The Real World of the Rule of Law, Part 8: So-Called Voluntary Statements Made by a Charged Person Include Many Actions that a Normal Person Would Not Define as Voluntary

Introduction

As some of the left fall all over themseves referring to the genocide in Gaza and the West Bank as a breach of international law without gaining any criticial distancing from the limitations of “the law,” , the actual nature of law and its procedural acrobatics lies hidden. It is better to remind workers, citizens, immigrants and migrant workers of the real nature of law and not its rhetoric.

This is a continuation of a series that exposes the reality of courts as part of the exposure of the reality of the rule of law.

The series involves quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature of law and enforcing the real nature of the rule of law. (If others know of similar sources that expose the reality of law and the courts, it would be appreciated that they provide information in the “Comments” section.)

Rhetoric

Only voluntary statements made by a charged person can be held against her/him. Page 49:

There is therefore no longer a prohibition as such on questioning after charge. Rather the voluntariness of statements made by the suspect or accused to the police, in response to questions or not, is assessed in terms of whether or not they were acquired by inducement or oppression.

Reality

What constitutes “voluntary statements” is hardly clear and, as usual, in practice results in an expanded defintion of what constitutes a voluntary statement. Pages 49-50:

In these terms there is fairly wide scope for defining confessions or other incriminating statements by the accused as voluntary. So admissions secured by bugging cells,
tapping phones at the police station (the judge pointed out that the policeman had not said he would not listen) or by a policeman in plain clothes posing as a prisoner have all been admitted in England as the accused’s voluntary statements (Leigh, 1975, pp. 165, 157), while what a prisoner was overheard saying to his wife has been allowed as evidence against him despite the rules against hearsay, against a wife being forced to testify against her husband, and despite the rhetoric against self-incrimination (Cross, I974, p. 475). …

Indeed literally the reasoning is quite accurate. The information in question may well have been volunteered by the accused but not with any intention to volunteer it to the police. By focusing on the meaning of the word rather than setting it in the context of the purpose of the rule, and by ignoring the accused’s subjective intentions, judicial reasoning thus extends the admissibility of self-incriminating statements and the legitimate exercise of police powers.

Judges often extend the power of the police and the courts by including much more in the term “voluntary” than a normal person would. They often do the opposite in the case of the terms “inducement” and “oppression”: they narrow the meanings in order to exclude certain police actions from consideration when determining whether a statement made by a person  a in custody is voluntary or not. Page 50:

The terms ‘inducement’ and ‘oppression’ are themselves of course like ‘voluntariness’, not self-evident but subject to the interpretation of the court. The law does not take account of the more subtle aspects of the terms. Inman (I 978) points out the discrepancy between the subtle psychological methods of persuasion advocated by police manuals, and the more blatant, objective coercion prohibited by law. Even in these terms though, some of the
interpretations of inducement and oppression may seem rather surprising. Questioning the accused in custody overnight for ten hours out of seventeen, the last seven continuously, is not considered oppressive ( R. v. Prager, I 972), while the Lord Chief Justice stated in R. v. /sequilla that:

such considerations as fatigue, lack of sleep, emotional strain cannot be efficacious to deprive a confession of its quality of voluntariness (1975)·

The courts never formally recognize inducements that form part of the very process of accusing and charging individuals: the power of the government or state to condemn individuals and imprison them (if not murder them through execution). This power leads to at least two forms of inducement that courts simply ignore: the inducement to confess for crimes allegedly committed in order to be free of all charges and the inducement to confess in order to receive less than  the maximum sentence possible. Page 51:

One major induced confession that is always allowed is ‘Queen’s evidence’, where one accused is induced to ‘confess’ and incriminate another in return for the biggest inducement of all, his freedom despite his acknowledged guilt. The law books simply do not discuss Queen’s evidence in relation to the issue of inducement and voluntariness at all but it is not logically distinct from it. An even more blatant omission is the fact that there is in law a sentence discount for pleading guilty. What stronger inducement to incriminate
oneself could there be?

McBarnett concludes that voluntariness, inducements and the general oppressive nature of police power permit self-incrimination despite rhetoric to the contrary. Page 53:

Voluntariness as a criterion for accepting self-incriminating statements by a person accused of committing an offence does not therefore rule out quite as much information from the court as one might imagine. Questioning, inducement, threats and replies to
charges have all been interpreted or admitted generously enough to allow wide scope for the use of self-incriminating statements in court. There is also a ‘catch-22’ involved. Voluntariness might be taken to mean that one can choose not to volunteer information; the irony is that remaining silent can be taken as incriminating evidence too.

That issue–of how remaining silent can be interpreted as incriminating oneself–will be looked at in another post.

Conclusion

The rhetoric of law–that you as a citizen who has been charged can only voluntarily provide information contradicts the reality of law, which expands the concept of voluntary statements considerably. On the other hand, the rhetoric of not being induced or coerced into providing statements is narrowly defined so that police and courts can use procedures and their situational power to obtain statements more easily from those charged with an offense.

But the rhetoric of the social-democratic left does not acknowledge in any detailed way the vast difference between the rhetoric of law and its reality. We are still waiting for such social democrats as Herman Rosenfeld (a self-identified Marxist) here in Toronto to explain to us what he means by the following:

Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?

My reply in an earlier post:

Okay. How does Mr. Rosenfeld or other social democrats propose to do that? Frankly, I think that you should not hold your breath while waiting for a response. The article written by Mr. Rosenfeld from which this quote is drawn is dated May 4, 2020. I have searched on the Net to see if Mr. Rosenfeld has elaborated on this assertion since then; I have not been able to find anything at all written by him on the topic since his May 4 article.

This is just social-democratic rhetoric passing it off for something real; it is pretending to be something that it is not. It is fake social reform. Workers, citizen, immigrants and migrant workers hardly need such pretentious rhetoric. Mr. Rosenfeld has no real intention to lift a finger to formulate let alone implement a policy for police “reform.” I suspect that this applies to many other social-democratic or reformist arguments.

Rosenfeld’s statement reflects irresponsibility on the part of the so-called left; they think that they can make any statement that reflects their own preconceived views about the government and the state being capable of being “transformed into “a more humane, limited and autonomous one.”

Do not workers, citizens, immigrants and migrant workers deserve more than such rhetoric? What do you think?

In the context of appeals to international law and genocide in Palestine, should not the left be exposing the limitations of the law, both international and national, in addressing the problems which we face as workers, citizens, immigrants and migrant workers?