Miranda Warning Equivalents Abroad

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Summary

This report contains short summaries describing warnings similar to the Miranda warning that are required in 108 jurisdictions around the globe. The summaries are divided into sections based on broad geographic categories: Americas and the Caribbean, East Asia and the Pacific, Europe and Central Asia, Middle East and North Africa, South Asia, and Sub-Saharan Africa. The warnings specified in the surveyed jurisdictions vary, but typically include the right to remain silent and the right to legal counsel. A number of countries also specify that a person who is arrested or detained has the right to be informed of the reasons for the arrest or detention or of the charges being brought. In some countries, the additional right to have these things explained in a language the detainee understands is explicitly stated. Commonwealth countries have traditionally followed the English Judges’ Rules developed in the early twentieth century, and some continue to do so, while many Member States of the European Union (EU) have adopted an EU directive on the issue. Points of variance among the countries concern the timing of the warning and whether the detainee is told that the fact of remaining silent will or will not be used in legal proceedings. Countries surveyed that have no Miranda-type warning were not included.

I. Americas and the Caribbean

Antigua and Barbuda

Antigua and Barbuda continue to follow the English Judges’ Rules, originally created in 1912 (see England and Wales discussion for details). Individuals that have been charged with, or informed that they may be prosecuted for an offense must be cautioned with the following language: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.”[1]

Individuals who have been formally charged and need to be questioned further should be cautioned as follows:

I wish to put some question to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence.[2]

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Argentina

Argentina’s Código Procesal Penal de la Nación (Code of Criminal Procedure)[3] provides that when making an arrest, police must inform the detainee immediately and in a clear way of his or her rights.[4] These rights are to appointed counsel of his choice; to be informed of the right to consult with a lawyer and have counsel present at the interrogation; to remain silent and not be required to declare under oath or promise to tell the truth; and to be informed of the charges and evidence against him and warned of the right to remain silent, without an inference of guilt being drawn from such silence.[5]

If these warnings are omitted by the interrogating officer, any declaration or statement made by the detainee may not be used in the trial.[6]

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Belize

Belize’s Supreme Court of Judicature Act provides that the revised 1964 edition of the English Judges’ Rules, further revised and published in Belize on May 29, 2000, should be given full effect and be judicially noticed, but only in regard to interviewing people and obtaining statements from them while they are in police custody.[7] The caution to be given to individuals upon arrest for an offense is as follows: “You do not have to say anything unless you wish to do so, but what you say may be taken down in writing and given in evidence.” The caution does not have to be given if it is impracticable to do so as a result of the suspect’s condition or behavior, or if the suspect has already been cautioned immediately prior to arrest.[8]

When a person is formally charged with an offense, the following caution must be given: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.”[9] Failure to follow these steps may result in any statements made by the accused not being admitted into evidence in court.[10]

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Bermuda

Bermuda’s Police and Criminal Evidence Act 2006 provides that for an arrest to be lawful, the person arrested must be informed that he is under arrest as soon as is reasonably practicable, along with the grounds for arrest.[11] The Act provides that the person arrested must be informed as soon as he is brought into a police station of his right to remain silent, his right to have someone informed of his arrest, and his right to access legal advice.[12]

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Bolivia

Bolivia’s Código de Procedimiento Penal (Code of Criminal Procedure)[13] provides that when carrying out an arrest, the police are required to inform the suspect of the reasons for the arrest, the right to remain silent without inference of guilt or prejudice against the suspect, and the right to have access to the assistance of a defense lawyer. Administrative and criminal penalties will apply if these warnings are omitted by the interrogating officer.[14]

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British Virgin Islands

Article 15(3) of the British Virgin Islands Constitution[15] provides that any person who is arrested must be informed promptly, as prescribed by law, of the reason for his or her arrest or detention and of the right to remain silent, in a language that he or she understands. It appears that the British Virgin Islands continues to implement the English Judges’ Rules, although no primary sources have been located to verify this.[16]

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Canada

Prior to the passage of the Canadian Charter of Rights and Freedoms in 1982,[17] “the right to silence, as a facet of the principle against self-incrimination, was already very much a part of the common law confessions rule.”[18] However, whether giving a caution was a prerequisite to the admissibility of statements made by a person in response to police questioning while in custody was unsettled for a brief period of time.[19] It was not until the 1949 Supreme Court judgement in R. v. Boudreau that it was seen as an important factor in determining the voluntary nature of a possible admission, but not as decisively against the admissibility of such statements.[20] This position was reaffirmed by the Supreme Court in 2007.[21] Prior to the Charter, police cautions were in use, but there does not appear to be any uniformity in the form of caution used in the different provinces of Canada.[22]

Though the Charter does not explicitly stipulate the right to silence, the Supreme Court has found the right protected as a principle of fundamental justice under section 7 of the Charter.[23]

Section 10(a) of the Charter entitles all people with “the right on arrest or detention . . . to be informed promptly of the reasons therefor” and section 10(b) with the right “to retain and instruct counsel without delay and to be informed of that right.”[24] Over the years the Supreme Court of Canada has expanded on what the suspect must be informed of regarding the right to counsel:

As clarified in subsequent cases R v. Bartle (1994) and R v. Brydges (1990), a legal counsel caution must include the following four requirements: Notify suspects and accused persons of (a) their right to retain and instruct counsel without delay; (b) information about access to counsel free of charge where an accused meets prescribed financial criteria set up by provincial Legal Aid plans; (c) information about access to immediate, although temporary, legal advice irrespective of financial status (“duty counsel”); and (d) basic information about how to access available services which provide free, preliminary legal advice.[25]

Warnings in Canada typically do not use the phrase “right to remain silent,” but it is usually implied in the Charter and the warnings. The police arrest warnings in Canada, which are based on these rights, vary from one police force to another. The following is an example of cautions given by the Royal Canadian Mounted Police (RCMP):

Right to Silence Caution:

You do not have to say anything unless you wish to do so. You have nothing to hope from any promise of favour and nothing to fear from any threat whether or not you say anything. Anything you say may be used as evidence.

