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Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination

Published online by Cambridge University Press:  16 January 2009

Ian Dennis
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Extract

THE privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins,1 and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty.2 This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights.

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The Cambridge Law Journal , Volume 54 , Issue 2 , July 1995 , pp. 342 - 376
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Copyright © Cambridge Law Journal and Contributors 1995

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References

1 Wigmore located the origins of the privilege in the second half of the seventeenth century, following the constitutional struggles that resulted in the abolition of the courts of Star Chamber and High Commission: Wigmore, J.H., Evidence (vol. VIII, McNaughton rev., Boston 1961)Google Scholar, para. 2250. Most evidence scholars have tended to accept this account: see, e.g. Ratushny, E., Self-Incrimination in the Canadian Criminal Process (Toronto 1979), pp. 159–174;Google ScholarCross on Evidence (7th ed., London 1990), pp. 203–204, 418–419.Google Scholar However, Levy, L.W. argued that the roots of the privilege were to be found much earlier in the medieval common law (Origins of the Fifth Amendment, New York 1968)Google Scholar, and Wigmore's account has again been challenged in a recent article by Langbein, J.H., “The Historical Origins of the Privilege Against Self-incrimination at Common Law” (1994) 92Google Scholar Mich. L.R. 1047, who argues that the privilege did not arise until much later, and that it is attributable to the introduction of defence counsel and the development of adversary criminal procedure at the end of the eighteenth century. See also Williams, GlanvilleThe Proof of Guilt (3rd ed., London 1963)Google Scholar, ch. 3; Macnair, M.R.T., “The Early Development of the Privilege against Self-incrimination” (1990) 10 O.J.L.S. 66.Google Scholar

2 This celebrated passage reads as follows: “If all the criminals of every class had assembled and framed a system after their own wishes, is not this rule the very first they would have established for their security? Innocence never takes advantage of it. Innocence claims the right of speaking as guilt invokes the privilege of silence.” The passage is commonly cited as being from Bentham's Treatise on Judicial Evidence (London 1825), p. 241.Google Scholar However, Andrew Lewis has pointed out that this text is in fact an anonymous English translation of Etienne Dumont's Traité des Preuves Judiciaires (Paris 1823).Google Scholar Dumont relied exclusively on Bentham's manuscripts, and we can be reasonably confident that Bentham would have agreed with this expression of his views, but the point remains that he never actually used this formulation. See Lewis, A.D.E., “Bentham's View of the Right to Silence” [1990] C.L.P. 135.Google Scholar For Bentham's well-known attacks on the “old woman's reason” and “the fox hunter's reason” for the privilege see his Rationale of Judicial Evidence (ed. Bowring, J., Edinburgh, 1843), vol. VII, B.IX, 452–454.Google Scholar

3 SeeZuckerman, A.A.S., The Principles of Criminal Evidence (Oxford 1989), p. 307.Google Scholar Reference should also be made to Zuckerman's earlier article, “The Right against Self-incrimination: an Obstacle to the Supervision of Interrogation” (1986) 102 L.Q.R. 43.

4 Most recently, and notably, by sections 34–39 of the Criminal Justice and Public Order Act 1994.

5 Funke v. France (1993) 16 E.H.R.R. 297 (European Court of Human Rights); Sounders v. U.K. (Application No. 19187/91; Report of the European Commission of Human Rights dated .10 May 1994).

6 Developments particularly at risk are the use at trial of statements given and documents disclosed by the accused under various statutory inquisitorial procedures (see Part IV below). Another possibility is the legislation allowing adverse inferences from failure to mention facts to the police or to testify at trial. The European Commission of Human Rights has already held admissible an application by Kevin Murray (Murray v. D.P.P. (1993) 97 Cr.App.R. 151) complaining that the Criminal Evidence (Northern Ireland) Order 1988, on which the trial judge relied in drawing inferences from Murray's failure to give evidence at his trial for attempted murder, violates art. 6.1. (See Human Rights Case Digest vol. V, Part 1, Jan.–Feb. 1994, 40).

7 See, for example, the discussion of the right to silence by the Criminal Law Revision Committee in their Eleventh Report Evidence (General) (Cmnd. 4991, 1972) paras. 22–32, and by Lord Templeman in A.T. & T. Istel v. Tully [1993] A.C. 45, 51–53. In this case Lord Templeman expressed scepticism whether the right to silence can guarantee a suspect freedom from illtreatment or prevent the production of a dubious confession, which he regarded as the only purposes of the right. Cf. Lord Mustill in R. v. Director of Serious Fraud Office, Ex pane Smith [1993] A.C. 1, 30–32, who articulates a wider range of underlying purposes but who still conceives of the right in instrumental terms.

