Courts and Covid 19: Delivering the Rule of Law in a Time of Crisis

“Some men see things as they are and say why? I dream of things that never were and say why not?[1]

Introduction

In this post I consider the effects of the Covid 19 pandemic upon the operation of the Courts and the delivery of Justice services in New Zealand. I argue that Covid 19 has demonstrated the fragility and fallibility of the physical presence “Court as a Place” model of justice services delivery.

I suggest that technology can be deployed to meet the challenges of Covid 19 and presents us with an opportunity to remodel the delivery of Court services so that elements of the Rule of Law and protected along with the physical safety and health of all participants.

Recent legislative changes following the invocation of the Epidemic Preparedness Act 2006 give Judges the power to be innovative in the way in which proceedings may be conducted in this time of crisis. The steps taken now may be an open door to things that previously never were.

The Physical Presence Model

Covid 19 has challenged many of the aspects of and assumptions that we have about the delivery of justice through the Court system. Some of these aspects and assumptions were outlined by the Chief Justice in a paper to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020.  It was entitled “A Framework for the future; Technology and the Rule of Law”.

She identified elements such as the importance of the Courthouse to the Rule of Law, the court hearing as a public demonstration of the Rule of Law in action and public hearings which exemplify fairness and legality. These three elements are all part of what could be described as the “Court as a Place” or “physical presence” model of the delivery of justice.

COVID 19 challenges this “physical presence” model. The way in which the virus spreads, its apparent virulence, the requirements for reduced opportunities for gatherings and the need for what is referred to as “social isolation,” the restriction on movement of participants based on age means that the physical presence aspect of human interaction in a courtroom in a courthouse render the “Court as a place” model of delivery of justice services becomes untenable. Indeed on 26 March 2020 the unprecedented step was taken to close the District Court and High Court to members of the public whose presence is not required for the conduct of the day’s business in the interests of public safety.

Covid 19 demonstrates the fragility and instability of the Court system as a means of justice delivery, using a “presence” based model. What was thought to be as solid as some of the architectural and symbolic representations of the Court has proven to be at risk because of the nature of a virulent disease and an apparent reluctance in the past to confront the winds of change and take up the opportunities that new technologies present.

Remote participation to the limited extent that audio-visual links allows and the use of electronic books – a digital mirror of the old Eastlight file – are a start but sadly are constrained by an infrastructure that is not fit for purpose.

Public Confidence, Responsiveness and Relevance.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that we must look for other solutions for the delivery of Court services. In re-evaluating what it is that Courts do, the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19.

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot.”

We need to ensure:

• Public confidence in the system; and
• Associated with that a recognition that Courts are responding effectively to the crisis; and
• That the solutions offered are relevant to present and future circumstances.

Allow me to expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants.  Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants. 

Their attitude towards the symbolism of the court is that the court is a place where the requirement to be physically present at a certain place for the disposal of court business may be seen as laughable, particularly when there are other systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie the respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant. 

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts are closed to members of the public whose presence is not required for the business of the Court. Covid 19 present us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us to meet the challenge.

We need to recognise that we must reduce as far as possible physical human interaction in Court processes. Electronic filing using the Internet and Cloud based systems mean that physical documents need not pass over a Registry desk and there is an absence of any need to handle paper or other physical objects that can transmit disease.

E-Filing and E-Bundles as a Solution

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offer is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

In many respects this is a neutral element of the system. It involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper that accompanies Court proceedings and enhances the gathering and production of evidence during the course of a hearing. It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line or asynchronous hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

Technology and the Asynchronous Hearing

My next suggestion challenges the synchronous model of the Court hearing.

In our present system the court as a place is central.  It is necessary for all of the parties, their witnesses, their lawyers and the Judge to be available at the same place and at the same time.  Thus, the hearing takes place synchronously and must take place within time allocated or any additional time that may be available. 

Bringing everybody together at the same place and at the same time is one of the difficulties of bringing a case to some form of finality by way of a hearing. Even a hearing where all the parties are remotely present via videolink suffers from this deficiency.

Professor Richard Susskind proposes[2]  in his discussions about Online Courts that there be asynchronous hearings, which means that utilising technology one party may give evidence at a time that is convenient to him or her and for the Judge.  The other party may be present in the virtual sense to hear that evidence.  At a later time, that other party would have a right of reply.  It would mean that the hearing would proceed in fits and starts, a process that is not unknown to current judicial decision-makers and lawyers.  It does involve something of a major cultural shift within a system that has become used to having a court case start at the beginning and carry on through until the end – a synchronous process. 

