Competition Laws and Previllege of Self Incrimination

Legal Studies, Vol. 26 No. 2, June 2006, pp.
211–237
DOI: 10.1111/j.1748-121X.2006.00012.x
The privilege against self-incrimination

in competition investigations: theoretical
foundations and practical implications
Angus MacCulloch*
School of Law, University of Manchester
This paper examines the historical and theoretical basis of the privilege against self-
incrimination and the case-law regarding the privilege before the UK and European courts
in order to understand better the development of the privilege in relation to competition
investigations in the UK and EU. The historical and theoretical basis of the privilege
indicates that the privilege is a relatively modern legal creation and a number of theoret-
ical bases are offered to justify its existence. The theoretical justifications assist in a better
understanding of the extant case-law, but indicate that some of the distinctions drawn
between categories of protected information have no clear basis. The paper goes on to
examine the difference between self-incrimination and self-accusation, the extension of
‘human’ rights to corporate entities, and the existence of a privilege as a ‘functional
necessity’. Finally the paper makes some suggestions about the type of information that
might be sought legitimately in competition investigations and those requests that might
be challenged.
1. INTRODUCTION
This paper examines the historical and theoretical basis of the privilege against self-
incrimination. It then utilises those perspectives in order to understand better the
development of the privilege in relation to competition law. Many discussions of
the privilege with regard to competition law look no further than the case-law on the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (the Convention) for a full explanation.1 These discussions overlook several
important issues: the privilege has a long history, and it has been the subject of both
* The author would like to thank Robert Cryer for the original conversations during
which this paper was conceived. He would also like to thank Alan Riley, Barry Rodger and
Wouter Wils for their helpful discussions, and all those who participated in a WIP Seminar at
Manchester University, particularly Neil Duxbury and Anthony Ogus, and those who attend a
CLaSF Workshop in April 2005, particularly James Killick and Renato Nazzini. All errors and
omissions are solely the responsibility of the author.
1. See, for example, KPE Lasok ‘The privilege against self-incrimination in competition
cases’ [1990] 2 ECLR 90; WBE Van Overbeek ‘The right to remain silent in competition
investigations: the Funke decision of the Court of Human Rights makes revision of the ECJ’s
case law necessary’ [1994] 3 ECLR 127; S Nash and M Furse ‘Self incrimination, corporate
misconduct and the Convention on Human Rights’ [1995] Crim LR 854; A Riley ‘Saunders
and the power to obtain information in Community and United Kingdom competition law’
[2000] ECLR 264; A Riley ‘The ECHR implications of the investigation provisions of the draft
competition regulation’ (2002) 51 ICLQ 55.
© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars. Published by Blackwell Publishing,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
212 Legal Studies, Vol 26 issue 2
positive and negative critiques from a number of theoretical perspectives. An under-

standing of these wider perspectives provides a much fuller understanding of the
extant privilege and the way in which it could, or should, be extended into new fields
of legal investigation. The application of ‘human rights’ within competition law,
where the vast majority of subjects are corporate entities, is also investigated.
This wider understanding of the privilege enables us to appreciate the varying
jurisprudence that surrounds the use of the privilege against self-incrimination in
novel situations such as competition investigations. While this paper focuses primarily
upon competition investigations under EC law, it also draws on case-law in the UK
and under the Convention in order to elucidate the factors causing confusion regarding
the application of the privilege in regulatory investigations.2 Such a discussion is
pertinent at this time because of the increasing number of situations in which the
‘rights’ of undertakings that are investigated for breaches of domestic or European
competition prohibitions are of concern.
The debate surrounding the ‘rights’ of undertakings that are subjected to compe-
tition investigations has become more vigorous in recent years,3 particularly since the
penalties that can be imposed for competition breaches have dramatically increased.4
The competition authorities in the EC and the UK have broad powers to assist them
in their investigations, which were originally set out in the early 1960s5 when the
privilege against self-incrimination was largely seen as being only applicable in
traditional criminal law, rather than the regulatory sphere. The extent of the privilege,
and the jurisprudence surrounding it, has undergone significant development since
that time, particularly within the European Court of Human Rights (ECtHR). The
courts of both the EC and the UK have been required increasingly to deal with the
developing jurisprudence of the ECtHR and its apparent incompatibility with the
powers of investigation given to the competition authorities. The potential for such
conflict has increased since the European Commission was given wider powers of
investigation in Regulation 1/2003/EC.6 The Regulation extended the European
2. Although US law is often discussed at length in competition/anti-trust discourse, it is of

little relevance in this context since US anti-trust law has always been criminal in nature,
whereas European competition law has traditionally been administrative, and certain provisions
of the US Constitution create a unique legal environment. Nonetheless, some US cases will be
discussed where they help to illustrate issues arising in the European context.
3. For discussion of the increasing willingness to challenge competition decisions, see
C Harding and J Joshua Regulating Cartels in Europe – A Study of Legal Control of Corporate
Delinquency (Oxford: Oxford University Press, 2003) ch VII.
4. The highest total fine on a group of undertakings to date is 855.2 million euros (Commission
Decision 2003/2/EC Vitamins [2003] OJ L6/1) and the highest fine on a single undertaking is
497 million euros (Commission Decision of 24 March 2004 Microsoft COM(2004) 900 final).
5. The UK authority’s powers of investigation were originally set out under the Competition
Act 1998 and the Competition Act 1998 (Director’s Rules) Order 2000, SI 2000/293. They
were largely based on the powers granted to the Commission under Council Regulation 17/62.
The Commission’s powers and the Office of Fair Trading’s powers were significantly reformed
in 2004 when Regulation 1/2003/EC [2003] OJ L1/1 and the Competition Act 1998 (Office of
Fair Trading’s Rules) Order 2004, SI 2004/2751 came into full effect.
6. Council Regulation 1/2003/EC, ibid. For a discussion of the changes, see Proposal for a
Council Regulation on the Implementation of the Rules on Competition laid down in Articles
81 and 82 of the Treaty COM(2000) 582 final, 27 September 2000, upon which the Regulation
was based; see Riley ‘The ECHR implications of the investigation provisions of the draft
competition regulation’, above n 1. The Office of Fair Trading was given extended powers
under the Competition Act 1998 (Office of Fair Trading’s Rules) Order 2004, SI 2004/2751.
© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars
The privilege against self-incrimination in competition investigations 213
Commission’s powers to allow them to ‘interview any natural or legal person who
consents to be interviewed for the purpose of collecting information relating to the
subject-matter of an investigation’.7 The European Commission retains its powers to
request or require the production of information8 and undertake inspections.9 The fines
available to the European Commission, either where an undertaking fails to comply
with a mandatory part of the investigation procedure or supplies incorrect or mislead-
ing information, were increased.10 The increasingly powerful investigatory powers of
the European Commission11 will also no doubt lead to a further willingness to invoke
the privilege against self-incrimination by those subject to an investigation.
2. HISTORICAL AND THEORETICAL PERSPECTIVES ON THE PRIVILEGE
(a) The privilege as a ‘right’

One theoretical perspective, the ‘rights’-based approach, may be evinced through the
historical development of the privilege. Such investigation into the provenance of the
privilege reveals an oft-invoked raison d’être for its existence: the fact that it lends
much needed protection to certain rights.
historical origins of the privilege as a right

Historical examinations of the privilege disagree very considerably as to its origin,
or even the period of its creation.12 One generally accepted view is that the privilege
developed from two maxims of the ius commune:13 ‘No one is punished in the absence
of the accuser’14 and ‘No one is bound to reveal his own shame’.15 A more recognis-
able genesis of the privilege might be seen to be the seventeenth century practice in
7. Council Regulation 1/2003/EC, ibid, Art 19.

