THE PRIVILEGE AGAINST SELF-INCRIMINATION
"Nemo debet prodere se ipsum"
-no one can be required to be his own betrayer.
1.1 Introduction
The privilege against self-incrimination has long been established as a cornerstone of the common law. It is now widely regarded as a basic human right, receiving recognition in the European Convention on Human Rights and the United Nations Covenant. Yet its existence necessarily creates a tension between the desire to ensure the proper administration of justice, which depends to a large extent upon all relevant facts and matters being placed before the tribunal of fact, and the concern that it is contrary to our sense of fairness to require an individual, on pain of sanction, to betray himself.
That tension has stretched a number of judges’ patience with the current state of the law to breaking point, particularly when faced with defendants in civil proceedings who seek to thwart the valid claims of apparent victims of their wrong doing by asserting the privilege. However the privilege is well entrenched: it can only be over-ridden by statute may override its effect. Parliament has in fact intervened to remove or limit the operation of the privilege in some circumstances.
1.2 The circumstances in which the privilege can be claimed
1.2.1 General
A witness, whether or not a party to proceedings, is entitled to assert that he should not be required to answer a question, disclose a document or answer an interrogatory if to do so would tend to incriminate him in the commission of a crime. This is known as the privilege against self-incrimination.
The classic statement of the position at common law, which is slightly wider than the principle just set out, is contained in the judgement of Goddard LJ in Blunt v Park Lane Hotel [1942] 2 K.B. 253:
"...the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for."
1.2.2 The position in civil proceedings
The privilege against self incrimination in civil proceedings is now subject to the provisions of the Civil Evidence Act 1968, s. 14 of which provides:-
(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty-
(a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and
(b) shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the husband or wife of that person to proceedings for any such criminal offence or for the recovery of any such penalty.
Thus the privilege, in civil cases, is limited to offences and penalties under the laws of the United Kingdom, which has been held to include penalties under EEC legislation forming part of the laws of the U.K. by virtue of the European Communities Act 1972, see Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] A.C. 547. However where the court is exercising a discretionary power, such as the granting of an interlocutory injunction under s.37 of the Supreme Court Act 1981 the risk of incrimination in foreign criminal proceedings is a factor which the court may take into account in deciding whether to exercise that power, see Arab Monetary Fund v Hashim and others [1989] 3 All ER 466.
It extends to the risk that the spouse of the person claiming the privilege will be exposed to the prosecution or the penalty but does not extend to any other person. So that a claim that the answer may tend to incriminate another, for instance the claimant’s child or parent will not be allowed.
Sub-sections 2 - 5 make all existing enactments which effect the privilege against self-incrimination in civil proceedings subject to sub-section 1.
Section 16 of the Act amongst other things abolishes the privilege in civil cases where the claim is that the answer to the question or the provision of the document or thing would tend to expose the person to a forfeiture.
1.2.3 The position in criminal proceedings
In criminal cases a witness, other than the defendant, may claim the privilege in the circumstances set out in the quoted passage of Goddard LJ in Blunt above, and see s. 3 of the Evidence Act 1851 which provides :
"But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband."
He may assert the privilege in answer to a question from either the prosecution or the defence, and may seek to rely upon it when summoned to court pursuant to an witness summons issue under s. 2 of the Criminal Procedure (Attendance of Witnesses Act) 1965, as to which see chapter 7. As with civil cases the privilege only extends to potential prosecutions and penalties under U.K. law, however it must be the witness rather than the witness or his spouse who is exposed to the risk, see R v Minihane, 16 Cr App R 38.
The defendant’s position is governed by s. 1 of the Criminal Evidence Act 1898, and in particular the well known provisos (e) and (f) to that section, as to which see Archbold para 8-145 et seq. In summary the defendant, once he chooses to give evidence, has, of course, no privilege in relation to questions which might tend to incriminate him as to the offences on which the court is trying him, but can only be asked questions the answers to which might tend to show that he had committed other offences where he has lost his shield by virtue of proviso (f).
