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Report No. 87

Evolution.- This concept of the privilege is the product of a complex history. In England,4 suspicion of all interrogation of the accused emerged initially as a reaction to practices of the High Commission and the King's Star Chamber in enforcing unpopular religious and political laws in the late sixteenth and early seventeenth centuries. Accused persons were sometimes forced to testify against themselves by use of the contempt power and torture. In addition, since they were frequently not informed of any specific charge against them, they were compelled not merely to incriminate themselves, but also to provide the material for a charge5.

In reaction the rule developed that the contempt power could not be used to compel an accused to testify, even after he had been specifically charged. The development of the accused's rights to counsel and to call witnesses, together with the tradition that the accused should not be put under oath, culminated in the nineteenth century in a general rule of compulsory silence. During this period the privilege acquired its greatest significance, since the enforced silence could not logically give rise to an inference of guilt.

Identification of Prisoners Act, 1920 Back

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