Admissibility of Confession Evidence Across Borders: A Transnational Perspective

Abstract

The previous chapters have demonstrated that the question of balancing the effectiveness of law enforcement and the interests of the suspect or accused in relation to the right to silence and the right against self-incrimination relies on in-built continuity that exists between the investigative and the trial phases within the national law. This ensures that any limitations that are placed on the right to silence in the investigative phase are meaningfully counter-balanced at some later point, which may not be until the criminal trial takes place. The opposite is also true, whereby what may be perceived as restrictions on the right to silence in the trial, such as allowing an inference of guilt to be drawn from the accused’s pre-trial silence, may have been safeguarded by the circumstances in which the suspect’s evidence was obtained, for example, by the protection provided by cautioning about the right to silence, legal representation, a letter of rights, early involvement of the prosecuting authorities etc. Building on this conceptual framework, this chapter examines what happens to the balance at a fundamental level when confession evidence or evidence of silence is transferred across national borders where the equivalent counter-balancing measures are not present.