1.3 The Scope Of The Privilege
The privilege applies in all courts, tribunals, inquiries and other similar proceedings, so that even a Parliamentary sub-committee cannot compel a witness to answer a question if to do so would tend to incriminate him. However once the risk of prosecution ceases, so does the right to claim the privilege, so that where proceedings for a particular offence must be commenced within a fixed time, once that time has expired the witness can no longer sustain the claim on the basis of a risk of prosecution for that offence notwithstanding the fact that he may have done so earlier.
The privilege is that of the witness not the party calling him. Therefore if a witness chooses not to claim the privilege or alternatively the judge wrongly rules against the claim the fact that the answers were given or documents disclosed will not be grounds for an appeal, see R v Kingslake (1870) 11 Cox 499. However where a judge wrongly upholds a claim to the privilege the party asking the question or seeking disclosure may have valid grounds for an appeal on the basis that he has been wrongly deprived of the opportunity of having all the relevant evidence before the court, see Doe d Egremont v Date (1842) 3 QB 609.
A report which contains incriminating material obtained and filed voluntarily by the party incriminated can be disclosed, with the leave of the court, to a third party without infringing that party’s privilege against self-incrimination since he is not being asked to answer any question or produce any document, see In re L (Minors) (Police investigation : Privilege) the Times, April 25th 1995.
1.4 The Rationale For The Privilege
Historically the privilege against self-incrimination has at times been seen as a cornerstone of our individual liberty, whilst at other times an out-dated, ill logical impediment to justice. When claimed by those unfortunate enough to have been summoned before the House Committee on Un-American Activities in the 1950’s in America, by famously "taking the fifth", it can be seen as a valuable restriction of tyranny. It is less attractive when claimed by the heirs of Robert Maxwell in response to questions by the Parliamentary sub-committee investigating the Mirror Group pension scandal.
In recent times the House of Lords have been called upon on a number of occasions to consider the privilege against self-incrimination and its rationale. It is apparent from their Lordship’s judgements that the existence of the privilege can cause anomalies to arise and that certain decisions upholding the claim to the privilege have only been made with reluctance. Indeed there have been a number of judicial pleas for parliamentary intervention, one of which led to the passing of s. 72 of the Supreme Court Act 1981, and recent decisions suggest that the privilege may be living on borrowed time.
The status of the privilege has certainly been the subject of a number of seemingly conflicting judicial "sound bites", for example:-
Lord Wilberforce :
" [the privilege against self-incrimination]...has been too long established in our law as a basic liberty of the subject - in other countries it has constitutional status - to be denied. It has received modern recognition in s. 14 of the Civil Evidence Act 1968 and in this house." (Rank Film Ltd v Video Information Centre [1982] A.C. 381)
Lord Templeman :
"I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs production of relevant documents and requires the defendant to specify his dealings with the plaintiff’s money or property." (A.T. & T. Istel Limited and Another v Tully and Another [1993] A.C. 45).
Lord Griffiths :
"My Lords. the privilege against self-incrimination is in need of radical reappraisal. It is however deeply embedded in English law and can only be removed or moderated by Parliament" (Istel v Tully)
Those quotations must be seen in the context of an evolving approach to the problems caused to the courts by the exercise of the privilege, often by sophisticated fraudsman who can inflict financial mayhem on a community whilst camouflaging their activities in a jungle of transactions.
The courts have been faced by defendants, some of whom on the face of it have been guilty of wrong doing on a grand scale, frustrating the courts process by claiming the privilege. Indeed, as has been remarked upon in a number of cases, it is where the charge of wrong doing is most explicit and serious that the claim to the privilege is strongest.
It is perhaps not surprising therefore that the courts have found increasing difficulty in identifying a persuasive rationale for the continued existence of the privilege and that there have been calls for its modification.