8 Packer, H.L., The Limits of the Criminal Sanction (Stanford 1968), pp. 158Google Scholar el seq.

9 See my discussion of the case for reform in “The Criminal Justice and Public Order Act 1994: the Evidence Provisions” [1995] Crim.L.R. 4, 11–14.

10 See, e.g., the comments of Lord Lane C.J. in R. v. Alladice (1988) 87 Cr.App.R. 380, 385.

11 See, for example, Criminal Justice Act 1987, s. 2(8), and in the civil context A.T. & T. Istel v. Tully [1993] A.C. 45, where the House of Lords accepted that an undertaking by the Crown Prosecution Service not to make use of material compulsorily disclosed by the defendant pursuant to a Mareva injunction was effective to defeat reliance on the privilege against self-incrimination.

12 A.T. & T. Istel v. Tully [1993] A.C. 45. Lord Templeman commented at p. 53: “I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiffs property or money.” Although his Lordship was concerned in this case only with civil proceedings other dicta in his speech (see note 7 above) showed that his scepticism about the justification for the privilege extended to criminal matters also.

13 See further Part V, below.

14 This paper is concerned only with the privilege against self-incrimination as it relates to a suspect in pre–trial investigations or to a defendant at a criminal trial. It does not discuss the privilege in civil litigation or the testimonial privilege for witnesses.

15 [1993] A.C. 1,30–32.

16 The term is often used interchangeably with the right to silence when Lord Mustill's second (“a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them”) and sixth (“a specific immunity … possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial”) immunities are under discussion.

17 This is the Latin maxim, referred to by Lord Diplock in R. v. Sang [1980] A.C. 402, nemo debel prodere se ipsum.

18 Where a procedure, such as a search or the taking of a sample, involves a violation of a suspect's interest in the security of person or property, consideration of the privilege might seem to be unnecessary in view of the general protection afforded to such interests by the substantive law of crime and tort. Nevertheless the privilege could supply an independent reason for not permitting exceptions to the substantive law for investigative procedures: see Tate Access Floors v. Boswell [1991] Ch. 512, where Sir Nicolas Browne–Wilkinson V–C held that the privilege could be relied on to defeat parts of an Anton Piller order requiring a defendant to permit the plaintiff to search the defendant's premises and seize documents related to alleged infringements of copyright.

19 Per Sir Nicolas Browne–Wilkinson V–C in Tate Access Floors v. Boswell [1991] Ch. 512, 529, citing Rank Film Distributors Ltd. v. Video Information Centre [1982] A.C. 380 (H.L.) See also R. v. Director of Serious Fraud Office, ex pane Smith [1993] A.C. 1, 30–32 (Lord Mustill); Cross on Evidence (7th ed., London 1990), p. 418.Google Scholar

20 This is the sixth of the “disparate group of immunities” described by Lord Mustill in R v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1, 30–32. It is in this sense that I mainly use the term “the right to silence” from now on in this article.

21 384 U.S. 436 (1966).

22 For English law see the Police and Criminal Evidence Act 1984 (hereafter PACE) Code of Practice C paras. 3.1, 3.15, 6, 10 and 11.2.

23 English law was thought for a long time to base the rule that an involuntary confession was inadmissible on unreliability (see R. v. Warkkshall (1783) 1 Leach 263; Ibrahim v. R. [1914] A.C. 599), but in R. v. Sang [1980] A.C. 402, 436 Lord Diplock expressed the view that the underlying rationale of the common law rule was the principle nemo debel prodere se ipsum. In saying this Lord Diplock went further than Lord Reid in Commissioners of Customs and Excise v. Harz and Power [1967] 1 A.C. 761, 820 who had opined that this principle and reliability were joint rationales for the voluntariness rule. Under PACE the notion of involuntariness was dropped. Confessions are now inadmissible if procured by oppression or by anything said or done likely to render any confession by the suspect unreliable (s. 76(2)). The architects of the reform based their proposals on a combination of reliability, disciplinary and protective principles: see the Eleventh Report of the Criminal Law Revision Committee (note 7 above) para. 64; Report of the Royal Commission on Criminal Procedure (Cmnd. 8092, 1981), paras. 4.131–4.132.

