SAUNDERS v. UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE WALSH
27
CONCURRING OPINION OF JUDGE WALSH
I fully agree with the judgment of the majority save for the reservation
set out in the last paragraph below.
The fact is that the trial of the applicant must be regarded as being
contrary to Article 6 para. 1 of the Convention (art. 6-1) because it was
unfair inasmuch as some of the evidence upon which his conviction was
based was obtained by self-incrimination on the part of the applicant and
that the self-incrimination was not the result of the unfettered exercise of his
own will and the Court regards as a fundamental right of an accused person
that he must not be obliged or compelled to incriminate himself. Persons are
always free to incriminate themselves if in doing so they are exercising their
own will; but that is essentially different from a person being compelled in
any criminal case to be a witness against himself. The process by which the
present applicant was brought to that situation was the exercise of a
particular power exercised under current English legislation by inspectors
who in the words of an English court were exercising inquisitorial powers
given them by law as distinct from administering justice. It is important to
bear in mind that this case does not concern only a rule of evidence but is
concerned with the existence of the fundamental right against compulsory
self-incrimination, which is recognised by this Court as a fundamental right.
This privilege against self-incrimination is probably most widely known by
those who follow and study United States jurisprudence as one of the most
widely known and debated of the guarantees of personal liberty in the Bill
of Rights of the United States Constitution, being one of the rights
incorporated in the Fifth Amendment of the United States Constitution. The
right to the protection against compulsory self-incrimination is not simply a
right to refuse to testify in a court but must also apply to bodies endowed by
the law with inquisitorial powers; and the right to refuse to answer questions
which may open an incriminating line of inquiry. The seeds of this privilege
were planted in the thirteenth century in English common law when the
English ecclesiastical courts began to administer what was called the "oath
ex officio" to suspected heretics. The practice which involved questioning a
suspect who had sworn to tell the truth was in its day quite revolutionary
because it replaced the method of determining guilt by the procedure known
as trial by ordeal and the oath of compurgation. Trial by ordeal was not the
use of torture to produce confessions but the ordeal was the trial itself and
the outcome determined guilt or innocence. The oath of compurgation
involved the recitation by a suspect of a ritual oath of innocence. If he
stumbled in the recitation of the oath it was taken to be a mark of God’s
judgment of his guilt. Unfortunately the new system, namely the oath ex
officio, was abused by the various ecclesiastical courts in their zealous
search for heresy. It could be administered without any regard as to whether
there was a probable cause to think the accused was guilty and therefore
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