The right to silence : unnecessary obstacle or fundamental right?

Criminal and Procedural LawPrivate La

The right to silence and the privilege against self-incrimination: a critical examination of a doctrine in search of cogent reasons

The aim of this thesis is to analyse the silence principle (i.e. the right to silence and the privilege against self-incrimination) and to determine its place within procedural and constitutional law. Should the silence principle be entirely abolished, sustained as a limited evidentiary rule or elevated to the status of a constitutional right? The central question to be argued is whether the silence principle has a rationally justifiable and valid procedural place within the accusatorial-adversarial Anglo-American system of criminal justice. The methodology employed in the main body of this thesis involves a critical and comparative examination of the silence principle and is founded on the following four legs : a) A historical analysis of the silence principle and its antecedents. Does the historical silence principle support the modern silence principle in description and scope? b) An analysis of the distinction between a "right" and a "privilege". Why is the accused's right to silence distinguished from the witness privilege? Is there a philosophical justification for the silence principle? c) A comparative study of the two major jurisdictions of the Anglo-American system of justice, namely : i) The American silence principle constituted as the fifth amendment privilege against self-incrimination and entrenched within the U.S. Constitution; ii) The English silence principle constituted until recently as a common law evidentiary rule contained within a body of ill-defined principles loosely referred to as the unwritten English Constitution. The common law rule has been statutorily formalized in the Criminal Justice and Public Order Act 1994 and will be greatly influenced by the new Human Rights Act 1998. iii) The South African interpretation of a silence principle is caught between the two extremes of an American absolute right and an English evidentiary rule. Silence in South Africa is a relative right subject to a balance of interest and reasonable limitation. Which of these definitions is better suited as a template for an ideal silence principle? vi d) A comparative international study of the procedural differences between an inquisitorial and an accusatorial system. How does a principle of silence function outside the accusatorial system? The conclusion of the thesis is that the most suitable role of a silence principle within the accusatorial system is one of a flexible compromise. While it does not deserve abolition neither does it deserve elevation into a constitutional right. Silence is best suited to the role of a procedural evidentiary rule. A circumstantial item of evidence with its trial admissibility determined by the criteria of relevancy and prejudice. If the legal, political and cultural pressures upon a particular jurisdiction are such as to demand constitutional entrenchment then the second best alternative is to define the silence principle as a relative right susceptible to a properly applied balance of interest test. The worst alternative is to define the silence principle in absolute terms. Silence as an evidentiary rule or a relative right means that it will sometimes be necessary to emphasise the autonomous interests of the individual in remaining silent and at other times the societal interest in crime prevention. Which interest is to be preferred and to what extent will depend on the prevailing social pressures of the day. It shall be argued that the elevation of a silence principle into a constitutional right stifles a critical examination of the essentiale of silence by disguising its inherent irrationality and lack of a philosophical raison de etre. The interpretation of a silence principle as an absolute constitutional right by the Supreme Court of the United States is confusing, contradictory and riddled with innumerable exceptions. By contrast the English approach to silence is pragmatic and highly successful. The Criminal Justice and Public Order Act of 1994 gives a meaningful interpretation of silence which takes into account its logical flaws. The English statute is a successful compromise between the need to protect the individual during the criminal process and the need to combating crime in the most efficient manner possible. While the South African interpretation of silence is a workable compromise, South Africa may have been better served by defining its silence principle in terms of the pragmatic English statutory model which allows for the efficient but carefully controlled use of silence in the combating of crime.JurisprudenceLL.D. (Jurisprudence

An Analysis of the Public Protector's Investigatory and Decision-Making Procedural Powers

