Thu | Aug 16, 2018

Hold cops to scruitiny in DNA law

Published:Saturday | May 23, 2015 | 12:00 AM


I refer to Mr Brian Sale?s Letter of the Day ? published May 20, 2015 ? criticising my position that makes the point that the accused cannot be compelled to give assistance to the police. Mr Sale fails to take into consideration that my statement was made in the context of the rule against self-incrimination.

There is a difference in law between the search of my home, and the forceful taking of my confession, saliva, or hair. The law frowns upon the coercing of a defendant to give up evidence against himself, hence, the longstanding rule prohibiting self-incrimination. It is the definition of ?self? that I am working with, versus Sale?s understanding of the word, that has caused this head-on crash of ideas.

Our laws are founded on the presumption of innocence, the right of an accused to remain silent, and the duty of the police to tell a suspect that he need not answer any of his questions posed to him. It is in this context that I said he need not give ?any assistance? to the police. The police can lawfully obtain a warrant to search my office, my home, and ? on reasonable suspicion that I have committed a crime ? to search my pocket. This is not in conflict with my right not to actively give assistance to any investigator. This rule is also intertwined with the right of an attorney not to be compelled to give up information on his client ? a right which a court recently upheld.

Let me leave your writers with this experience. Prior to the right of an accused to have a lawyer present at his police interview, a decade and a half ago, almost one third of the cases of murder brought by the police relied on the so-called ?voluntary confession? of the suspect to the police. All of a sudden, with the rule that an attorney must be present in place, confessions have virtually disappeared. Prior to the rule requiring lawyers to be present, we had some expert cops who were able to compete with many a priest in extracting confessions from penitent and contrite killers!