An oft-heard justification is that you cannot treat hardened criminals with kid gloves or you will be perpetrating crime even further. But this argument has no regard for the fact that even hardened criminals are covered by the human rights guarantees in the Constitution and in human rights conventions. Human rights are inalienable and imprescriptible, and they apply to everyone.
The parliament is vested with the power to create laws that have coercive effect. It is essentially in their province to come up with regulations to maintain order and peaceful conduct in the society, while ensuring that a human rights framework is always in place. Over the past two decades, there has been a steady stream of legislation, marking the evolution of Criminal Justice as it is known in the present time.2 Indeed, the constant changes in the Criminal Justice Act reflects the constantly changing public mindsets on crime and its concomitant issues.
The Criminal Justice System as it stands now appears to be biased against the accused. For example, Sections 34-39 would effectively allow law enforcement agents to draw inferences from the silence of a person undergoing custodial investigation, as for instance, when the accused "at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings."3
This provision whittles down considerably the right of the accused to maintain his silence, and shifts the burden of proof on him. Fundamental and crucial indeed is the basic precept in criminal law that the burden of proving the guilt of the defendant resides on the prosecution.4 The statement of Viscount Sankey LC5 in Woolmington v DPP rings loud and clear:
'Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to ...the defence of insanity and subject also to any statutory exception'.
It is fundamental because it is rooted in the Constitutional guarantee of due process.6 An accused is presumed innocent until proven guilty, and his silence should not be taken against him.7 The importance of the presumption of innocence is discussed in the case of State v Coetzee8, where it was stated:
'...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security