Privilege against Self Incrimination in UK Law

Moreover whatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character. In the present case, this cannot be discounted as unreal: it is not only a possible but probably the intended result.

If a defendant's answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he had first obtained leave from the court which ordered the interrogatories, and probably without such leave.

Indeed, in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill treatment of a suspect and secondly that it discourages the production of dubious confessions. I regard the privilege against self incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff's property or money.

I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the holder has committed a criminal offence. The contents of the document will speak for itself and there is no risk of the false confession which underlies the privilege against having to answer questions that may incriminate the speaker.

It is, however, important to consider the reason why a party or witness is excused from making an incriminating disclosure. I refer again to Cross, p. 418, where the statement of Goddard L.J. in Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253, 257 is cited:

Bunn v. Bunn (1864) 4 De Gex, Jones and Smith. I do not refer to these cases in detail for; the reason that I found it impossible to derive any significant assistance from them. The reasoning of the judgments is often terse and difficult to follow. The furthest one can go is to say that they indicate a willingness on the part of nineteenth century judges to override the privilege when to allow it would defeat the justice of the case.

The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35, at paragraph 69 of the judgment; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR, 163, at paragraph 52 of the judgment.