Privilege against self-incrimination

Produced in partnership with Áine Kervick of Kingsley Napley , Will Hayes of Kingsley Napley and Alice Trotter of Kingsley Napley
Practice notes

Privilege against self-incrimination

Produced in partnership with Áine Kervick of Kingsley Napley , Will Hayes of Kingsley Napley and Alice Trotter of Kingsley Napley

Practice notes
imgtext

Background

The concept of privilege against self-incrimination, which is commonly referred to as one distinct protection, actually arises from a number of different protections for defendants and witnesses at common law which are 'concerned with the protection of citizens against the abuse of powers by those investigating crimes'.

Those disparate protections can be loosely categorised as:

  1. a privilege against self-incrimination for witnesses in criminal, civil or other non-judicial investigative proceedings (such as coroners' inquests)

  2. the right of a defendant not to give evidence at trial; and

  3. the right to silence of a suspect during a pre-trial criminal investigation

As set out below, the privilege is not absolute and statute has encroached on these various protections in a number of ways.

The privilege against self-incrimination at common law

The privilege against self-incrimination is a long-established common law privilege. The principle derives from common law as a reaction to prisoners being tortured into answering self-incriminating questions which would lead to their conviction in

Áine Kervick
Áine Kervick

Áine Kervick is an associate in the criminal litigation team and acts on a wide range of white collar and general criminal cases. She joined Kingsley Napley in 2014 and qualified as a solicitor in 2016.

She currently acts for suspects and witnesses in respect of investigations brought by the SFO, CMA and DoJ in relation to bribery and corruption and cartel investigations. She was part of the team working on the LIBOR II trial which involved allegations of a conspiracy to manipulate the LIBOR rate in which the client was acquitted after a trial lasting nearly 4 months.

Áine has a particular interest in the international dimension of criminal cases and advises individuals in respect of extradition requests. She is also experienced in acting for individuals in internal investigations with a focus on legal professional privilege in criminal investigations.

Will Hayes
Will Hayes

Will is a barrister with a range of experience in general and white collar crime. He joined Kingsley Napley in 2017. Will was called to the Bar in 2013 and completed pupillage at a leading criminal set, where he represented clients in a range of hearings and trials in the magistrates' court, crown court and youth court. His experience covers the full spectrum of general crime, from road traffic matters and drug offences, to allegations of violence and dishonesty and prosecutions for sexual offences, often involving vulnerable clients. Will also has experience of financial and serious and complex crime, including working as part of the defence teams for Rebekah and Charlie Brooks in the phone-hacking trial and for a broker prosecuted by the SFO for allegedly conspiring to manipulate LIBOR. Prior to joining Kingsley Napley, Will was instructed as independent counsel by the Serious Fraud Office for three months to carry out a legal professional privilege review in connection with a bribery investigation. Will therefore possesses a thorough understanding of LPP and is well placed to advise on this often complex area of law.

Alice Trotter
Alice Trotter

Associate, Kingsley Napley


I am an associate in the criminal litigation team and act on a wide range of white collar, international and general crime cases. I joined Kingsley Napley in 2018 and qualified as a solicitor in 2023.

I currently act for suspects and witness in respect of internal investigations, as well as investigation brought by the SFO and the NCA. I have undertaken advisory work in relation legal professional privilege and LPP reviews.

I have a particular interest in the international dimension of criminal cases and advise individuals in respect of cross-border investigations.

Powered by Lexis+®
Jurisdiction(s):
United Kingdom
Key definition:
Common law definition
What does Common law mean?

Common law is case law (decisions from courts and tribunals). Case law has also established and developed many principles of law and equity not covered by legislation. Case law is therefore a key source of primary law.

Popular documents