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In the United States, a person under examination on the witness stand may "plead the fifth" to avoid self-incrimination. In other words, a person asserts his or her Fifth Amendment right.

Citizens of many English-speaking countries have the right to remain silent and laws to protect against self-incrimination (testifying against yourself). In the UK, how do witnesses or defendants respond in court? Do they literally remain silent, invoke a particular law, or say "no comment"?

Include the legal traditions of other English-speaking countries if relevant. However, with nearly one hundred such nations, I don't wish to promote giving an answer for each one.

To be clear: I am looking for the words a defendant might say on the witness stand. If there's no standard response, then that's an acceptable answer. If defendants would never say something like it because they wouldn't be on the stand unless they had waived their right to silence, then that's an acceptable answer.

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    @FumbleFingers I'm not trying to describe the act. I want to know if there is a standard response issued by the witness similar to what's used in the US. I think DJClayworth answers to this point. There may not be any standard response (e.g. "I don't wish to speak" or "No comment") because of the legal mechanisms in place. – Zairja Oct 17 '12 at 17:54
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    I don't think the question is looking for subjective opinions on the right to silence, but for the equivalent phrase used by a witness in a British court when an American might say something like what KitFox said. – DJClayworth Oct 17 '12 at 17:56
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    @FumbleFingers: I don't find this unconstructive. In the US, I can say, "I plead the fifth," and everyone knows what that means. It's even used sometimes informally, conversationally, or wryly - say, during a business meeting, as in: "George, are you the one who forgot to call that client back last week?" to which George replies, "I plead the fifth!" The O.P. simply wants to know, is there another (perhaps informal) equivalent, since it would be presumptuous to expect the phrase would be widely used outside the US, since "the fifth" originates from the 5th Amendment to the U.S. Constitution. – J.R. Oct 17 '12 at 19:45
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    @J.R.: "I plead the fifth" is perfectly common in UK informal speech as well, as is "I refuse to answer on the grounds I might incriminate myself". I just think all this discussion of legal terminology and practice is pointless, and has nothing much to do with what I thought ELU was all about. – FumbleFingers Oct 17 '12 at 19:51
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    @FumbleFingers If the OP is planning to appear in court tomorrow and he doesn't want to confess to something, then yeah, he should be talking to his lawyer and not posting a question on this forum. But if he's asking out of general curiousity, because he's writing a book, etc, I can understand that he doesn't want to pay a lawyer $150 an hour for this tidbit if he can help it. – Jay Oct 17 '12 at 21:19
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There is no such equivalent phrase that I know of for any English-speaking country. However thanks to the prevalence of US media, the phrase "plead the fifth" or "take the fifth" is widely recognized outside the US, and is frequently used in general conversation

In most jurisdictions that derive from the British system, a defendant may decline to testify in court. However once they have agreed to testify they cannot then decline to answer some questions. Likewise, in Canada at least, testimony given as a witness in someone else's trial cannot be used against you. This means that there is no case where a witness can decline to answer a specific question, and so there is no equivalent phrase that is used in court.

Edit: Kudos to @AndrewLeach for pointing out the well-known "right to remain silent" in police interrogations, which also exists in the UK and most places with a British-derived system of justice. I believe in general conversation "I'm exercising my right to remain silent" would be understood in much the same way as "I plead the fifth".

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  • Very interesting. So, if I understand right, it's an all-or-nothing deal? If you choose to testify, then you waive your right to silence (at least on the stand)? – Zairja Oct 17 '12 at 18:00
  • @Zairja: It may vary by country, and you'd probably want to talk to a lawyer of such countries to make sure you get it right. – FrustratedWithFormsDesigner Oct 17 '12 at 18:33
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    Text from the CJPOA implies that the accused can remain silent for some questions while on the stand, but the court may draw negative inferences (my emphasis): "he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question." – Zairja Oct 17 '12 at 18:59
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    That may be a change in the law I wasn't familiar with. In any case, there is still no right of a witness or defendant to refuse to answer a specific question, and thus no courtroom equivalent of "I plead the fifth". – DJClayworth Oct 17 '12 at 20:07
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    No, what Zairja linked to is a 1994 revision to a quite long standing (but judge-made) law. The US 5th Amendment is based on the English common law right to silence. en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales – joseph_morris Oct 17 '12 at 22:42
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In a UK court, there is no right to silence and no equivalent of the Fifth Amendment. Witnesses swear or affirm to tell the truth, the whole truth and nothing but the truth. Telling the whole truth means that nothing can be left out. If a question is inconvenient, tough. Naturally, giving that undertaking doesn't stop perjury. It's not necessary for a defendant to testify in his own defence (and thus have to answer potentially awkward questions), because the prosecution has to prove their own case. But if he does testify, he makes the same oath/affirmation and has to answer everything.

However, there is a right to remain silent and not answer questions during a police investigation. "You have the right to remain silent..." — but it continues "it may harm your defence if you do not mention when questioned anything you later rely on in court." Courts have the right to discount evidence adduced which was not forthcoming during questioning.