Right to Legal Counsel Caution:

It is my duty to inform you that you have the right to retain and instruct counsel of your choice in private and without delay. Before you decide to answer any question concerning this investigation you may call a lawyer of your choice or get free advice from Duty Counsel. If you wish to contact Legal Aid duty counsel I can provide you with a telephone number and a telephone will be made available to you.[26]

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Cayman Islands

The Cayman Islands are an overseas territory of the United Kingdom and the legal system is therefore based on the English common law, locally enacted statutes, and Orders-in-Council. The 2009 Constitution’s Bill of Rights has a section on personal liberty that includes a subsection on the right to silence and the right to legal counsel, which reads as follows:

(3) Any person who is arrested or detained has the right to remain silent and shall be informed promptly, in a language that he or she understands, of the reason for his or her arrest or detention.

(4) Any person who is arrested or detained shall have the right, at any stage and at his or her own expense, to retain and instruct without delay a legal practitioner of his or her own choice, and to hold private communication with him or her, and in the case of a minor he or she shall also be afforded a reasonable opportunity of communication with his or her parents or guardian; but when a person arrested or detained is unable to retain a legal practitioner of his or her own choice or be represented by a legal practitioner at the public expense in accordance with section 7(2)(d), he or she may be represented, and hold private communication with, such person as the court may approve.[27]

Section 62(1) of the Cayman Island’s Police Law stipulates that certain information must be given on arrest, which includes that the person arrested “is to be informed that he is under arrest and of the nature of the offence for which he is being arrested as soon as is practicable after his arrest.”[28] This is not required, however, “if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.”[29] Section 147(1) of the Law provides for the right of silence, stating as follows:

147. (1) A police officer shall, prior to the interview of a person –

(a) whom he suspects to have committed an offence; or

(b) whom he has charged with the commission of an offence,

inform that person that he has the right to remain silent and that, if he exercises his right to remain silent, inferences may be drawn from his silence.

(2) The police officer shall, as soon as is practicable, record in the custody record of a person interviewed that he has been informed of his right to remain silent.[30]

The words of the caution are: “You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”[31]

Prior to the 2009 Constitution and the updated Police Law, a caution on the right to remain silent was included in the English Judges’ Rules, which applied in the Cayman Islands.[32]

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Colombia

The Código de Procedimiento Penal (Code of Criminal Procedure)[33] provides that at the time of an arrest, a suspect must be immediately informed of the actions attributable to him or her that form the basis for detention and the authority who ordered it, as well as his or her right to indicate the name of someone who should be informed about the arrest, who should then be immediately informed by the authority ordering the arrest.[34] The suspect should also be informed of his/her right to remain silent and that any statement made may be used against him/her; that the suspect is not required to make statements against his/her spouse, permanent companion, or relatives within the fourth degree by blood or second degree by kinship; and the right to a lawyer of his/her choice within as soon as possible. If appointing a lawyer of the suspect’s choice is not possible, he/she will be assigned a public defender.[35]

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Costa Rica

Under article 82(e) of the Costa Rican Code of Penal Procedure, when a suspect is detained the judicial police must immediately and in a clear way inform an individual that, among other rights, he/she has the right “[t]o abstain from providing a statement (abstenerse de declarar) and if he/she agrees to do so, that his/her counsel be present when making his/her statement, and also that his/her counsel be present in other proceedings in which the attorney’s presence is required.”[36]

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Ecuador

Ecuador’s Código de Procedimiento Penal (Code of Criminal Procedure)[37] provides that at the time of detention the suspect must be informed of the reasons for his or her detention and of the identity of the authority who ordered it and of the agents carrying out the detention and interrogation. The suspect must also be informed of his or her right to remain silent, to seek have a lawyer present, and to communicate with a family member or any other person of his or her choice.[38]

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El Salvador

Under article 275 of El Salvador’s Code of Penal Procedure, police officers must inform an individual when he/she is taken into custody of all of his/her rights.[39] Article 82 provides a list of the rights of those taken into custody and among them are

the right to abstain from providing a statement (abstenerse de declarer) and the right not to be compelled to provide a self-incriminating statement; and

the right to abstain from providing a statement (abstenerse de declarer) and the right not to be compelled to provide a self-incriminating statement; and the right to be assisted and defended by a counsel designated by him/herself or by a counsel appointed by the court (defensor público).

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Guyana

Under the Guyana Criminal Law (Offenses) Act, subject to the provisions of the Act and other relevant statutes, “all the rules and principles of the common law relating to . . . criminal matters, so far as they are applicable to the circumstances of Guyana, [are] in force.”[40]

Although a requirement for a Miranda-type warning during police interrogation has not been identified in Guyanese legislation, it is likely that a warning of the type described in the English Judges’ Rules applies, based on the application of British common law on criminal matters not covered by the Act.[41]

Under the Criminal Law (Procedure) Act a similar warning is made by the magistrate following a testimony by the accused at the preliminary inquiry. Accordingly,

. . . the magistrate, if of the opinion that the evidence has established a prima facie case against the accused, shall address him in these words, or to the like effect:

“Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial.” [42]

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Jamaica

In Jamaica the cautioning of suspects is based on the English Judges’ Rules. According to a 2006 decision of the Privy Council, the rules, “classed formally as administrative directions for the guidance of police officers interviewing suspects,”[43] have transformed over time into a general requirement “that police officers had to observe . . . if confessions received were to be admitted in evidence.”[44] Under the Judges’ Rules, which continue to apply in Jamaica, provide as follows:

2. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.

The caution shall be in the following terms:

“You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”[45]

Although the rules have been replaced in England and Wales by special provisions under the Police and Criminal Evidence Act 1984, they have not been replaced by Jamaican legislative provisions, and, as noted in a 1998 decision of the Privy Council, still “retain considerable importance.”[46]

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Mexico

The Mexican Constitution provides that an individual who is suspected of committing a crime has the right to be notified, both at the time of arrest and when appearing before the prosecutor or judge, of the reason for the arrest and the acts of which he/she is accused; of the right to remain silent (which may not be used against him/her); and of other applicable rights, which include the right to be considered innocent until proven guilty and to be adequately defended by an attorney chosen by him/her, or by an attorney appointed by the government in cases where the arrested individual cannot choose or does not want to have counsel.[47]

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Montserrat

Montserrat has a combination of constitutional and common-law requirements that police must follow when arresting an individual.[48] Article 7 of the Constitution of Montserrat specifies the information that must be provided to a suspect upon arrest, and the country continues to follow the common-law case of Christie v. Leachinsky,[49] which provides further information that must be given to a suspect upon his or her arrest.[50] Montserrat also continues to follow the English Judges’ Rules (see England and Wales) for the caution that should be provided to individuals upon arrest.[51]

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Nicaragua

Under article 232 of Nicaragua’s Code of Penal Procedure the police must inform an individual at the moment that he/she is taken in custody, that, among other things

(b) he has the right not to be compelled to testify against himself, or against a spouse or partner of a stable union, or his relatives within the fourth degree of consanguinity or second degree of affinity, and,

(c) he is entitled to be advised by counsel of his choice . . . .[52]

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Panama

Articles 22 and 25 of the Panamanian Constitution provide that any arrested person must be immediately and clearly informed of the reasons for the arrest and of his/her rights, which include the right to be presumed innocent until proven guilty, to be assisted by a lawyer during judicial and political proceedings, and not to be compelled to provide statements incriminating him/herself or against his/her spouse or close relatives during criminal proceedings.[53] This requirements is also restated in the country’s Manual of Police Procedures.[54]

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Paraguay

The Constitución Nacional (National Constitution)[55] of Paraguay provides that at the time of an arrest, the suspect must be informed of the reason for the arrest, the right to remain silent, and the right to have the assistance of a defense attorney of his/her choice. The arresting authority must also provide a written arrest order from the issuing authority and the arrest must be immediately communicated to the suspect’s relatives or other persons that he/she indicates. In addition, the suspect has the right to have free communication unless otherwise ordered by the judge in exceptional cases and for a limited time, the right to have an interpreter if necessary, and the right to be transferred from police authority to a judge’s authority within twenty-four hours of the arrest.[56]

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Saint Vincent and the Grenadines

Article 3(2) of the Constitution of Saint Vincent and the Grenadines provides individuals who are arrested with the right, within a reasonable period and no later than twenty-four hours after arrest, to be informed of the reasons for the arrest in a language he or she understands and the ability to use communications to consult with a legal practitioner.[57] There are no specific words contained in the Constitution, Criminal Procedure Code, or Police Act that the police must use when providing this information. It does appear that the English Judges’ Rules have been followed in certain instances; however, Saint Vincent’s High Court of Justice has held that the England and Wales Police and Criminal Evidence Act 1984 became a part of the laws of Saint Vincent and the Grenadines as a result of Saint Vincent’s English Law Act 1989,[58] and thus it appears that the new caution contained in the Codes of Practice of the England and Wales Police and Criminal Evidence Act may apply to Saint Vincent.

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Trinidad and Tobago

A July 2015 decision of the Privy Council confirms that “in 1965 the judges of Trinidad and Tobago adopted the 1964 Judges’ Rules [revised version] applicable in England and Wales.”[59] Accordingly,

22. The Judges’ Rules contain a number of guiding principles. These include:

(c) that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so.

. . .

(e) that it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.

The principle set out in para (e) is described as overriding and applicable in all cases.[60]

Additionally, a 2015 Criminal Bench Book issued by the Trinidad and Tobago Judicial Institute of Training, instructs judges to direct jurors as follows:

From the words of the caution ie “You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence” it is clear that persons who are suspected and accused of having committed an offence have a right to remain silent. It is a right given by law, and he is entitled to stand upon that right and say nothing. And when a person has been accused by the police, and that person says nothing, no adverse inference can be drawn against that person.[61]

According to a 2003 report on the Criminal Justice System in Trinidad and Tobago submitted by the Bar Human Rights Committee to the Inter-American Court of Human Rights,

29. The precise text of the caution is as follows:

Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence. [62]

The report further provides that

30. . . . A failure to observe the Rules may, in the judge’s discretion, lead to evidence being excluded . . . . 31. Although not mentioned in the Rules themselves, there is now a recognized practice in the Trinidad Police Service to use what is sometimes called the “short” caution:

You are not obliged to say anything but anything you say may be given in evidence.[63]

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Uruguay

The Código de Procedimiento Penal (Code of Criminal Procedure) of Uruguay provides that a person under arrest has the right to be informed of his or her rights by the arresting authority.[64] These rights include the right to remain silent, the prohibition against self-incrimination, and the right to obtain the advice of a defense lawyer.[65]

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II. East Asia and the Pacific

Australia

Australia does not have a federal legislative bill of rights[66] and there are no nationally-applicable statutory provisions regarding the cautions to be given to persons who are arrested or detained. One publication states that,

[f]or a long time, the common law was the main external source of regulation of police interviews. This was vague and patchy. The common law was supplemented by the Judges’ Rules (as they were called in England), which were similarly vague and incomplete, and which lacked the force of law – they were merely guidelines, which had become almost a dead letter by the 1960s. For many years, the Police Commissioner’s Instructions or Guidelines (their titles vary around Australia) constituted the only serious attempt to put down in propositional form the rules which governed police dealings with suspects.[67]

More recently, there has been a trend towards the codification of the rights of arrested persons and the requirement to be informed of those rights. At the federal level, the Crimes Act 1914 (Cth), which applies in all states and territories with respect to Commonwealth offenses, requires that an arrestee be informed of his or her right to communicate with a friend, relative, or lawyer.[68] It also requires that an investigating official “must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.”[69] These provisions were included in the Act through amendments made in 1991.[70]

Similar requirements to caution suspects are included in legislation in all states and territories, including the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW),[71] the Police Powers and Responsibilities Act 2000 (Qld),[72] the Criminal Investigation Act 2006 (WA),[73] the Police Administration Act 1978 (NT),[74] Crimes Act 1958 (Vic),[75] Summary Offences Act 1953 (SA),[76] and the Criminal Law (Detention and Interrogation) Act 1995 (Tas).[77]

In Queensland, for example, under the Police Powers and Responsibilities Regulation 2012 (Qld), a police officer must inform an arrested person “in a way substantially complying” with the following:

You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning. You also have the right to telephone or speak to a lawyer of your choice to inform the lawyer where you are and to arrange or attempt to arrange for the lawyer to be present during questioning. If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose. Is there anyone you wish to telephone or speak to?[78]

The following caution is required with respect to the right to silence:

Before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so. However, if you do say something or make a statement, it may later be used as evidence. Do you understand?[79]

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Cambodia

The Cambodian Criminal Procedure Code requires that, when a person is placed in police custody, the police officer must immediately inform the detainee about the right to counsel.[80] The Code was enacted in 2007. The previous Criminal Procedure Law did not have a similar provision.[81]

It appears that neither the 2007 Code nor the previous law provides for the right to remain silent.