24 Arenella, P., “Schmerber and the Privilege Against Self-Incrimination: A Reappraisal” (1982) 20 Am.Crim.L.R. 31, 37.Google Scholar

25 For critical reviews of such accounts see Wigmore, op. cit. note 1 above, para. 2251; McNaughton, J.T., “The Privilege Against Self-Incrimination: Its Constitutional Affectation, Raison d'Etre and Miscellaneous Implications” (1960) 51 J. Crim. Law, Criminology & Police Science 138.CrossRefGoogle Scholar More recent sceptical writing has tended to focus on the four theories discussed here; see in particular Dolinko, D., “Is There a Rationale for the Privilege Against Self-Incrimination?” (1986) 33Google Scholar U.C.L.A. L.R. 1063; Dripps, D., “Self-incrimination and self-preservation: a skeptical view” [1991] U. Illinois L.R. 329.Google Scholar For a more sympathetic treatment of both rights–based and consequentialist arguments see Easton, S.M., The Right To Silence (Aldershot 1991), ch. 6;Google ScholarSchulhofer, S., “Some kind words for the privilege against self-incrimination” (1991) 26 Valparaiso L.R. 311.Google Scholar

26 The most notable recent advocates of this view were the majority of the members of the Royal Commission on Criminal Justice. See the Report of the Commission (Cm. 2263, 1993) (hereafter RCCJ), ch. 4, para. 22.

27 On the moral harm involved in wrongful conviction see Dworkin, R.M., “Principle, Policy, Procedure” in Crime, Proof & Punishment (ed. Tapper, C.F.L., London 1981), p. 193;Google ScholarGalligan, D.J., “More Scepticism About Scepticism” (1988) 8 O.J.L.S. 249.Google Scholar

28 For a restatement of this view see Greer, S., “The Right to Silence: A Review of the Current Debate” (1990) 53 M.L.R. 709.Google Scholar

29 McConville, M., Sanders, A. and Leng, R., The Case for the Prosecution (London and New York 1991), ch. 4, esp. pp. 56–57.Google Scholar

30 The research evidence presented in the recent RCCJ Report gives varying figures. At their lowest it sdems that at least 72 per cent, of suspects answer all or some significant police questions (see p. 53) and in some studies the percentage is much higher; see in particular Leng, R., The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate (RCCJ Research Study No 10, London 1993)Google Scholar who found that the right to silence was relied on in less than 5 per cent, of cases. McConville, M. (Corroboration and Confessions, RCCJ Research Study No 13, London 1993)Google Scholar found that the incidence of confessions by suspects varied between 53 and 61 per cent, (see p. 61). This finding is in line with other studies showing figures varying between 42 and 76 per cent, of suspects making full confessions, with further percentages making incriminating statements falling short of full confessions. These studies are summarised in Gudjonsson, G., The Psychology of Interrogations, Confessions and Testimony (Chichester 1992) ch. 4.Google Scholar

31 In McConville's study (cited in note 30 above), of those who confessed during custodial interrogation where the outcome of the case is known, 93.6 per cent, pleaded guilty: Ibid at p. 32.

32 “Politics, Research and Symbolism in Criminal Justice: The Right to Silence and the Police and Criminal Evidence Act 1984” (1991) 20 Anglo-American L.R. 27, a t p. 38.Google Scholar

33 For an excellent review see Gudjonsson, op. cit., passim.

34 Irving, B., Police Interrogation: A Case Study of Current Practice (Royal Commission on Criminal Procedure Research Study No 2, London 1980) p. 153.Google Scholar

35 See most recently the RCCJ Report at p. 54, discussing possible restriction of the right to silence.

36 Discussed by Dennis, I.H., “Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions” [1993] P.L. 291;Google ScholarWalker, C., Justice in Error (ed. Walker, C. and Starmer, K.London 1993)Google Scholar, ch. 1.

37 Op. cit.

38 R. v. Bailey and Smith [1993] 97 Cr.App.Rep. 365, 375.

39 PACE, s. 78(1): “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

40 R. v. Samuel [1988] Q.B. 615. See also R. v. Parris (1989) 89 Cr.App.Rep. 68; R. v. Walsh (1990) 91 Cr.App.R. 161; R. v. Chung (1991) 92 Cr.App.R. 314.

