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Coercion and the Judicial Ascertainment of Truth

Published online by Cambridge University Press:  16 February 2016

Adrian A. S. Zuckerman
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Extract

The Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity dealt with the investigation methods which were practiced by the General Security Service (GSS) and which impinged on the rights of suspects.

Suspects under interrogation have a number of rights: the right not to be physically or mentally injured or otherwise mistreated, the privilege against self-incrimination and a number of ancillary procedural rights, such as the right to consult a lawyer. The Commission concluded that the interests of combatting terrorism justify the suspension of these rights in whole or in part. It thought that the privilege against self-incrimination need not be accorded to terrorist suspects and, furthermore, that psychological and physical forms of pressure may be exerted on suspects in order to overcome their resistance to interrogation. The Commission accepted that a civilised criminal procedure has to reflect minimal standards of respect for the integrity of individuals. However, it found justification for the departure from normal procedures in an analogy to the doctrines of necessity and self-defence.

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Articles
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Israel Law Review , Volume 23 , Issue 2-3: Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Spring–Summer 1989 , pp. 357 - 374
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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References

1 For a review see my paper “The Right against Self-Incrimination: An Obstacle to the Supervision of Interrogation” (1986) 102 L.Q.R. 43; and Zuckerman, , The Principles of the Law of Criminal Evidence (Oxford, 1989)Google Scholar Chap. 15.

2 See reference in n. 1 above.

3 It is important to note, however, that sec. 76 does preserve the position concerning oppression and provides that confessions obtained by oppression are inadmissible regardless of their reliability.

4 See review of recent English authorities in [1988] All E.R. Review; Zuckerman, The Principles of Criminal Evidence, op. cit., supra n. 1, at 322 et seq.

5 Police and Criminal Evidence Act, 1984, sec. 58(13)(c). See also sub-secs. 15 to 18 of the same section.

6 As authorised by sec. 58(8) of the Police and Criminal Evidence Act, 1984.

7 R. v. Samuel [1988] 2 All E.R. 135, at 144.

8 For a discussion of this topic see my paper: “Illegally Obtained Evidence: Discretion as a Guardian of Legitimacy” (1987) 40 Current Legal Problems 55.

9 Although English law is prepared to admit in evidence confessions obtained in breach of the privilege against self-incrimination, provided nothing has been done to render them unreliable, it is not willing to condone oppression. A confession obtained by oppression is excluded regardless of reliability: Police and Criminal Evidence Act, 1984, sec. 76 (2)(a). The same idea lies behind Art. 3 of the European Convention on Human Rights and sec. 8(2) of the Northern Ireland (Emergency Provisions) Act 1978.

10 The Report cites Artzi v. A.G. (1966) 20 (i) P.D. 225, at 231. See Harnon, , Law of Evidence, Part 2 (Jerusalem, 1977, in Hebrew) 252Google Scholaret seq.

11 Abuses falling short of criminal offences, such as insults and mental degradation of the suspect, can also undermine the legitimacy of the criminal process. Verbal abuse does not generally constitute a criminal offence because the victim can usually spare himself indignity by avoiding the company of his abuser. A suspect in detention is not free to do so, hence his abuse by insults and degradation is offensive to our sense of justice.

12 Olmstead v. U.S. 277 US 438, 485 (1928).

13 Wigmore, , “Using Evidence Obtained by Illegal Search and Seizure” (1922) 8 A.B.A.J. 479Google Scholar; Plumb, T. W. Jr., “Illegal Enforcement of the Law” (1939) 24 Cornell L.Q. 337Google Scholar, at 378.

14 Schrock, T. S. and Welsh, R. C., “Up from Calandra: The Exclusionary Rule as a Constitutional Requirement”, (1974) 59 Minn. L.R. 251Google Scholar, at 258. See also Terry v. Ohio 392 US 1, 13 (1968): “A court sworn to uphold and promote observance of the law cannot adequately perform its function ifit ignores illegality in the enforcement of the law”.

15 Mu'adi v. State of Israel (1984) 38(i) P.D. 197, at 249.

16 Unlike most common law systems, Israeli law requires some corroboration for confessional evidence: Harnon, op. cit. supra n. 10, at 282–6; Mu'adi v. State of Israel, supra n.15, at 232–4, 253. However, it is highly unlikely that the corroboration found for these confessions greatly increased their reliability since such corroboration must have often depended on GSS sources.

17 See Skolnick, , Justice Without Trial, (New York, Wiley, 2nd ed., 1975) 182Google Scholar; Kassin, and Wrightsman, (eds.), Psychology of Evidence and Trial Procedure (1985) ch. 3, p. 67Google Scholar; Gudjonsson, and Lister, , “Interrogative Suggestibility…”, (1984) 24 Journal of Forensic Science Society 99CrossRefGoogle Scholar; Gudjonsson, and MacKeith, , “False Confessions…”, in Norsledt, and Forlag, (eds.), Reconstructing of the Past: The Role of Psychologists in Criminal Trials (1982)Google Scholar; Gudjonsson, , “Interrogative Suggestibility…”, (1984) 24 Medical Science Law 56CrossRefGoogle Scholar; Gudjonsson, and Clark, , “Suggestibility in Police Interrogation…”, (1986) 1 Social Behaviour 83Google Scholar; Kee, R., Trial and Error (1986)Google Scholar.

18 Subsequent events showed that even in its submissions to the Commission, the Security Service was less than wholly truthful; see Ha'Aretz, foreign edition, November 12–13, 1987; Kotteret Rashit, November 18, 1987.

19 See in particular Report, at 79–80.

20 For discussion of the legitimacy of torture, see Twining, W. L. and Twining, P.E., “Bentham on Torture” (1973) Northern Ireland Legal Quarterly 305Google Scholar; Twining, W. and Paskins, B., “Torture and Philosophy” (1978) Supp. Vol. 52, The Aristotelian Society, 143.CrossRefGoogle Scholar

21 As Professor Dworkin has observed in a different context, “the interests of each individual are already balanced into the interests of the community as a whole, and the idea of a further balance, between their separate interests and the first balance, is itself therefore mysterious”: A Matter of Principle (Harvard U.P., 1985) 73.

22 Finnis, , Natural Law and Natural Rights (Oxford, 1980)Google Scholar, Chap. 8, and, in particular, at 212–3, 223–6.

23 For a discussion of the distinction between justification and excuse see Gur-Arye, M., “Should the Criminal Law Distinguish between Necessity as a Justification and Necessity as an Excuse?” (1986) 102 L.Q.R. 71.Google Scholar

24 For discussion see Dresler, , “New Thoughts about the Concepts of Justification in Criminal Law: A Critique of Fletcher's Thinking and Re-thinking” (1984) 32 U.C.L.A. L. R. 61Google Scholar; Greenawalt, ,” The Perplexing Borders of Justification and Excuse” (1984) 84 Colum. L. R. 1897CrossRefGoogle Scholar; Greenawalt, , “Distinguishing Justifications from Excuses” (1986) 49 L. & Contemp. Prob. 89CrossRefGoogle Scholar; Moore, , “Causation and Excuses” (1985) 73 Cal. L. R. 1091.CrossRefGoogle Scholar