8. Ibid, Art 18.
9. Ibid, Art 20. The Regulation extends the powers of the EC Commission in a number of
ways: (i) the power of investigation is extended to enter any premises, including the homes
of company directors, etc insofar as business records are held there (Art 21); and (ii) EC
Commission officials may seal any premises or business records (Art 20(2)(d)).
10. Potential fines have been increased to up to 1% of annual turnover of the undertaking
concerned in the proceeding business year (Art 23).
11. And also the Office of Fair Trading, when it comes to utilise the powers granted under
Art 23 of Regulation 1/2003/EC, or its own powers, which are currently based on the existing
powers of the Commission.
12. See, for example, AW Alschuler ‘A peculiar privilege in historical perspective: the right
to remain silent’ (1996) 94 Mich LRev 2625; Wigmore ‘Nemo tenetur seipsum prodere’ (1891)
5 Harv LRev 71; L Levy Origins of the Fifth Amendment: The Right against Self-Incrimination
(New York: Oxford University Press, 1968); VM Bonventre ‘An alternative to the constitutional
privilege against self incrimination’ (1982) 49 Brook LRev 31; RH Helmholz ‘Origins of the
privilege against self-incrimination: the role of the European Ius Commune’ (1990) 65 NYU
LRev 962; JH Langbein ‘The historical origins of the privilege against self incrimination at
common law’ (1994) 92 Mich LRev 1047.
13. See Helmholz, ibid.
14. Nemo punitur sine accusatore.
15. Nemo tenetur detegere turitudinem suam.
England in the High Commission, an ecclesiastical court, which required all before
it to testify under oath to all questions put to them, often without notice of the charges
against them or the questions that might be asked.16 In the ecclesiastical courts, the
taking of oaths was an important part of any procedure, and the oath itself may have
been the only evidence presented. On the other hand, the common-law courts did not
pay as much credence to a criminal defendant’s oath.17 It was the common-law courts’
distaste for the use of such ex officio oaths, by the High Commission and arguably
in breach of both maxims, that may have resulted in the common-law courts disqual-
ifying criminal defendants from giving testimony on oath.18 The use of oaths during
this time was seen as being particularly oppressive. This was because lying under
oath might not only lead to legal sanction but also to much weightier sanctions in the
afterlife.19 It might therefore be argued that the protection was against an improper
form of interrogation. The interrogation of criminal suspects who remained unsworn
continued to be the norm. It can be seen that in this period the protection did not
provide a right to silence, as an unsworn suspect could be interrogated. It supplied
merely a protection from a particular type of oppressive interrogation. The model of
criminal trial prevalent at the time was not the ‘testing the prosecution trial’ with
which we are now familiar, but rather the ‘accused speaks’ model,20 according to
which defendants were unrepresented and if they did not speak themselves no one
spoke on their behalf. Alschuler notes that a right to silence in such a system was
really ‘a right to commit suicide’.21 Material gathered by magistrates in pre-trial
interrogations, again from unsworn defendants, was also used at the trial stage.
It was not until the nineteenth century when lawyers began to play a more impor-
tant role in representing clients that the privilege, as we would recognise it today,
really developed. It was only in this stage of development that the privilege began to
extend to a criminal suspect’s right to remain silent at trial.22 Even after the introduc-
tion of the US Constitution’s Fifth Amendment the ‘accused speaks’ model of trial
persisted in the USA into the late eighteenth century.23 An important factor appears
to be that the criminal suspect remained unsworn. The position of the privilege in
revolutionary America was explained by Moglen:
16. This type of questioning is sometimes better regarded as self-accusation rather than self-
incrimination. Once the accusation had been publicly made the protections were much more
limited; see Bonventre, above n 12, at 40 and Helmholz, ibid, at 975–977.
17. See Alschuler, ibid, at 2644–2643.
18. The power struggle between the ecclesiastical courts and the common-law courts plays
an important role in the development of the law during this period; see Levy, ibid; Alschuler,
ibid, at 2646. Cf Helmholz, ibid.
19. In some material the use of the oath was compared to a form of torture of the conscience;
see Alschuler, ibid, at 2649; E Moglen ‘Taking the Fifth: reconsidering the constitutional
origins of the privilege against self- incrimination’ (1994) 92 Mich LRev 1086 at 1103. There
is little evidence that actual torture was an issue at this time, but an historical fear of torture
may have been an issue; see Bonventre, ibid, at 39.
20. Langbein, ibid, at 1085.
21. See Alschuler, ibid, at 2654. It should be remembered that a high number of crimes at
this time were punishable with the death penalty. Langbein categorises it as a ‘right to slit your
throat’: Langbein, ibid, at 1054.
22. Alschuler suggests this may be the reason for confusion of the period in which the
privilege was created: an earlier privilege against self-accusation followed by a later privilege
against self-incrimination: ibid, at 2655.
23. See Moglen, above n 19, at 1111.
‘Compulsory self-incrimination was what happened in Star Chamber or in

France, not what occurred every time the JPs entered a summary conviction under
the larceny of goods by False Pretences Act of 1762, for instance, which the
revolutionary legislature saw no difficulty in extending in operation through
1780.’24
Even after the adoption of the Fifth Amendment, and the inclusion of the privilege
within the new Federal Constitution, and the increasing role of lawyers as defence
counsel, attempts to exclude confessional evidence in the early nineteenth century
were not based on the Constitution. The few documented attempts were based on
common-law grounds.
The modern understanding of the privilege – in both England and the USA – is
therefore a creature of ‘modern’ legal thinking and the forensic skills of counsel
representing clients before the criminal courts. The narrower ‘privilege against self
accusation’, on the other hand, has a much longer history stretching back to the
seventeenth century, and that history played an important role in the drafting of the
US Constitution. As Moglen describes it:
‘It is not the story of a timeless natural right, growing in recognition as society
became more “free”. Instead, the history of the privilege reveals how procedure
makes substance, and how legal evolution, like natural selection itself, adapts old
structures to new functions. If the revised account is less heroic, it nonetheless
brings us closer to the real mechanisms of legal development.’25
Much as the historical perspective provides a valuable insight into the shape of the
privilege, it necessarily fails to take account of further contemporary justifications. It
is to those that we now turn. In contemporary debate surrounding the privilege, there
are two main broadly ‘rights’-based justifications that are put forward to support the
continuing existence of the privilege: the protection of privacy and the protection from
cruel choices.26
contemporary accounts of the privilege protecting privacy

The most important modern exposition of the privilege protecting privacy was put
forward by Gerstein in 1970 in the context of criminal law.27 The argument centres
24. Moglen, ibid, at 1121.

25. Ibid, at 1089–1090. Similar sentiments were put forward by Helmholz: ‘History does not
compel modern lawyers to take account of the privilege as it existed in the European ius
commune in forging a law for today. It does ask that they recognise the complexity of the way
in which the privilege evolved’: Helmholz, above n 12, at 990.
26. Other justifications have been put forward. Some are discussed below under section (c)
A process-based rationale for the privilege, but others, which have failed to gain any significant
support, will not be discussed fully in this paper. For a discussion of those reasons – and their
critique – see HJ Friendly ‘The Fifth Amendment tomorrow: the case for constitutional change’
(1968) 37 UCin LRev 671; RK Greenawalt ‘Silence as a moral and constitutional right’ (1981)
23 Wm & Mary LRev 15; Bonventure, above n 12; D Dolinko ‘Is there a rationale for
the privilege against self-incrimination?’ (1986) 33 UCLA LRev 1063; WJ Stuntz ‘Self-
incrimination and excuse’ (1988) 88 Colum LRev 1227; DJ Galligan ‘The right to silence
reconsidered’ (1988) 41 CLP 69; I Dennis ‘Instrumental protection, human right or functional
necessity? Reassessing the privilege against self-incrimination’ (1995) 54 CLJ 342.
27. RS Gerstein ‘Privacy and self incrimination’ (1970) 80 Ethics 87.
on the existence of an individual’s right to control the provision of information about

ourselves. While such a right can easily be supported, it is also immediately clear
that such a right cannot be absolute. That is particularly clear when it comes to the
relationship between the individual and the state. Gerstein argues that privacy is a
value of great significance not to be interfered with lightly. A balance has to be drawn
between the significance of the information to the individual and the societal needs
that justify the demand to reveal it. He concludes: ‘there are some sorts of information
which have such great significance to the individual that we would under no circum-
stances require him to give up his control over it’.28
It is also suggested that self-incrimination requires the giving up of a particular
type of information that leads to a real intrusion into privacy – by forcing ‘the public
admission of the private judgment of self-condemnation’.29 It is the forced revelation
of this ‘self-knowledge’ that is seen as being problematic.30 An individual’s self-
knowledge and inner workings of the mind are generally seen as being areas in which
the law should not compulsorily intervene.31 Galligan puts forward a similar view:
‘The right to silence protects privacy, and privacy is important because it
protects personal identity and autonomy. Without a zone of privacy, identity,
autonomy, personality cannot exist.’32
To support his view, Galligan uses the hypothetical example of the invention of an
‘Orwellian’ machine that could be attached to a suspect in order painlessly to extract
his history, actions, thoughts and desires. He argues that such an action would surely
strike at the privacy of the individual and would not be permissible. Yet compelling
a suspect to speak has just the same effect.
Essentially, these arguments support the existence of a rationale for the privilege
based on privacy. Importantly, however, they do not suggest where its limits may lie.
The privacy rationale has an inbuilt balancing process that gives greater protection to
types of information that are closer to the ‘central zone’ of privacy, and lesser
protection of others.33 It also will vary depending on the societal interests that justify
the acquisition of the information. Although the argument does not necessitate any
particular position as to the limits of the doctrine, those authors who put forward
privacy as a justification for the privilege indicate an apparently similar view as to
where those limits might lie. Both Gerstein and Galligan appear to focus on the
28. Ibid, at 89.

29. Ibid, at 91.
30. Gerstein’s statement (ibid, at 92) that ‘he ought to be able to keep this mea culpa for his
God, or for those to whom he feels bound by trust and affection’ indicates how such an
argument ties in with the historical development of the privilege and its original focus on
evidence given under oath.
31. Psychological conditioning and treatment for personality disorders are used as examples.
32. Galligan, above n 26, at 88. For arguments surrounding ‘moral autonomy’ that follow a
similar style of logic to the ‘privacy’ arguments, see Schrock, Welsh and Collins ‘Interroga-
tional rights: reflections on Miranda v Arizona’ (1978) 52 S Cal LRev 1; R Wasserstrom
‘Privacy: some arguments and assumptions’ in F Schoeman (ed) Philosophical Dimensions of
Privacy (Cambridge: Cambridge University Press, 1984).
33. The idea of a ‘central zone’ is developed by Galligan, who conceptualises the issue as
follows: ‘If we think of privacy as an expanding circle with individual personality at its centre,
then the farther a particular instance is from its centre, the less weight it carries against
competing factors; the closer to the centre the more powerful it becomes. On this basis, decision
can be made as to whether the incursions are justified’: Galligan, ibid, at 89.
privilege attaching to material that is central to the self-knowledge or consciousness

of the individual. It therefore only attaches to incriminating material that exists in the
mind of the accused. No protection is granted for body parts, such as finger prints or
tissue/fluid samples, or information that has already been expressed in a form acces-
sible to others.34
This approach also tends to suggest that there may be differences between less
serious crimes, where privacy should be viewed strictly, and more serious crimes,
where intrusion may be more acceptable. This is generally rejected. A better compar-
ison may be between intrusions by the tax authorities, which require us all to disclose
information of a limited nature, and the criminal justice system, which may intrude
to an even greater extent. Once one enters the sphere of criminal justice it appears to
be suggested that all crimes are to be treated in a similar way. Galligan suggests that
this is necessary as it would be impractical and undesirable for the investigating
officers to decide what is permissible on an ad hoc basis.35
contemporary accounts of the privilege protecting against cruel choices

