The Ban on Self Incrimination after the Saunders Judgment
| DOI | https://doi.org/10.1108/eb025832 |
| Pages | 182-189 |
| Date | 01 April 1997 |
| Published date | 01 April 1997 |
| Author | Morten Eriksen,Tarjei Thorkildsen |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 5 No. 2 — Self Incrimination
SELF INCRIMINATION
The Ban on Self Incrimination after the Saunders
Judgment
Morten Eriksen and Tarjei Thorkildsen
In most jurisdictions a suspect has the right to
remain silent during criminal proceedings and he
cannot be penalised for making false statements.1
This is loosely known as the 'ban on self incrimi-
nation' and is regarded as an important factor in
due process protection of individuals subject to
criminal proceedings. The right to silence applies
only to the stage of criminal proceedings, and up
to date it has surprisingly not been seriously
debated. A criminal may have caused individuals
and society major loss, damage or suffering; in
principle one would expect that he would be
obliged to assist in the clearing-up of the case,
particularly if this could ameliorate or repair the
negative consequences of the crime. But this is not
the way it is looked at. The suspect is under pres-
sure,
and must not be faced with the choice of
lying or confessing.
Prior to the criminal proceedings stage, most
Western countries have a penal-sanctioned duty to
give
information
to public authorities, even on mat-
ters where they can subsequently be held liable.
Between the duties under administrative law and
the rights under the Criminal Procedure Act there
obtains considerable tension. An extension of the
'ban on self-incrimination' to include the admin-
istrative stage is a possible way to reduce these
tensions, but can have other and weighty negative
consequences for both state and citizen. At bottom,
it is the fundamental value judgment of what kind
of society we want to live in. An administrative
system based on trust assumes that the citizens will
by and large and of their own accord give complete
and truthful information to the administration.
The other side of the coin is that refusal to provide
information and provision of false information can
lead to penal sanctions. If this system is aban-
doned, in order to make room for a 'ban on self
incrimination' at the administrative stage, public
administration will have to be geared to control a
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