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Cook Islands

The Cook Islands Constitution states that no enactment shall be construed or applied so as to deprive any person who is arrested or detained “[o]f the right to be informed promptly of the act or omission for which he is arrested or detained, unless it is impracticable to do so or unless the reason for the arrest or detention is obvious in the circumstances,” and “[o]f the right, wherever practicable to retain and instruct a barrister or solicitor without delay.”[82] The Cook Islands High Court held in a 2002 case that the constitutional right to instruct a lawyer comes “with a companion right to be informed of the existence of the right to instruct a lawyer and to be given advice of those rights as soon as any person was detained or was under de facto arrest.”[83] In a 2015 case the Court also acknowledged the applicability in the Cook Islands of the English Judges’ Rules, which state that a person should be cautioned that they are not obliged to answer any questions and that if they do “the questions and answers will be taken down in writing and may be given in evidence.”[84]

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Federated States of Micronesia

In all jurisdictions of the Federated States of Micronesia, before questioning a person who has been arrested, the police must advise him or her of certain rights, including the right to speak to counsel, the right to remain silent, the right to have counsel present during questioning, and the right to a public defender.[85]

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Fiji

The Fijian Constitution of 2013 provides that “every person who is arrested or detained” has the right “to be informed promptly, in a language the he or she understands,” of “the reason for the arrest or detention and the nature of any charge that may be brought against that person”; “the right to remain silent”; and “the consequences of not remaining silent.”[86]

In addition, this section further states that an arrested or detained person has the right

to communicate with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid by the Legal Aid Commission.[87]

The section emphasizes that “[w]henever this section requires information to be given to a person, that information must be given simply and clearly in a language that the person understands.”[88]

Provisions similar to those in the 2013 Constitution regarding the right to consult with a lawyer and the right to refrain from making a statement were included in the 1997 Constitution.[89] In addition, the English Judges’ Rules, including the requirement for a caution related to remaining silent, continue to be cited by the Fijian High Court.[90]

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Hong Kong

In 1992, the then Secretary for Security of Hong Kong issued the Rules and Directions for the Questioning of Suspects and the Taking of Statements (Rules and Directions), which still apply to the Hong Kong Special Administrative Region of the People’s Republic of China after the transfer of sovereignty from the United Kingdom to China in 1997. The 1992 Rules and Directions prescribe that, when being questioned, a suspect must be cautioned not to incriminate him or herself through answering questions if he/she does not wish to do so.[91] Noncompliance with the Rules and Directions may result in the exclusion of answers and statements given in subsequent criminal proceedings.[92]

According to the 1992 Rules and Directions, in criminal investigations a police officer may question any person regardless of whether that person has been taken into custody.[93] As soon as a police officer has evidence that would “afford reasonable grounds for suspecting that a person has committed an offense,” that person must be cautioned before being questioned in connection with that offense and the caution must be in the following form: “You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”[94]

There are two gazetted versions of the caution statement, in English and in Cantonese, and a suggested Putonghua version.[95]

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Japan

The Constitution of Japan states “[n]o person shall be arrested or detained . . . without the immediate privilege of counsel.”[96] The Criminal Procedure Code states that when a police officer “has arrested a suspect upon an arrest warrant . . . , he/she shall immediately inform the suspect of the essential facts of the suspected crime and the fact that the suspect may appoint defense counsel.”[97] This provision was included when the Code was enacted in 1948. The previous Criminal Procedure Code (Act No. 75 of 1922) did not have a similar provision.

In cases where the charge against the suspect is punishable with the death penalty, life imprisonment, or imprisonment for more than three years, the police officer must further inform the suspect of the procedure for appointment of counsel when a prosecutor requests further detention of the suspect.[98] If the suspect was not released but was sent to a prosecutor in the case of such a charge, the prosecutor also informs the suspect of the procedure of appointment of counsel.[99] These obligations of police officers and prosecutors were established when the Code was amended in 2004 (effective in 2006).[100]

The Criminal Procedure Code also states that “the suspect shall, in advance, be notified that he/she is not required to make a statement against his/her will” during interrogation by law enforcement officers investigating a crime.[101] This provision was included when the Code was enacted in 1948. The previous Criminal Procedure Code (Act No. 75 of 1922) did not have such a provision.

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Kiribati

In Kiribati, the Police Powers and Duties Act 2008 contains a provision on cautioning suspects about their right to remain silent “before the suspect is questioned.”[102] The provision further states that

(2) The caution must be given in, or translated into, a language in which the suspect is able to communicate with reasonable fluency, but need not be given in writing unless the suspect can not hear adequately.

(3) If the police officer suspects, on reasonable grounds, that the suspect does not understand the caution, the police officer may ask the suspect to explain the meaning of the caution in his or her own words.

(4) If necessary, the police officer must further explain the caution.

(5) If questioning is suspended or delayed, the police officer must ensure that the suspect is aware that he or she still has the right to remain silent and, if necessary, again caution the suspect when questioning continues.

(6) If the police officer cautions a suspect in the absence of someone else who is to be present during the questioning, the caution must be repeated in the other person’s presence.

(7) This section does not apply if another law requires the suspect to answer questions put by, or do things required by, a police officer.[103]

The Act also requires a police officer, before he or she starts to question a suspect, to “inform the suspect that the suspect may phone or speak to” a friend or relative or a lawyer in order to inform that person of the suspect’s whereabouts and to ask him or her to be present during questioning.[104]

Prior to the 2008 Act, it appears that the Kiribati courts referred to the English Judges’ Rules with respect to cautioning suspects.[105]

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Laos

The Law on Criminal Procedure states that, when a law enforcement officer interrogates a suspect to whom the police agency or the prosecutor’s office has issued an investigation order, the officer must inform the suspect of applicable rights.[106] The right to counsel is on the list of such suspect’s rights.[107] The right to remain silent is not listed. The Law also states that at the time of arrest (whether or not an investigation order was issued), law enforcement must inform the arrestee of his or her rights and obligations.[108]

Before the Law on Criminal Procedure was amended in 2012, the previous 2004 Law stated that, “[a]t the beginning of taking testimony from an accused person, the investigator or interrogator shall notify [the accused person] of the charges and explain to the concerned accused person his rights and obligations.”[109] An accused person’s rights included the right to “retain and meet with a lawyer or other protector to contest the case.”[110]

The older law could not be located, therefore it is not clear when notification of the right to counsel was first introduced.