The avoidance of what has become known as the ‘cruel trilemma’ also plays an
important part in any discussion of the privilege. In its original form, the argument
was based on the three choices open to a ‘guilty suspect’36 questioned under oath: to
confess and suffer the consequences; to remain silent and be in contempt; or to lie
and commit perjury. To avoid the defendant facing that cruel choice between three
different detrimental outcomes the privilege gives the guilty suspect a way out:
silence. The argument that there is a cruel trilemma is not essentially about the nature
of the choice, it is governed by the principle that the state should act in a manner
which is humane, and that it is intuitively inhumane to compel a person to do serious
harm to himself – even when the same harm would be justifiable when inflicted by
others.37 Similar arguments exist elsewhere in the law, one example being the doc-
trines of duress and necessity in the criminal law. Under those doctrines, criminal
behaviour is normally justified on the basis that external influences gave the perpe-
trator little choice.38 It is possible to see a similar role played by the privilege: it treats
one of the three options, silence, as justified when an individual faces the cruelty of
being asked to inflict self-harm. Greenawalt’s examination of the ‘moral right’ to
silence is particularly enlightening in this respect.39 In summary, his conception is
explained thus:
34. Although Gerstein does suggest that some documents of a particularly private nature,
maybe personal diaries, etc, might be so private as to benefit from a form of privilege: Gerstein,
above n 27, at 96.
35. See Galligan, above n 26, at 90.
36. Using the term ‘guilty’ does not denote a legal ruling on the matter, merely that the
suspect has perpetrated the acts that are under investigation. The ‘innocent’ suspect does not
face a trilemma as the obvious response for them is to tell the truth and exculpate themselves.
Situations in which this may not occur are discussed in Dolinko, ibid, at 1074–1075.
37. See Greenawalt, ibid, at 39, but note that Greenawalt limits the extent of this ‘moral’
privilege to not being forced to speak; it does not protect from a negative inference from any
silence.
38. For a conceptualisation of self-incrimination as ‘excuse’ in a manner similar to duress
and necessity, see Stuntz, ibid.
39. See Greenawalt, ibid. For a broader examination of the right ‘not to speak’, see
H Bosmajian The Freedom Not to Speak (New York: New York University Press, 1999).
‘The most unqualified claims in favor of a right to silence erect individual self-
centeredness into a norm. At least for cases of properly grounded suspicion, the
proper basis of a right to silence lies elsewhere, in the notion of compassion. The
right should be viewed as a concession to the narrow concerns of most of us, not
as an endorsement of that narrowness or a rejection of broader norms of concern
and cooperation’.40
He argues that an individual has a greater moral right to silence, in the face of
questioning, when there is slender suspicion against him, than an individual has once
solidly grounded suspicion is evident.41 Such an argument can be seen as mirroring
the distinction between self-accusation, where there is slender evidence, and self-
incrimination, where there is substantial evidence identified in the historical develop-
ment of the privilege.
(b) Challenges to the privilege as a ‘right’

The main grounds for the justification of the privilege have been set out above, but
those grounds have been the subject of much discourse and disagreement.42 Indeed,
the privilege has been subject to stern criticism almost since its inception.43 The most
thorough modern critique was set out by David Dolinko in 198644 and the following
section draws upon it.
challenges to the ‘privacy theorist’

The first significant challenge to privacy conceptualisations of the privilege, put
forward by authors such as Gerstein, is that the privilege is very restricted and only
covers a limited scope of information. Those who make such a challenge do not wish
to see the scope of the privilege extended, but rather they cannot see why this limited
category of information gains protection that other harmful information does not. It
is argued that the privacy of an individual can be invaded in many ways, by observ-
ing the individual, by gathering physical evidence or by taking statement’s from
others who know the individual, and that there is no reason to hold that gathering
information through the statements of the individual themselves is any greater an
invasion of their privacy.45 Dolinko recognises that an argument can be made that
once information has been passed to a third party it is possible to argue that the
40. Greenawalt, ibid, at 49.

41. Greenawalt argues that in criminal matters ‘solidly grounded suspicion’ might not be
evident until the prosecution case has been presented at trial: ibid, at 65.
42. The two grounds set out in this paper were selected because they have survived the
brickbats of critics rather better than many of the other purported justifications. See, for
example, J McNaughton ‘The privilege against self-incrimination: its constitutional affectation,
raison d’être and miscellaneous implications’ (1960) 51 J Crim L Criminology & Police Sci
138; Friendly, above n 26.
43. See J Bentham The Rationale of Judicial Evidence (London: Hunt & Clarke, 1827). For
discussion of Bentham’s position, see A Lewis ‘Bentham’s view of the right to silence’ [1990]
CLP 135.
44. See Dolinko, above n 26.
45. See ibid, at 1109.
original source of the information has ‘assumed the risk’ that the information is
disclosed further, and this might account for the distinction.46 But it is noted that the
law does not normally protect such information that is passed on in confidence where
it is much more difficult to argue that there is an assumption of risk – more an
assumption of betrayal.
Another difficulty for a privacy conceptualisation is the limitation of the privilege
to incriminating information: why is information that might result in financially
damaging civil actions or public contempt not also protected? A number of other
government intrusions that may well result in harm to an individual are easy to
identify.47 One possible response to such an argument is that it is impracticable and
undesirable that the decision as to what questions are permissible in each instance
are made on the basis of individual facts, presumably by those putting the questions,
and that the privilege is ‘a generalised, but imperfect, solution’.48
The final stumbling block of the privilege based on privacy is the utilitarian
notion that the privacy can be outweighed by the competing societal interests. Within
the context of this paper, it is only possible to summarise the complex argument in
which Dolinko challenges the central tenants of Gerstein’s position that the confes-
sion of criminality forces a particular type of self-condemnation that runs to the core
of privacy.49 It is clear that Dolinko does not hold that a criminal’s privacy is violated
by being compelled to reveal factual information about their activities that may
result in criminal charges being brought against them. He argues that the moral self-
condemnation is not necessarily the result of such confessions, or that such self-
condemnation is unlikely from those who are able to rationalise their criminal
choices.50 In essence, this balance, between the relative importance of privacy and
the detection of crime, will be a choice that is, ultimately, impossible to divine from
any other source than personal belief. In the European perspective it is clear that
most European states have made the choice that some protection is warranted, by
ratifying the Convention, but the question of how far that protection goes remains
unanswered.
challenges to the ‘cruelty theorist’

The defence of the privilege based on the cruelty of making a person do harm to
themselves is also strenuously challenged by writers such as Dolinko,51 whose most
striking critique is that most of the cruelty theory’s proponent’s arguments are
based on ‘unanalyzable intuition’.52 When an attempt is made to decipher why it is
46. See ibid, at 1112.

47. Dolinko suggests, for example, commitment to a mental institution or deportation: ibid,
at 1117.
48. Galligan, above n 26, at 90.
49. Dolinko, ibid, at 1124–1137, responding to Gerstein, above n 27.
50. Cf Gerstien’s argument, ibid, at 96, about the extent of the privilege: ‘The line to be drawn
between questioning which would elicit a full or partial confession and questioning which
would only give clues, will in practice be a fine one. The core area might be satisfactorily
secure in this case only if we allow the privilege in the periphery as well’. See also Galligan’s
argument, ibid.
51. Dolinko, ibid, at 1090–1107.
52. Ibid, at 1092.
particularly cruel to make an individual bring harm upon themselves, it is concluded

that this might be the case when an individual is asked to destroy something that is
particularly dear to them; for instance, a situation where a mother threatens to dispose
of a child’s favourite toys if they do not clean up their room. It would, arguably, not
be cruel for a mother to act on her threat, but cruel if she forced the child to dispose
of their favourite toy in person. This depends on the thing being harmed being
particularly dear to the individual, but it is argued that this is not the case for the
criminal who is asked to incriminate himself. That which would be damaged in that
case is the criminal’s honour, reputation or future. Would the criminal suffer such a
slight to his honour? Foregoing that argument and focusing on the suspect’s future –
which most people would hold dear – Dolinko employs the classic argument:
‘Indeed, most persons for whom subjection to questioning would entail com-
pulsion to incriminate themselves and thus to injure what they greatly value would
find themselves in this uncomfortable position only because of their own prior
criminal conduct. In such a case, the pressure to do violence to that which the
individual cherishes would stem from his own wrongful acts: were it not for that
wrongdoing, the obligation to testify would not compel him to inflict any such
injury.’53
Dolinko recognises that this argument is not entirely satisfactory but, he argues, it is
for the ‘cruelty theorist’ to ‘give us some reason to believe that the particular way in
which compelled self-incrimination would force persons to harm themselves is too
cruel to allow’.54
(c) A process-based rationale for the privilege

The final theoretical conception discussed in this paper sees the privilege as a valuable
part of the legal process and not directly reliant on any individual ‘right’. Two classic
arguments that have been put forward of this type are that the privilege can be justified
as part of the legal system’s attempts to protect against wrongful convictions of the
innocent or as part of the presumption of innocence. While such process-based
justifications of the privilege have found some support, they have also been challenged
as either under- or over-inclusive, and it has also been argued that better methods of
protection can be found without the need for invocation of the privilege.55 It is
interesting to compare this type of argument with the Convention’s positioning of the
privilege within the guarantee that everyone is entitled to a fair hearing by an inde-
pendent and impartial tribunal.56 While dismissing arguments based on the wrongful
convictions or the presumption of innocence, Dennis recognises that the privilege
might be seen as ‘functional necessity’ within a criminal justice system:
‘The privilege is categorised not as a “human right”, a notion which in an
unqualified form begs some difficult questions, but as a functional device required
53. Ibid, at 1106.