41 R v. Keenan (1990) 90 Cr.App.R. 1; R. v. Canale (1990) 91 Cr.App.Rep. 1; R. v. Bryce (1992) 95 Cr.App.R. 320.

42 R. v. Keenan (1990) 90 Cr.App.R. 1, 6 Hodgson J. referred to protection against self-incrimination being provided primarily by PACE s. 76. Even this is debatable; see note 23 above and the discussion in the text below.

43 See, e.g. R. v. Parris; R. v. Keenan; R. v. Canale; R. v. Chung (above).

44 See, e.g. R. v. Parris; R. v. Samuel; R. v. Walsh (above).

45 See, e.g. R. v. Alladice; R. v. Walsh; R. v. Canale (above).

46 Dennis, I.H., “Reconstructing the Law o f Criminal Evidence” [1989] C.L.P. 21.Google Scholar See also Zuckerman, op. cit. note 3 above, ch. 16.

47 Confessions by persons suffering from a significant degree of mental handicap are a good example. If made following police pressure their possible unreliability may result in exclusion under PACE ss. 76(2)(6) or 78: R. v. Delaney (1989) 88 Cr.App.R. 338. If made without police pressure they may still be excluded at common law as too unreliable to ground a safe conviction: R. v. Mackenzie (1993) 96 Cr.App.R. 98.

48 This list, which is not intended to be exhaustive, is derived from the core principles of responsibility and punishment (described in [1989] C.L.P. 21 at p. 35) and from the freedoms set out in express terms in the European Convention on Human Rights.

49 It might be presumed to be unreliable for the purposes of an exclusionary rule, but the argument holds even where no such presumption is made.

50 For an interesting application of the risk–allocation thesis see Stein, A., “From Blackstone to Woolmington: On the Development of a Legal Doctrine” (1993) 14 Journal of Legal History 14.CrossRefGoogle Scholar

51 For arguments along these lines see, e.g.. Murphy v. Waterfront Commission 378 U.S. 52, 55 (1964) (Goldberg J.); Wigmore, J.H., Evidence (vol. VIII, McNaughton rev., Boston 1961)Google Scholar para. 2251; Report of the Royal Commission on Criminal Procedure, op. cit., note 28 above, para. 4.51.

52 See, e.g., Justice on Trial (London 1993)Google Scholar, para. 9.19. This report by the Independent Civil Liberty Panel on Criminal Justice relied also on the argument that the right to silence helps to protect the innocent from wrongful conviction.

53 See, e.g., R. v, Raviraj (1986) 85 Cr.App.R. 93 (failure to explain possession of recently stolen goods yields prima facie inference of guilty knowledge, but, on the presumption of innocence theory, why does the privilege not apply in such a case?).

54 Gerstein, R.S., “Privacy and Self-incrimination” (1970) 80 Ethics 87;CrossRefGoogle Scholar P. Arenella, op. cit., note 29; Galligan, D.J., “The Right to Silence Reconsidered” [1988] C.L.P. 69.Google Scholar

55 Galligan, ibid. at p. 88. For critical comment see Robertson, B., “The Right to Silence Illconsidered” (1991) 21 Victoria University of Wellington Law Review 139.Google Scholar

56 [1988] C.L.P. 69 at p. 89.

57 384 U.S. 757 (1966).

58 Op. cit. note 24 above, at p. 41.

59 Ibid.

60 Stuntz, W., “Self-Incrimination and Excuse” (1988) 88 Col.L.R. 1227, 1277.Google Scholar

61 See, e.g., Theft Act 1968, s. 31; A.T. & T. lstel v. Tully [1993] A.C. 45 (note 11 above).

62 The point is clearly made by Stuntz, op. cit., at p. 1234.

63 The lack of a general right to privacy in English law was confirmed in Malone v. Metropolitan Police Commissioner (No 2) [1979] Ch. 344. For an account of the protection of privacy interests generally see Feldman, D., Civil Liberties and Human Rights in England and Wales (Oxford 1993),Google Scholar ch. 8.

64 Greenawalt, K., “Silence as a Moral and Constitutional Right” (1981) 23 William and Mary Law Review 15.Google Scholar

65 Cf. Westen, P. & Mandell, S., “To Talk, to Balk, or to Lie: The Emerging Fifth Amendment Doctrine of the ‘Preferred Response’” (1982) 19 Am.Crim.L.R. 521.Google Scholar

66 Murphy v. Waterfront Commission 378 U.S. 52, 55 (1964); Pennsylvania v. Muniz 110 S.Ct. 2638, 2648 (1990); Western & Mandell, op. cit. The trilemma is the choice between punishment for perjury (lies on oath), punishment for contempt (silence on oath) or punishment for the offence (truthful incrimination).

