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10/07/24

Privilege Against Self-incrimination

Privilege Against Self-incrimination
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Self-incrimination arises when an individual makes a statement or discloses information which exposes that person to the risk of criminal proceedings.

Privilege against self-incrimination provides a level of immunity to a person from being compelled to produce documents or provide information which is potentially self-incriminating in any court proceedings.

The term ‘privilege against self-incrimination’ comprises three separate elements:

  • privilege against self-incrimination in criminal, civil, or other non-judicial investigative proceedings,
  • entitlement of a defendant to elect not to give evidence at trial,
  • the right to silence of a suspect during a pre-trial criminal investigation.

The privilege applies to both civil and criminal courts [C plc v P (2007)].

In Jefferson Limited v Bhetcha (1979), it was held that in circumstances where there exists a risk to one party of serious prejudice which may lead to injustice, the civil court has the jurisdiction to stay those proceedings until related criminal proceedings affecting that party have been concluded.

Amandeep Murria of KANGS briefly outlines the privilege against self-incrimination in both civil and criminal proceedings.

Criminal proceedings

The privilege against self-incrimination is a common law privilege, developed over many years through the operation of the courts, reflecting societies changing views as recorded by decisions of Judges.

The background of the development of the right is extensive but historical scholars have located the origins in the second half of the seventeenth century. Where part of the aftermath of the constitutional struggles, resulted in the abolition of the Courts of Star Chamber and High Commission.

Interestingly, the right has developed from the historical fundamental safeguard for the defendant in common law criminal procedure, not from the right to remain silent but rather the opportunity to speak, which was considered paramount.

As currently recognised, the privilege affords degrees of protection to witnesses and defendants when, amongst other things:

  • answering questions in interview, prior to charge,
  • answering questions on charge,
  • giving evidence at trial.

However, if the Defendant chooses to exercise this right throughout the investigation, questioning and charge processes, that person cannot rely on the protection to refuse to answer the questions asked of them by the Prosecution or the Trial Judge.

Civil Proceedings

In addition to common law privilege, the privilege against self-incrimination in civil proceedings is recognised by the Civil Evidence Act 1968 which states at section 14:

Privilege against incrimination of self or spouse or civil partner

The right of a person in any legal proceedings, other than criminal proceedings, to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty shall:

  • apply only as regards criminal offences under the law of any part of the UK and penalties provided by such law; and
  • include a like right to refuse to answer any question or produce any document or thing if to do so would expose the spouse or civil law partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty.

Protection is not available to:

  • third parties,
  • respondent companies. The privilege cannot be exercised to protect directors.

Where a person wishes to assert privilege against self-incrimination, the Court will consider whether it is available to them and will consider whether the risk of incrimination is of ‘considerable latitude’ (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978]).

In that case Lord Diplock commented upon such privilege as:

“The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty.”

How Can We Assist?

The full nature of the right to claim privilege in any court proceedings, whether civil or criminal, is extremely detailed and technical. It is not necessarily the case that the right will be automatically exercised. Detailed consideration must be given to the circumstances surrounding each and every situation where the possible need to claim privilege arises.

The admission of any information obtained in a manner likely to deprive an individual of a fair trial would fall for consideration under Article 6 of the European Convention on Human Rights and would also be likely to be excluded under section 78 of the PACE 1984.

If you become involved any form of criminal or civil proceedings, it is essential that you obtain experienced and professional legal guidance.

The Team at KANGS has vast experience handling all aspects of both criminal and civil procedures, including those where an in depth understanding of the exercise of the right to privilege is essential.

If we can be of assistance, please do not hesitate to contact our Team using the details below:

Tel:       0333 370 4333

Email: info@kangssolicitors.co.uk

We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.

Hamraj Kang

Hamraj Kang
Senior Partner

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Tim Thompson

Tim Thompson
Partner

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