‘Give Us What You Have’—Information, Compulsion and the Privilege Against Self-Incrimination as a Human Right


‘Give Us What You Have’—Information, Compulsion and the Privilege Against Self-Incrimination as a Human Right



THIS CHAPTER EXPLORES aspects of the privilege against self-incrimination and its underpinning rationales.1 In particular, it focuses on the extent of a person’s legal obligation to surrender pre-existing documents and bodily samples, in the light of the European Court of Human Rights’ insistence that the privilege does not extend to material which ‘has an existence independent of the will of the suspect’.

The privilege against self-incrimination is often invoked as a fundamental principle of criminal procedure. Its operation in England and Wales provides excellent fodder for examining the influence of human rights norms on evidentiary principles, since the starting point for analysis is now Article 6 of the ECHR, one of the Articles ‘incorporated’ into the domestic law of the United Kingdom by the Human Rights Act 1998. Although Article 6 does not contain any express guarantee of the privilege, it is settled Strasbourg law2 that the privilege is implicit in Article 6(1)’s general guarantee that, ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing’.

Simply expressed, in the words of New Zealand’s Evidence Act 2006, ‘self-incrimination’ may be regarded as ‘the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence’.3 By extrapolation, recognition of a privilege against self-incrimination should mean that a person cannot be compelled, on pain of a criminal sanction, to provide information that could reasonably lead to, or increase the likelihood of, that person’s 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 non-compliance with the demand.

While self-incrimination also occurs in court, this chapter will focus exclusively on the implications of out-of-court demands for information. There is extensive learning on the extent to which cautioning a suspect in England and Wales that ‘it may harm your defence if you do not mention when questioned something which you later rely on in Court’4 constitutes indirect compulsion to speak, and on the parallel issue of the appropriateness of drawing adverse inferences5 from silence which the suspect was legally entitled to maintain. In concentrating on direct compulsion to provide information, where failure to do so would constitute a criminal offence, this chapter obviously tells only part of a more complex story.

A simple illustration is afforded by the statutory provisions at issue in the judgment of the Grand Chamber of the European Court of Human Rights in O’Halloran and Francis v UK.6 This case considered section 172(2)(a) of the Road Traffic Act 1988 which requires the registered keeper, on demand, to identify the driver of a vehicle suspected of being implicated in an offence. Both O’Halloran and Francis were served with requests under section 172(2)(a) after their vehicles were ‘caught’ speeding by roadside cameras. O’Halloran admitted to being the driver and was prosecuted for speeding. Francis refused to provide the information and was prosecuted under the Act for failing to comply with a section 172 request. How does this sit with the recognition of a privilege against self-incrimination? The Grand Chamber’s answer will be scrutinised later in the chapter.


Section 2(1)(a) of the Human Rights Act 1998 provides that

[a] court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights.

The classic statement of the privilege against self-incrimination as an implied right in the ECHR system is found in Saunders v UK.7 In the following key paragraphs, the Court sought to justify the status of the privilege as an implied right, and as an aspect of the wider right to silence:

The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.

The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.8

The Court, it can be seen, regards material having an existence independent of the will of the suspect as not being subject to the privilege. This idea will now be subjected to further analysis, as it provides a good vehicle for testing the adequacy of the Court’s views of the potential scope of the privilege.


To what extent does the privilege against self-incrimination cover ‘pre-existing’ documents and physical evidence, that is (in the Strasbourg Court’s terminology) ‘material which has an existence independent of the will of the suspect’? It might be thought, in light of the Court’s analysis in Saunders, that such material cannot engage the privilege. However, Strasbourg case-law does not appear to speak with one voice on this issue.

