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Self-incrimination privilege

Self-incrimination privilege, also described as the privilege against self-incrimination, is what protects a person from being compelled to answer questions or provide information that might suggest they are guilty of a crime or other unlawful behaviour.

The privilege reflects the general right of an accused person to remain silent, which is well established in the common law. This “right of silence” is a corollary of the presumption of innocence and the duty on the accuser to prove the case against them (the burden of proof).

The privilege against self-incrimination can and has been abrogated by statute, but this can only be done expressly or by necessary implication, by reason of the presumption.

In R v Director of Serious Fraud Office, Ex p Smith [1993AC 1, 30–31, Lord Mustill discussed the motives for the evolution and retention of the privilege against self-incrimination, including:

“the common view that one person should so far as possible be entitled to tell another person to mind his own business.”