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NCJRS Abstract

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NCJ Number: 201685 Find in a Library
Title: Right to Silence and Undercover Police Operations
Journal: International Journal of Police Science & Management  Volume:5  Issue:2  Dated:Summer 2003  Pages:112-125
Author(s): David R. Craig
Date Published: 2003
Page Count: 14
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United Kingdom
Annotation: Based on publicly available information on undercover policing methodologies and the author's exposure to actual undercover training courses in the United States and Canada, as well as interviews with undercover operatives, this article discusses the legal complications of ensuring a suspect's right to silence in the context of police undercover investigations, with particular reference to Australia.
Abstract: In Australia a suspect's right to silence in the context of a criminal investigation is at the core of the legal system. In the United States, the bar and ethics rules of virtually every State prohibit contact with an individual who is represented by counsel without first contacting the representing lawyer. Since most organized crime groups have a legal representative, this requirement limits the opportunity for undercover operations against organized criminal groups and has effectively curtailed all undercover operations that involve suspects who are legally represented and have exercised the right to silence. Guidance for Australia regarding the admitting of covertly obtained evidence subsequent to a refusal to answer police questions is provided by the High Court case of Swaffield v. R and Pavic v. R. These two cases were heard together by the High Court. On the basis of the court's finding in "Swaffield," it appears that the police may use deceptive tactics and legal tricks so long as the strategy does not involve deceiving the person into a violation of the right to silence. Thus, when there is a covert investigation of a suspect subsequent to his/her exercising the right to silence, it is likely that the admissions will be inadmissible if the undercover operative deliberately elicited the admissions. Issues likely to be considered by the court in such cases are the extent to which the person's right to silence was breached and whether admissions were made as part of a general conversation or in response to a deliberate covert interrogation. This legal issue is also examined in court decisions in England and Wales. To what degree Australian courts will permit an undercover operative to question a suspect covertly who has not exercised the right to silence will be a matter for future judicial consideration. 48 notes
Main Term(s): Police legal limitations
Index Term(s): Australia; Comparative analysis; Right against self incrimination; Undercover activity; Undercover training; United Kingdom (UK); United States of America
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