54. Ibid, at 1107.
55. For a clear statement of these arguments, see ibid and Dennis, above n 26.
56. It is debatable whether the ECtHR views this as the basis of the right or is simply
indicative that the privilege can be found as part of a bundle of rights within Art 6 of the
Convention.
in some contexts by the need of the criminal justice system to retain its internal
coherence. It will thus cease to be a categorical imperative applied in a somewhat
simplistic fashion.’57
This approach re-evaluates the privilege and sees it as a useful element within the
system rather than being a fundamental ‘right’. It is interesting to consider whether
such a view sits well with the European expression of the privilege within Art 6 of
the Convention; notwithstanding that the privilege exists within a bundle of provisions
that guarantee the right to a fair hearing.
Another process-based examination of the privilege, using game theory, has been
undertaken by Seidmann and Stein. Their paper suggests that one benefit of the
existence of the privilege is that it discourages the guilty suspect from lying, in an
attempt to exculpate themselves, when questioned.58 If compelled to answer ques-
tions, the guilty suspect has two options: either to confess or to lie in order to imitate
the innocent. When first questioned, the guilty suspect is in ‘zugzwang’,59 as either
confession or attempts to deceive potentially worsen their position. An attempt to lie,
in order to imitate an innocent suspect, may worsen their position if their lie is
discovered. As, when first questioned, the guilty suspect does not know what infor-
mation is held by the investigating authority, a lie is a very risky choice. If given the
option, the guilty suspect may well choose to remain silent as silence does not worsen
their position. For the innocent suspect, the rational choice is to speak in order to
exculpate themselves. The existence of the silence option helps the innocent suspect
as it has an anti-pooling effect:
‘the right to silence affords a guilty suspect an attractive alternative to imitating
an innocent suspect through lies. . . . Such lies obscure the differences between the
guilty and the innocent, and consequently, reduce the trustworthiness of accounts
given by innocent suspects.’60
Once the guilty have exercised the option of silence, it also then allows the authorities
to focus the investigation on those who have exercised the right, as they have shown
that they cannot exculpate themselves. This makes the authorities’ investigation
simpler as they can focus their attention on the silent and do not have to differentiate
between the lies of the guilty and the truthful exculpation of the innocent. While
Seidmann and Stein’s work is based on traditional criminal investigations and, more
importantly, the criminal standard of proof,61 their findings still give an important
57. Dennis, above n 26, at 376. See also his statement (at 374) that ‘The unease can perhaps
be expressed in terms that, in an adversary system of criminal adjudication based on formal
equality of parties, there is an inherent danger of unfairness in the state exploiting its enforce-
ment power to place an individual in a vulnerable position. The vulnerability consists of a risk
either that investigative powers may be used to obtain evidence which is factually unreliable
or that may be misused to compel the production of incriminating evidence by means incon-
sistent with the fundamental values of the criminal law. If either of these risks materialises the
legitimacy of the criminal verdict may be compromised’.
58. DJ Seidmann and A Stein ‘The right to silence helps the innocent: a game-theoretic
analysis of the Fifth Amendment privilege’ (2000) 114 Harv LRev 430.
59. The term denotes a chess position in which a player prefers not to make a move because
any move worsens their position.
60. Seidmann and Stein, above n 58, at 433.
61. For the importance of the standard of proof to the game-theoretic model, see, ibid, at 449
and 470–474.
indication of the importance of the privilege within any consideration of the investi-
gative process. It also helps to refute the argument that the privilege only helps the
guilty.62 If Seidmann and Stein’s model is accepted, the privilege can also help the
innocent.
3. THE LEGAL USE OF THE PRIVILEGE IN

REGULATORY INVESTIGATIONS
Most of the historical and theoretical discussion of the privilege is based in the context
of the criminal law but, in recent years, arguments based on the privilege have found
their way into the sphere of regulatory investigations, especially where a public
authority is empowered to impose punitive sanctions at the end of such an investiga-
tion. Competition investigations are important in this regard as the sanctions that can
be imposed for breach of competition rules may be very large. The potential for such
sanctions plays a role in encouraging the subjects of such investigations to use all
possible legal challenges to protect their position.63 While the role of the privilege in
competition investigations is the main focus of this paper, a number of cases stem-
ming from other regulatory investigations are also considered, as case-law directly
relating to competition investigations is relatively limited outside Community juris-
diction. As much of EC competition law enforcement will now take place at the
domestic level the approach of the UK judiciary will play a more important role in
the development of the privilege within UK competition investigations. The final area
of examination is the recent jurisprudence in the ECtHR in this area. This, of course,
informs the previous two areas of examination but does not, on the whole, directly
address the competition field. An attempt will be made to put the ECtHR’s jurispru-
dence in context and examine its potential application to competition investigation in
the EC and UK.
(a) The position in the EC

The best way of examining the current position within the EC is to begin by exam-
ining the case of Mannesmannröhren-Werke AG v Commission.64 The Commission
undertook an investigation into the producers of steel tubes in which it made various
requests for information. The way in which those requests were phrased proved to be
important. An example of the questions asked is as follows:
‘Please provide, for the period from 1984 to the present day:
• The dates, places and names of the firms participating in each of the meetings
between European and Japanese seamless tube producers at president, manager,
expert and working group level;
62. See Dennis, above n 26, at 359. For the infamous Senator McCarthy’s view of the Fifth
Amendment privilege’s protection of the guilty, see Bosmajian, above n 39, p 133.
63. Harding and Joshua refer to many of such challenges as ‘so what?’ challenges, as the
challenges refer to procedural irregularities that do not have a material effect on the quality of
the eventual decision; see Harding and Joshua, above n 3, p 196.
64. Case T-112/98 [2001] ECR II-729, [2001] 5 CMLR 1. An appeal was lodged as Case
C-190/01P [2001] OJ C212/11, but was removed from the Register on 14 October 2001.
• The names of the persons who represented your firm at the abovementioned
meetings and the travel documents of such persons;
• Copies of all the invitations, agendas, minutes, internal memoranda, records and
any other document in the possession of your firm and/or its employees con-
cerning the abovementioned meetings;
• In the case of meetings for which you are unable to find the relevant documents,
please describe the purpose of the meeting, the decisions adopted and the type
of documents received before and after the meeting.’65
The applicant refused to answer four questions phrased in terms similar to the ones
above. They did reply to a number of other questions. Following further correspon-
dence the Commission adopted a decision, under Art 11(5) of Regulation 17,66
providing that the applicant must reply to the questions within 30 days.67 Should the
information not be provided a fine of 1000 euros per day of delay would be imposed.
The applicant challenged that decision before the Court of First Instance on the basis
that, inter alia, the Commission was required to comply with Art 6 of the Convention,
which took precedence over the rules of Regulation 17.
The court followed its previous case-law in Orkem,68 Solvay69 and Société
Générale,70 making it clear that it is necessary to prevent the rights of the defence
from being irremediably impaired during preliminary investigation procedures, which
may be decisive in providing evidence of the unlawful nature of conduct engaged in
by undertakings. However, in order to ensure the effectiveness of Art 11(2) and (5)
of Regulation 17 the Commission is entitled to compel an undertaking to provide all
necessary information concerning such facts as may be known to it and to disclose
to the Commission, if necessary, such documents relating thereto as are in its posses-
sion, even if the latter may be used to establish, against it or another undertaking, the
existence of anti-competitive conduct.
At para 66 it stated:
‘To acknowledge the existence of an absolute right of silence, as claimed by
the applicant, would go beyond what is necessary in order to preserve the rights
of defence of undertakings, and would constitute an unjustified hindrance to the
Commission’s performance of its duty.’
The recipient of a Commission request for information has a right of silence only to
the extent that it would be compelled to provide answers that might involve an
admission on its part of the existence of an infringement, a matter which is incum-
bent upon the Commission to prove. Examining the questions at issue, in the last
indent of those questions the Commission called upon the applicant to describe in
particular the ‘purpose’ of the meetings it attended and the ‘decisions’ adopted
during them, even though it is clear that the Commission suspected that their purpose
was to arrive at agreements, in respect of selling prices, of a nature such as to distort
65. At para 6.
66. Regulation 17/62 First Regulation Implementing Arts 85 and 86 of the Treaty [1959–62]
OJ sp ed 87.
67. Commission Decision of 15 May 1998.
68. Case 374/87 [1989] ECR 3283.
69. Case 27/88 [1989] ECR 3355.
70. Case T-34/93 [1995] ECR II-545.
or restrict competition. It followed that requests of this kind were such that they may
compel the applicant to admit its participation in an unlawful agreement. As Riley
has put it:71
‘As the Commission has itself observed this restriction only has the effect of
preventing it asking leading questions. Or in other words the Commission cannot
ask the antitrust equivalent of “when did you stop beating your wife?”72 But it
does permit the Commission to ask for a close examination of her bruises and the
instruments by which they were inflicted.’
Although the court recognised the importance of the rights of the defence, and the
right to fair legal process, the court asserted, at para 78, that:
‘The mere fact of being obliged to answer purely factual questions put by the
Commission and to comply with its requests for the production of documents
already in existence cannot constitute a breach of the principle of respect for the
rights of the defence or impair the right to fair legal process. There is nothing to
prevent the addressee of such questions or requests from showing, whether later
during the administrative procedure or in proceedings before the Community
Courts, when exercising his rights of defence, that the facts set out in his replies
or the documents produced by him have a different meaning from that ascribed to
them by the Commission.’
Interestingly, the court did not directly refer to the jurisprudence of the ECtHR in its
judgment, even though the applicant referred to a number of cases as the basis of its
submissions.73 For example, it did not address the applicant’s assertion that the
ECtHR in Funke v France74 held:
‘that any measure intended to compel a natural or legal person who is the
subject of an investigation procedure to incriminate himself or itself by positive
action infringes Article 6(1) of the Convention, regardless of what is laid down by
the provision of national law relied upon by the administrative authority conduct-
ing the investigation.’75
It is interesting to note that the editors of the Common Market Law Reports stated
in their report of Funke that:
‘[the] Article 6 ruling runs counter to paragraph 30 of the European Court of
Justice’s judgment in Orkem SA v EC Commission which, to that extent, must be
regarded as no longer good law.’76
Obviously, the court was not of a similar view, but the fact that it did not address the
ECtHR’s jurisprudence directly raises a number of serious questions.
71. Riley ‘Saunders and the power to obtain information in Community and United Kingdom
competition law’, above n 1, at 269. Some of the footnotes from the original have been omitted.
72. Lasok, above n 1.
73. Interestingly the applicant did not refer to a number of pertinent cases, particularly
Saunders v UK (1997) 23 EHRR 313.
74. [1993] 1 CMLR 897, (1993) 16 EHRR 297.
75. Case T-112/98 Mannesmann Werke AK v Commission, above n 64, para 36.
76. See also Van Overbeek, above n 1; Nash and Furse, ibid.
(b) The position in the UK

