Privilege against self-incrimination
Produced in partnership with Aine Kervick and Will Hayes of Kingsley Napley LLP
Privilege against self-incrimination

The following Corporate Crime guidance note Produced in partnership with Aine Kervick and Will Hayes of Kingsley Napley LLP provides comprehensive and up to date legal information covering:

  • Privilege against self-incrimination
  • Background
  • Asserting privilege against self-incrimination in criminal proceedings
  • Privilege against self-incrimination: defendants
  • Privilege against self-incrimination: spouse of the defendant
  • Privilege against self-incrimination: witnesses in criminal proceedings
  • Directors disqualification proceedings
  • Coroners' Inquests
  • Proceedings abroad
  • Unexplained wealth orders
  • more

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 the Star Chamber.

It was summarised in 1942 in Blunt v Park Lane Hotel Ltd:

'The rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred