Letter: Scottish approach to human rights

Sir: Before abolishing the right to silence ('Tough line on crime to unify Tories', 2 October), the Government ought to get some legal advice. In Funke v France (1993), interpreting the meaning of 'right to a fair trial' enshrined in Article 6 (1) of the European Court of Human Rights in Strasbourg, it was decided that 'anyone 'charged with a criminal offence', within the autonomous meaning of this expression in Article 6, (has the right) to remain silent and not to contribute to incriminate himself'.

Even Regina v Director of Serious Fraud Office Ex parte Smith (1992) is clearly incompatible with Article 6 (1) of the Convention and Funke. The House of Lords held in Smith that the powers of the director of the Serious Fraud Office under Section 2 of the Criminal Justice Act 1987 to require a person under investigation to answer questions or otherwise furnish information may be lawfully exercised after that person has been charged with an offence and that such person need not be cautioned, that is to say informed that he is not obliged to answer such questions or provide such information.

In its report, published in July, the Royal Commission on Criminal Justice chose to ignore the European Convention on Human Rights, but the United Kingdom ratified that convention in 1951 and is one of its 25 signatories.

Yours faithfully,

S. N. FROMMEL

Professor of Law

University of Notre Dame

London Law Centre

London, SW7

3 October