Thursday, 11 June 1987
The Powers of the Police to Question and Search
The 1987 Blackburn Lecture, delivered by The Rt Hon Sir Harry Gibbs GCMG AC KBE QC, Chief Justice of the High Court of Australia.
I was honoured to receive the invitation of the Law Society of the ACT to deliver this, the second Blackburn Lecture, and was very pleased to accept the invitation. It is most appropriate that the Law Society should, by means of these lectures, pay tribute to Sir Richard Blackburn, whose distinguished career in the law included a decade of service on the Supreme Court of the Australian Capital Territory and who was the first Chief Justice of that Court. If I may venture to say so, Sir Richard is an exemplar of all the best judicial qualities: a deep and scholarly knowledge of the law together with the experience and ability necessary to apply that knowledge in practice, complete dedication to the duties, often onerous, of his office, patience, courtesy, dignity and absolute integrity and propriety in his public and private life. He has earned, and receives, the deepest respect of us all and I am glad to have this opportunity to express my own high regard and admiration for a judge who has given great service to this Territory and to Australia.
It is a commonplace that the principles of the criminal law ought to keep in balance two requirements of the public interest which often compete with one another — the need to protect personal liberty and the need to bring criminals to justice. However, it is perhaps remarkable that the common law has been notably deficient in effecting a satisfactory reconciliation between those competing aims, when it has attempted to provide an answer to a question that is of the greatest practical importance — what power should the police have to restrain or detain persons for-the purpose of questioning them about crimes which they are suspected of having committed. Anyone with the slightest acquaintance with criminal procedure knows that a confession, made in response to police questioning, forms an important part of the evidence in most criminal trials and an essential part of the evidence in many. Usually there is other evidence to corroborate the confession — although that is not essential as a matter of law — but there are comparatively few cases in which a conviction is obtained when the accused has not first confessed or at least made some sort of admission of guilt. The importance of evidence of this kind is shown by the time and effort expended by the prosecution and the defence in endeavouring respectively to secure the admission of confessional evidence or to have it rejected. This process often involves the holding of a voir dire — a proceeding within a trial which nowadays takes longer than trials themselves formerly did, and which inv6lves an expenditure of money and effort that can be justified only because of the weight which the evidence that has been objected to is likely to have if admitted. The law recognizes the critical importance of confessional evidence, and the reports contain a multitude of cases which discuss, with sophisticated elaboration although not always with consistency, the question when evidence of a confession should or may be excluded. Yet in spite of this, the common law, in Australia at least, affords the police very little opportunity lawfully to question a suspect in the hope of obtaining a confession.
It is true, of course, that the police are free to question anyone, not in custody, who may help them in their investigations, whether or not the person questioned is suspected of having committed the crime which the police are trying to solve. Most people would agree that a citizen who is asked proper questions by the police has a moral duty to assist them in the performance of their public duties by answering their questions. However, the police may not restrain or detain anyone simply for the purpose of questioning him or her; they cannot compel an unwilling suspect to come to or remain at a police station to undergo questioning. Speaking generally, a suspect, unless arrested, is not only free in law to decline to answer any question (other than those designed to elicit his or her name and address) but also free to walk away so that no further questions can be put. Once arrested, however, the suspect must be brought before a justice of the peace (nowadays usually a magistrate) as soon as that can reasonably be done: that is a requirement of the common law which has in many jurisdictions been given statutory form. The words of the statutes vary – expressions such as "forthwith", "without delay", "as soon as practicable", "without undue delay", "without unreasonable .delay", "without unnecessary delay" have all been used, but they have more or less the same effect. This rule, whether of the common law or statute law, has, in Australia, the result that it is not lawful to delay bringing an arrested person before a justice simply to give the police time to question him or her or to make further enquiries. In other words, only the accident that for some extraneous reason it may not be practicable immediately to bring the arrested person before a justice will allow the police any time to engage in questioning once an arrest is made. Although police questioning is a significant and essential part of the investigation of crime under modern conditions, the law in Australia (except in those cases where it has been varied by statutes which I shall later mention) not only denies to the police the power to restrain or detain a suspect for questioning but also renders it unlawful, once the suspect has been arrested, to engage in or continue an interrogation if to do so would delay bringing the suspect before a justice when that would otherwise be practicable, even though the suspect was quite willing to be questioned and to provide answers. Once the arrested person has been charged, the general view is that he or she should not be questioned about the offence the subject of the charge, even if that were practicable.
