In criminal proceedings a suspect or an accused has a right not to incriminate himself. That right or privilege is principally seen in the context of the person's right to remain silent, but how far does that privilege extend and can it be relied upon in disciplinary proceedings?

Earlier this year the Court of Appeal confirmed in the case of C plc v P that a person has the right not to incriminate himself and that the privilege is the same whether or not it is invoked in the context of civil or criminal proceedings. Civil proceedings had been raised for breach of confidence and copyright infringement. The claimants were granted a search order of the premises occupied by the respondent, P. The respondent invoked his privilege against self-incrimination. The material produced by the search included computers which contained highly objectionable images of children the possession of which would amount to a criminal offence. The respondent invoked the right not to incriminate himself.

The Court of Appeal held that the imaged material on the computer constituted independent evidence similar to the obtaining of a breath, blood or urine sample obtained from an accused. There was no privilege against self-incrimination in the material itself which was real and independent evidence and did not amount to compelled testimony from P. Therefore, the privilege could not be invoked to prevent the offending material, recovered in the civil case, from being disclosed to the police and used in criminal proceedings.

But what implications does the Court of Appeal's decision have for regulators and persons subject to disciplinary regimes? It confirms that, in the context of disciplinary proceedings, a regulator would not be prevented from recovering independent evidence from a person subject to its disciplinary proceedings, notwithstanding the fact that the evidence might be prejudicial to him.

Furthermore, contrary to the position before the criminal and civil courts, it may be that the right against self-incrimination will be limited or have no application in relation to disciplinary proceedings. The nature of disciplinary proceedings are determined by the statutory or contractual basis upon which the regulatory regime has been established. Many disciplinary proceedings arise out of regulatory regimes which have been contracted into by the membership. If that regime requires a member to co-operate or provide information this may amount to a waiver of the privilege against self-incrimination. It is therefore possible that the right will be of much more limited application in many disciplinary proceedings than it is in the criminal or civil courts.

A wider review of powers of recovery and issues of disclosure, in a disciplinary context, is planned for the next edition of this e-bulletin.