[This answer relates to England & Wales and Northern Ireland. Scottish law is different and this may not apply there. Needless to say, but it's necessary so I'll say it anyway, ELU is not a law site and nothing here constitutes legal advice.]

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  • @ Andrew: I've always had problems with this aspect of court procedure. What if a witness believes that Matthew 5:34ff should be obeyed literally, and that both swearing and affirming are wrong? And who decides where 'the whole truth' ends and 'background information' begins? – Edwin Ashworth Oct 17 '12 at 21:55
  • @EdwinAshworth Those are questions for a lawyer. – Andrew Leach♦ Oct 17 '12 at 21:59
  • You were doing pretty well :) – Edwin Ashworth Oct 17 '12 at 22:01
  • The "right to remain silent" part of the 5th amendment says: "no person . . . shall be compelled in any criminal case to be a witness against himself". When you say "It's not necessary for a defendant to testify in his own defence (and thus have to answer potentially awkward questions)" that's pretty much the same thing. – joseph_morris Oct 20 '12 at 4:48
  • @EdwinAshworth: affirmation was introduced specifically to deal with that problem, and a theology that disallows "I declare that my evidence will be the truth" does not belong to any recognized religion. But if it does happen, it's at the judge's discretion; usually the evidence is heard with a specific note that, not being under oath, it's unreliable. (complaints should be addressed to the Lord Chancellor or the head of your religion, not me) – Tim Lymington Dec 8 '12 at 19:06
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Although it is sometimes more circumscribed than the Fifth Amendment -- particularly after passage of several laws in the late 20th century -- there is a common-law "right to silence" or "right to remain silent" in the UK (or England and Wales at least).

The "right to remain silent" is the more common modern usage, perhaps affected by the reading of Miranda rights on rebroadcast American television. Compare a Google search of *.uk sites for "right to silence" (~2000 hits) vs "right to remain silent" (~4000 hits).

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There is no set phrase, but before an advocate takes a witness into areas where self-incrimination is possible, he is required to explain the relevant law (which is essentially that nobody can be required to prove the prosecution's case against himself). Usually this explanation will include some such phrase as 'you may in those circumstances decline to answer', so the witness says simply 'I decline to answer'.

(source: personal experience in the civil courts)

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No actually in UK they say , " I invoke the right against self-incrimination".

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    Could you please provide a source or a reference. Good answers include outside evidence as well :) – Mari-Lou A Oct 27 '14 at 4:10
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There is so much mis-information in this string of answers it is pitiful. The opinions expressed in this string are nothing more than that, and violate the moderator's rule, "But avoid . . . Making statements based on opinion; back them up with references or personal experience."

My advice, as a lawyer of more than forty years, is that nobody take the "opinions" of these non-lawyers seriously. I have not seen one single answer in this string that is accurate, but have found a lot of speculation, conjecture and misunderstanding of the law.

In fact, the UK does have laws that protect against self-incrimination. In other common law jurisdictions, they vary according to local law.

Privilege against self-incrimination, under common law and section 14(1) of the Civil Evidence Act 1968, a party may claim privilege against self-incrimination if compelled to disclose information that would tend to expose them to criminal proceedings for an offence or the recovery of a penalty. The risk of incrimination must be real and not remote or insubstantial.

The privilege against self-incrimination exempts a person from being compelled to answer a question when called as a witness, produce documents or provide information which might incriminate him in criminal proceedings and/or expose him to a penalty in England and Wales. It is based on common law privilege (Versailles Trade Finance Ltd (in administrative receivership) v Clough [2001] EWCA Civ 1509) and section 14(1) of the Civil Evidence Act 1968 (the CEA 1968).

In fact, in a civil case, where a defendant can show that there is a real risk of serious prejudice which may lead to injustice, the civil court has the jurisdiction to stay the civil proceedings until the related criminal proceedings have been concluded (Jefferson Limited v Bhetcha [1979] 1 WLR).

So, as you can see, there is a privilege against self-incrimination in the United Kingdom. The privilege can be traced to the 12th century and became more developed in the following centuries. The Latin term “nemo tenetur prodere seipsum” remains in use. It was applied on the Continent before the age of Codification. It was applied in English ecclesiastical courts also. It served as a guarantee that men and women would not be required to become the source of their own public prosecution and it was also a check on over-zealous officials.

This area of law is far too complex for non-lawyers to engage in and cannot be adequately discussed in this forum. If you want more information on this subject, as a beginning point for your research, I suggest: https://www.indymedia.org.uk/en/2005/09/323584.html. The Internet is a virtual source of information and there is no reason for anyone to speculate, as I have seen in this forum.

Disclaimer: The above is for the purpose of information only and is not intended as legal advice.

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  • Evidently you missed the disclaimer in Andrew Leach's answer [This answer relates to England & Wales and Northern Ireland. Scottish law is different and this may not apply there. Needless to say, but it's necessary so I'll say it anyway, ELU is not a law site and nothing here constitutes legal advice.] – Mari-Lou A Jul 19 '19 at 15:42

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