To date, there has only been one case in the UK that directly discusses the privilege
in relation to competition law: OFT v D.77 The judgment in OFT v D, while interest-
ing, is limited in that it was a without-notice application by the Office of Fair Trading
(OFT) for a search warrant under s 28(1)(b) of the Competition Act 1998. On that
basis there was not a full hearing of the issues with any representations from target
undertakings. Morrison J granted the warrant after having canvassed the position of
Art 6 Convention rights in relation to the issue of such a warrant and the OFT’s power
to ask for explanations of documents discovered during the exercise of the warrant.
In the context of this paper, the position of questions asked is perhaps the most
pertinent. The judgment focuses heavily on the practice of the Commission in the
enforcement of Arts 81 and 82 EC and the jurisprudence of the Court of Justice;
particularly Orkem and Mannesmann Werke. It was stated that the OFT’s powers were
‘in the pursuit of a legitimate aim and are proportionate and, therefore, do not offend
the implied Article 6 rights’. Morison J’s view is summed up in para [11]:
‘The aim of the legislation in relation to questions by the OFT is to make it
possible for the OFT to carry out its obligations without undue hindrance. The
means adopted do not offend the Orkem principle and there are protections for the
individual or undertaking; in other words, the means adopted are proportionate
and avoid an abuse of power. Thus, if a person refused to answer a legitimate
question he is exposed to the risk of a prosecution. But if the criminal court
considered that the question that he refused to answer offended the rule against
self-incrimination, then he would be acquitted. He could not be convicted of failing
to answer a question if he had a right not to answer it. Conversely, if a question
were improperly asked, for example “do you admit that you have been guilty of
price fixing?” and the answer “yes” was given, then the defendants would be
entitled to seek relief from the courts to prevent the OFT from relying on that
answer in making their determination. Answering and not answering questions
does not deprive the defendants of legal redress if the questions asked extend
beyond “purely factual” matters.’
In addition to that decision there have been a number of cases that discussed the
privilege in analogous situations. One of the most prominent is the decision of the
House of Lords in R v Hertfordshire CC, ex p Green Environmental Industries Ltd.78
This case concerned an investigation into a large amount of clinical waste that was
discovered at a number of disposal sites used by Green. The local authority (LA),
using powers under s 71(2) of the Environmental Protection Act 1990, requested
particulars of all those who had supplied clinical waste to the applicant company, of
the persons who had carried waste on its behalf, of the staff it employed to handle
clinical waste at the sites and of the location of any other sites it used. When Green
refused to provide the information the LA issued a summons for contravention of
s 71(2). Green then sought judicial review. Although the circumstances surrounding
the operation of s 71(2) are quite different from investigations under the Competition
Act 1998 it is useful to examine the House of Lords’ attitude to the privilege.
Lord Hoffmann gave the leading judgment and considered the historical develop-
ment of the privilege that stemmed from a number of themes including:
77. OFT v D [2003] EWHC 1042 (QB), [2003] 2 All ER (Comm) 183.
78. [2000] 2 AC 412.
‘a right to silence or privilege against self-incrimination during the pre-trial

investigation, such as the exclusion of involuntary confessions and the prohibition
on the questioning of suspects without caution or after charge. These latter prohi-
bitions are prophylactic rules designed to inhibit abuse of power by investigatory
authorities and to preserve the fairness of the trial by preventing the eliciting of
confessions which may have doubtful probative value.’79
Secondly, ‘a general privilege not to be compelled to answer questions from people
in authority’.80 Presumably it is the first category that we are dealing with in the case
of regulatory investigations at a ‘pre-trial’ stage. The UK position is that a statutory
provision giving a power to require the production of documents may exclude the
privilege depending on its construction. In examining the provisions of the Environ-
mental Protection Act 1990 Lord Hoffmann was of the view that:
‘Those powers [s 71(2)] have been conferred not merely for the purpose of
enabling the authorities to obtain evidence against offenders but for the broad
public purpose of protecting the public health and the environment. Such infor-
mation is often required urgently and the policy of the statute would be frustrated
if the persons who knew most about the extent of the health or environmental
hazard were entitled to refuse to provide any information on the ground that their
answers might tend to incriminate them.’81
While the court did not limit the power to collect information under s 71(2), balanc-
ing limits were placed on its use at the trial stage. Again this was a matter of
construction: ‘Parliament is more likely to have intended that the question of whether
the obligation to provide potentially incriminating answers has caused prejudice to
the defence in a subsequent criminal trial should be left to the judge at the trial’.82
This protection stems from s 78 of the Police and Criminal Evidence Act 1984, which
states:
‘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.’
Lord Hoffmann also noted that:
‘none of the questions called for any admission of liability. They simply asked
for names, addresses and locations. No doubt this information could have been
used to assist the council in gathering evidence for a prosecution against the
appellants, but English law does not regard the use of evidence obtained in
consequence of an involuntary statement in the same light as the admission of the
statement itself.’83
This view appears to echo the distinction drawn by the European Court of Justice
between factual statements and admission of unlawful behaviour.
79. Per Lord Hoffmann at 419.

It appears therefore that the English courts have a very limited view of the privilege
at the pre-trial stage and Parliament has the ability to exclude the privilege on the
basis of a wider public good flowing from the ability to collect information. This
narrow view is also facilitated by the existence of s 78, which allows evidence to be
excluded at a later stage. No such explicit ability exists under the EC rules regarding
competition investigations, or by analogy under the rules that the OFT utilises,84
although Morison J, in OFT v D, suggests that a similar position would be adopted
by the UK judiciary in relation to information gathered in competition investigations.
The absence of an explicit possibility of latter exclusion would weaken the position
of those being investigated under competition investigations from the position that
has traditionally been adopted under English law.
Another consideration of the self-incrimination rules in the UK was seen before
the Scots courts in Brown v Stott.85 Ms Brown was arrested in a supermarket for theft
of a bottle of gin. When arrested the police present became suspicious that she had
been drinking and that she may have driven to the supermarket under the influence.
By virtue of their powers under s 172(2)(a) of the Road Traffic Act 1988 they required
Ms Brown to confirm who was driving the car at the time it would have travelled to
the supermarket car park; she replied, ‘It was me’. A specimen of breath was taken,
which was positive. When the matter came to trial Ms Brown lodged a defence on
the basis that as she was compelled to answer the question regarding who was driving,
that compulsion was contrary to Art 6(1) of the Convention.
The manner in which the Privy Council86 dealt with the appeal in Brown v Stott
and decided that Ms Brown’s Art 6(1) Convention rights had not been infringed raised
a number of interesting distinctions from the previous jurisprudence contained in R
v Hertfordshire CC, ex p Green Environmental Industries Ltd. Similar stress was
placed on the importance of s 172 of the Road Traffic Act 1988 on combating a
serious social problem87 and also on the nature of the information required under that
section:
‘The section does not sanction prolonged questioning about the facts alleged to
give rise to criminal offences such as was understandably held to be objectionable
in Saunders, and the penalty for declining to answer under the section is moderate
and non-custodial. There is in the present case no suggestion of improper coercion
or oppression such as might give rise to unreliable admissions and so contribute
to a miscarriage of justice.’88
In an interesting addition to the UK jurisprudence, the Privy Council also focused on
the responsibilities accepted by Ms Brown as a driver, and those responsibilities’
relationship with s 172:
84. This distinction between criminal and civil sanctions has become more blurred in the UK
as the UK has adopted a criminal sanction for ‘hard core’ cartels in the Enterprise Act 2002.
The potential conflict between Competition Act and Enterprise Act investigations is discussed
in A MacCulloch ‘The cartel offence and the criminalisation of UK competition law’ [2003]
JBL 615.
85. 2001 SLT 59, [2001] HRLR 9; on appeal from Brown v Stott 2000 SLT 379. For a detailed
view of Brown v Stott, see R Pillay ‘Self-incrimination and Article 6: the decision of the Privy
Council in Procurator Fiscal v Brown’ [2000] EHRLR 78.
86. On appeal from the High Court of Justiciary as a devolution issue was raised.
87. Per Lord Bingham of Cornhill at 71.
‘All who own or dive motor cars know that by doing so they subject themselves
to a regulatory regime which does not apply to members of the public who do
neither. Section 172 forms part of that regulatory regime. This regime is imposed
not because owning or driving cars is a privilege or indulgence granted by the state
but because the possession and use of cars (like, for example, shotguns, the
possession of which is very closely regulated) are recognised to have the potential
to cause grave injury.’89
This issue was further elucidated by Lord Hope of Craighead:
‘A person who submits to registration as the keeper of a motor vehicle must be
taken to have accepted responsibility for its use and the corresponding obligation
to provide the information when required to do so. Furthermore the requirement
for which provision is made is directed to one issue only, the identity of the driver
of the vehicle. It is proper to recognise that the identity of the driver is likely to
be an important and indeed crucial issue at any trial. But the provision does not
permit open ended questioning of the person keeping the vehicle in order to secure
an admission of guilt as to the offence.’90
The addition of the extra element surrounding the special regulatory system for motor
vehicles and, more importantly, the voluntary acceptance of that regime by the owners
or drivers of motor vehicles introduces another possible justification for a requirement
to provide limited self-incriminating information.91 All their Lordships in the Privy
Council were at pains to point out that the rights found in Art 6(1) of the Convention
are not absolute rights and much of the judgment focused on reasons why the rights
could, and should, be limited.92
(c) The European Convention on Human Rights