The advantage of the a-synchronous hearing is that it does not necessarily involve everybody being in the same place at the same time. They can be “virtually” present. It is in this respect that Professor Susskind develops his concept of the court as a service rather the court as a place, because technology can allow the asynchronous hearing to take place, even although the parties are not physically in the presence of one another.

The synchronous hearing has been supported in the past because that is the way court cases have been conducted in the past. The focus of the parties and the tribunal is upon the one matter. The model is akin to that in Alice in Wonderland “Begin at the beginning,” the King said gravely, “and go on till you come to the end: then stop”.[3]

The reality is that the focus is never as tight as that. The parties go home at the end of the day and attend to their affairs. The lawyers deal with other matters in their caseloads. The judge works on a reserved decision in another case. In this respect a certain level of ascynchronicity is already present in a Court case even although the matter may proceed over the course of consecutive days or weeks.

The asynchronous hearing challenges the “presence-based” model in that the hearing may take place over a period of time at the convenience of the parties and their lawyers, dealing with certain issues or evidence on a step by step basis. The use of technology – notably audio-visual links or AVL – means that place does not matter.

It may well be that this model of hearing may be more appropriate for a civil case rather than a criminal one. Yet it is my view that criminal cases could and should be considered for full remote presence hearings with perhaps a facility for private communications between client and counsel.

Objections to this method of proceeding are probably a mixture of cultural practice and habitual training. It is never easy to change a “traditional” way of doing things, but disruption always accompanies technological change. In the same way that many commercial and governmental operations have changed process to adapt to new technologies and the saving and convenience that accompany them, so too the legal profession and the Court system must adapt to remain relevant and credible. There is nothing new about the law’s delays. Hamlet complained of them in 1599.

What is remarkable is that over half a millennium later we have a chance to tackle such problems, yet seem to find reasons for not doing so. The onset of Covid 19 means that remote asynchronous hearings may prove an alternative to the unhealthy, physical presence synchronous model that we presently have.

It is acknowledged that the asynchronous hearing challenges the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what may be described as the performative aspect. Nevertheless it is incumbent upon the Courts to respond to new challenges, including those involving the health of participants. There is still participation. There is still an opportunity to be heard and for a decision maker to actively participate. It does not require all persons to be present in the same room for a Judge to be seen to pay equal attention to the arguments of each side.

In many respects these presence-based arguments are of a cultural nature that have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication.  The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago. Times have changed – changed utterly and the Courts must change with them.

The Hearing Technology

The provision of AVL for Court hearings is premised upon a “presence” model and the “court as a place” still prevails. There are shortcomings with the technology in terms of quality, ability to effectively communicate and technological protocols that could be improved.

For all participants to be “present” remotely some other solution that does not envisage or require a central location must be deployed. The necessary documents and other materials would be available via the Cloud-based document system described above. One solution that provides a workable model is Microsoft Teams. Teams at its most basic operates as a messaging app but can act as a remote working and conferencing application that allows all participants to be “present” in the one conference area. The only difference between that and a court is that the participants would be remotely located.

Another solution may be found in the videoconferencing application Zoom which can be used for webinars, conferences and meetings. When one reduces it to its most fundamental element, a court hearing is no more and no less than a meeting, albeit of a rather formal and ritualised nature.

Teams, or indeed any “off the shelf” solution such as Zoom would not have infrastructure requirements other than the Internet. It could be run independently of the Courts network. Teams and Zoom allow for the creation and retention of a record of the hearing including audio, video and screen sharing. It would allow for hearings to take place without putting the participants at risk.

Although the infrastructure of the New Zealand Ministry of Justice was deployed, on 26 March 2020 the guilty plea of Brenton Tarrant, the 15 March 2019 Christchurch terrorist, was taken by video link. Despite the lockdown the Judge and Crown counsel were present in Christchurch. Defence counsel were present by video link in another courtroom. The prisoner was “present” via video link from prison. The video may be found here https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12320188

Using different systems such as Zoom or Teams there was no need for any of the participants to have been at any Courtroom.

The opportunity now presents itself for Judges to take a lead in the current crisis and continue to deliver justice services remotely. The invocation of the provisions of the Economic Preparedness Act 2006 and a very swiftly enacted amendment mean that any administrative difficulties posed by the current Rules of Court may be modified suspended or waived. The power given to Judges do not include the power to vary the requirements of a statute, but the provisions of the Courts (Remote Participation) Act 2010 already allow for remote hearings in many cases.