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Malaysia

The Federal Constitution of Malaysia recognizes the right of an arrested person to “consult and be defended by a legal practitioner of his choice.”[111] Under a provision added in 2007, the Criminal Procedure Code requires a police officer, before commencing any form of questioning of a person arrested without a warrant, to inform the person that he or she may “communicate or attempt to communicate and consult with a legal practitioner of his choice.”[112]

Under common law, the Malaysian courts have stated that an arrested person has the right to remain silent and to refuse to answer any questions.[113] The Criminal Procedure Code also provides that “a person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.”[114] A police officer examining a person must first inform him or her of this provision.[115]

A further statutory requirement for a type of caution is contained in section 37a(1) of the Dangerous Drugs Act 1952, which provides that, where a person is charged with an offense under the Act, any statement that he or she has made or makes is admissible at trial, provided that

. . . no such statement shall be admissible or used . . . – . . . (b) in the case of a statement made by such person after his arrest, unless the court is satisfied that a caution was administered to him in the following words or words to the like effect— “It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence”: Provided that a statement made by any person before there is time to caution him shall not be rendered inadmissible in evidence merely by reason of no such caution having been given if it has been given as soon as possible.[116]

The provision further states that a person accused of an offense under the Act “shall not be bound to answer any questions relating to such case after any such caution as aforesaid has been administered to him.”[117]

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Marshall Islands

In the Marshall Islands, before questioning a person who has been arrested, the police must advise him or her of certain rights, including the right to speak to counsel, the right to remain silent, the right to have counsel present during questioning, and the right to a public defender.[118]

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New Zealand

Section 23 of the New Zealand Bill of Rights Act 1990 provides that

(1) Everyone who is arrested or who is detained under any enactment—

(a) shall be informed at the time of the arrest or detention of the reason for it; and;

(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

. . .

(4) Everyone who is—

(a) arrested; or

(b) detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.[119]

In addition, persons charged with an offense “have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.”[120]

The courts in New Zealand traditionally applied the English Judges’ Rules, which were originally written in England in 1912.[121] The Rules provided that “persons in custody should not be questioned without the usual caution being administered.”[122]

A practice note on police questioning issued by the New Zealand Chief Justice in 2007 provides further instructions regarding the approach to be taken in informing persons of their rights. The practice note supplements the relevant statutes and “is not intended to change existing law on application of the Judges’ Rules in New Zealand and does not preclude further judicial development.”[123] It states that “[w]henever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions.”[124] The caution to be given must state that the person “has the right to refrain from making a statement and to remain silent,” that the person “has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme,” and that anything the person says “will be recorded and may be given in evidence.”[125]

A multilingual document on the rights cautions to be used by the New Zealand Police states as follows:

The following advice should be provided to people who are arrested or detained, or where police want to question someone where there is sufficient evidence to charge that person with an offence:

You have been arrested/detained for (give reason)

You have been arrested/detained for (give reason) [OR]

I am speaking to you about (give reason)

I am speaking to you about (give reason) You have the right to remain silent.

You have the right to remain silent. You do not have to make any statement.

You do not have to make any statement. Anything you say will be recorded and may be given in evidence in court.

Anything you say will be recorded and may be given in evidence in court. You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.

You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions. Police have a list of lawyers you may speak to for free.[126]

An additional rights caution is provided for children and young persons.[127]

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Palau

In Palau, before questioning a person who has been arrested, the police must advise him or her of certain rights, including the right to speak to counsel, the right to remain silent, the right to have counsel present during questioning, and the right to a public defender.[128]

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Papua New Guinea

The Constitution of Papua New Guinea requires that a person who is arrested or detained “shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him,” and “shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid),” and “shall be informed immediately on his arrest or detention of his rights under this subsection.”[129]

The right to silence during a criminal trial is expressly protected by the Constitution, which states that “[n]o person shall be compelled in the trial of an offence to be a witness against himself.”[130] The courts have also held that, in Papua New Guinea, “a person suspected of or charged with a criminal offence has a right to silence at all stages of the criminal process from arrest to trial.”[131] In one case, a judge stated that such a right during a formal police interview is

best regarded as being conferred by the underlying law or what used to be known as “the Judges’ Rules”. The right is usually implemented by a police officer issuing a caution at the beginning of the interview, as it was in the present case, in terms such as this: I am warning you that you do not have to say anything as anything you do say will be taken down in writing and may be given in court as evidence.[132]

It appears that the wording of the relevant caution may be set out in a police instruction manual. A judge stated in another case that, in the context of showing that a statement or confession was made voluntarily during a police interview, “[t]he accused must understand their position even when it requires the interviewer to use additional words to those set out in his instruction manual and where a doubt remains, to get the accused to express in their own words their understanding of the right to remain silent.”[133]

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Philippines

The current Philippines Constitution specifically provides that

[a]ny person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.[134]

Similarly, the previous Philippines Constitution, enacted in 1973, provided the following that “[a]ny person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.”[135]

The Philippine National Police has indicated that in practice, the wording of the warning delivered to arrested individuals is as follows:

You have the right to remain silent. Any statement you make may be used against you in a court of law in the Philippines. You have the right to have a competent and independent counsel preferably of your own choice. If you cannot afford the services of a counsel, the government will provide you one. Do you understand these rights?[136]

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Samoa

The Samoan Constitution provides that “[e]very person who is arrested shall be informed promptly of the grounds of his or her arrest and of any charge against the person and shall be allowed to consult a legal practitioner of his or her choice without delay.”[137] The duty of an arresting officer with respect to these rights is also reflected in the Criminal Procedure Act 1972.[138] The courts have stated that “[i]t is well settled that the right to counsel of an accused person arrested by the police should be made clear, and any questioning by the police of the accused shall be on hold for a reasonable time to enable the accused to obtain legal advice.”[139]

Under common law, in addition to being informed of his or her right to a lawyer, it appears that an arrested person must also be informed of his or her right to remain silent. The courts have referred to the English Judges’ Rules with respect to the requirement for a caution.[140] In a 2005 court decision, reference was made to a “police green card,” which spells out both rights in English and Samoan.[141]

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Solomon Islands

The Solomon Islands Constitution of 1978 provides certain rights to persons charged with offenses.[142] Rights provided under common law are also applied by the Solomon Islands courts. A publication of the Royal Solomon Islands Police on criminal law in the country refers to general principles of law established by the courts, including that if a person in custody wishes to consult a lawyer he can do so and is entitled to do so at an early stage of the investigation.[143]

The publication also cites various cases stating that, although not explicit in the Constitution, the right of a suspected person to remain silent is a fundamental right.[144 In the context of the admissibility of confessional evidence, the publication discusses the warnings to be given to suspects. It states that until the early 1980s, the Judges’ Rules of the English High Court were applied in the Solomon Islands. These were replaced by rules issued by the Chief Justice of the Solomon Islands as a practice direction in 1982; these rules “are essentially the same as the English rules but have the added advantage of Pidgin translations of the various cautionary statements.”[145]

The practice direction included the following warning to be given to all persons under arrest or in custody:

If you want to remain silent you may do so. But if you want to tell your side you think carefully about what you say because I shall write what you say down and may tell a court what you say if you go to court. Do you understand?[146]

The rules then set out this warning in Pidgin. Further warnings are also to be given if a suspect decides to give a written statement and upon the person being charged with an offense.