The ECtHR has, of course, dealt with a number of cases involving Art 6(1) of the
Convention. The Article does not directly address the privilege against self-incrimi-
nation but guarantees that, in the determination of any criminal charge against him,
everyone is entitled to a fair hearing by an independent and impartial tribunal. The
privilege is seen as being an integral part of that right.93 The first key question is the
applicability of Art 6(1), ie who is subject to a ‘criminal charge’. That point was
addressed by the ECtHR in Serves v France,94 where it stated that:
‘That concept is “autonomous”: it has to be understood within the meaning
of the Convention and not solely within its meaning in domestic law. It may
thus be defined as “the official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”, a definition
that also corresponds to the test whether “the situation of the [suspect] has been
substantially affected”.’

90. Per Lord Hope of Craighead at 81.
91. See also R v Securities and Futures Authority, ex p Fleurose [2001] EWHC 292 (Admin),
[2001] 2 All ER (Comm) 481.
92. The decision of the High Court, which was overturned by the Privy Council, was criticised
for appearing to hold that the rights in Art 6(1) of the Convention were absolute.
93. Cf the theoretical justifications of the privilege discussed earlier in this paper.
94. (1999) 28 EHRR 265.
The point was more directly addressed by the Commission on Human Rights in
Societe Stenuit v France,95 although the court did not eventually rule on the issue as
the case was withdrawn. The Commission was of the opinion that French competition
law was of the nature of a criminal charge as the orders affected the general interests
of society normally protected by criminal law, the penalties imposed were measures
directed against infractions and the nature of the penalty shows the penalty was
intended to be a deterrent. Thus, a criminal charge would take place where official
notification is given to an individual by the competent authority of an allegation that
he has committed a criminal offence, an infraction of the competition rules. It would
appear therefore that the competition rules fall with the Article but the point at which
the charge is brought is not as clearly defined.
On the matter of the privilege itself, one of the leading cases is Funke v France,
which dealt with a French customs investigation into Mr Funke’s business dealings
abroad. Following a search of his home, the authorities asked him to produce bank
statements from certain foreign banks and, when he refused, he was prosecuted and
ordered by the Strasbourg Police Court to pay a fine and a daily penalty until he
complied. In a very terse judgment the court merely stated that:
‘The Court notes that the customs secured Mr Funke’s conviction in order to
obtain certain documents which they believed must exist, although they were not
certain of the fact. Being unable or unwilling to procure them by some other
means, they attempted to compel the applicant himself to provide the evidence of
offences he had allegedly committed. The special features of customs law . . .
cannot justify such an infringement of the right of anyone “charged with a criminal
offence,” within the autonomous meaning of this expression in Article 6, to remain
silent and not to contribute to incriminating himself.’96
The French Government referred to the European Court of Justice’s judgment in
Orkem in its submission that the requirement to produce documents did not mean
that an individual was required to incriminate themselves but no discussion of this
matter appeared in the judgment.
The difficulty in dealing with the judgment in Funke was indicated by Lord
Hoffmann in Hertfordshire CC, where he stated:
‘I am bound to say that there are obscurities in this reasoning. What were the
criminal proceedings in which Mr Funke was deprived of the right to a fair trial?
They could not have been the prosecution for the offences suspected by the
customs officers, since that was never brought. The only proceedings against him
were for failure to produce his bank statements. In those proceedings, however,
he was not obliged to incriminate himself. There was no need, because his guilt
under French law was established by his failure to produce the bank statements.’
It is submitted that these statements may indicate some of Lord Hoffmann’s confusion
regarding the nature of the criminal charge that was being considered. Presumably
the charge that concerned the court was a potential later charge under the tax laws,
which the investigation may have led to, rather than the separate offence of failing to
95. (1992) 14 EHRR 509.

96. [1993] 1 CMLR 897, (1993) 16 EHRR 297 at para 44. It is interesting to compare the
reasoning of the ECtHR with the reasoning of the US courts in US v Doe 465 US 605, discussed
below. It is clear that the French authorities were undertaking a ‘fishing’ expedition in Funke.
produce the documentation.97 Unfortunately, the court did not make this clear in its
judgment. Presumably in competition procedures the ‘charge’ would be brought when
an investigating authority indicates to an undertaking that it is the subject of an
investigation.98
The decision in Funke was seen as being a dramatic shift in the policy of the
ECtHR but its importance was short lived. Although the decision was vaunted by
some commentators as a major policy shift by the ECtHR,99 it became clear that the
decision in Funke appeared to sit on its own particular facts. In subsequent decisions,
the court appeared to move away from such a broad position.
One of the most important decisions that appeared to narrow the ECtHR’s juris-
prudence was Saunders v UK.100 This case stemmed from Ernest Saunders’ involve-
ment in Guinness share dealings during the Argyll takeover and the use of testimony
given to investigators empowered to ask questions by ss 434 and 436 of the Compa-
nies Act 1985. The use of that testimony in a criminal trial was addressed by the
court, which stated:
‘The right not to incriminate oneself is primarily concerned, however, with
respecting the will of an accused person to remain silent. As commonly understood
in the legal systems of the Contracting Parties to the Convention and elsewhere,
it does not extend to the use in criminal proceedings of material which may be
obtained from the accused through the use of compulsory powers but which has
an existence independent of the will of the suspect such as, inter alia, documents
acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue
for the purpose of DNA testing.’101
The court concentrates on the ‘will of an accused person’ and the manner in which
the questioning of the inspectors, and the compulsion to provide that information, is
potentially oppressive. Where material exists independently of the will of the accused
it takes a different view. There the compulsory powers do not create the material;
they merely allow for its discovery. As the material already existed, it is not potentially
tainted by the compulsion and does not produce concerns about its veracity or raise
concerns about potential miscarriages of justice. This distinction between material
that exists independent of the compulsion, and material created because of the com-
pulsion, appears to be broader than simply oral testimony, as in Saunders, and
documentary evidence. Even documents could be obtained through oppression of the
will of the accused if those documents were created as a result of the compulsion.
Providing new information that would not otherwise exist in a document cannot be
any different to providing similar information in oral testimony. It cannot therefore
be the format of the testimony that is important, rather the nature of the information
that is contained within that testimony.
97. This offence merely provided the compulsion to incriminate oneself.

98. In any event protection was given by the ECtHR in Saunders (1997) 23 EHRR 313 at
para 74, where it stated: ‘the fact the statements were made by the applicant prior to his being
charged does not prevent their later use in criminal proceedings from constituting an infringe-
ment of the right’. The protection would appear to cover the use of incriminating material no
matter when it was gathered.
99. See, for example, Van Overbeek, above n 1; Nash and Furse, ibid.
100. (1997) 23 EHRR 313. Indeed, the dissenting judgment in Saunders notes that majority
view implicitly overrules Funke.
101. (1997) 23 EHRR 313 at para 69.
A distinction between information created by a request for documents and situa-

tions in which no such information is created is illustrated in two US cases, Fisher v
United States102 and United States v Doe.103 In Fisher, the court allowed the compul-
sion to produce accountant’s workpapers stating that: ‘the Fifth Amendment would
not be violated by the fact alone that the papers on their face might incriminate the
taxpayer, for the privilege protects a person only against being incriminated by his
own compelled testimonial communications’.104 A distinction was drawn in Doe
where the court was of the view that the request for the production of documents
went beyond that in Fisher and amounted to incriminating testimony. In that situation
a great number of documents were subpoenaed and the court was not convinced that
the United States were sure of the existence of the documents or that they were in
the accused’s control. The production of such documents was seen to have testimonial
effect as the production would: (i) concede the existence of the papers demanded and
their possession or control by the accused; (ii) indicate that the accused is somehow
connected to the business entity under investigation; and (iii) indicate the accused’s
belief that the papers produced were those described in the subpoena. The key
difference between the two situations is that in Doe the subpoena was part of a
‘fishing’ expedition by the United States. The documents subpoenaed in Doe included
requests for broad categories of documents that were loosely related to another
business entity. It must have been clear that the United States had limited intelligence
regarding what material was possessed by the subject of the subpoena and therefore
the Supreme Court was of the view that they were being asked to do more than simply
supply specified documents but to go further and discover and select the documents
that may be relevant to the investigation. As the District Court put it, ‘to become, in
effect, the primary informant against itself’.105
It is clear that the distinction between the decisions is that in Doe the request would
create incriminating information beyond that which was contained in the documents
themselves. The existence and type of documents available would also be revealed;
that was classed as incriminating testimony. The similarity between the factual situ-
ation in Doe and the situation in Funke raises the possibility that the reasoning in
Doe could be an indication of a form of reasoning that could resolve the differences
between Funke, being more similar to Doe, and Saunders, being more similar to
Fisher.106
A number of other important issues were also raised in Saunders. In the UK cases
discussed above, the judgments refer on a number of occasions to the difficulties faced
by investigatory authorities in certain complex areas and the balance between the
rights of the defence and necessity of policing these complex areas. Such arguments
were dismissed by the ECtHR in Saunders:
‘[The court] does not accept the Government’s argument that the complexity
of corporate fraud and the vital public interest in the investigation of such fraud
102. 425 US 391 (1976).