What we do now could provide a proven working model for the future delivery of Justice services post Covid 19

Conclusion

It is one of the functions of the Rule of Law to provide an effective and accessible means of resolving disputes. Inevitably this involves an exchange of information and in the past, that has been what takes place in a court – an information exchange about a dispute that leads to a resolution by a decision-maker.

Communications technologies and digital communications technologies have evolved to the point that a wide variety of means of communication of information are now available. It seems counter-intuitive for the Justice system to rely on one model when there are a variety of opportunities available.

My proposals do not dispense with the fundamentals that underly the Rule of Law. I realise that in many respects these proposals have significant elements present in Professor Susskind’s Online Court but with wider application than small civil claims.

I would suggest that they enhance the Rule of Law and allow the justice system to appear relevant rather than a quaint way of resolving disputes that the protagonists of Bleak House would recognise and would provide workable solutions for the continued delivery of Courts services in the Covid 19 environment.

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[1] Attributed to Robert F Kennedy paraphrasing George Bernard Shaw Back to Methuselah where the Serpent said “You see things; and you say, ‘Why?’ But I dream things that never were; and I say, ‘Why not?’”.

[2] Richard Susskind Online Courts and the Future of Justice (Oxford, Oxford 2019)

[3] Lewis Carroll “Alice’s Adventure in Wonderland” Chapter 9

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The Right to Silence

In 1994 I completed a thesis for a Master of Jurisprudence degree. The title of the thesis was “The Silence of the Lambs: Innocence, silence, self-incrimination and proof burden in the Adversarial/Accusatorial Criminal Trial.” The thesis covered 300 pages including bibliography – a total of 134,821 words. It was a very detailed study.

Every so often the right to silence and aspects of self-incrimination arise in the course of discussions about our legal process. Recently there have been calls to consider getting rid of the right to silence either in the context of police investigations or as an overall concept. The Commissioner for Children, Andrew Becroft, wrote in the Herald about his proposals for modifications to the right to silence. His proposal is in line with powers that the Serious Fraud Office possesses.

This post addresses a wider issue.

What follows is a selection of parts of the thesis. It is important to understand what it is that we are talking about, and how the concepts of the privilege against incrimination and the right to silence fit within the accusatorial/adversarial criminal trial process. My final conclusion is that in fact the wrong question is being posed. Those who favour the abolition or abrogation of the right to silence really need to ask “what sort of criminal investigation and trial process do we want.”

From an historical point of view, the right to silence and the privilege against self-incrimination seem to have developed from the same essential concept but in fact reflect two distinct and separate principles. The phrase nemo tenetur seipsum prodere[1]was used more and frequently throughout the seventeenth century. The clear concept was that an individual could not be required to be a witness against himself in the sense that he should not be asked questions which could provide evidence of or form the basis for a criminal charge[2]. However, at common law it had been a principle for centuries that an accused person was unable to give evidence in court on oath[3] and, indeed, this situation continued until 1898. That principle is summed up in the maxim nemo debit esse testis in propria causa [4].

It is my contention that in fact the two concepts are separate and distinct and cannot be used synonymously[5].

A difficulty seems to have arisen in treating silence in the face of questioning by officialdom (but not under oath or other form of compulsion) as an invocation of the privilege against self-incrimination. Without extending the adversarial process to the point of investigation[6] such an application of the privilege is unsustainable.

Some writers have expressed difficulty with the application of the right during official questioning or at trial, and have totally ignored the situation pertaining to a witness other than the accused or the impact of the obtaining of incriminating evidence which may be derived in civil or other investigative or inquisitorial proceedings.

The nemo tenetur maxim protects a person who may have committed or be suspected of a crime or offence in two respects. First, that person need not give any information to investigative authorities which may incriminate[7] him – that is which may give the authorities sufficient evidence from his own mouth alone to accuse him or to bring a charge. Self-incrimination was seen as objectionable because it essentially was a form of self-accusation, rather than accusation from another source.

Secondly the significance of the concept of “privilege” is  highlighted not by its existence but by its abrogation. A line of cases in England illustrates where in certain situations provided by statute, evidence derived in one forum which may be incriminatory and obtained by a form of compulsion, may potentially be used in criminal proceedings[8].