67 Op. cit., note 3 above.

68 Jones v. Owen (1870) 34 J.P. 759; Kuruma v. R. [1955] A.C. 197; Jeffrey v. Black [1978] Q.B. 490.

69 R v. Sang [1980] A.C. 402; Fox v. Chief Constable of Gwent [1986] A.C. 281; R v. Apicella (1985) 82 Cr.App.Rep. 295; R. v. Khan (Sultan) [1994] 4 All E.R. 426.

70 See note 23 above.

71 In Lam Chi-Ming v. R. [1991] 2 A.C. 212 the Judicial Committee of the Privy Council held that evidence of the finding of a murder weapon should be excluded where the only link with the accused was via a video recording which re–enacted an involuntary confession. The judgment, given by Lord Griffiths, relied on the privilege against self-incrimination (echoing dicta in R. v. Sang, note 23 above) as well as reliability and police impropriety to justify the result.

72 See the cases cited in notes 43 and 44 above.

73 “ [1987]3 All E.R. 481.

74 Ibid., at p. 485.

75 Summers, R., “Evaluating and Improving Legal Processes: A Plea for Process Values” (1974) 60 Cornell Law Review 1.Google Scholar

76 The trial judge was referred to section 76 of PACE but is said by the Court of Appeal to have decided to admit the confession in his discretion after discussing the provisions of section 78: [1987] 3 All E.R. 481 at 483.

77 In R. v. Heron, The Times, 22 November 1993 (the Nikki Allan murder case) the trial judge excluded Heron's confession on the ground of oppression. The police questioning included the making of false claims to Heron that two witnesses had identified him at the place where the victim was last seen alive.

78 R. v. Christou and Wright (1992) 95 Cr.App.R. 264. See also R. v. Maclean and Kosten [1993] Crim.L.R. 687.

79 (1992) 95 Cr.App.R. 320. See also R. v. Okafor (1994) 99 Cr.App.R. 97.

80 (1992) 95 Cr.App.R. 320 at 325.

81 (1993) 97 Cr.App.R. 365.

82 R. v. Maqsud Ali [1966] 1 Q.B. 688; R. v. Men and Kalz (1989) 90 Cr.App.R. 456; R. v. Ali (Shaukat), The Times, 19 February, 1991.

83 (1993) 97 Cr.App.R. 365 at 375.

84 (1992) 95 Cr.App.R. 264.

85 Ibid. at 269.

86 (1994) 98 Cr.App.R. 209.

87 Criminal Attempts Act 1981, s. 9(1).

88 (1994) 98 Cr.App.R. 209, at 215.

89 This is not a straightforward point. The police had not incited the defendants but they had aided the commission of the offence in the same way as an employee who is bribed to leave goods in a place where they can be stolen. Presumably the police would not be guilty either because they lacked mens rea or because a law enforcement defence would be open to them.

90 (1994) 98 Cr.App.R. 209, at 214.

91 R. v. Sang [1980] A.C. 402.

92 R. v. Gill and Ranuana [1989] Crim.L.R. 358; R. v. Edwards [1991] Crim.L.R. 45; R. v. Smurthwaite and Gill (1994) 98 Cr.App.R. 437, where the Court of Appeal lists the factors to be taken into account in deciding whether to exclude evidence obtained by entrapment. For discussion see Birch, D., “Excluding Evidence from Entrapment: What is a Fair Cop?” [1994] C.L.P. 73;Google ScholarRobertson, G., “Entrapment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?” [1994] Crim.L.R. 805.Google Scholar

93 As in D.P.P. v. Marshall [1988] 3 All E.R. 683.

94 As in R. v. Edwards [1991] Crim.L.R. 45.

95 As in R. v. Smurthwaite and Gill (1994) 98 Cr.App.R. 437.

96 There is much force in the argument that the better remedy in such cases is a stay of prosecution for abuse of process: see Robertson, op. cit.

97 Royal Commission on Criminal Procedure (Cmnd. 8092,1981) Report, para. 4.53; RCCJ Report, ch. 4, paras. 22–25.

98 Police criticism of the right to silence began with the Dimbleby Lecture in 1973 by Sir Robert Mark, then Metropolitan Police Commissioner, and has continued to the present day: see F. McElree and K. Starmer, “The Right to Silence” in Justice in Error, op. cit. note 41 above, pp. 72–73, summarising the submission from the Police Service to the Royal Commission on Criminal Justice. The provisions in the Act track fairly closely the changes made earlier in Northern Ireland by the Criminal Evidence (Northern Ireland) Order 1988.

