The Privilege Against Self Incrimination

1591 WordsJan 8, 20157 Pages
The privilege against self-incrimination (“PSI”) s a very vague and wide legal concept under the common law initially. The common law rule was initially described as a rule that bounds no one to answer any question if it might expose him to any criminal charge or penalty in England and Wales. The history of the privilege against self-incrimination is one filled with contention and complication. Mclnerney divided PSI into three distinct sub-rights that are rather concise and well explained. First, the privilege against self-incrimination afforded to witnesses in criminal, civil or non-judicial investigative proceedings; secondly, the right of a defendant not to give evidence at trial; and thirdly, the right to silence of a suspect in the…show more content…
Most importantly, the core of the privilege is the defendant’s right not to testify at all, should he so choose. The PSI faced criticism for a long period of time as being outdated, however the European Convention on Human Rights (“ECHR”), as incorporated by the Human Rights Act 1998 (“HRA”) somehow renewed it status as Article 6 of the ECHR that provides the right to a fair trial implied the privilege. In the case of Heaney, the Court had held that the right not to incriminate oneself is protected by Article 6 of the ECHR. Article 6 provides that everyone has the right to a fair trial in both civil and criminal cases. A party to legal proceedings has the right to be heard by an independent, impartial tribunal, in public, and within a reasonable amount of time. Article 6(2) specifically provides that anyone charged with a criminal offence will be presumed innocent until proven guilty by law which means that the burden of proof will be on the prosecution. Article 6(3) listed out the minimum rights that a person who is charged will have. With Article 6, a person is guaranteed to the right to a fair and public hearing in the determination of an individual’s civil rights and obligations or of any criminal charge against him. The ECtHR in case laws has broadly
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