In this note, we outline the scope of the privilege against self-incrimination under Irish law and when it can be invoked.
The privilege against self- incrimination “has always encapsulated a right in the individual to refuse to answer a question or produce a document when to do so would in the opinion of a court tend to expose such an individual to a real risk of criminal prosecution or penalty.”1
The rationale underlying the privilege is that an individual should not be compelled to give answers which have the effect of exposing that person to the risk of criminal punishment. Therefore, it is not available where a witness would merely be exposed to civil liability.
The privilege applies not only to directly incriminating answers, but also to answers tending indirectly to incriminate the witness. There must be a real and appreciable risk of prosecution and the information sought from the witness must materially increase the risk of prosecution. This means that a witness will be unable to rely on the privilege if the court considers that the risk of prosecution is remote.
The privilege can be asserted in civil or criminal proceedings and in response to a question from either side. The privilege has a wide application and can be relied upon, not only during a trial but also, for example, at an interlocutory stage in civil proceedings to refuse the production or inspection of discovered documents or to refuse to answer interrogatories. It can also apply in the context of Anton Piller orders and Mareva injunctions.
It was confirmed in Re National Irish Bank that the privilege is “one which is vested in witnesses before courts and in all persons subjected to investigations whether they be formal investigations or not.”
In a regulatory context, where legislation requires an individual to cooperate with an investigation, for example, by answering the questions of an authorised officer, it will also stipulate that any “statement or admission made by a person pursuant to [such] a requirement… is not admissible against that person in criminal proceedings other than criminal proceedings for an offence [relating to non-cooperation with the regulatory investigation] and this shall be explained to the person in ordinary language by the authorised officer concerned.”2
However, the privilege will not apply where information is required to be provided in a non-adversarial context pursuant to general regulatory requirements.3
The privilege can only be asserted in relation to the incrimination of the witness himself. The question of whether a director or agent of a company can rely on the privilege to refuse to answer questions on the basis that it would tend to incriminate the company has not yet been addressed in Ireland.
As a general rule, the privilege is not “self-executing” and must be invoked by a witness. However, as the privilege is a constitutionally protected aspect of the right not to incriminate oneself, where appropriate, a witness should be informed of this right.