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

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.