This article critically analyses the Draft Rules to the Public Protector Act 23 of 1994 and examines the efficacy of the Public Protector’s decision-making procedural powers. Several procedural lacunae are identified. In particular the article evaluates the procedural distinction between an investigation and a hearing as defined in the Draft Rules and the Act. It is unclear from a reading of the Draft Rules whether a hearing is simply part of the Public Protector’s investigatory process or whether it functions as a separate quasi-judicial decision-making process in its own right. A significant lacuna is the failure to specify the procedural protections available to an implicated person or a witness in an investigation or a hearing. A primary problem with the Draft Rules is the very broad procedural powers awarded to the Public Protector which are open to procedural abuse. The article suggests a number of amendments to the Draft Rules which should be modelled on the procedural methodology applied in the Special Investigating Units and Special Tribunals Act 74 of 1996. Moreover, the article suggests that the decision-making powers of the Public Protector should be divided between the Public Protector and an independent and temporarily appointed adjudicator

ELAC2/RNaseZ-linked cardiac hypertrophy in Drosophila melanogaster

A severe form of infantile cardiomyopathy (CM) has been linked to mutations in ELAC2, a highly conserved human gene. It encodes Zinc phosphodiesterase ELAC protein 2 (ELAC2), which plays an essential role in the production of mature tRNAs. To establish a causal connection between ELAC2 variants and CM, here we used the Drosophila melanogaster model organism, which carries the ELAC2 homolog RNaseZ. Even though RNaseZ and ELAC2 have diverged in some of their biological functions, our study demonstrates the use of the fly model to study the mechanism of ELAC2-related pathology. We established transgenic lines harboring RNaseZ with CM-linked mutations in the background of endogenous RNaseZ knockout. Importantly, we found that the phenotype of these flies is consistent with the pathological features in human patients. Specifically, expression of CM-linked variants in flies caused heart hypertrophy and led to reduction in cardiac contractility associated with a rare form of CM. This study provides first experimental evidence for the pathogenicity of CM-causing mutations in the ELAC2 protein, and the foundation to improve our understanding and diagnosis of this rare infantile disease. This article has an associated First Person interview with the first author of the paper

An Operational System For Monitoring Oil Spills In The Mediterranean Sea: The PROMED System

The primary objective of this work was the development of an operational system for early detection of oil-spills, monitoring of their evolution, and provision of support to responsible Public Authorities during cleanup operations, based on Remote Sensing and GIS technologies. In case of emergency, the principal characteristics of the oil spill are defined with the aid of a space-borne synthetic aperture radar (SAR). The transport, spreading and dispersion of the oil spill is subsequently simulated on the basis of wind forecasts of the area. The use of thematic maps of protected, fishing and urban areas, and regions of high tourism allows the better assessment of the impact of an oil spill on the areas to be affected in terms of environmental sensitivity. Finally, reports are generated notifying port authorities, the media, and local organizations to be potentially affected by the presence of the oil spill. The pilot site for testing the PROMED System in Greece is the island of Crete

Forehead reflectance photoplethysmography to monitor heart rate: preliminary results from neonatal patients

Around 5%–10% of newborn babies require some form of resuscitation at birth and heart rate (HR) is the best guide of efficacy. We report the development and first trial of a device that continuously monitors neonatal HR, with a view to deployment in the delivery room to guide newborn resuscitation. The device uses forehead reflectance photoplethysmography (PPG) with modulated light and lock-in detection. Forehead fixation has numerous advantages including ease of sensor placement, whilst perfusion at the forehead is better maintained in comparison to the extremities. Green light (525 nm) was used, in preference to the more usual red or infrared wavelengths, to optimize the amplitude of the pulsatile signal. Experimental results are presented showing simultaneous PPG and electrocardiogram (ECG) HRs from babies (n = 77), gestational age 26–42 weeks, on a neonatal intensive care unit. In babies ≥32 weeks gestation, the median reliability was 97.7% at ±10 bpm and the limits of agreement (LOA) between PPG and ECG were +8.39 bpm and −8.39 bpm. In babies <32 weeks gestation, the median reliability was 94.8% at ±10 bpm and the LOA were +11.53 bpm and −12.01 bpm. Clinical evaluation during newborn deliveries is now underway