City Magazine 2014
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  1. The privilege against self-incrimination
City Magazine 2014

The privilege against self-incrimination

The privilege against self- incrimination is often represented as a principle of fundamental importance in the law of criminal procedure and evidence. A logical implication of recognising this privilege should be that a person cannot be compelled, on pain of a criminal sanction, to provide information that could reasonably lead to his or her prosecution for a criminal offence. However, 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.

Professor Andrew Choo's 2013 book, The Privilege Against Self-Incrimination and Criminal Justice, examines the operation of this principle in criminal proceedings. He says the research highlights several doctrinal and theoretical issues that are of particular contemporary concern.

"The evidence demonstrates that despite the supposed importance of the privilege against self-incrimination, there is little agreement on its content or effect. The law as it has developed over the years cannot very easily be rationalised. This is partly because of a lack of care or consistency in the articulation by the courts of the legal rules that govern the privilege."

Professor Choo asks whether, far from being a fundamental principle, the privilege is in reality, a device deployed by the courts when it is convenient for them to do so.

"If this is the case, then it is misguided to expect the privilege to perform a major role in regulating pre-trial criminal process and the focus should instead be on ensuring the existence of robust pre-trial regulation. Having dedicated pre-trial protections in place which are routinely supervised and enforced may be far more important than expending energy on attempting to define precisely what the privilege against self- incrimination should entail."

Professor Choo is the author of five books and numerous publications about criminal evidence and procedure. His published work has been cited in decisions of various appellate courts, including the House of Lords, the UK Supreme Court, the Privy Council and the Supreme Court of Canada. 

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