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South Korea

The Constitution of the Republic of Korea (South Korea) states “[n]o person shall be arrested or detained without being informed of the reason therefor and of his right to assistance of counsel.”[147] The Criminal Procedure Act states that “[w]hen the criminal defendant is detained, he/she shall immediately be informed of the gist of the facts charged and of the facts [sic] that he/she may select a defense counsel.”[148] This provision has existed since the enactment of the Code in 1954.

The Criminal Procedure Act also states as follows:

(1) A prosecutor or a senior judicial police officer shall inform a criminal suspect of the following matters prior to interrogation: 1. The suspect has a right to remain silent or make no statement for each question;

2. Remaining silent cannot be used against the suspect; 3. A statement made by the suspect by waiving the right to refuse to make a statement can be used as evidence for being guilty in the court;

4. The criminal suspect has a right to have the assistance of defense counsel, including the counsel's participation in interrogation. (2) The prosecutor or senior judicial police officer who informed a criminal suspect of the matters under paragraph (1) shall ask the suspect whether he/she will exercise the right to remain silent and the right to have the assistance of counsel and shall write down the suspect's answer thereof on the protocol. In this case, the suspect shall be required to write down his/her answer in his/her own hand, or if the prosecutor or judicial senior police officer writes down the suspect's answer, then the suspect shall be required to print his/her name and affix his/her seal or write his/her signature on the part that describes his/her answer.[149]

This article was added through a 2007 amendment.[150] Before the amendment, the Act since the time of its enactment in 1954 had obligated prosecutors or policeman to inform a suspect of the right to silence before interrogation, but no details like those reflected in the current provision were provided.[151]

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Taiwan

In 1997, article 95 of the Taiwanese Code of Criminal Procedure was revised to explicitly provide the accused with the right to remain silent, a right which must be made known to the accused before interrogation.[152] Under the current article 95, a criminal suspect or defendant must be notified before the interrogation

that he is criminally suspected and of the specific charges;

that he is criminally suspected and of the specific charges; that he may remain silent and does not have to make a statement against his will;

that he may remain silent and does not have to make a statement against his will; that he may retain a defense attorney, and if eligible he may instead ask for legal assistance; and

that he may retain a defense attorney, and if eligible he may instead ask for legal assistance; and that he may request investigation of evidence favorable to him.[153]

The Code as amended in 1997 did not explicitly exclude any confession obtained if the police failed to give this warning. However, in 2003 article 158-2 was added to the Code, providing for the exclusion of confessions obtained without the police first warning the accused of his or her right to remain silent and right to an attorney, unless it is proven that the police’s failure to warn was not malicious and the confession was made voluntarily.[154]

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Thailand

When an arrest is conducted by a law enforcement official in Thailand, the official must inform the arrestee that he or she is entitled to remain silent, that his/her statement may be used as evidence at trial, and that he/she is also entitled to meet with and take advice of counsel or a person who will become his counsel.[155]

Citizens can arrest another person in particular cases.[156] In such a case, the administrative or police official receiving the arrestee from the citizen must inform the arrestee of the right to remain silent, that any statement may be used as evidence in a trial, and that he/she has a right to counsel.[157] These provisions were introduced in a 2004 amendment to the Criminal Procedure Code.[158]

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Tonga

The Tonga Police Act 2010 sets out safeguards that apply to “any person who is in the company of a police officer for the purpose of being questioned about his knowledge, involvement or participation in the commission of an alleged offence.”[159] This includes a requirement for a police officer to caution the person about his or her right to remain silent if the police officer “has sufficient evidence to charge the person at the time he commences questioning” or if, during the questioning the police officer “believes on reasonable grounds that there is sufficient evidence to charge the person being questioned.”[160]

In addition, before questioning a person who has been charged with an offense, the police officer must “inform that person that he may telephone or speak to a relative, friend or law practitioner.”[161]

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Tuvalu

The Tuvalu Police Powers and Duties Act 2009 includes a requirement that, prior to starting to question a suspect, a police officer “must inform the suspect that the suspect may telephone or speak to . . . a lawyer” to inform the lawyer of the suspect’s whereabouts or to ask the lawyer to be present during questioning.[162] The Act also includes a provision that states as follows:

(1) A police officer must caution a suspect about the suspect’s right to remain silent, before the suspect is questioned. (2) The caution must be given in, or translated into, a language in which the suspect is able to communicate with reasonable fluency, but need not be given in writing unless the suspect can not hear adequately. (3) If the police officer suspects, on reasonable grounds, that the suspect does not understand the caution, the police officer may ask the suspect to explain the meaning of the caution in his or her own words. (4) If necessary, the police officer must further explain the caution.

