The Self-Incrimination Privilege in Care Proceedings and the Criminal Trial and ‘Shall Not Be Admissible in Evidence’

Abstract

This article considers the suspension of the self-incrimination privilege in care proceedings and the consequences for respondents and defendants implicated in civil and criminal trials relating to child abuse. This right against self-incrimination is differently applied in the civil and criminal forum. Where there are parallel civil and criminal proceedings and where different rules apply to the disclosure of fact, a respondent in a civil trial later facing criminal proceedings is at a disadvantage. This article explores the tension in the law with regard to a defendant's right to silence and the operation of the self-incrimination privilege with regard to documents and statements made by parties in civil and in criminal proceedings in cases arising from the physical and sexual abuse of children by family members or carers, and the law's overriding objective of child protection. It considers the several issues which arise when self-incriminatory statements are made in one set of proceedings and the use that can be made of these statements in the criminal investigation and at trial. It considers the duty of the criminal court to consider fairness in respect of admissibility of specific evidence (Police and Criminal Evidence Act 1984, s. 78) and also to consider the fairness of the trial as a whole (European Convention on Human Rights, Article 6). These sacrosanct principles and rules of evidence are examined in the context of their application in family/care proceedings and related criminal proceedings for offences of child abuse and the implications for the rights of respondents/defendants.