99 Dennis, I., “The Criminal Justice and Public Order Act 1994: The Evidence Provisions” [1995] Crim.L.R. 4 at pp. 12–13.Google Scholar

100 The point is clearly made by Ratushny, op. cil. note 1 above, at pp. 186–187.

101 PACE, s. 61.

102 PACE, s. 63.

103 PACE, s. 117.

104 PACE, s. 62.

105 PACE, s. 62(10).

106 For discussion of the exclusion of bodily samples from the scope of the privilege, and of some difficulties associated with it, see Easton, S., “Bodily Samples and the Privilege Against Selfincrimination” [1991] Crim.L.R. 18.Google Scholar

107 (1985) 81 Cr.App.R. 286.

108 Ibid. at 292.

109 Ibid.

110 See Part II of the Act.

111 [1994] 4 All E.R. 426.

112 Re London United Investments PLC [1992] Ch. 578 (powers of DTI inspectors under ss. 432 and 434 of the Companies Act 1985); Bishopsgate Investment Management Ltd. v. Maxwell [1993] ch. 1 (powers of liquidators of an insolvent company under ss. 235 and 236 of the Insolvency Act 1986); R. v. Director of Serious Fraud Office, ex pane Smith [1993] AC. 1 (powers of the Director of the Serious Fraud Office under section 2 of the Criminal Justice Act 1987).

113 See generally Kirk, D.N. and Woodcock, A.J.J., Serious Fraud: Investigation and Trial (London 1992).Google Scholar

114 Criminal Justice Act 1987, s. 2(8).

115 Moreover the SFO is able to use its powers under the Criminal Justice Act 1987, ss. 2 and 3 to obtain a transcript of the compulsory examination of a person by a liquidator under section 236 of the Insolvency Act 1986. The answers given by that person will be admissible in evidence against him in a subsequent prosecution, subject to the trial judge's exclusionary discretion under PACE, s. 78: In re Arrows Ltd. (No. 4) [1995] 1 Cr.App.R. 95.

116 See in particular Re London United Investments PLC [1992] Ch. 578 at 594; R v. Director of Serious Fraud Office, ex pane Smith [1993] A.C. 1 at 44.

117 RCCJ Report ch. 4, para 30.

118 Jackson, J.D., “The Right of Silence: Judicial Responses to Parliamentary Encroachment” (1994) 57 M.L.R. 270 at p. 274.Google Scholar

119 In Re Pergamon Press Ltd. [1971] Ch. 388 the Court of Appeal held that the subject of questioning by DTI inspectors need not be told of what he is suspected.

120 Thus, for example, DTI investigators may require an officer or agent of the company being investigated or any other person to produce documents and answer questions on oath: Companies Act 1985, s. 434(2) and (3).

121 (1993) 16E.H.R.R. 297.

122 That is, by allowing the privilege to protect a person from having to produce pre–existing documents as well as from having to make testimonial disclosures. In Fisher v. United States 425 U.S. 391 (1976) the Supreme Court introduced the “act of production” doctrine whereby the privilege may not bar the state from compelling the production of incriminating material from the accused as long as the process involved does not compel the accused to create an incriminating testimonial response by complying with the state's order. The production of bank statements, where the existence of the relevant accounts is not in issue, would seem not to be covered by the privilege according to this doctrine. Cf. United States v. Doe 465 U.S. 605 (1984), and see the discussion in McCormick on Evidence (4th ed., StPaul, 1992) pp. 467 et seq.Google Scholar

123 Article 65–1 provides that “Customs officers with the rank of at least inspector [inspecteur or officier] and those performing the duties of collector may require production of papers and documents of any kind relating to operations of interest to their department”.

124 Application No. 19187/91; Report of the European Commission of Human Rights dated 10 May 1994.

125 For current English law see Parts II and IV, above. American law has consistently taken the position that the Fifth Amendment privilege protects only against compelled testimonial communications and does not extend to the obtaining of non–testimonial items of evidence: see Schmerberv. California 384 U.S. 757 (1966) (blood sample); United States v. Wade 388 U.S. 218 (1967) (identification parade); Gilbert v. California 388 U.S. 263 (1967) (handwriting sample); United States v. Dionisio 410 U.S. 1 (1973) (voice exemplar).

126 See note 6 above.