THE PRIVILEGE AGAINST SELF‐INCRIMINATION
| DOI | https://doi.org/10.1108/eb024759 |
| Published date | 01 January 1992 |
| Pages | 116-119 |
| Date | 01 January 1992 |
| Author | MURRAY ROSEN |
| Subject Matter | Accounting & finance |
THE PRIVILEGE AGAINST SELF-INCRIMINATION
Received: 8th
June,
1992.
MURRAY ROSEN
MURRAY ROSEN
IS
A BARRISTER SPECIALISING IN COMMERCIAL
LITIGATION, WITH EXPERIENCE IN THE FIELD
OK
FINANCIAL REGULATION.
ABSTRACT
This briefing reviews the historical and
recent development
of the
privilege against
self-incrimination
and its partiadar
rele-
vance in the field of financial
regulation.
The author
discusses
the
idea
of
a
'quali-
fied'
privilege against
self-incrimination.
Under
such an
approach
the
privilege
is
excluded for
some uses (such
as to
discover
misconduct and to enable restitution to
victims of fraud) but not so as to enable
witnesses'
answers
to be
used
for
their
own
criminal punishment.
The past decade has seen some spec-
tacular examples of misconduct
among regulated businesses and a
changing balance in the resources
used to combat commercial dis-
honesty, as between criminal investi-
gation and civil remedies. It should
not be surprising that the privilege
against self-incrimination has
become an issue of general con-
troversy, as well as one of particular
relevance in the regulatory field.
This privilege was a right
entrenched in English legal history
well before it found expression in
the Fifth Amendment in the United
States Constitution. After the ad-
ministrative excesses of the Tudors,
the common law came to accept that
a witness was entitled to refuse to
answer questions which might
expose him to the risk of criminal
proceedings.
The rule allowed a witness to
refuse to answer if his response
might increase the risk of his prose-
cution, even when the relevant
authorities already had material
which might lead to criminal pro-
ceedings against him. It did not,
however, allow him to refuse to
answer questions which may incri-
minate others, however closely con-
nected.1
The rationale for the rule is said
generally to have been based on the
need to encourage persons to come
forward with evidence by protecting
116
To continue reading
Request your trial