Privilege against self-incrimination

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The limited right of a person not to be prosecuted for failing to answer questions that would leave him open to subsequent criminal charges.

Like the Right to silence, the privilege against self-incrimination is one of the most fundamental of principles in English criminal law; it has been in effect since the 17th Century, if not earlier. It applies during the investigation of a criminal offence, and at trial. It appears to apply also to certain civil actions (for example, actions for recovery of unpaid taxes). In court, a witness may refuse to answer questions on the grounds that the answer would be liable to incriminate him in a criminal offence other than the current one. The qualification of the privilege to apply only to matters other than the current trial prevents the defendant from using the privilege to avoid answering difficult questions from the prosecution.

Despite its long history, the privilege against self-incrimination is not absolute. For example, there are many statutes that require a person to be compelled to provide certain information, with penalties for non-compliance. Many of these statutes provide that information so obtained cannot be used in subsequent proceedings, which mostly leaves the privilege against self-incrimination intact. For example, s.21 of the Theft act (1968)) makes it an offence to refuse to answer questions that are necessary for the recovery of stolen property. However, such information may not be used in evidence in subsequent proceedings

However, where the statute does not prohibit the use of information as evidence or, even more extremely, expressly admits it, this raises some awkward questions.

The most notorious example of such a provisions is s.434(5) of the Companies act (1985) which says (or, rather, said): An answer given by a person to a question put to him in exercise of powers conferred by this section ... may be used in evidence against him. This section was invoked by the prosection in R v saunders (1996), but on appeal to the ECHR (see: Saunders v united kingdom (1996)) it was held that this legislation was at odds with Article 6(1) of the European Convention on Human Rights (right to a fair hearing). Consequently, Parliament ammended the Companies Act and some other offending statutes in the Youth justice and criminal evidence act (1999), to the effect that evidence compelled under statutory powers cannot automatically be used in evidence.

However, other statutory powers of compulsion, which do not automatically render their evidence admissible, are not affected by these changes. It was held in R v hertfordshire county council,ex parte green (2000) that evidence compelled under the s.71 of the Environmental protection act (1991) was not affected by the ECHR decision in Saunders because it did not remove the discretion of the trial judge to exclude the evidence.

Even if the privilege against self-incrimination has not be overridden by statute, it can only be invoked in limited circumstances.

  • The risk must be that the disclosure would lead to criminal charges; a disclosure that would be detrimental in a civil action is not protected * The risk must be real and substantial, not notional * The criminal act must be something that is justiciable in England and Wales
    UK LAW