Two recent decisions of the House of Lords illustrate the modern approach to the privilege. In R v Director of Serious Fraud Office ex p Smith [1993] A.C.1 Lord Mustill, at p 30, analyzed the "right to silence" as in fact comprising 6 disparate immunities the second of which he defined as:-
"A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them."
Lord Mustill then identified the "motives" which have caused the 6 immunities to become embedded in the English law and emphasised that not each of these motives applies to each immunity. The motives may be paraphrased as follows :-
(i) The general feeling that a citizen should be entitled to tell all others to mind their own business, subject to curtailment of that liberty necessary for the stability of society;
(ii) An historical reaction to the abuses of judicial interrogation, such as that conducted under the procedures of the Star Chamber;
(iii) The feeling that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does - contempt proceedings if he refuses to answer, and prosecution for the offence disclosed if he does;
(iv) The need to guard against unreliable, that is not "voluntary", confessions being made, and subsequently used against an accused.
Of these four motives, it is submitted that only (iii) and (iv) will have any relevance to a claim to the privilege against self-incrimination. Any question which passes the general relevance test will surely over-come the objection that "it is none of your business". Similarly it is unlikely that modern judicial process can be meaningfully likened to that of the Star Chamber and it must be doubtful that the general public still harbour feelings of injustice arising out of its former practices.
These "motives" were considered in relation to a claim to the privilege against self-incrimination by Lord Templeman in A. T. & T.Istel Ltd and Another v Tully and Another [1993] A.C. 45. He concluded that the first could have no application to the case before his Lordship since in that case the Plaintiff was in effect alleging that the Defendant had misappropriated his money and so he could hardly be accused of not minding his own business.
The second and third motives were dismissed as again not applying to the instant case. As to the fourth motive Lord Templeman having quoted Lord Mustill’s explanation of it at 53B, said :-
"This is a powerful reason for the existence of the privilege against self-incrimination in certain circumstances. Indeed, in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and second it discourages the production of dubious confessions...It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves."
The fact remains, however, that whatever its rationale the privilege does still exist and until Parliament sees fit to answer the various judicial pleas for reform, reference to which is made hereafter, the practitioner must be aware of the principles on which the judge will evaluate the claim and the circumstances in which it will be upheld.
1.4 The Judge’s Approach To The Claim
1.4.1 General principles
Whether or not a claim based on this privilege can be maintained is a question of fact for the trial judge having regard to all the circumstances of the case, and in particular the subject matter of the reply or material which the person is being asked to give or supply. However it is for the individual concerned to make the claim, and although, in an obvious case, the trial judge may decide to inform the individual of the existence of the right, as a matter of law he is not obliged to do so. A judge’s failure to inform the witness of the existence of the privilege would not be grounds for an appeal.
A claim by a priest that disclosure of the contents a confession made by a penitent would involve him in a breach of cannon law, would not entitle the priest to claim the privilege, but he may find the judge unwilling to order disclosure on some less well defined ground, see Best CJ, in Broad v Pitt (1823) 3 C & P 518.
Purely fanciful possibilities are to be ignored, so that in Blunt v Park Lane Hotel, ibid, a claim by the Plaintiff in libel proceedings that answers to interrogatories might disclose her adultery and thereby expose her to ecclesiastical punishment and censure was dismissed as "purely fantastic". Where however, in the judgement of the court, the risk of a criminal charge being brought, or penalty imposed, is not fanciful the claim should be upheld, notwithstanding that such a ruling will deprive the person seeking the answer or disclosure of the document of that information, and thereby might tend to impede the ends of justice, see for example Rio Tinto Zinc Corporation and Others v Westinghouse Electric Corporation, ibid, In that case Lord Denning M.R. at p 574, stated :
"Note that a witness is only given this protection if he can satisfy the court that there is reasonable ground for it...It is for the judge to say whether there is reasonable ground or not. Reasonable ground may appear from the circumstances of the case or the from matters put forward by the witness himself. He should not be compelled to go into detail - because that may involve his disclosing the very matter to which he takes objection. But if it appears to the judge that, by being compelled to answer, a witness may be furnishing evidence against himself - which could be used against him in criminal proceedings or in proceedings for a penalty - then his objection should be upheld."
Perhaps the greatest assistance as to the correct approach for the judge to take in deciding whether to uphold a claim to the privilege against self-incrimination is to be found in the case of Sociedade Nacional de Combustiveis de Angola U.E.E and Others v Lundqvist and Others [1991] 2 Q.B. 310. As to the standard of proof required before a judge will uphold the claim, Staughton LJ, at 324 E, having reviewed the authorities, stated:
"The substance of the test is thus that there must be grounds to apprehend danger to the witness, and those grounds must be reasonable, rather than fanciful."
Staughton LJ then set out five further propositions which give substantial guidance to the way the claim to privilege operates in practice. These may be paraphrased as follows:-
(i) The affidavit claiming the privilege is not conclusive, the judge must examine the claim and apply the test set out above. (See also Beldam LJ at 331 G) This will require, inter alia, identifying the specific offence or offences that it is suggested the witness will be exposed to and a consideration of the law which governs the same.
(ii) The deponent is not obliged to go into detail, if to do so would itself deprive him of the protection, but he must at least provide enough information for the judge to be able to make his ruling.
(iii) Once the witness establishes that he is in fact in danger of prosecution he should be allowed great latitude in judging for himself the effect of any particular question [or answer thereto].
(iv) The privilege is not available where the witness is already at risk and that risk would not be increased if he were required to answer. See also Khan v Khan [1982] 2 All E.R. 60. So that it would seem that if it could be shown that the prosecution would have access to the material as of right then the claim would fail.
(v) If the answer would tend to prove, or disclose material which would tend to prove, any fact which a prosecutor would wish to prove in order to establish the guilt of the witness on a criminal charge, that will be sufficient. It is not necessary to demonstrate that it would, by itself, prove all or some of the elements of the crime, (see also Beldam LJ at 332 B).
1.4.2 The need to identify the offence
It must be emphasised that it is vital for the judge to identify the offences prosecution for which it is said the witness will be exposed. There are two reasons for this. First the court is entitled to have regard to the petty nature of the offence and the fact that prosecution for such offences are rare, so that in Rank Film Distributors Ltd and Others v Video Information Centre (a firm) and Others [1982] A.C. 381, the court held that the possibility of charges under s. 21 of the Copyright Act 1956, which carry a maximum penalty of a ,50 fine, could not justify the claim for the privilege.
Second, and more importantly, certain statutory provisions have removed specific offences from the scope of the privilege. The most important of these is s. 31 of the Theft Act 1968, which is dealt with in more detail later in this chapter. The section abolishes the privilege in relation to all offences under the Theft Act in proceedings "for the recovery of any property, for the execution of any trust or for an account of any property or dealing with property". However some protection is afforded the witness by making any admission or answer given inadmissible in proceedings for an offence under the Act.
1.4.3 What if the prosecution agree not to use the information?
The judge is entitled to consider the known attitude of the prosecution in deciding whether to uphold the claim to the privilege. So that in Istel v Tully, ibid, where the Crown Prosecution Service indicated by letter to the court an acceptance that they would not make use of any material disclosed in the civil proceedings that they did not come by independently from those proceedings, the court held that the claim to privilege failed.
In that case, and in the light of the quoted attitude of the Crown Prosecution Service it was held that by imposing limits on the use to which the disclosed matters could be put the judge had safeguarded the position of the claimant to the privilege. The judge’s order had provided:
"No disclosure made in compliance with paragraphs 18 to 32 inclusive of this order shall be used in the prosecution of the offence alleged to have been committed by the person required to make disclosure or by any spouse of that person."
An express undertaking by the Director of Public Prosecutions not to prosecute the offence will defeat a claim to the privilege.
1.4.4 Summary of the judge’s approach to the claim
The judge should ask :
(i) the law relating to the offence, prosecution for which, it is suggested the witness will be exposed; and
(ii) the risk the claimant already faces with respect to prosecution and the availability of the material to the prosecuting authorities; and
(iii) any restriction which would apply to the use to which the answer or material could be put?
and
If the answer to all questions is yes then the judge should uphold the claim.
1.4.5 Can the judge protect the claimant by imposing restrictions on the use to which the material disclosed can be put?
It would seem that the court itself cannot, without reference to the prosecuting authorities or specific statutory authority (such as s.31 of the Theft Act 1968), overcome the claim to privilege by imposing on the world at large or in particular those prosecuting authorities, limits on the use to which answers given and material disclosed by persons raising the claim to the privilege can be put, see United Norwest Co-operatives Ltd v Johnstone and Others, The Times 24th February 1994. This is because the civil court cannot prejudge in this way the admissibility of evidence to be given at a subsequent criminal trial over which it has no jurisdiction.
In British law, as opposed to other common law jurisdictions, the source of evidence is generally regarded as irrelevant and so it is submitted that this rule is very necessary, since it would not be easy to predict the likely attitude of the judge trying the subsequent criminal matter. There are any number of examples of evidence which has been obtained illegally being nevertheless admitted in criminal trials: see for example R v Sang and related cases.
1.5 Self-Incrimination And Contempt Of Court Proceedings
It is submitted that a contemner is not a compellable witness in proceedings against himself for contempt, the rule being analogous to that in relation to a defendant in criminal proceedings, see Comet Products U.K. Ltd v Hawkex Plastics Ltd [1971] 2 Q.B. 67 and in particular the judgement of Lord Denning M.R. in which, having commented on the former contrary position in the eighteenth century, he stated :-
"I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him prove his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him."
If however he chooses to give evidence, for example by filing and using an affidavit, he can be cross-examined upon the contempt in the same way as can a defendant who gives evidence in a criminal trial subject to the judge’s discretion to refuse to allow the cross-examination, particularly where such cross-examination would cover the subject matter of the main action, see Comet Products.
Against this view is the judgement of Walton J in Garvin v Domus Publishing Limited [1989]Ch 335, who expressly declined to follow Comet Products, pointing out that Lord Denning’s observations cited above were obiter, and going on to hold, as a member of the Lord Chancellor’s Law Reform Committee which drafted s.14 of the Civil Evidence Act 1968, that the Act only applies to criminal offences and penalties and not civil contempt proceedings.
Knox J in Bhimji and Others v Chatwani and others (No 3) [1992 4 All ER 912 considered the conflicting authorities and concluded that having regard to the judgement of the House of Lords in the Rio Tinto Zinc Corporation case the proposition quoted of Lord Denning M.R. represents the law.
Whilst the rule, if accepted, may be easy to state, it nevertheless gives rise to considerable difficulties in practice. One such difficulty is perhaps best illustrated by an example. Suppose in a civil action a defendant has provided discovery by way of a list of documents, and it is alleged that the list is defective. It is alleged that the defendant has wilfully failed to disclose a number of highly relevant documents which go to the heart of the case. Suppose the plaintiff seeks an order for specific discovery of such further documents. Can the defendant resist any such application on the grounds that any further discovery by him might expose him to civil contempt proceedings by virtue of which he might face a fine and/or imprisonment?
Although, somewhat surprisingly, the point has yet to be decided Lord Oliver of Aylmerton in Crest Homes Plc v Marks and others [1987] 1 A.C. 829, stated obiter at p 859 F :-
"Should the point arise for decision it may be necessary in relation to the production of relevant documents essential to the conduct of the proceedings - I say nothing about interrogatories - to reconsider the extent of the privilege against self-incrimination where it is prayed solely on the ground of liability to a motion for civil contempt in those proceedings."
As Lord Oliver pointed out, if the defendant could, in the example given above, successfully claim the privilege it would produce the "extraordinary result" that a defendant, by putting himself in contempt of court, could thereafter successfully resist discovery of any documents at any later stage of the proceedings.
However, whether the courts have power to "reconsider the extent of the privilege" in the way contemplated in the quoted passage is open to question. It is submitted that it would be preferable for the matter to be dealt with by a statutory provision, particularly since according to Walton J the intention of s. 14 of the 1968 Act was that the privilege should not apply at all in civil contempt proceedings. Perhaps a provision expressly giving the court the discretion to over ride the privilege in contempt of court proceedings but providing that in cases where the discretion is so exercised the court should not have the power to commit the contemnor to prison might be a reasonable compromise.
In Bhimji v Chatwani, ibid the court found a different solution to a similar problem. In that case the plaintiffs had obtained copies of documents from the defendants pursuant to an Anton Pillar order. Subsequently the defendants alleged that the plaintiffs had disclosed those documents to the police in breach of their implied undertaking to the court not to disclose the information obtained under compulsion to third parties. The defendants sought an order requiring the plaintiffs to swear an affidavit stating what information they had passed to the police, the plaintiffs opposed the application on the grounds that to swear such an affidavit would expose them to the risk contempt proceedings. Knox J held that there was an intrinsically justifiable reason for ordering disclosure, namely to aid the defendants in their proprietary claim to the copies of the documents as against all the third parties, but imposed a condition that the plaintiff’s answers should not be used in committal proceedings against the plaintiff’s without the leave of the court.
It is submitted that the case of Bhimji illustrates the need for reform. The plaintiff had apparently obtained, by virtue of compulsory process of the court, highly incriminating documents from the defendant and then proceeded to give those documents to the police with the express purpose of causing the police to prosecute the defendant for a serious criminal offence. It seems unfair to say the least for the plaintiff to then be able to invoke the privilege against self-incrimination in opposing an application aimed at finding out whether he had misused the documents he had obtained pursuant to the court’s order, however that remains the position.
1.6 Self-Incrimination And Disclosure Pursuant To Restraint Orders And Under The Proceeds Of Crime Act 1995(*)
In relation to orders of the High Court requiring respondents to disclose matters and provide information in the course of the(*) making of (*) restraint orders pursuant to the Drug Trafficking Offences Act 1994(*) or the Criminal Justice Act 1988, the respondent is to be protected by attaching to the order a requirement that no use shall be made of evidence obtained as a direct or indirect result of the order, see In re 0. and Another (Restraint Order : Disclosure of Assets [1991] 2 Q.B. 520 and In re C (Restraint Orders : Identification), The Times April 21st 1995. In such cases, however, the prosecution are parties to the proceedings and can thus make representations as to the form of any orders made.
The court has powers under the new and by no means straightforward provisions of the Proceeds of Crime Act 1995 when seeking to confiscate the proceeds of a particular crime of which the defendant has been convicted to order a defendant to give it such information as may be specified in the order. A failure to provide such information will enable the court to draw such inferences as it considers appropriate. The Act affords the Defendant no express (*)protection as to the use to which such information can be put and it is strongly submitted that a refusal to supply such information on the grounds that it might tend to incriminate the Defendant as to other offences should be regarded as a "reasonable excuse" and so not properly giving rise to any adverse inferences or alternatively the courts should imply a similar restriction as to the use to which such information may be put as applies in the case of restraint orders(*). Any other interpretation would surely be a breach of the common law and Article 6 of the European Convention on Human Rights: see for example Funke v France, supra, although see the House of Lords decision of Regina v Cowan, the Times October 13th 1995, which suggests a finding that a U.K. Statute breaches the European Convention may not unduly trouble their Lordships where the U.K. provision is unambiguous.(*)
1.7 Self-Incrimination And Mareva Injunctions
Mareva injunctions are dealt with in chapter 20. In granting a Mareva injunction or ordering disclosure ancillary to such an injunction, a court is exercising discretion, and it can take into account the fact that disclosure of the material sought might expose the party providing it to liability to criminal proceedings under foreign law, notwithstanding s.14 of the Civil Evidence Act 1968, ibid: see Arab Monetary Fund v Hashim and Others [1989] 3 All ER 466.