It may well be wondered how, in these circumstances, evidence of confessions continues to occupy so important a place in the administration of justice. The answer is that until recently the law has not been concerned to enquire too deeply into the question whether the accused was lawfully detained at the time when he or she was questioned, except for the purpose of ensuring that any confession was voluntarily made or that it would not be unfair to the accused to allow the confession to be used. Sometimes, of course, a suspect might willingly accept the invitation of the police to accompany them to a police station for questioning, perhaps because of ignorance of the law and under the mistaken belief that he or she was obliged to do so. Once a suspect was being questioned an arrest might be deferred until the police had completed the interrogation. Sometimes the suspect's belief that there was a duty to accompany the police might be encouraged by statements made by the police officers themselves. Sometimes the invitation of the police might be couched in terms strong enough to make it known to the suspect that in fact he or she had to accompany them to the police station and was not free to leave. The assertion that a suspect had willingly accompanied the police and remained with them to assist them in their enquiries not infrequently strained credulity as, for example, in a case in Brisbane which I remember from long ago, in which the police gave evidence that some accused persons had remained in the detective office of their own free will, notwithstanding that during the course of the-questioning the accused had dashed from that office and had run half-way down George Street pursued by their interrogators. There was however little point in exposing fictions of this kind since evidence that a suspect had confessed while in unlawful custody was nevertheless admissible if the confession was voluntary, and it was not recognized that there was any discretion to reject it provided that its prejudicial effect did not exceed its probative value and that it was not otherwise unfair to use it against the accused. It was no credit to the law that for all practical purposes it required police officers to conduct necessary questioning only by resorting either to artifice or to illegality. However, in practice, the rules did not, until comparatively recently, unduly hamper police investigations.
More recently changes began to occur. In the first place there has been developing a change in social attitudes which I cannot describe better than in the following words (even if they are a little disparaging) of the editors of Wigmore on Evidence:
"The spirit of the community, whether we choose to call it by the name of anarchy (and it has certainly the evil as well as the good savour) is a spirit of fearlessness of superior social and political power; of restiveness and struggling against bonds, not of orderly submission; of bold (if superficial) readiness to claim 'rights', not of ignorant surrender to demands; and, in general, of keen appreciation of the possibilities of evading justice rather than of cowed obedience to any authority however oppressive."
Not only did suspects become more ready to assert their rights; with the advent of legal aid, and of duty solicitors provided under arrangements made by the Law Societies, they also came to be better advised. Since it became less easy to evade by subterfuge the rule that a person, not ·formally arrested, might not be detained for· questioning, the rule requiring an arrested person to be conveyed to a justice as soon as practicable acquired a greater importance. In addition a new principle became established in Australia, allowing judges a discretion to reject evidence. on the sole ground that it had been unlawfully obtained. In the exercise of this discretion, evidence of statements voluntarily made by a person under arrest could be ejected if the statements were made in response to questions put after the time when it had become reasonably practicable to take the arrested person before a justice, since at that time the police conducting the questioning were in breach of a requirement of the law. This discretionary power enables a trial judge to reject evidence procured by unlawful or improper conduct even though it would be in no way unfair to the accused to allow the evidence to be admitted. The purpose of the rule is to enforce respect for the law, particularly in the conduct of police investigations, and to afford a more effective protection for the citizen against illegalities and wrongdoing, but it is not primarily concerned with the question of unfairness to the accused who is being tried. The same principle has not been accepted in. England, or, it appears, New Zealand and Canada, but similar principles have been applied in Scotland, Ireland and the United States. Too strict a rule of exclusion may have the result that the criminal may go free because the law enforcement officers have blundered; that was well illustrated, in rather different circumstances, in the recent case in Ireland concerning Mr. Trimbole. Under the principles now applicable in Australia, the judge is not bound to reject evidence of statements made in the course of questioning at a time when the detention of the suspect was illegal because he had not been brought before a justice as soon as practicable, and indeed it has been suggested that the rejection of evidence in those circumstances would be exceptional. However, it is more than a possibility that such evidence may be rejected, and in any case the possibility that a judge may reject it introduces an element of uncertainty which can create considerable difficulty in the conduct of criminal trials, since evidence vital to the prosecution, which is admissible as a matter of law and which, if used, would in no way cause the trial to be unfair, may be rejected at the trial. The difficulties may be increased if, as has been proposed, the onus of persuading the judge that the evidence should be accepted is cast upon the prosecution.
