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