O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT – DISSENTING OPINION OF JUDGE PAVLOVSCHI 25 own guilt. Before being questioned a person should be told the nature of the offence of which he is accused and that he has the right not to make any statement, and that if he does it can be used against him in court. No statement obtained by threats or trickery can be used as evidence in court. In this respect the United States Uniform Code of Military Justice is very illustrative. Article 31 of the Code provides that no person may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him. No person may interrogate, or request any statement from, an accused or a person suspected of an offence without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offence of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court martial. No statement obtained from any person in violation of this Article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court martial1. Nowadays the prohibition of compulsory self-incrimination has become a generally recognised standard in the field of criminal procedure. In my opinion, the majority has committed a fundamental mistake in accepting the Government’s position that obtaining self-incriminating statements under the threat of criminal prosecution can be considered as a permissible method of prosecution in certain very specific circumstances, such as those of the present case. This is not only wrong, but is also an extremely dangerous approach. Of course the majority is right in stating that the right to remain silent is not absolute. There are indeed some jurisdictions which allow self-incriminating evidence to be obtained from the accused under compulsion. However – and I would like to emphasise this fact – this evidence cannot be used for the purposes of prosecuting that defendant. Canadian criminal procedure, for instance, provides as follows: “Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him ... [and is] ... compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.” (Canada Evidence Act, C-5) In the case of R. v. S. (R.J.), the Supreme Court of Canada ruled as follows: “... The right of an accused not to be forced into assisting in his own prosecution is perhaps the most important principle in criminal law and the principles of fundamental justice require that courts retain the discretion to exempt witnesses from 1. See Uniform Code of Military Justice, Article 31 “Compulsory self-incrimination prohibited”, http://www.constitution.org/mil/ucmj19970615.htm.