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; Riley, A ‘The Echr implications of the investigation provisions of the draft competition regulation’ (2002) 51 ICLQ 55 CrossRefGoogle Scholar.

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 Harding, C and Joshua, J Regulating Cartels in Europe – A Study of Legal Control of Corporate Delinquency (Oxford: Oxford University Press, 2003)Google Scholar 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.

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, Alschuler, Aw A peculiar privilege in historical perspective: the right to remain silent’ (1996) 94 Mich LRev 2625 CrossRefGoogle Scholar; Wigmore ‘Nemo tenetur seipsum prodere’ (1891) 5 Harv LRev 71; ; ; ; .

13. See Helmholz, ibid.

14. Nemo punitur sine accusatore.

15. Nemo tenetur detegere turitudinem suam.

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; Moglen, E Taking the Fifth: reconsidering the constitutional origins of the privilege against self- incrimination’ (1994) 92 Mich LRev 1086 CrossRefGoogle Scholar 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.

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 Friendly, Hj The Fifth Amendment tomorrow: the case for constitutional change’ (1968) 37 UCin LRev 671 Google Scholar; ; Bonventure, above n 12; ; ; ; .

27. Gerstein, Rs Privacy and self incrimination’ (1970) 80 Ethics 87 CrossRefGoogle Scholar.

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 ‘Interrogational rights: reflections on Miranda v Arizona’ (1978) 52 S Cal LRev 1; Wasserstrom, R ‘Privacy: some arguments and assumptions’ in Schoeman, F (ed) Philosophical Dimensions of Privacy (Cambridge: Cambridge University Press, 1984)Google Scholar.

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.

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 Bosmajian, H The Freedom Not to Speak (New York: New York University Press, 1999)Google Scholar.

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, McNaughton, J ‘The privilege against self-incrimination: its constitutional affectation, raison d’être and miscellaneous implications’ (1960) 51 J Crim L Criminology & Police Sci 138 CrossRefGoogle Scholar; Friendly, above n 26.

43. See Bentham, J The Rationale of Judicial Evidence (London: Hunt & Clarke, 1827)Google Scholar. 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.

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.

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.

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 enforcement 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 inconsistent with the fundamental values of the criminal law. If either of these risks materialises the legitimacy of the criminal verdict may be compromised’.

58. Seidmann, Dj and Stein, A The right to silence helps the innocent: a game-theoretic analysis of the Fifth Amendment privilege’ (2000) 114 Harv LRev 430 CrossRefGoogle Scholar.

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.

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.

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.

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.

77. OFT v D [2003] EWHC 1042 (QB), [2003] 2 All ER (Comm) 183.

78. [2000] 2 AC 412.

79. Per Lord Hoffmann at 419.

80. Per Lord Hoffmann at 419.

81. Per Lord Hoffmann at 420.

82. Per Lord Hoffmann at 420.

83. Per Lord Hoffmann at 421.

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.

88. Per Lord Bingham of Cornhill at 71.

89. Per Lord Bingham of Cornhill at 71.

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.

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.

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 infringement 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.

102. 425 US 391 (1976).

103. 465 US 605.

104. 425 US 391 (1976) at 409.

105. 465 US 605 at 613.

106. See Stessens, G The obligation to produce documents versus the privilege against self-incrimination: human rights protection extended too far?’ (1997) 22 ELRev Supp HRS 45 Google Scholar. 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.

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.

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.

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.

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, Slapper, G and Tombs, S Corporate Crime (Harlow: Longman, 1999)Google Scholar.

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.

121. These questions are based on a real case but have been altered to disguise the case and the identity of the companies involved.

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 undertaking still has freedom to decide whether to utilise the leniency programme.