(5) If questioning is suspended or delayed, the police officer must ensure that the suspect is aware that he or she still has the right to remain silent and, if necessary, again caution the suspect when questioning continues. (6) This section does not apply if another law requires the suspect to answer questions put by, or do things required by, a police officer.[163]

The police officer who cautions the suspect must make a written record of “the giving of the information to the suspect” and the suspect’s response.[164] Prior to the 2009 Act, the English Judges’ Rules may have been relevant to the practice of police in Tuvalu with respect to cautioning suspects.[165]

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III. Europe and Central Asia

Austria

Section 50, paragraph 1 of the Austrian Code of Criminal Procedure[166] mandates that the accused be informed of his or her essential rights “as soon as possible.” These rights are codified in sections 49 and 164 of the Code of Criminal Procedure. The latest possible time to instruct the accused of his or her rights is before the start of the first interrogation by the police,[167] although a failure of the police to do so will not render the statements inadmissible in court.[168]

According to section 164, paragraph 1, the accused must be informed before the start of the interrogation that he or she

. . . has the right to make a statement or to remain silent on the matter and to consult a defense attorney beforehand, as long as the access to an attorney is not restricted according to section 59, para. 1 (to prevent an impairment of the investigation or the destruction of evidence). It also needs to be brought to the attention of the accused that any statement may be used in his or her defense, but could also be used as evidence against him or her.[169]

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Azerbaijan

The Code of Criminal Procedure of 2000 requires that a person detained or arrested be immediately informed of the reasons for detention, the nature of the suspicion or charge, and his/her right not to give a statement and to seek legal aid from defense counsel.[170] The right of the detained or arrested person to be given an immediate explanation of his/her rights and the reasons for being detained or arrested was incorporated into the Constitution of the Azerbaijan Republic in 2009.[171]

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Belgium

Under Belgian law, any person questioned in the context of a criminal investigation must be informed of certain rights and facts, whether the person questioned is a suspect or just a witness.[172] These include the fact that his or her statements may be used as evidence in court and that he or she may not be compelled to self-incriminate.[173] Additionally, when the person being questioned might be accused of the offense(s) being investigated, he/she must also be informed that, after having given his/her identity, he/she has the right to either make statements, answer questions, or remain silent, as well as the right to consult with an attorney.[174] When a person is being detained by the police, Belgian law also requires that he or she be told of the right to have a trusted person (such as a friend or relative) be informed of the arrest and of the right to medical assistance.[175]

These requirements were adopted in 2011,[176] to bring Belgian law in compliance with the holding of a 2008 decision of the European Court of Human Rights, Salduz v. Turkey.[177]

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Bosnia and Herzegovina

A person deprived of liberty in the territory of the Federation of Bosnia and Herzegovina must,

[i]n his native tongue or any other language that he understands, be immediately informed about the reasons for his apprehension and, before the first interrogation, be advised that he is not obliged to make a statement nor respond to questions asked, [of] his right to a defense attorney of his own choice as well as [of] the fact that his family, consular officer of the foreign state whose citizen he is, or other person designated by him shall be informed about his deprivation of liberty.[178]

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Croatia

In Croatia a suspect who is placed under arrest must be given a written statement of his/her rights before the first interrogation takes place. The statement must include the reason for the detention and explicitly inform the detained person that he/she can refuse to answer questions and remain silent.[179] If providing a written statement is not possible, the police must inform the suspect of his/her rights orally at the moment of arrest, and the court must take note of whether this information was provided.[180]

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Cyprus

In 2014, Cyprus adopted Law No. 185(I)/2014 on the Right to Information in Criminal Proceedings[181] in order to transpose European Union Directive 2012/13/EU[182] and to amend Law No. 163(I) of 2005 on the Rights of Persons Who Are Under Arrest and Detention.[183] Article 3 of Law 163(I), as amended, provides that any person who is arrested by the police must be informed promptly, and in a language he or she understands, of

the reasons for the arrest and detention and the nature of the act of which he or she is accused;

the reasons for the arrest and detention and the nature of the act of which he or she is accused; the right of access to a lawyer;

the right of access to a lawyer; any right to legal aid and conditions for receiving such aid;

any right to legal aid and conditions for receiving such aid; the right of access to interpretation and translation services;

the right of access to interpretation and translation services; the right to remain silent; and

the right to remain silent; and the right to be informed of the place of detention.[184]

In addition, the police are obliged to provide a Letter of Rights to a person who is arrested, in a language that the person understands.[185] The Letter of Rights contains the above-stated rights and the following additional rights: to have access to the materials for the case, to consult with consular authorities, to have access to urgent medical assistance if needed, to be informed of the maximum lawful detention time, to challenge the lawfulness of the arrest and detention, to obtain a review of the detention, and to be provisionally released.[186]

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Denmark

Under Danish law, prior to being heard by the police, a suspect must be informed that he or she has the right to remain silent.[187] The police report must specifically state that the suspect was informed of this right.[188] This information must again be relayed to the suspect at the time the suspect is presented in court.[189] Denmark is not bound by Directive 2012/13/EU on the right to information in criminal proceedings, as it has opted out of implementation of certain EU measures relating to justice and home affairs.[190] Denmark is a signatory to the European Convention on Human Rights and is thus bound by its precedent.[191] In 1970 the courts found that the hearing record of a person who had not been informed of his right to remain silent could not be used against him.[192]

Denmark has had an explicit legal provision on the right to remain silent since 1932.[193] Earlier provisions on the prohibition of police coercing a statement have been considered to include a right to silence.[194]

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England and Wales

In England and Wales the police must follow a number of rules after arresting a suspect, which are contained in the Codes of Practices issued under the Police and Criminal Evidence Act 1984.[195]

Once a police officer has arrested an individual, the officer must, at the time of arrest, or as soon as reasonably practicable afterwards, inform the person that he/she is under arrest and of the grounds for the arrest.[196] A caution must then be given in the following words, although minor deviations will not constitute a breach of the Code of Practice: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”[197]

In certain circumstances, the law allows the court to draw adverse inferences from a defendant’s failure or refusal to say anything about his or her involvement in the suspected offence(s).[198]

The requirement for the police to formally give a caution to suspects upon arrest was first introduced in 1912 by the Judges’ Rules, which were issued in response to a request from the Chief Constable of Birmingham, who had asked for clarification as to when to use cautions as some judges would not use evidence obtained by police during questioning and others would.[199] For example in the case of Gavin the judge held that “when a person is in custody, the police have no right to ask him questions,”[200] whereas in R v. Thompson the judge held that any statements obtained from a suspect in custody[201] were admissible, provided the judge was satisfied that the evidence was not obtained as a result of coercion or inducement.[202]

The original caution given to a suspect upon arrest was provided for by Rule III of Judges’ Rules and required that the arresting officer to verbally caution a suspect with the following terms: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.”[203]

The Judges’ Rules were administrative in nature, and not following them did not automatically lead to any statements or confessions from being excluded from evidence unless it could be shown that the confession was not made voluntarily. The status of the Judges’ Rules was described in the 1918 case of R v. Voisin as follows:

In 1912 the judges, at the request of the Home Secretary, drew up some rules as guidance for police officers. These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial.[204]

These rules were revised several times and followed for the next seventy-two years,[205] during which time they were adopted by many commonwealth countries where they continued in force long after they were replaced in England and Wales by the Police and Criminal Evidence Act 1984, described above.

