:
Normally, failure to avail an interviewee of that right would be fatal to the admission of a subsequent interview. That is because the right is an important right in the system of justice. However, that requirement is not absolute. Here, the officers had ascertained that that provision would not be permitted in Pakistan. They were faced with the choice of conducting an interview or postponing it for an indefinite period to an indefinite place. Had the officers sought to utilise that situation for a collateral purpose, or as a pretext, or opportunistically to defeat or deflect the requirements of part IC of the Act I would have had no hesitation in ruling the interview inadmissible. Further, I would unhesitatingly exclude the interview if I considered it unfair to admit it. However, I consider the officers acted reasonably, honestly and fairly in all the circumstances. Further, I do not consider it was unfair to the accused to conduct the interview in the absence of legal recourse as defined by section 23G(2). Doubtless the accused would have availed himself of that legal recourse were it proffered. Presumably the legal practitioner would have advised the accused appropriately. Whether, then, the accused would have answered questions or declined to answer questions is unknown and certainly I do not speculate in that regard
Fortunately, the Court of Appeal put the kybosh on that, but the issue remains to be dealt with by Australian law’s amorphous fairness and public policy discretions. It’s far from clear that the High Court would take a similarly strict approach. Australia’s evidence law is, alas, characterised by a reluctance to exclude evidence in trials of serious matters, given the need of courts to keep their ‘legitimacy’ (apparently in the face of public upset at villians getting off on ‘technicalities’. Salduz takes the opposite approach:
Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.
What is interesting is the possibility that the combination of Salduz and the Charter might bring Miranda to Victorian law. The relevant Charter right is this one:
25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees… (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…
The terms of this right (based on the post-ECHR ICCPR) are even more amenable to a reading that covers pre-trial interpretation. (And, unlike Europe, we have a right against self-incrimination too, in Charter s. 25(2)(K)!) The main barrier to reading Salduz into this right would seem to be the approach of Hollingworth J in Sabet, which not only bizarrely dismissed the relevance of the ECHR’s Article 6 to Charter s. 25 but also held that the entire suite of rights in Charter s. 25 are limited to ‘criminal proceedings’. It remains to be seen whether this notion, if adopted, will include the earliest stages of an investigation, especially the stages prior to the formal charge.
The further question is whether Salduz could be picked up by an operational provision. Victoria’s current evidence law is common law, which is basically immune from the Charter. However, there is perhaps room to do some re-interpretation of the statutory provision on the right to communicate with a lawyer:
464C(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she- (a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and (b) may communicate with or attempt to communicate with a legal practitioner- and, unless the investigating official believes on reasonable grounds that- (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed- the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
(2) Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is- (a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and (b) must allow the person’s legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.
This section doesn’t specify a consequence if it isn’t followed, but McHugh J once argued that it’s ‘protective’ nature implies an automatic remedy of exclusion unless the state can show that the accused wasn’t put at a disadvantage. This approach was followed by the Vic CA in Thomas and, arguably, the interpretation mandate would now make it mandatory. Perhaps, too, the inadmissibility requirement could apply, as Salduz requires, even in those narrow circumstances when a lawyer-free interrogation is permissible, if the resulting interrogation ‘prejudices’ the accused. Even more interesting, could ‘wishes’ be re-interpreted as adopting Salduz’s waiver approach?
And wait, there’s more. Some concurring judgments in Salduz, notably from the court’s President, argued that the new principle should go further, providing a lawyer from detention, rather than just prior to interrogation. That certainly goes further than s464C. And might the ECtHR sometime go even further still, following Miranda in requiring the state to provide a lawyer to detainees who can’t afford it? That’s a dramatic step, already followed in the UK, that all Australian jurisdictions have so far baulked at. These steps would appear to be a bridge too far for the interpretation mandate as applied to s464C. But they may have something more sturdy to grasp in 2010, when the Evidence Act 2008, with its bevy of statutory exclusionary rules relating to confessions, comes into play.
But wait, there’s less too. This is the Charter we’re talking about, after all. On top of the dire caselaw to date, there are also some profound reasons why the Charter may be impotent when it comes to altering Victoria’s evidence law, current and future, which I outline in my 2007 paper (an updated form of which appears in the most recent and next editions of the Public Law Review.) Ah, but it’s nice to dream…