Self‐incrimination: Recent Developments

DOIhttps://doi.org/10.1108/eb025754
Pages47-51
Publication Date01 Mar 1996
AuthorJohn Breslin
SubjectAccounting & finance
INVESTIGATIONS
Self-incrimination: Recent Developments
John Breslin
Journal
of
Financial Crime
Vol. 4 No. 1
Investigations
INTRODUCTION
The privilege against self-incrimination
was
inven-
ted by judges
in 1645 to
curb
the
excesses
of
their
colleagues
in the
Court
of
Star Chamber. Since
then,
it has
become embedded
in the
common
Law1 with
no
specific legislative imprimatur.
It has
also been held
to be an
implied right under
the
European Convention
on
Human Rights (ECHR)
which
is yet
another development
of the
privilege
that
has not
been democratically sanctioned.
By
comparison,
the
privilege against self-discrimina-
tion
is an
express right under
the
Fifth Amend-
ment
in the
American Constitution.
The exact limits
of the
privilege
are
uncertain,
and
are as
vague
as the
philosophical foundations
that underpin
it in
Common
Law
jurisprudence.
Lord Mustill said this
in R v
Director
of
Serious
Fraud Office,
ex p.
Smith:2
'[The right
of
silence] arouses strong
but
unfo-
cused feelings.
In
truth
it
does
not
denote
any
single right,
but
rather refers
to a
disparate
group
of
immunities, which differ
in
nature,
origin, incidence
and
importance,
and
also
as to
the extent
to
which they have already been
encroached
by
statute.'
Historically,
the
rationale
for the
privilege
was the
protection
of
the individual from being confronted
with
the
'cruel trilemma'3
of
punishment
for
refusal
to
answer
an
incriminating question, pun-
ishment
for
truthful testimony
and
punishment
for
perjury
for
answering falsely.
The
most convincing
modern justification
for the
privilege
is
that
in a
criminal case
it is up to the
prosecution
to
prove
its case,
and the
defence should
not be
called
on
under compulsion
of law to
assist
in
that process.
In this sense, the justification
is
seen
as a
necessary
corollary
of the
adversarial
as
opposed
to
inquisitorial
system of justice.4
The privilege
has
many facets.
The
most
common situations
in
which
it can be
claimed
are
as follows: first, where
the
accused
is
asked
a
ques-
tion while giving evidence
in
court
the
truthful
answer
to
which tends
to
incriminate
him;
sec-
ondly, where
a
person
is
required
to
produce
documents
or
provide other information which
may incriminate
him
before,
or
outside
the
context
of, a
criminal trial. These
are of
course
by no
means exhaustive. Some relatively recent cases
have examined
and
defined
the
possible limits
of
the privilege against self-incrimination.
Privilege
not
available
to
companies
In
the
United States
the
Supreme Court, recognis-
ing that
a
corporation
is a
creature
of the
state,
benefiting from privileges afforded
by the
state,
held that
the
exercise
of
those privileges
was
equally capable
of
being constrained
by the
state.5
The
US
Supreme Court concluded that there
was
no reason
why the
state, having granted these pri-
vileges, could
not ask
whether they were being
abused
and
therefore call
for
corporate books
and
records
to be
produced.
In
Campbell Painting
Corp.
v
Reid6
it was
said that
the
privilege
is one
which
is
'essentially
a
personal
one,
applying only
to
indi-
viduals'.
In Environment
Protection
Authority
v
Caltex refining
Co.
Pty Ltd7 the
High Court
of
Australia held
by a
narrow majority that
the
privilege against
self-
incrimination could
not be
claimed
by a
company
which
was
ordered under statute
to
produce
its
books
and
records
in
connection with
an
investiga-
tion pursuant
to a
prosecution
for
violation
of a
pollution licence. Mason
CJ and
Toohey
J, in a
joint opinion, held that
the
rationale
for the
privi-
lege
the
protection
of the
individual from
oppressive questioning
and
possible punishment
does
not
support
its
extension
to
artificial enti-
ties such
as
companies. They were adamant that
the removal
of the
privilege does
not
affect
the
accusatorial nature
of a
judicial system
in a
demo-
cratic state. Similarly, Brennan
J
noted that since
the immunity
is
against testifying
as to
one's
own
Page
47

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