The Self-Incrimination Privilege in Care Proceedings and the Criminal Trial and ‘Shall Not Be Admissible in Evidence’

Publication Date01 February 2009
DOI10.1350/jcla.2009.73.1.548
AuthorSusan Edwards
SubjectArticle
The Self-incrimination Privilege
in Care Proceedings and the
Criminal Trial and ‘shall not be
admissible in evidence’
Susan Edwards*
Abstract This article considers the suspension of the self-incrimination
privilege in care proceedings and the consequences for respondents and
defendants implicated in civil and criminal trials relating to child abuse.
This right against self-incrimination is differently applied in the civil and
criminal forum. Where there are parallel civil and criminal proceedings
and where different rules apply to the disclosure of fact, a respondent in a
civil trial later facing criminal proceedings is at a disadvantage. This article
explores the tension in the law with regard to a defendant’s right to silence
and the operation of the self-incrimination privilege with regard to docu-
ments and statements made by parties in civil and in criminal proceedings
in cases arising from the physical and sexual abuse of children by family
members or carers, and the law’s overriding objective of child protection.
It considers the several issues which arise when self-incriminatory state-
ments are made in one set of proceedings and the use that can be made of
these statements in the criminal investigation and at trial. It considers the
duty of the criminal court to consider fairness in respect of admissibility of
specif‌ic evidence (Police and Criminal Evidence Act 1984, s. 78) and also
to consider the fairness of the trial as a whole (European Convention on
Human Rights, Article 6). These sacrosanct principles and rules of evid-
ence are examined in the context of their application in family/care
proceedings and related criminal proceedings for offences of child abuse
and the implications for the rights of respondents/defendants.
Keywords Self-incrimination privilege; Fair trial; Child protection;
Child abuse; Human rights
The abuse of children, including physical violence, emotional abuse,
neglect and sexual abuse are all offences frequently committed by close
and extended1family members and also by foster carers. Indeed, in 52
per cent of all cases where children are killed at the hands of another
person, the parent is the principal suspect.2Since 2000, the number of
care orders made in care proceedings as a result of a f‌inding of fact of
‘signif‌icant harm’3in respect of abuse or neglect, has increased. (See
Table 1 below.)
* Professor of Law, Dean of Law, University of Buckingham; Door Tenant,
Clarendon Chambers, 1 Plowden Buildings, Temple, London; e-mail:
susan.edwards@buckingham.ac.uk.
1Daily Post (Liverpool), 24 May 2008.
2 Home Off‌ice, Homicides, Firearms Offences and Intimate Violence 2005/2006 (2007)
supplementary volume 1 to Crime in England and Wales 2005/2006.
3 Section 31 of the Children Act 1989 is the requisite threshold for the granting of a
care order application.
48 The Journal of Criminal Law (2009) 73 JCL 48–68
doi:1350/jcla.2009.73.1.548
Recent cases, which have received wide publicity, conf‌irm the extent
and nature of child abuse in contemporary Britain. In May 2008, Khyra
Ishaq, who was seven years old, was found in an emaciated state in the
family home where she lived with her mother and her mothers partner.
She later died in hospital. The mother and her partner have been
charged with causing or allowing the death of a child (Domestic
Violence, Crime and Victims Act 2004, s. 54). The dead childs three
brothers and two sisters between 4 and 12 years of age were also
reported to have been found in a neglected state and have been taken
into the care of the local authority. However, the care system, especially
since the introduction of the new system of funding Public Law Outline
designed to cut costs and speed up care proceedings,5is said to be failing
children. Indeed, since the pilot project began there is evidence that in
some London boroughs applications to courts for care orders have fallen
by 75 per cent and this decline will no doubt be ref‌lected in the national
f‌igures in 2008. Judges, the Law Society, the National Society for the
Prevention of Cruelty to Children, and the Family Law Bar Association,
amongst others, have said that this new system of funding will deter
local authorities from seeking care orders promptly, if at all. So, we are
facing a real crisis in child protection. The death of Baby P on 3 August
4 Domestic Violence, Crime and Victims Act 2004, s. 5 states: (1) A person (D) is
guilty of an offence if(a) a child or vulnerable adult (V) dies as a result of the
unlawful act of a person who(i) was a member of the same household as V, and
(ii) had frequent contact with him, (b) D was such a person at the time of that act,
(c) at that time there was a signif‌icant risk of serious physical harm being caused
to V by the unlawful act of such a person, and (d) either D was the person whose
act caused Vs death or(i) D was, or ought to have been, aware of the risk
mentioned in paragraph (c), (ii) D failed to take such steps as he could reasonably
have been expected to take to protect V from the risk, and (iii) the act occurred in
circumstances of the kind that D foresaw or ought to have foreseen. (2) The
prosecution does not have to prove whether it is the f‌irst alternative in subsection
(1)(d) or the second (sub-paragraphs (i) to (iii)) that applies . . ..
5 See The Times, 6 May, 2008 and http://www.justice.gov.uk/guidance/careproceedings.htm,
accessed 15 November 2008.
Table 1. Applications made for care and supervision and disposed
of in public law proceedings in all tiers of the court 2000–2007
Year Applications
made
Applications
withdrawn
Applications
refused
Orders made
for no order
Orders made
Care Sup* Care Sup Care Sup Care Sup Care Sup
2000 n/a n/a 459 74 26 1 177 10 6,298 784
2001 n/a n/a 355 60 15 0 164 13 5,984 1,466
2002 n/a n/a 304 24 27 1 185 17 6,335 1,538
2003 n/a n/a 433 71 26 1 257 50 7,387 2,383
2004 n/a n/a 380 59 11 1 306 30 7,796 3,012
2005 13,498 897 307 52 15 0 250 10 7,051 2,641
2006 13,421 938 325 47 12 1 289 25 7,222 3,223
2007 13,717 1,069 336 96 23 1 290 35 7,624 3,095
* Sup = Supervision
Source: Judicial Statistics for the respective years.
The Self-incrimination Privilege in Care Proceedings and the Criminal Trial
49

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