The Privilege Against Self-Incrimination and Criminal Justice

The privilege against self-incrimination is often represented in the case law of England and Wales as a principle of fundamental importance in the law of criminal procedure and evidence. A logical implication of recognising a privilege against self-incrimination should be that a person is not compellable, on pain of a criminal sanction, to provide information that could reasonably lead to, or increase the likelihood of, her or his prosecution for a criminal offence. Yet there are statutory provisions in England and Wales making it a criminal offence not to provide particular information that, if provided, could be used in a subsequent prosecution of the person providing it. This book examines the operation of the privilege against self-incrimination in criminal proceedings in England and Wales, paying particular attention to the influence of the European Convention on Human Rights and the Human Rights Act 1998. Among the questions addressed are how the privilege might be justified, and whether its scope is clarified sufficiently in the relevant case law (does the privilege apply, for example, to pre-existing material?). Consideration is given where appropriate to the treatment of aspects of the privilege in Australia, Canada, India, New Zealand, the USA and elsewhere.

Auteur

Andrew Choo is a Professor of Law at City University London and a barrister at Matrix Chambers.

Contenu

1. Introduction: Origins, Rationales and the Relevant Legal Framework
   
   1. Origins and Rationales
      1.1 Epistemic Considerations
      1.2 Non-Epistemic Considerations
   2. The Relevant Legal Framework
      2.1 The Context: A 'Social' or 'Moral' Duty of Co-operation
      2.2 Some General Principles
   3. Organisation of the Book
   4. The Jurisprudence of the European Court of Human Rights and the Response of the Law of England and Wales
   5. Funke v France
   6. Saunders v UK
   7. Prosecutions for Failure to Provide (Accurate) Information
      3.1 The Jurisprudence of the European Court of Human Rights Post-Funke v France
      3.2 The Case Law in England and Wales
   8. Use of 'Compelled Information'
      4.1 'Use Immunity'
      4.2 Is There a Principle of 'Derivative-Use Immunity'?
      4.3 Is the Information 'Compelled Information'?
   9. Concluding Comments
   10. What Is 'Information'?
   11. The Jurisprudence of the European Court of Human Rights
   12. The Case Law in England and Wales
   13. US Constitutional Law
       3.1 Voice
       3.2 Handwriting
       3.3 Sobriety Testing
   14. Australia
   15. New Zealand
   16. Canada
   17. India
   18. International Criminal Law: The ICTY
   19. Concluding Comments
   20. Identifying the 'Essence' of the Privilege
   21. An 'Absolute' Right?
   22. The Jurisprudence of the European Court of Human Rights
   23. The Case Law in England and Wales
   24. Canada
   25. Concluding Comments
   26. 'Indirect' Compulsion: Confessions and Inferences From Silence
   27. Questioning Suspects
       1.1 Mandatory Exclusion and Mandatory Directions
       1.2 Legal Advice
       1.3 Cautioning Suspects
       1.4 Alternatives to Judicial Discretion
       1.5 Police Informants
       1.6 'Safety Interviews'
   28. Adverse Inferences From Silence
       2.1 Pre-Trial Silence
       2.2 Silence at Trial
   29. Concluding Comments
   30. Concluding Thoughts