In Funke v France,9 the ECtHR considered a prosecution for refusing to produce bank statements to French customs authorities to be in breach of Article 6. Again, in JB v Switzerland,10 the Court found a violation of Article 6 where ‘the authorities were attempting to compel the applicant to submit documents which would have provided information as to his income with a view to the assessment of his taxes’ and the applicant had been prosecuted for failing to produce the documents.11 The judgments in Funke and JB suggest that, contrary to expectation, there will be circumstances in which the Strasbourg Court considers pre-existing documents to be protected by the privilege against self-incrimination. This point was recognised very recently by Roth J, who noted that ‘the approach to the question of pre-existing documents by the ECtHR in some of its decisions is not entirely easy to reconcile’.12

A clue to the ECtHR’s reasoning may be found in one of its examples of material not subject to the privilege, namely, documents acquired pursuant to a warrant. A document acquired pursuant to a warrant is effectively acquired through force, without any requirement for co-operation on the part of the suspect. This suggests the possibility, mooted by Redmayne,13 that it is compulsion to co-operate which lies at the heart of the Strasbourg Court’s concerns about self-incrimination, so that freedom from such compulsion represents the essence of the privilege. This reasoning does not condone the use of force where coerced cooperation is not at issue: it merely regards compulsion in these circumstances, unjustified or otherwise, as lying outside the scope of the privilege against self-incrimination.

This rationalisation fails, however, to explain all the relevant case-law. In A-G’s Reference (No 7 of 2000)14 the English Court of Appeal said that the prosecution’s use of pre-existing documents produced under compulsion did not violate Article 6. The Court was asked to rule on the following question:

Does the use by the Crown in the prosecution of a bankrupt for an offence under Chapter VI of Part IX of the Insolvency Act 1986 … of documents which (a) were delivered up to the Official Receiver … under compulsion (pursuant to the duty imposed on the bankrupt by section 291 of the 1986 Act, which is backed by the contempt sanction in section 291(6) of the 1986 Act) and (b) do not contain statements made by the bankrupt under compulsion violate the bankrupt’s rights under Article 6 of the European Convention on Human Rights …?

The Court of Appeal found no violation in these circumstances. The Grand Chamber of the ECtHR adopted parallel reasoning in Jalloh v Germany,15 where the defendant was forced to regurgitate a bag of cocaine by the administration of an emetic without his consent. The ECtHR held that this procedure constituted inhuman and degrading treatment contrary to Article 3 of the ECHR and that it breached the privilege against self-incrimination. In other words, the Grand Chamber found that the privilege was engaged even though the evidence in question was ‘pre-existing’ and obtained by force without the suspect’s voluntary co-operation. Neither of these decisions is reconcilable with the ‘compelled co-operation’ rationalisation for the privilege.

In Saunders v UK, as we have seen, the ECtHR excluded breath samples, blood samples, urine samples and bodily tissue from the scope of the privilege against self-incrimination. In Jalloh v Germany, the Grand Chamber sought to distinguish the Court’s previous analysis from the instant facts:

[T]he administration of emetics was used to retrieve real evidence … Conversely, the bodily material listed in the Saunders case concerned material obtained by coercion for forensic examination with a view to detecting, for example, the presence of alcohol or drugs (emphasis added).16

The suggestion appears to be that the bag of cocaine regurgitated by Jalloh was per se incriminating, in and of itself, whereas the examples advanced in Saunders concerned material that might only become incriminating in the light of further tests or inferences. A similar distinction between per se incriminating and ‘neutral’ information appears to underlie the decision, in a different factual context, of the English Court of Appeal in R v S (F).17 Here, the Court held that knowledge of an encryption key is per se neutral, so that an official demand to divulge the key will engage the privilege only if the protected data turns out to be incriminating. The Court reasoned:

In much the same way that a blood or urine sample provided by a car driver is a fact independent of the driver, which may or may not reveal that his alcohol level exceeds the permitted maximum, whether the defendants’ computers contain incriminating material or not, the keys to them are and remain an independent fact…. [A]lthough the defendants’ knowledge of the means of access to the data may engage the privilege against self-incrimination, it would only do so if the data itself … contains incriminating material. If that data was neutral or innocent, the knowledge of the means of access to it would similarly be either neutral or innocent.18


The discussion so far suggests that the statement of principle advanced by the ECtHR in Saunders v UK is misleading or at least incomplete. It must be read subject to further principles embedded in relevant European and English case-law. With a view to gaining comparative insights, as well as testing the Strasbourg Court’s suggestion of an emergent ‘international consensus’ on the scope of the privilege against self-incrimination (implicit in the Court’s description, in the quotation from Saunders above, of the privilege as a ‘generally recognised international standard’ that is in place ‘in the legal systems of the Contracting Parties to the Convention and elsewhere’), this section briefly examines the approaches adopted by several other legal systems to these problems of conceptual definition.

