Development of the Privilege against Self-incrimination

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Last updated: May 1, 2019

As previously noted it has been a long held principle of common law that a defendant cannot be compelled to testify at his own trial.  Section 1 of the Criminal Evidence Act 1898 provides that a:“Person charged in criminal proceedings shall not be called as a witnes except upon his own application.”[4]This right has been fortified by the implementation of the Police and Criminal Evidence Act 1984 which provides that an accused person can not be compelled to testify in his own defence.[5]In Blunt v Park Lane Hotel [1942] 2 KB 253, Goddard LJ delivered a statement which reflected the significant adaptation of the right against self-incrimination.

  Goddard LJ said that:”…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 or sued for.”[6]This principle was founded on the wording of the Evidence Act 1851 Section 3 which essentially held that no person charged with an “indictable offence or any offence punisgable on summary conviction” shall be a “competent or compellabe” witness either “against himself”.[7]  Moreover, Section 3 pervented the defendant answering any questions that had the consequence of eliciting incriminating responses.[8]The implementation of Section 35 of the Criminal Justice and Public Order Act 1994 creates some difficulties for the age old concept of the right to silence and the privilege against self-incrimination. Although Section 38(3) prevents a conviction solely on the grounds that a defendant opted to remain silent,[9]  Section 35(4) provides that a defendant who at his trial refuses to testify at his own trial will “not be guilty of contempt of court.

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”[10] Section 35(3) permits the judge or jury to:“draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”[11]The inference cannot be drawn against a defendant who suffers from some mental or physical malady which migh be put at risk if he or she testifies at his or her trial.  The implication is that Section 35(3) is only applicable if an accused is a competent witness.  Otten L.J. narrowed the conditions which might function to invoke an exemption to the application of Section 35(3) of the Criminal Justice and Public Order Act 1994 in R v Friend [1997] 1 WLR 1433.  Otten L.J.

explained that:“A physical condition might include a risk of an epileptic attack; a mental condition, latent schizophrenia,where the experience of giving evidence might trigger a florid state. If it appears to the judge that such a physical or mental condition of the defendant makes it undesirable for him to give evidence he will so decide.”[12]In R v Cowen [1995] 3 WLR 818 the English Court of Appeal provided various rationales for the proper application of Section 35 of the Criminal Justice and Public Order Act 1994. In this case the defendant was charged, tried and convicted of offences pursuant to the Offences Against the Personn Act 1861.  At his trial the defendant did not testify and when asked about the election, the defendant’s attorney informed the trial judge that the defendant opted to remain silent so as not to reveal antecedents.

  The judge in his summing up to the jury did not inform the jury of the Section 38(3) limitations with respect to drawing an inference as to guilt and the defendant was convicted of a lessor offence.  The Court of Appeal while allowing the appeal rationalized the limitations on the right to silence as follows:Section 35 changed the law with respect to the right to silence and the privilege against self-incrimination but was not in contravention of Article 6 of the European Convention on Human Rights.  This wa so because Section 35(4) maintianed the right to silence by providing that the defendant could not be forced to testify at his own trial.Section 38(3) provided protection of the right to silence and the privilege against self-incrimination by preventing a conviction solely on the basis of the accused person’s opting to remain silent.The burden of proof remained on the prosecution throughout the criminal trial.The judge and the jury is permitted to draw inferences of guilt from the defendant’s silence to the extent that it advances the prosecution’s case.

A jury could only draw an inference of guilt if they were satisfied after the close of the prosecution case that there was indeed a prima facie case against the defendant.[13]In R v Birchall [1999] Crim L.R. 311 the Court of Appeal reinforced the Cowen principle that a jruy is not permitted to draw an inference of guilt unless and until they were safisfied that the prosecution had made out a prima facie case against the defendant.

[14] The difficulty with this guideline is self-evident.  The question of whether or not a prosecution has made a prima facie case or whether or not the defendant has a case to answer is a question of law and as such is a question for the trial judge and not the tribunal of fact.  This proviso does nothing to exemplify or advance the privilege against self-incrimination, it compromises it further by creating confusion.Be that as it may the courts have expressed dissatisfaction with the operation of the right against self-incrimination for some time prior to the enactment of Section 35 of the Criminal Justice and Public Order Act 1994.  In general the courts had become increasingly frustrated with the defendant who invoked the priviledge solely for the purpose of perverting the course of justice.

  For instance in AT & T Istel Ltd v Tully [1992] 3 All ER 523 Lord Griffiths expressed the veiw that the privilege was “in need of radical reappraisal” but it would take an act of Parliament to accomplish this end.[15]The courts have been particularly impatient with the privilege against self-incrimination in civil proceedings.  Lord Templeman said that:“It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves.”[16]Despite the changes in English law limiting the right to silence and the privilege against self-incrimination the European Court of Justice has warned in Condron v UK, NYR [2000] 31 EHRR 1 that national courts should proceed cautiously with respect to the accused right to remain silent.[17] The court held however that:”the fact that the issue of the applicant[s]’silence was left to a jury cannot of itself be incompatible with the requirement of a fair trial”.[18]Acadmemics also recognize that limitations on the privilege against self-incrimination do not in itself compromise a fair trial for the accused person.  Mike Redmayne argues that there is not real justification for the strict insistence of a right to remain silent.  Redmayne submits that:“ the most compelling rationale for the privilege is that it serves as a distancing mechanism, allowing defendants to disassociate themselves from prosecutions.

”[19]Redmayne argues that the privilege against self-incrimination presents an inconsistent law when one considers that the law has long since made provision for forced production of documents and intimate body samples.[20] The production of these forms of evidence already ignores a privilege against self-incrimination.  It therefore makes little sense to insist upon an absolute privilege against self-incrimination.

Indeed academics and judges alike have struggled for some time now to justify the continued insistence of an absolute privilege against self-incrimination.  As far back as 1827 Jeremy Bentham took issue with the privilege claiming that it was irrational and could not be reasonably justified.[21]The basis of Bethamy’s argument was founded on the propostion that:“The privilege had the inevitable effect of excluding the most reliable evidence of the truth—that which is available only from the person accused—necessarily causing greater weight to be given to hearsay and other inferior sorts of evidence.”[22]Obviously, the privilege against self-incrimination has its virtues.  There can be no doubt that it is a necessary safeguard against unlawful police interrogations and the use of tenuous confessions in a court of law.

  Lord Mustill identified these two compelling reasons for the continued application of a privilege against self-incrimination as follows:“…in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and second it discourages the production of dubious confessions.”[23]Lord Muskill was not advocating an absolute priviledge.  He was merely identifying the limited justification for its continued existence.

ConclusionWhile it can be argued that the privilege against self-incrimination has its purposes it is equally true that as an absolute privilege compromises the truth finding mission of any legal process.  As observed by Mike Redmayne there are circumstances in which a defendant can be compelled to provide self-incriminating evidence in the context of bodily samples.  Since the defendant can be compelled to provide this kind of evidence there are no real justifications for insisting upon an absolute privilege against self-incrimination.  The right to remain silent should remain as it is, subject to the right of the jury to draw an inference of guilt from that silence if it is obvious to them that the defendant’s guilt has been clearly established.

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