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

Abstract

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.