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Vol 22 No 4 April/May 2017

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The Privilege Against Self-Incrimination and Criminal Justice

ISBN13: 9781841133171
Published: November 2013
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £55.00

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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.

Logically, recognition of a privilege against self-incrimination should mean that a person cannot be compelled to provide information that could reasonably lead to, or increase the likelihood of, her or his prosecution for a criminal offence.

Yet there are many statutory provisions in England and Wales allowing demands for information that, if provided, could be used in a criminal prosecution, and, if not provided, could result in a criminal prosecution for the failure to provide it.

This book examines the operation of the privilege in England and Wales, paying particular attention to the influence of the European Convention on Human Rights and the Human Rights Act 1998 on the development of the principle.

Among the questions addressed are whether the relevant case law clarifies sufficiently what the potential scope of the privilege is (does it apply, for example, to pre-existing material?), and how the privilege might be justified. Consideration is given where appropriate to the approaches taken in jurisdictions such as Canada, New Zealand and the USA.

Evidence, Human Rights and Civil Liberties, Criminal Law
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 2. The Jurisprudence of the European Court of Human Rights and the Response of the Law of England and Wales 1. Funke v France 2. Saunders v UK 3. 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 4. 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'? 5. Concluding Comments 3. What Is 'Information'? 1. The Jurisprudence of the European Court of Human Rights 2. The Case Law in England and Wales 3. US Constitutional Law 3.1 Voice 3.2 Handwriting 3.3 Sobriety Testing 4. Australia 5. New Zealand 6. Canada 7. India 8. International Criminal Law: The ICTY 9. Concluding Comments 4. Identifying the 'Essence' of the Privilege 1. An 'Absolute' Right? 2. The Jurisprudence of the European Court of Human Rights 3. The Case Law in England and Wales 4. Canada 5. Concluding Comments 5. 'Indirect' Compulsion: Confessions and Inferences From Silence 1. 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' 2. Adverse Inferences From Silence 2.1 Pre-Trial Silence 2.2 Silence at Trial 3. Concluding Comments 6. Concluding Thoughts