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European Union

At the European Union (EU) level, Directive 2012/13/EU on the Right to Information in Criminal Proceedings explicitly establishes common minimum standards on the rights of suspects or accused persons.[206] Directive 2012/13/EU is based on article 82(2) of the Treaty on the Functioning of the European Union, which requires the establishment of minimum rules on the rights of individuals in criminal proceedings in order to facilitate mutual recognition of judgments and police and judicial cooperation in criminal matters that have cross-border aspects.[207] The scope of the Directive applies to suspects or accused persons from the time such individuals are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offense until the conclusion of the proceedings, including sentencing and the resolution of any appeal.[208] The Directive also applies to persons who are presented with a European Arrest Warrant.[209] As the Directive clarifies, the information should be provided promptly in the course of the proceedings and at the latest before the first official interview of the suspect or accused person by the police or by another competent authority.[210]

Miranda-Type Warning

The Directive requires Member States to ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, in compliance with national law:

Access to a lawyer

Access to a lawyer Any free legal advice and the conditions for obtaining such advice

Any free legal advice and the conditions for obtaining such advice Information about the nature of the accusation

Information about the nature of the accusation Interpretation and translation services[211]

Interpretation and translation services[211] The right to remain silent[212]

In order for these rights to be exercised effectively, EU Members are obliged to ensure that national authorities provide this information orally or in writing and in a clear language that is understood by the accused or suspected persons, after taking into consideration possible needs of vulnerable persons.[213]

Letter of Rights on Arrest

The Directive also requires Member States to ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. Suspects or accused persons must be given a chance to read the Letter of Rights and to keep it in their possession during their time of detention.[214]

The Letter of Rights must contain the list of rights referenced above, as well as information on additional rights, in compliance with national law, such as access to the materials of the case, consular access, access to urgent medical care, and how long they may be detained before being presented before a judicial authority.[215]

Member States are required to ensure that suspects or accused persons or their lawyers have the right to challenge, in compliance with national procedures, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive.[216] The Directive also requires Member States to provide training for those involved in criminal proceedings, such as judges, prosecutors, police, and judicial staff.[217]

EU Member States were required to comply with this Directive by June 2, 2014.[218]

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Finland

Under Finnish law, suspects must be informed of the crime for which they are suspects and of the following rights:

1) the right to employ an attorney that they choose, 2) the right to [under certain circumstances] receive a public defender, 3) the right to [as prescribed in law] receive free legal aid and counsel, 4) the right to continue to receive information on the crime he or she is suspected of including any changes to the level of suspicion, 5) the right to interpretation as well as translation of important documents [as prescribed in law], [and] 6) the right to remain silent and to not cooperate with the investigation of the crime.[219]

In addition, once arrested the suspects have the right to written notice of their rights.[220] The explicit right to remain silent was specifically incorporated in 2013 as part of Finland’s implementation of article 3 of Directive 2012/13/EU on the right to information in criminal proceedings.[221]

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France

French law requires that when suspects are placed under arrest (garde à vue) they must be informed, in a language that they can understand, of

the right to notify a relative and/or an employer;

the right to notify a relative and/or an employer; the right to notify consular authorities if the suspect is a foreign national;

the right to notify consular authorities if the suspect is a foreign national; the right to be examined by a doctor;

the right to be examined by a doctor; the right to an attorney;

the right to an attorney; the right to an interpreter if needed;

the right to an interpreter if needed; the right to see, within the best possible timeframe, certain documents on the procedure against them;

the right to see, within the best possible timeframe, certain documents on the procedure against them; the right make statements to the public prosecutor (procureur de la République) and/or the magistrate deciding on his/her continued custody; and

the right make statements to the public prosecutor (procureur de la République) and/or the magistrate deciding on his/her continued custody; and the right to either make statements, answer questions, or remain silent.[222]

The suspect must also be informed that he or she is being placed under arrest; how long he or she may be held in custody; and the presumed nature, date, and place of the offense he or she is suspected of committing.[223] The current requirements were introduced in the French Code of Criminal Procedure in May 2014 as a way to implement a European Union Directive.[224] However, similar requirements had already been introduced into the Code in 2011.[225] Additionally, the Code of Criminal Procedure specifies that no one may be found guilty of a criminal offense solely on the basis of statements made before he or she could consult with an attorney.[226]

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Georgia

According to the Georgian Code of Criminal Procedure of 2009, upon detention the accused must be informed that he or she may use the services of a defense counsel, remain silent and refuse to respond to questions, and exercise the right against self-incrimination, and that everything the accused says can be used against him/her.[227]

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Germany

The German Code of Criminal Procedure provides that the accused must be informed of his or her rights before an interrogation by the prosecution, police, or a judge may take place, as well as before an arrest warrant for pretrial detention may be executed.[228]

Section 136 of the German Code of Criminal Procedure provides that the accused must be informed of his or her rights before the first interrogation by a judge may take place. Section 163a states that the instructions codified in section 136 must also be given before an interrogation by the police or the prosecution. The judge must instruct the accused of his or her rights even if he/she has already been informed of those rights by the police or prosecution at an earlier interrogation.[229]

The right to be informed of one’s rights was introduced into the Code of Criminal Procedure in 1964.[230] It was not until 1992, however, that the German Federal Court of Justice recognized the instruction as fundamental with respect to the right against self-incrimination and not simply as a preliminary ritual to an interrogation.[231]

The norm states as follows:

At the commencement of the first examination, the accused shall be . . . advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult with defence counsel of his choice. He shall further be advised that he may request evidence to be taken in his defence and, under the conditions set out in Section 140 subsections (1) and (2) (mandatory defense), request the appointment of defence counsel in accordance with Section 141 subsections (1) and (3). In appropriate cases the accused shall also be informed that he may make a written statement, and of the possibility of perpetrator-victim mediation.

In addition, section 114b of the German Code of Criminal Procedure mandates that the accused be informed of his/her rights without delay in writing and in a language he/she understands before an arrest warrant may be executed. This provision was introduced into the Criminal Code in 2009 to strengthen the rights of persons in pretrial detention.[232] It was amended in 2012 to implement the requirements of the EU Directive on the Right to Information in Criminal Proceedings.[233] The provision states that