103. 465 US 605.
104. 425 US 391 (1976) at 409.
105. 465 US 605 at 613.
106. See G Stessens ‘The obligation to produce documents versus the privilege against self-
incrimination: human rights protection extended too far?’ (1997) 22 ELRev Supp HRS 45. For
an interesting discussion of the nature of ‘testimonial’ and ‘non-testimonial’ requests, and a
discussion of the US position, see Prosecutor v Zenjnil Delalic, Zdravko Mucic, Hazim Delic
& Esad Landzo International Criminal Tribunal for Former Yugoslavia, 19 January 1998.
and the punishment of those responsible could justify such a marked departure as
that which occurred in the present case from one of the basic principles of a fair
procedure. Like the Commission, it considers that the general requirements of
fairness contained in Article 6, including the right not to incriminate oneself, apply
to criminal proceedings in respect of all types of criminal offences without dis-
tinction, from the most simple to the most complex. The public interest cannot be
invoked to justify the use of answers compulsorily obtained in a non-judicial
investigation to incriminate the accused during the trial proceedings.’107
This roundly rejects the arguments made in cases such as Orkem, Hertfordshire CC
and Brown v Stott. In the EC and UK, where the privilege is most limited, this
complexity of regulation and the seriousness of the harm suffered are the most potent
arguments deployed to restrict the privilege. It is interesting that even in Brown v
Stott, decided in accordance with Saunders, the seriousness of the harm caused by
drink driving formed an important part of the court’s reasoning. Although this is a
different argument from the complexity of proving a regulatory offence, it does have
similar echoes. It is not the privilege that is the main focus but the problems of the
authorities and the public at large. At least in the Brown v Stott form of the argument
the focus is the public rather than the authorities. This line of argument was consid-
ered again recently by the Strasbourg Court in Shannon v The United Kingdom.108 It
re-emphasised its position that the difficulty of an investigation cannot be the basis
for a diminution of the privilege, and that the privilege attaches at the time the
questions are asked; not simply when the information is used by the authorities at
trial.109
The argument in Brown v Stott relating to the voluntary assumption of a system
of regulation utilised by the Privy Council has a potential impact in the UK for the
ECtHR’s ruling in Saunders. It is possible to argue that Ernest Saunders accepted
certain limitations to his privilege in relation to the inspectors appointed by the
Secretary of State under the Companies Act 1985 by taking up the position of a
Director of Guinness plc.110 While that argument has interesting potential for a
number of regulatory systems, which apply to a particular category of individuals
who might be said to have accepted the rigours of that system, it has little usefulness
in relation to competition enforcement. The competition rules apply to all individuals,
legal or natural, who undertake commercial activity, and this therefore gives the rules
a very broad scope similar to more traditional ‘criminal’ regulation. Further discus-
sion of this argument is therefore outside the scope of this paper.
4. HOW MIGHT THE PRIVILEGE FIT WITH

COMPETITION INVESTIGATIONS?
The rationale of the privilege in general terms, and its extension to undertakings that
are suspected of competition law violations, should accord with one or more of the
theoretical perspectives discussed above. It is clear from the analysis of the case-law
107. (1997) 23 EHRR 313 at para 74.

108. (Application No 6563/03) 4 October 2005.
109. At para 38.
110. Although the power of the inspectors was not questioned in Saunders as the inspection
itself was conducted in the general public interest and did not necessarily lead to a prosecution.
that there is very limited discussion of ‘why’ the privilege should operate as it does;
the main focus being on ‘how’ the privilege should operate. It is clear that the ‘how’
questions will be of vital importance to those who are the subject of investigations,
but as those undertakings begin to push towards an extension of the extant privilege,
it is important that they explain ‘why’ the privilege should be extended. In the reported
cases, that argument has not yet been properly developed.
The problem of fitting competition investigations within the system of protec-
tive aspects of the criminal law was always going to be a difficult task. Regulation
17/62111 made an ultimately doomed attempt to avoid the issue by setting out, in Art
15(4), that fines imposed under the Regulation for breaches of the competition
provisions ‘shall not be of a criminal nature’.112 It is now clear that competition
investigations are considered to be ‘criminal’ in nature, according to the all-important
jurisprudence of the ECtHR.113 It is clear that a competition investigation has some
similarities to a more traditional criminal investigation, but it also has important
differences. It might also be the case that the understanding of the privilege applicable
in traditional criminal investigations may also be appropriately utilised in competition
investigations, but some aspects of the conceptualisation of the privilege may equally
not be appropriate. Only by understanding the reasons for the existence of the
privilege can we hope to identify correctly which aspects of it should have an
analogous existence within a competition investigation.
It is also apparent from the examination of the historical and theoretical justifica-
tions that the privilege is more complex than many simple ‘human rights’ arguments
would suggest. A simple assertion of the ‘right’ not to incriminate itself does not, in
itself, go any way towards answering the more important question: what is the extent
of the privilege? The historical examination of the privilege clearly indicates that it
has never been a ‘timeless right’ not to produce incriminating evidence; the privilege
has changed considerably through its development, adapting to the legal systems in
which it existed. The privilege has always been limited, for various reasons, and exists
alongside a number of other provisions that seek to protect the trial process as a whole.
A proper understanding of the privilege must therefore go further than mere recitation
of Art 6(1) of the Convention.
From the historical examination of the privilege it becomes apparent that the
privilege, as we understand it today, is a modern legal principle built upon older
foundations that focused on ‘self-accusation’. By exploring the distinction between
self-accusation and self-incrimination it is possible to clarify some of the more
complex issues in the current jurisprudence surrounding the privilege. The distinction
between the US cases Fisher and Doe can be seen as part of this strand within the
privilege, as can the ECtHR’s seemingly isolated judgment in Funke. The law’s desire
to prevent the state from using its powers of compulsion to carry out ‘fishing expe-
ditions’ in the criminal sphere is easy to understand;114 the privilege has clearly played
a part in this desire since its inception. While there are other ways in which this goal
might be able to be fulfilled, using other legal protections, it is helpful to be clear
111. Above n 66.

112. Notwithstanding the judgments of the ECtHR, the fiction that fining decisions in EC
competition law are not of a ‘criminal law nature’ is repeated in Art 23(5) of Regulation
1/2003/EC, above n 5, which replaced Regulation 17 in May 2004.
113. See Societe Stenuit v France (1992) 14 EHRR 509.
114. The ECtHR’s seeming approval of ‘fishing’ by inspectors under the Companies Act in
Saunders is instructive in the limitation of this activity to ‘criminal’ matters.
about this aspect of the privilege. Of course, this aspect of the privilege only plays a
role in the early stages of an investigation. Once the authorities have an evidential
grounding clearly to suggest that an undertaking has been involved in a competition
violation the protection against self-accusation no longer plays a role, and the other
grounds for the justification of the privilege must take over.
Once the investigation of a competition violation has reached a more advanced
stage and suspicion has fallen on an undertaking, the main justifications of the current
understanding of the privilege may well have their basis in a combination of the
privacy or cruelty theories set out above. The privacy theory is the most satisfactory
of the rights-based justifications of the privilege that sets out that information within
the ‘mind’ of the person which is central to their self-knowledge should be protected.
This is a double-edged sword for the current jurisprudence. It helps to explain the
European Court of Justice’s focus on the limitation of the privilege to ‘admissions’,
while not extending it to pre-existing documents,115 and may also potentially legiti-
mise the balancing process that is highlighted by both the European Court of Justice
and the UK cases.116 While the current jurisprudence in the UK and EC might enjoy
partial support, the ECtHR’s position is more difficult to square with those justifica-
tions. Perhaps this is a difficulty that stems from the ECtHR’s reliance on the Con-
vention’s ‘human’ rights. This is particularly important to the privacy rationale for
the privilege, which is perhaps its most convincing justification. The ‘central zone’
of privacy, which is protected by the privilege, is that which is closely related to an
individual’s self-knowledge and personality or autonomy. By extending those
‘human’ rights to undertakings in competition law, many of whom are companies or
legal entities, that important link to personal privacy and an individual’s autonomy is
strained, if not lost entirely. If the link to the sphere of self-knowledge, which requires
protection, is lost, the challenges to the existence of the privilege, from scholars such
as Dolinko, become all the more convincing. It is suggested that for the analogous
extension of the privilege from a ‘human’ right into a true ‘legal’ right, which might
be enjoyed by legal, as well as natural, persons, there needs to be much fuller
justification of that right. It would also appear to suggest that the balancing approach
undertaken by the UK and EC courts, but resisted by the ECtHR, has real merit when
considered in the context of competition investigations involving legal persons. Of
course, competition investigations can involve natural persons as the subject of the
investigation,117 and in those situations it would be much easier to justify an analo-
gous extension of the privilege. It could also be argued that questions posed to legal
persons are, effectively, answered by natural persons – and the issue may be even
more blurred when very small companies, which are closely related to a particular
individual, are involved. But even in those cases, the link between the company’s
115. In cases such as Case T-112/98 Mannesmannröhren-Werke AG v Commission, above n 64.

