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30 June 2023 / Mary Young
Issue: 8031 / Categories: Features , Disclosure , Fraud , In Court
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Silence is golden

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Holding your tongue? Mary Young considers when a party’s right to silence applies in civil proceedings
  • How and when the privilege against self-incrimination (the right to silence) applies in civil proceedings.

In English criminal law, a suspect has a long-recognised right to remain silent. The police caution specifically reminds a suspect that they do not have to say anything, but that it might harm their defence if they do not mention something which they later rely on in court.

In civil claims with criminal or quasi-criminal implications, the right to remain silent can also apply: a defendant has the right not to give evidence, and is also entitled to assert the privilege against self-incrimination to avoid circumstances in which they are compelled to contribute to their own prosecution.

The principle of the privilege against self-incrimination originated from the common law, later codified in s 14 of the Civil Evidence Act 1968. This sets out that in proceedings other than criminal proceedings, a person has the right to refuse to answer

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NEWS
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

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