The right that reposes in an accused person at trial arises, from the nemo debit maxim. The right to silence at trial – that is to sit back and put the prosecution to the proof of its case – is grounded both upon the nemo debit  maxim and also upon the burden of proof being upon the accusing authorities to prove the charge which has been laid.

Historically there may have been collateral issues involving the likelihood of self-incrimination arising from cross-examination, but it is my clear view that they were collateral only, having regard to the much older concept of disqualification for interest, and the old concept that an accused could not be sworn to give evidence at his trial. The position now is that an accused who elects to give evidence accepts that risk, for he may be cross-examined. Yet he still retains the right to remain silent in the face of his accusers.

In my view, the distinction between the rights that I have described above and what is called the privilege against self-incrimination is highlighted by the example of the witness, (who can be compelled to give evidence as opposed to the accused who cannot), giving evidence in the course of a trial and may be asked a question the answer to which may be self-incriminatory in that it provides an acknowledgement of participation in another unrelated offence. In such a situation that witness is entitled to be warned that he need not answer on the grounds that he may incriminate himself. Thus, in adopting such a course of action, the witness is availing himself of a privilege that arises in the course of his giving evidence in respect of which he is compellable.[9]

It is clear that the definitional waters have become muddied[10] and the terms have become interchangeable.

One problem seems to be in the interchangeable use of the word “right” on the one hand and “privilege” on the other. Although what is generally known as the “right to silence”  has one of its foundations in the principle that a person should not provide the foundation for an accusation against him or herself, the specific right to silence at trial  is based on a more fundamental principle associated with the burden of proof coupled with the historical premise of nemo debit.

The right to silence in the face of investigative questioning is partially grounded on the concept of non-self accusation but it is also based on the historical loathing of the English common law for torture and with judicial disapproval of compulsion, coercion and lack of voluntariness in the obtaining of an incriminating statement.

The true “privilege against self-incrimination” attaches to a person who is compelled to give evidence and may suffer a penalty imposed by a legal authority[11]for failure to answer. That privilege may attach to a person who may not have been charged with an offence or who may be subject to a charge.

In granting to an accused a right to give evidence at trial, an issue arose regarding cross-examination, which would directly impinge upon the privilege against self-incrimination. The right to give evidence carried with it a concomitant obligation to subject oneself to cross-examination without being able to raise the privilege against self-incrimination.

I suggest that the categories may be reduced in the following way:

1. The Right to Silence being:

(a) The right to maintain silence at trial which is a specific right attaching to an accused. It is derived from the nemo debit principle, the concept of disqualification for interest, and the prosecutorial burden of proof. It contains implications for the privilege against self-incrimination and for the burden of proof if it is abrogated.

(b) The right to maintain silence in the face of investigative inquiry. This is a general right available to all and is based on  privacy, the burden of proof of an offence resting upon the accuser and the sanctity of the individual from coercion, compulsion or unfairness on the part of investigative authorities. If there is to be an inculpatory statement made it must be as the result of the free exercise of choice. There is no historical basis for claiming the nemo tenetur principle having regard to the use of the enquiry conducted by the Justices of the Peace following the passage of the Marian Statutes, and the fact that the privilege against self-incrimination was not invoked.

2. The privilege against self-incrimination which is a general privilege available to any witness who is compelled[12]to give evidence on oath and who, if he or she does not refuse to answer, may give evidence which may incriminate that witness and lead to a penalty, and where failure to answer may attract a penalty which may be imposed by law or by an authority having the power to impose a penalty[13].

To summarise my contention on the matter, there is a right reposing in all citizens to remain silent in the face of investigative interrogation and to refrain from giving verbal information which may result in self-incrimination.

There is a right reposing in all citizens standing trial before a jury or a judge alone to remain silent throughout the trial and refrain from giving evidence in answer to the evidence brought by the prosecution.

There is a privilege reposing in witnesses (other than an accused) who are called at a trial or some other hearing or inquiry to give evidence to refuse to answer questions which may involve self-incrimination[14].

Our criminal system is that of an accusatorial/adversarial model. Critics of the privilege have professed an allegiance to this model of criminal proceeding, together with its presumptions and allocation of proof burdens and standards. It is therefore a matter of concern to read the critics condemn the privilege and the right to silence as the shelter of the guilty. In the rigorous legal sense that cannot be the case. A person is not guilty until he or she has been found guilty or has pleaded guilty. If a person has remained silent and is guilty, by a strict application of the presumption of innocence, that person must have been found guilty. That finding must have taken place absent any evidence from the accused.

