Compelling the Provision of Information: The Privilege Against Self-Incrimination as a Human Right

Abstract

This chapter considers aspects of the privilege against self-incrimination. The privilege 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. While a consideration of the privilege within the confines of a chapter must necessarily be selective, the operation of the privilege in England and Wales provides excellent fodder for examining the influence of human rights norms on an evidential principle. This chapter will ask whether it is clear from the relevant case law what the potential scope of the privilege is, and, relatedly, how the privilege might be justified. In particular, it seeks to explore, with reference to pre-existing documents and bodily samples, the application of the much-quoted statement of the European Court of Human Rights that the privilege does not apply to material ‘which has an existence independent of the will of the suspect’.