My only purpose in discussing that exclusionary principle of the law of evidence is to indicate its possible effect when applied in circumstances which attract the rule that a person once arrested can be detained for questioning only until it is reasonably practicable to bring him or her before a justice. That rule was formulated at a time when the role of the justice was fundamentally different from what it is today. Two statutes, passed during the reign of Queen Mary, in 1554 and 1555, required that when a person-arrested for felony was brought before justices, they were to examine the prisoner and other witnesses as to the alleged offence. Those statutes, which during the reign of George IV were extended to misdemeanours, probably did no more than recognize the existing position at common law, but in any case they provided authority for a procedure which prevailed for nearly 300 years thereafter. Under this procedure justices of the peace did not perform a judicial function; rather, they played the part of detectives or prosecutors and closely questioned, in secret, arrested persons for the purpose of exposing their guilt before committing them for trial. Constables at the time -had neither the facilities nor in many cases the personal ability to enable them efficiently to investigate crime and the investigative powers of the justices compensated for the deficiency of the constables. In these circumstances it was understandable that the rule should have developed that a constable making an arrest could not delay bringing a suspect before justices simply for the purpose of making enquiries of his own.
A radical change occurred in 1848 with the passage of Jervis’s Act, which has formed the basis of the modern law regulating the powers of justices of the peace not only in England and Australia but elsewhere throughout the common law world. The justices now were given a judicial function and accused persons were no longer obliged to submit to examination before them; on the contrary the accused were to be warned that they were not obliged to say anything, and that anything they said would be taken down and used against them. At the same time an equally radical change was taking place in the organization of the police force. A statute introduced by Robert Peel in 1829 provided for the establishment of a metropolitan police force which for the first time acted as a disciplined body, whose organization made it much more efficient than the former constables, and this system was soon extended to the boroughs and counties of England and later formed the model for police forces throughout the common law world. None of these statutes gave to the police the power that had formerly been possessed by the justices to examine arrested offenders. Perhaps, at that time, prompt arrest after a hue and cry was more common than it is now and confessional evidence had not attained its present significance; perhaps there was confidence in the ability of the police to obtain convictions without first securing confessions; perhaps (although this seems unlikely) it was thought that the rights of a suspect would be infringed if he or she were to be examined by the police; perhaps it was thought that the police would have the power even if it were not expressly conferred. For whatever reason, the statutes were silent on the subject.
Thereafter the common law followed a wavering and uncertain course. During the last quarter of the nineteenth century the view was formed that once a person had been arrested he or she could not be questioned and that any answers given to questions put in breach of this rule were involuntary and inadmissible. Later, it carne to be accepted that persons in custody might be questioned after a caution had been administered. During the first half of this century it was well settled in Australia that the criterion for the admissibility of statements made by an arrested person was whether they were voluntary but there was a discretion to reject them if it would be unfair to use them against the accused. The common law rule remained that once the accused person had been arrested he or she must be brought before a justice as soon as-practicable. However, the English courts carne to adopt the broad view that in deciding what was practicable allowance might be made for the time occupied in questioning the arrested person. Indeed it was held that it was possible to make an arrest for the very purpose of questioning. This view was rejected in Australia where, as I have already said, it is not permissible to delay bringing the arrested person before a justice merely for the purpose of further questioning or investigation. In the United States the rules of the common law allowed some flexibility in deciding what delay in bringing the arrested person before a justice was necessary and reasonable — for example, an allowance might be made for time to engage in fingerprinting and other preliminary investigations — but it was held that it was not permissible to delay simply for the purpose of extracting a confession. In Australia the courts have not fully explored the question what delay might be covered by the expression "as soon as practicable", but delay simply for the purpose of questioning is plainly unlawful.
