The Privilege against Self-Incrimination from Early Origins to Judges' Rules: Challenging the ‘Orthodox View’

AuthorPat McInerney
DOI10.1350/ijep.2014.18.2.446
Publication Date01 Apr 2014
SubjectArticle
PRIVILEGE AGAINST SELF-INCRIMINATION FROM EARLY ORIGINS TO JUDGES’ RULES
The privilege against
self-incrimination from
early origins to Judges’
Rules: challenging the
‘orthodox view’
By Pat McInerney*
Solicitor, Holmes O’Malley Sexton Solicitors, Limerick
Abstract The history of the privilege against self-incrimination is one replete
with contention and indeed confusion. This stems from the fact that the exact
origin, initial purposes and very meaning of the privilege are disputed. Various
interpretations have been ascribed to the privilege since its inception. In order
to avoid these interpretational issues, and to properly contextualise the
development of the privilege, it must be recognised that the broadly conceived
concept of the privilege against self-incrimination incorporates three distinct
sub-rights. First, the privilege against self-incrimination afforded to witnesses
in criminal, civil or non-judicial investigative proceedings; secondly, the right
of a defendant not to give evidence at trial; and, thirdly, the right to silence of a
suspect in the pre-trial criminal investigation. Each of these sub-rights has a
distinct though necessarily related historical trajectory. It is suggested that a
significant cause of the disputed history of the privilege is the failure to
recognise the various strands inherent therein. The origins and historical
development of each of these elements of the privilege are considered in this
article, in an effort to resolve the historiographical controversy and to challenge
the orthodox view that has come to the fore in recent times.
Keywords Privilege against self-incrimination; Historical-legal; Three strands;
Order of recognition; Challenging the orthodox view
doi:10.1350/ijep.2014.18.2.446
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2014) 18 E&P 101–138 101
* LLB, LLM, Solicitor, Attorney-at-Law (NY), PhD Candidate, University College Cork; email:
Pat.McInerney@homs.ie.
The generic right
he history of the privilege against self-incrimination has been the subject
of considerable debate and dispute. The difficulty in identifying the
exact origin and subsequent development of the privilege stems partly
from the fact that the very meaning of the privilege itself has been contested, with
various interpretations being ascribed to it throughout its contentious history. In
order to avoid these interpretational issues, and to properly contextualise the
development of the privilege and its various constituent elements, it must be
recognised from the outset that the broadly conceived concept of the privilege
against self-incrimination1has come to be utilised as a generic term for a
‘disparate group of immunities, which differ in nature, origin, incidence and
importance ...’.2
Thus, the privilege, which McGrath has alternatively conveniently termed ‘the
right not to incriminate oneself’,3is now generally viewed as incorporating three
separate though related sub-rights, namely the privilege against self-incrimi-
nation4afforded to witnesses in criminal, civil or non-judicial investigative
proceedings, the right of a defendant not to give evidence at trial and the right to
silence of a suspect in the pre-trial criminal investigation.5Each of these sub-rights
has a distinct though necessarily related historical trajectory. It is suggested that a
significant cause of the disputed history of the right not to incriminate oneself is
the failure to recognise the various strands inherent therein or perhaps more
likely a failure to clearly identify the strand being considered in various exposi-
tions. It is this conflation of the various strands of the right that has led to the
orthodox view becoming ‘the orthodox view’.
102 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
PRIVILEGE AGAINST SELF-INCRIMINATION FROM EARLY ORIGINS TO JUDGES’ RULES
T
1 Alternatively described as ‘the right to/of silence’, though this phrase will be avoided in discussing
the broadly conceived privilege due to the fact that the right to silence has come to be considered
as one of the sub-rights of this broad privilege.
2RvDirector of the Serious Fraud Office, ex p Smith [1993] AC 1 at 30, per Lord Mustill (emphasis added).
3 D. McGrath, Evidence (Thomson Round Hall: Dublin, 2005) 644.
4 When referring to the privilege against self-incrimination in the remainder of this article, it is to
this sub-right, as applicable to witnesses, that reference is being made.
5 McGrath, above n. 3 at 623. Whilst, as McGrath notes, this phraseology for the generic right and the
various sub-rights has not garnered universal acceptance by any means, it assists us in developing
an understanding of the origins of the various incarnations of the privilege and helps to reconcile
apparently diametrically opposed historical accounts. As aforementioned, part of the difficulty in
compiling an accurate historical account is the various and sometimes interchangeable
nomenclature applied to concepts which though related are quite distinct, which in turn has
contributed to the historiographical controversy. Thus the categorisation and terminology
utilised by McGrath will be followed in this article.
According to this widely accepted theory, the privilege against self-incrimination,
incorporating a defensive right to silence, became incorporated into the common
law by the early to mid-17th century, following the abolition of the ecclesiastical
and prerogative courts of High Commission and Star Chamber respectively and the
much maligned procedure in use therein called the oath ex officio.6It is contended
that the groundswell of opinion against these courts and their procedures led to the
natural assimilation of the privilege into common law practice.7However, this
article will demonstrate that there is an inherent error in the historical basis for this
traditional view and that, in fact, the various sub-rights of the right not to incrim-
inate oneself developed along a path and in an order quite different to that
generally accepted. By endeavouring to highlight this challenge to orthodoxy, it is
hoped that the distinct origins of the sub-rights will be better understood, the
difference between a witness and defence privilege clearly illustrated and as a
consequence, and of central import to this article, the potential contribution to
modern argument made by viewing the privilege in this fashion more clearly illumi-
nated. The origins and historical development of each of these elements of the right
not to incriminate oneself will now be considered in turn, which it is hoped will
help to resolve to a large extent the historiographical controversy.
The privilege against self-incrimination
In terms of the dispute as to the origin and development of the right
not to incriminate oneself, the privilege against self-incrimination
assumes centre stage, though this is partly due to the exact contours of the
privilege being largely misunderstood through several centuries. Various
hypotheses as to the privilege originating in the 4th,813th,917th10 and
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 103
PRIVILEGE AGAINST SELF-INCRIMINATION FROM EARLY ORIGINS TO JUDGES’ RULES
6 For a full discussion of the oath ex officio procedure, see below nn. 19 et seq. and accompanying text;
for a discussion of the contention that it was the abolition of these courts and the oath ex officio
procedure that occasioned the assimilation of the privilege into common law practice, see below
n. 34 and accompanying text.
7 See below n. 34 and accompanying text.
8 In connection with a religious duty to confess one’s sins in private to a priest, with the privilege
protecting against any notion of public confession or atonement: A. R. Amar and R. B. Lettow, ‘Fifth
Amendment First Principles: The Self-incrimination Clause’ (1995) 93 Mich L Rev 857 at 896.
9 As the ecclesiastical or church courts began to administer the oath ex officio in the examination of
suspected heretics—see the dicta of Walsh J in Saunders vUnited Kingdom (1996) 23 EHRR 313 at
344–5, where he refers to the seeds of the privilege being planted in the 13th century, but
opposition to the oath becoming widespread, through the utilisation of the privilege, in the 16th
and 17th centuries. The practice of administering the oath ex officio in the ecclesiastical and
prerogative courts of the 16th and 17th centuries and its integral effect on the development of the
privilege will be considered below.
10 As a direct response to the administration of the oath ex officio by the ecclesiastical court, the High
Commission, and the prerogative court of Star Chamber, see generally J. H. Wigmore, ‘The
Privilege Against Self-incrimination: Its History’ (1902) 15 Harv L Rev 610.

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