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.

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.

The reasoning of the judgments is often terse and difficult to follow. Mr. Nicholls was the first to concede that it was impossible to derive from these cases any coherent underlying principle by which to distinguish the exceptional case where the privilege is not available from the normal case where it is. 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 jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.

In terms of section 6(1) of the 1998 Act it is therefore unlawful for the judge and jury to act in a way which is incompatible with a defendant's right against self-incrimination as implied into article 6(1). Such a direction was an invitation to the jury to act in a way that was incompatible with the appellant's right against self-incrimination under article 6(1). As such, the direction was itself incompatible with that right.

At common law, as declared in section 14(1) of the Civil Evidence Act 1968, the privilege against self- incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no text book old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this instant case a new privilege hitherto unknown to the law.