116. Cf the use of a ‘balancing process’ with regard to the First Amendment of the US
Constitution, which has come under severe criticism in relation to its failure to protect those
appearing before the House Un-American Activities Committee in the 1950s. The issue is
summed up by the minority statement of Justice Black in Wilkinson v US 365 US 399, 409
(1961) at 423: ‘Where these freedoms are left to depend upon a balance to be struck by this
Court in each particular case, liberty cannot survive. For under such a rule, there are no
constitutional rights that cannot be balanced away’. For a full discussion of the issue, see
Bosmajian, above n 39, ch 5.
117. See Commission Decision 78/516/EEC – RAI/UNITEL [1978] OJ L157/39, [1978] 3
CMLR 306.
‘personality’ and the issues raised in support of the privacy argument are difficult to
support.118
It might be possible to argue that the factor that turns this ‘human’ right into a
wider ‘legal’ right is the impracticability, or undesirability, of operating a differential
approach to investigations involving natural persons, on the one hand, and legal
persons on the other.119 While both Galligan and Gerstein employ similar arguments
to extend the coverage of the privilege to all potentially incriminating material,120 it
is suggested that the gulf between the nature of natural and legal persons is more
difficult to bridge. In any event, differential treatment is not, in itself, unknown to the
operation of the privilege. An important aspect of the reasoning in cases like Saunders
and OFT v D suggests that the courts will always have the ability to decide, at a late
stage in the proceedings, that in the circumstances of an individual case the use of
material that was required to be produced is of such a nature that it offends the
overarching principle of access to a fair hearing, even where the privilege did not
attach during the earlier investigation process. It is also clear that the extent of the
competition authority’s investigatory powers in existing regimes, which allow for
the compelled production of existing documents but not compelled testimony, are
unlikely to fall within the ‘central zone’ of privacy that is at issue for natural persons.
If it is accepted that there are some difficulties in justifying the extension of the
privilege to legal persons, the added justification of the privilege offered by game
theory, or other process-based rationales, becomes increasingly important. The game
theoretic perspective, while not fitting competition investigations exactly, does sug-
gest that the privilege may well have useful benefits for any system – regardless of
the legal nature of the subject of the investigation. But it is interesting to note that
the process-based rationales suggested by either Seidmann and Stein or Dennis are
generally very limited. Their focus tends to be on the restriction of the gathering
of testimonial information during formal interviews, rather than the gathering of
information through other sources.
The theoretical basis of the privilege raises a number of other difficult questions
regarding the position of the European Court of Justice, and the practice of the
Commission and the National Competition Authorities, in EC competition investiga-
tions. Little distinction is drawn between what are described as ‘factual questions’
and ‘pre-existing documents’. To highlight the issues, it is instructive to examine a
typical set of questions that may be seen in a competition investigation:
‘(1) The Commission has information that representatives of your undertaking
may have taken part in the meetings listed below which took place on or around
the date indicated.
Date XX Hotel – Brussels (after Trade Association assembly)
Date Bilateral meeting at headquarters of A between Mr Y and representatives
from B
Date XY Hotel – Brussels
Date XX Hotel – Brussels (after Trade Association assembly)
118. The issues surrounding such a link are difficult but perhaps the debate surrounding
corporate crime might be an important starting point for any such investigation; see, for
example, G Slapper and S Tombs Corporate Crime (Harlow: Longman, 1999).
119. In practical terms the issue is probably not one that would occur on a regular basis, but,
as far as the author is aware, no statistical studies have been undertaken.
120. See above n 50.
Date Multilateral meeting, location unidentified

Date Trade Association Offices – Brussels (after Trade Association assembly)
Date Multilateral meeting, location unidentified
Date Trilateral meeting at location unidentified between A, B and C
You are requested to provide the following information:
• The exact date and location of every meeting (including name and address of
hotel/restaurant and/or company);
• Names and functions of the participants of your company concerning the meet-
ings referred at above as well as the other participants.
(2) As regards the meetings that have taken place surrounding [trade associa-
tion] assemblies, please explain the role played by [trade association], if any, in
the organisation of the collateral meetings.’121
These questions comply with the European Court of Justice’s ruling in
Mannesmannröhren-Werke AG v Commission. But it is clear the request is not for
pre-existing documents per se, although they may be able to be produced by way of
a response, but rather for factual information that would assist the authority in its
investigation. With some of that information it is clear that the authority is seeking
information that it does not already have in its possession and may not necessarily
exist outside the ‘mind’ of the person concerned. That would make the request of
such information clearly ‘testimonial’ in nature and potentially within the zone of
privacy, which the privilege might be expected to protect. If the authority only seeks
pre-existing documents relating to these meetings, an area where it is clearer that the
privilege does not attach, why has it not limited its request in this manner? Presumably
this is because the wider information would be more valuable to it. It is clear that the
Commission could restrict its request to pre-existing documents, such as diaries,
travel documents and expenses claims, etc, but it, instead, seeks more clear-cut factual
admissions of the existence of, time of and participants in suspected meetings. The
extension of such a request to this factual information that does not necessarily exist
outside the ‘mind’ of the addressee is not clearly justified by the theoretical justifi-
cation of the privilege.
It is also not clear why this form of factual information is treated differently from
other ‘admissions’ that the Commission cannot seek confirmation of, following Man-
nesmannröhren-Werke AG v Commission; for example the purpose of a meeting.
Surely the purpose of a meeting can be considered as factual information, in the same
way as the meeting’s time, location and participants. Why is one category of factual
information protected, but not the other?
CONCLUSIONS
It is apparent from the above that a number of conclusions may be drawn. As

arguments surrounding the extent of the privilege become more likely, it is important
to explain ‘why’ the privilege exists and how it might be extended or restricted. This
examination will assist in identifying which aspects of the privilege fit well within
a competition investigation. It is clear that a distinction should be drawn between
121. These questions are based on a real case but have been altered to disguise the case and
the identity of the companies involved.
‘self-accusation’ and ‘self-incrimination’. The authorities should not be able to use

compulsion in a situation where there is no clear evidence to indicate that suspicion
should fall on a particular undertaking. This should give protection against compul-
sion in ‘fishing expeditions’. Once suspicion is well founded, ‘self-incrimination’
proper raises different questions.
The most convincing justification for the existence of the privilege is to protect
the privacy of a person. While there are arguments that legal persons should not
benefit from the privilege in the same way as natural persons, as they do not have the
same ‘central zone’ of privacy, there are other arguments to suggest that the privilege
is a ‘functional necessity’ within any investigatory system. Even if that is accepted,
the privilege should not attach to any pre-existing documents or recorded information;
in the same manner it does not attach to other evidence outside the ‘mind’ of the
accused. The limited privilege that is justified is restricted to ‘testimonial’ information
created as a result of the compulsion;122 there should be no distinction in this regard
between spoken and written testimony.
It is submitted that the distinction between ‘factual questions’ and ‘admissions’ is
illusory. It is difficult to justify such a distinction on the basis of the theoretical
justifications. The basis upon which the distinction is usually drawn is the balancing
of the privilege against the perceived difficulty of competition investigations. Such a
balancing exercise forms part of the theoretical justification, but only in drawing the
distinction between testimonial and non-testimonial material. There is little support
for a distinction between ‘factual questions’ and ‘admissions’, even if such a distinc-
tion could effectively be drawn.
It is therefore suggested that the current conception of the privilege in the UK and
EC jurisprudence appears under-inclusive but, equally, any assertion that an under-
taking should not be required to produce potentially incriminating pre-existing doc-
uments is unfounded. It is, however, abundantly clear that future debate surrounding
the nature and extent of the privilege in competition cases needs to proceed on the
basis of much fuller justification; the existing case-law indicates that such justification
has not yet been made to any degree of satisfaction.
122. It is submitted that the utilisation of leniency regimes to encourage undertakings to

volunteer incriminating testimony does not fall within the terms of compulsion, as the under-
taking still has freedom to decide whether to utilise the leniency programme.

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Legal Studies, Vol. 26 No. 2, June 2006, pp.

The privilege against self-incrimination

positive and negative critiques from a number of theoretical perspectives. An under-

2. Although US law is often discussed at length in competition/anti-trust discourse, it is of

2. HISTORICAL AND THEORETICAL PERSPECTIVES ON THE PRIVILEGE

(a) The privilege as a ‘right’

historical origins of the privilege as a right

7. Council Regulation 1/2003/EC, ibid, Art 19.

‘Compulsory self-incrimination was what happened in Star Chamber or in

contemporary accounts of the privilege protecting privacy

24. Moglen, ibid, at 1121.

on the existence of an individual’s right to control the provision of information about

28. Ibid, at 89.

privilege attaching to material that is central to the self-knowledge or consciousness

contemporary accounts of the privilege protecting against cruel choices

(b) Challenges to the privilege as a ‘right’

challenges to the ‘privacy theorist’

40. Greenawalt, ibid, at 49.

challenges to the ‘cruelty theorist’

46. See ibid, at 1112.

particularly cruel to make an individual bring harm upon themselves, it is concluded

(c) A process-based rationale for the privilege

53. Ibid, at 1106.

3. THE LEGAL USE OF THE PRIVILEGE IN

(a) The position in the EC

(b) The position in the UK

‘a right to silence or privilege against self-incrimination during the pre-trial

79. Per Lord Hoffmann at 419.

(c) The European Convention on Human Rights

89. Per Lord Bingham of Cornhill at 71.

95. (1992) 14 EHRR 509.

97. This offence merely provided the compulsion to incriminate oneself.

A distinction between information created by a request for documents and situa-

102. 425 US 391 (1976).

4. HOW MIGHT THE PRIVILEGE FIT WITH

107. (1997) 23 EHRR 313 at para 74.

111. Above n 66.

115. In cases such as Case T-112/98 Mannesmannröhren-Werke AG v Commission, above n 64.

Date Multilateral meeting, location unidentified

It is apparent from the above that a number of conclusions may be drawn. As

‘self-accusation’ and ‘self-incrimination’. The authorities should not be able to use

122. It is submitted that the utilisation of leniency regimes to encourage undertakings to

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