(a) New Zealand

The privilege against self-incrimination in New Zealand attaches only to ‘a statement of fact or opinion given, or to be given, (a) orally; or (b) in a document that is prepared or created … after and in response to a requirement to [provide specific information]’.19 Excluded from the operation of the privilege are all pre-existing documents, as well as all bodily samples and other pre-existing material extractable from the suspect.20 As the New Zealand Supreme Court observed:

[T]he privilege against self-incrimination … does not justify an individual refusing to supply physical evidence which exists and can be found independently of any testimony of the individual, such as bodily samples…. A refusal to produce real evidence emanating from a person in the form of a urine sample does not engage the privilege.21

This represents a very narrow view of the potential scope of the privilege.

(b) US Constitutional Law

In Schmerber v California22 the US Supreme Court confirmed that the privilege against self-incrimination protected by the Fifth Amendment to the US Constitution attaches only to ‘testimonial communications’. A blood sample was therefore not within the scope of the privilege:

Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.23

More recently, in US v Hubbell,24 the US Supreme Court reconsidered the Fifth Amendment status of pre-existing documents. The demand for compulsory disclosure in Hubbell was couched in very general terms. The authorities wanted documents that fell within any of 11 very broadly worded categories, resulting in the production of some 13,120 pages of material.25 The Court held that ‘the act of producing documents in response to a subpoena may have a testimonial aspect (emphasis added)’26 in the context of a particular case, and that it did so here:

Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. The assembly of literally hundreds of pages of material in response to a request for ‘any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to’ an individual or members of his family during a 3-year period … is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition…. [R]espondent … took the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena. It was only through respondent’s truthful reply to the subpoena that the Government received the incriminating documents …27

In arriving at the conclusion that the Fifth Amendment privilege was engaged on these facts, the Supreme Court emphasised the mental effort expended by Hubbell in complying with the subpoena, and drew an instructive contrast between surrendering the key to a strongbox (outside the scope of the privilege) and divulging the secret combination of a wall safe (covered by it):

It was unquestionably necessary for respondent to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena.… The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.… The Government’s anemic view of respondent’s act of production as a mere physical act that is principally nontestimonial in character … simply fails to account for these realities.28

The Court sought to rationalise its decision by reference to previous case-law rather than broader considerations of principle. Hubbell consequently failed to state a clear test for identifying the classes of documents covered by the privilege,29 and there have been many subsequent attempts by commentators to fill in the gaps. For example, Allen and Mace consider the crucial factor to be that ‘the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action’.30 For Pardo, on the other hand, the privilege against self-incrimination was implicated in this case because the defendant was being relied upon as an ‘epistemic authority’ in relation to compelled information: ‘In other words, fact-finders could potentially justify their decisions by citing the defendant’s own epistemic authority, by claiming that the defendant (and not they) are the ones with direct epistemic support justifying the fact-finders’ conclusions’.31 One thing, though, seems clear: on a narrow interpretation, it is possible to rationalise the decision in Hubbell purely on grounds of evidential reliability. In other words, even on the assumption that there is nothing wrong with compelling the provision of information unless the compulsion will potentially generate false or unreliable information, the decision in Hubbell can be justified. On this view, a demand for the production of a specific pre-existing document is unproblematic because the suspect is accorded no leeway to lie, either deliberately or unwittingly. But where, as in Hubbell, the demand was sweeping and open-ended, there is a danger that the suspect may, in the process of responding, falsely incriminate himself, just as he might do in the course of a police interrogation.

In short, it is possible to define a ‘testimonial communication’ as a communication the truthfulness of which is capable of being manipulated. This might be a more appropriate criterion for defining the scope of the privilege against self-incrimination.

(c) Canada

The Supreme Court of Canada would appear to take an expansive view of the potential scope of the privilege against self-incrimination. It indicated in R v SAB that no distinction is to be drawn ‘between products of the mind and products of the body with respect to the principle against self-incrimination’.32