It may be thought that the old rules of the common law have required that a complex problem should be given a simplistic solution. If the matter is considered from the standpoint of principle, it may be asked what 1s the reason, under modern conditions, for the rule that an arrested person should be brought before a justice so promptly that no time is allowed for questioning, except such time as is accidentally made available for reasons which have nothing to do with the interrogation. It is apparent that an arrested person may require protection in two ways. First, there must be a limit to the time during which the police may hold the arrested person — indefinite detention for the purpose of questioning would be a very serious infringement of the liberty of the subject. Secondly, an arrested person must be protected, while in custody, from the possibility that pressure, or unfair means of persuasion, may be used to extort or induce a confession. It would probably be generally agreed, also, that the police should not have power to detain any, person, whom there is no ground to arrest, simply for the purpose of questioning. But in principle it is difficult to agree with the proposition that when the police have formed a reasonable suspicion sufficient to justify an arrest, they should not be afforded an opportunity to question the arrested person, under proper safeguards, except in such accidental circumstances as may present them with an adventitious opportunity. A law which fully satisfied the public interest would achieve two objectives — it would afford the police a reasonable opportunity to question a person who has been arrested, and it would ensure that the arrested person was safeguarded from either a prolonged or an oppressive interrogation. A law which achieved these objectives might, if the safeguards provided were adequate, do justice both to the prosecution and the defence and might also help to reduce the number of lengthy and expensive procedures which are followed during the course of criminal trials for the purpose of discovering whether a confession was made under circumstances which should lead to its rejection.
Some legislatures have mitigated the rules of the common law. The Migration Act of the Commonwealth, by s. 38(2), provides for the arrested person to be brought before the justice "within forty eight hours or as soon as possible after that period". In the United States, by a statute passed in 1968, it was provided that a voluntary confession made within six hours after arrest or detention should not be inadmissible simply because of delay in bringing the arrested person before a magistrate. In 1984 the State of Victoria also adopted a six-hour rule. The law of that State, as amended in that year, now requires that a person taken into custody for an offence should be brought before a justice, an authorized officer (a stipendiary magistrate or a clerk of the magistrate's court who has been appointed to be an authorized officer) or a magistrate's court within six hours unless sooner released. This period may be extended for a further period not exceeding six hours, on application made to an authorized officer by the police with the consent of the arrested person. It is provided that evidence of or in relation to any voluntary statement by a person in custody, and any enquiries or investigations carried out with the consent of a person in custody, within the period of six hours or within the extended time, shall not be inadmissible by reason only of the fact that the person was in custody. This amended law has not been found to be entirely satisfactory in practice in Victoria. A committee appointed to consider its operation has criticized it, particularly because of the disruptions caused when an investigation cannot be completed within six hours and it becomes necessary to seek an extension of time. Although six hours is long enough for the conduct of most investigations, the time available may be reduced, sometimes substantially by such things as travelling time, legal advice, arranging for interpreters, rest periods and so on, and no allowance is made for these matters by the law. The existence of the time limit, it is said, tends to cause the police to rush investigations rather than seek an extension of time, since they consider that the making of an application for extension may itself have an inhibiting effect on the willingness of the arrested person to answer questions. In South Australia, in 1985, the law was amended to enable the police to detain a person arrested on suspicion of having committed an indictable offence punishable by two years' imprisonment or more for so long as may be necessary to complete the investigation of the offence or for the period of four hours or such longer period not exceeding eight hours as may be authorized by a magistrate. In calculating that period, one is required to subtract delays occasioned by a request that the interrogation should be carried out in the presence of a solicitor or other person, and the time reasonably required to carry the arrested person to the police station.