The question falls to be answered – how then has the system suffered as a result of the right to silence? If, however, a slightly less rigorous approach is being adopted by the critics, and their argument is that people are guilty who have not been convicted at trial, and that this has been as a result of the exercise of the right to silence, the question falls to be answered – what value do the critics then place upon the presumption of innocence?

The point that this makes is that one cannot view an issue such as the right to silence in a vacuum from other parts of the criminal legal process. Although those who classify the right to silence and the privilege against self-incrimination within the category of evidence do so because it has certain evidential ramifications, such a classification fails to view the right to silence and the privilege against self-incrimination as a part of the matrix of the entire criminal process. It is inextricably bound up with fundamental precepts of the criminal process – the presumption of innocence and the burden of proof – along with other matters of an evidential nature as well.

Although the right to silence is a convenient target, and may, in the minds of the critics, be easily separated from the criminal process without doing violence to the integrity of the process as a whole, it is my conclusion that such a course of action is not possible. Although the criminal process has developed to its present point in disparate ways, and in response to different stimuli, it is, nevertheless a settled matrix of fundamental principles. To disturb any one of those will render the shape of the matrix to quite a different one from that which we recognise today.

If the critics of the right to silence were to carry the matter to its logical conclusion, the question that they should ask is “what fundamental model of the criminal process do we want” and address the issue of the burden and standard of proof and the inquisitorial system as opposed to the adversarial\accusatorial model.

The privilege is built into the adversarial\accusatorial model. If the right to silence were lost and the accused were required to answer or risk adverse inferences the trial process would shift to an inquisitorial system with its complex of shifting proof burdens.

There may indeed be an argument for an inquisitorial system but if a simple solution of attributing evidential weight to silence or allowing adverse inference to be drawn from silence were adopted, we would be left with unfavourable aspects of the inquisitorial system without any of the protections for an accused that such a system may offer. As I have suggested, the matrix would be destroyed. The whole focus of the trial would shift to the accused and an assessment of his or her case rather than the focus remaining upon the prosecution case. Quite clearly, the burden of proof would be affected. The accused’s account, or his failure to give one becomes the focus and centre of the trial, rather than the strength or weakness of the prosecution case.

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[1] No one is bound to become his own accuser.

[2] Especially in circumstances where there was little or no other evidence and in circumstances where prosecuting authorities were anxious that evidence of a confessional nature be provided and available.

[3] Although in criminal trials an accused was expected to speak and engage in dialogue and verbal contest with prosecution witnesses in what Professor Langbein describes as the “accused speaks” trial.

[4] No man should be a witness in his own cause.

[5] Although the privilege against self-incrimination is referred to by Lord Mustill in Smith v Director of Serious Fraud Office [1992] 3 All ER  456, 463 as aspects of a disparate group of immunities gathered together under the heading of “ the right to silence”.

[6] As was the case in Miranda v Arizona 384 US 436 (1966)                             

[7] “Incriminate” is defined in the Shorter Oxford English Dictionary as “To charge with a crime; to involve in an accusation or charge”.

[8] Without any form of protection for the witness in the way in which the evidence may be used directly or the way in which the evidence given may lead an investigative body to uncover evidence indirectly.

[9] The distinction of witness privilege as opposed to the right to silence that reposes in an accused person at trial is clarified and supported by Mr. Justice deCordova Rowe in How Valid is the Right to Silence at Criminal Law (1990) Commonwealth Law Conference Papers 267. However, Mr. Justice Vincent describes the title to his paper as  The Right to Silence Revisited Again (1990) Commonwealth Law Conference Papers 263 when in fact it deals primarily with investigative interrogation which involves issues of self incrimination based on the concept of prodere.

The true nature of the privilege is further exemplified in the English cases to which I have referred, especially R v Kansal [1992] 3 All ER 844 and Bishopsgate Management Ltd v Maxwell [1992] 2 All ER 856.

[10] I shall not inject a further element of confusion into what is largely a conceptual discussion by referring the Fifth Amendment to the Constitution of the United States which has elevated the privilege against self-incrimination to a constitutional right.

[11] Such as a penalty for contempt, which could include loss of liberty.

[12] By subpoena or otherwise.

[13] The privilege is available to an accused who faces charge A, but can claim the privilege when cross-examined about an unrelated allegation B at his trial on charge A.

[14] All subject, of course, to statutory abrogation.