By English legislation enacted in 1984 a very complex system was set up under which an arrested person may be detained for the purpose of securing or preserving evidence relating to an offence for which he or she is under arrest or to obtain such evidence by questioning him or her. Detention must normally end after 24 hours but in the case of a serious arrestable offence the period may be extended up to 36 hours by the police themselves and thereafter by a magistrate's court up to a maximum of 96 hours. The legislation attaches great importance to the role of custody officers, police officers appointed for that purpose who themselves should play no part in the investigation and who are responsible for ensuring both the necessity and the propriety of the investigation. The legislation provides a number of important safeguards for the accused person.
It can hardly be doubted that it would be very much in the public interest if the law were to define clearly (and preferably. uniformly throughout Australia) the conditions under which a suspected person might be questioned before trial in an attempt to dispel or to reinforce the suspicion that he or she had committed a crime, provided that such conditions satisfied two requirements first, that they afforded proper protection to the suspect, and secondly, that they were workable from the point of view of the police. A different approach, suggested by Stewart J., has been that the questioning of suspects should be conducted by a magistrate — in effect this would be a reversion to the system that prevailed in common law countries until the first half of the nineteenth century and which still prevails on the Continent. There is of course something to be said for that suggestion, but I incline to the view that it has no advantages either for the police or for the suspect; it certainly has none for the magistrates. The system as it operates on the Continent is sometimes criticized on the ground that some magistrates are overbearing and unfair in the conduct of an examination, and it may be more difficult to prevent or remedy abuses of that kind when committed by a magistrate than if they were attempted by the police. Assuming that the police are to be permitted to question suspects, the question arises whether the questioning should be before or after arrest, or whether an intermediate status of detention, falling short of arrest, should be recognized. In my opinion the power to hold a person for questioning should be exercisable only where that person is reasonably suspected of having committed a crime of some gravity, for an unrestricted right of inquisition would offer endless opportunities for abuse. To limit the power of questioning to persons who have been arrested because they have been reasonably suspected of having committed such a crime would afford some protection against the indiscriminate use of the power. I therefore favour the view that detention for questioning should be permissible only after arrest. Then there arises the question whether the period during which the arrested person may be kept for questioning should be fixed by the law or should simply be a reasonable time. This is probably the most difficult question that arises from a practical point of view. It is not answered by pointing to the fact that a large proportion of interrogations conclude within four or six hours. Any fixed time has the disadvantage that in some important cases it will be too short and that in all cases it may tend to be taken as the norm. Applications to extend a fixed time entail their own inconveniences. On the other hand, to give power to detain for a reasonable time, even if that expression is clearly defined to mean the time reasonably necessary to complete the investigations, induces an element of undesirable uncertainty. The expedient of fixing a specific time, or a reasonable time, whichever is the less, seems to combine the-disadvantages of both the other methods.
Various safeguards for the arrested person, ln addition to providing some limit as to time, may be suggested, but two seem to me to be of particular importance. The first is that the questioning should be recorded in a form which will reduce to a minimum disputes as to what was said or done in the course of the interrogation. Electronic recording should be the aim. That has been suggested before, by, amongst others, Lucas J. in Queensland and Dame Roma Mitchell in South Australia, but there-has been.no great enthusiasm to adopt the suggestion. It ought at least to be given the most serious consideration. Secondly, the person arrested should be enabled to communicate with and consult a legal adviser and to have the lawyer present during the interrogation. No doubt it would be necessary to make an exception where unreasonable delay would be caused by getting a legal adviser but any such proviso should be strictly defined. In some cases it would be appropriate also to ensure that the arrested person could communicate with a parent, spouse, relative or friend except where it was reasonably suspected that the making of such a communication might lead to the destruction or fabrication of evidence. An objection which may be raised to the presence of a lawyer at the interrogation is that the arrested person might be advised of the right to remain silent and the interrogation might thus be frustrated. I must confess that I can see no great virtue in the present rule, misdescribed as the right to silence, under which no inference may be drawn against an accused person for his or her failure during police questioning to answer questions or to mention some fact upon which reliance is placed for the first time at the trial. It is of course ·not suggested that a suspected person, or anyone else, should be compellable to answer questions (except as to such matters as name and address) because the existence of a power in the police to compel answers might not only be exercised vexatiously, but would in itself pertain more to a police state than to a democracy. However, it is very difficult to see any good reason why the silence of a person who, having been reasonably suspected of having committed a crime, is being questioned by the police under conditions which afford proper safeguards, should not be proved at the trial and give its proper evidentiary value. Against the suggestion that the law should be changed to enable a court or jury to take into account the failure of an accused person to answer questions, it is sometimes said that the accused, because of shock or embarrassment or a wish to protect someone else, may be unable to remember, or unwilling to mention, facts that would assist his or her case. Further, it is said that the fact that inferences may be drawn from silence may virtually force the suspect to speak and some suspects, being inarticulate or unintelligent, may misunderstand the questions or give rambling or false answers. With all respect, there should be little difficulty in practice, either for a court or-a jury, in taking matters of that kind into account and giving the evidence its due weight. It has also been said that empirical studies do not support the assertion that the so-called right to silence has resulted in high acquittal rates and that if the concern is that a small group of professional criminals might use the rule to their advantage the argument tends to become one as to whether it is, or is not, better that ten guilty men be acquitted than that one· innocent person should be convicted. I am not at all sure that it can convincingly be shown what effect-the abolition of the so-ca led right to silence would have on rates of acquittal but the suggestion that an innocent accused would be more likely to be convicted if his or her failure to answer questions could be given its proper weight seems to me with all respect to be insupportable.
The English Criminal Law Revision Committee in 1972 proposed changes of the kind that I am suggesting and a committee of which Dame Roma Mitchell was the chairman made a similar proposal in 1974. Their suggestions met with vigorous opposition and were not adopted. The Australian Law Reform Commission in 1974 expressed the opposite view. Any proposal to alter a rule which is so emotively described as the right to silence is likely to provoke a sentimental reaction. To allow evidence that the accused was silent under questioning would not undermine the fundamental rule that the prosecution bears the onus of proof, for the principle that no inference adverse to an accused person can be drawn from a refusal to answer questions says nothing as to onus; it simply excludes from the consideration of the court or jury some facts that would otherwise be admissible. The adoption of the suggestion would not invade the principle that no one is obliged to incriminate himself, for it is not suggested that anyone should be obliged to speak under questioning. Lawyers, and the public generally, tend to be very conservative when reforms of the criminal law are suggested. Many examples might be given to illustrate this conservatism but two will suffice. Until 1898 1n England, and much later elsewhere a person charged with an offence was incompetent to give evidence in his own defence. This rule, which now seems to us utterly unfair and archaic was strongly defended by some members of the legal profession and the public who considered that it was advantageous to the accused to be incompetent as a witness. It was only over the strong opposition of a number of eminent lawyers that the law was changed to allow the prisoner to give evidence. A second example was provided when it was first proposed to establish an organized police force; the cries that this would be a serious invasion of liberty prompted Robert Peel to reply: "I want to :teach people that liberty does not consist in having your house robbed by organized gangs of thieves and in leaving the principal streets of London in the nightly possession of drunken women and vagabonds." I do not expect that the suggestion that this so-called right to silence should be done away with will be greeted in Australia with universal approbation, but it seems to me that the adoption of the suggestion would be rational in principle and beneficial in practice, and that it would not operate unfairly towards persons accused of crimes, provided that the safeguards which I have already mentioned are made available to every arrested person. If the. rule were abolished it would of course be necessary to cease to give a caution in its present form.
It is sometimes suggested that the tendency of the police to rely on confessional evidence is unhealthy, and that they ought to sharpen their methods of investigation and endeavour to obtain evidence of other kinds. That suggestion, I believe, cannot be proved to be well based. Cynics also assert that it seems contrary to human nature that alleged offenders should freely confess their crimes to the police, but the fact remains that not a few do so. There is therefore every reason why the law should .properly regulate the circumstances in which confessions are obtained. Proper regulation of the kind that I have suggested should not only assist the police, but should reduce the temptation to fabricate confessions.
The object of this address has been to point to an area of the law, of practical significance, where the rules of the common law clearly seem to require to be supplemented, or supplanted, by statutory provision. Opinions may well differ as to the manner in which any change in the law may be effected. I have attempted no more than to give, in outline, the suggestions which I presently favour. Others may have other views.