1.8 Claiming The Privilege : Practice
Where it is sought to withhold a document or refuse to answer an interrogatory on the grounds of the privilege against self-incrimination the matter is raised at the interlocutory stage. It is for the judge not the party to rule on the claim. The document is listed as one to which production is objected and an affidavit sworn setting out the grounds for the objection. For a precedent of such an objection in a list and of an affidavit claiming the privilege see the Appendix.
The affidavit must provide the judge with sufficient information on which to judge the claim whilst not itself defeating the claim. The judge will need to be able to identify the offence, prosecution for which disclosure will expose the claimant, and be in a position to form an assessment that the risk is real as opposed to fanciful.
Where the claim is made in the course of proceedings, either criminal or civil by a witness, the same information is to be given and so, if it is possible to anticipate the point arising in advance of the hearing, he will need to be advised as to the existence of the privilege and the grounds on which it can be claimed. It should be borne in mind that the party calling the witness does not have the right to make submissions on the claim but should be in a position to help the judge with the appropriate authorities. Most help will probably be gained by the judge from being referred to Staughton LJ’s judgement in Sociedade Nacional, ibid.
1.9 The Effect Of A Successful Claim To The Privilege
1.9.1 Civil claims
If the judge rules that the claim is made out then the person claiming the privilege cannot be compelled to disclose the material or answer the question. There is, however, some controversy as to what, if any, inference the court may draw from the fact that the claim has been raised. There are two conflicting authorities on the point and cogent arguments can be put for both points of view.
In Rank Film Distributors Ltd. v Video Information Centre Templeman LJ, as he then was, said (obiter) at 423 G:
"The plaintiff is not wholly or necessarily defeated and the defendant is not necessarily assisted by the defendant relying on the privilege against self-incrimination. The civil court may draw conclusions where a criminal court may not. If the privilege is raised in connection with an inquiry as to damages the court will be driven to draw conclusions as to the scope and harm caused by the defendant’s activities and, in the face of silence and concealment on the part of the defendant, will not be slow to make assumptions and draw inferences which will enable damages to be awarded on a scale which will do justice to the plaintiff."
On the other hand, Staughton LJ in Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist, at p. 319 F approved the proposition that "to comment adversely about a person who claims privilege to avoid incriminating himself is plainly wrong" notwithstanding the quoted dictum of Templeman LJ in the Rank Film case (supra).
In support of the Sociedade Nacional view is the fact that where a claim to legal professional privilege is made, no adverse inference from the making of that claim is to be made (see chapter 4), and it could be argued that there is no reason to distinguish between these two different forms of privilege. See also Wentwort v Lloyd (1864) 10 HL Cas 589
It can be argued that to provide any sanction for claiming the privilege, (or even give a judge power to draw adverse inferences), is to undermine the right to claim the privilege, and it could be that such a rule of evidence would be held to be in breach of the European Convention on Human Rights. We will know more when the European Court of Human Rights gives its rulings in Saunders v United Kingdom and the Northern Ireland case of Murray: see chapter 8. Direct sanctions such as fines for non-compliance with an undertaking to supply certain documents which might incriminate have been ruled to be a breach of article 6 of the convention (and by implication article 14 of the United Nations Covenant), see Funke v France [1993] 1 C.M.L.R. 897.
Two of the "motives" for the existence of the privilege identified by Lord Mustill in ex p Smith, namely society’s sense of fair play and the need to avoid the risk of false confessions being made and subsequently used, would seem to indicate that to give effect to the privilege it is necessary for there to be no sanction for its exercise.
On the other hand for the judge to ignore what in many cases common sense would indicate as a reasonable inference from the claim to the privilege does seem to be unrealistic. The purpose of the privilege against self-incrimination is to afford the claimant protection in possible criminal proceedings, not give him an advantage in the civil proceedings.
So far as the suggestion that to allow adverse inferences to be drawn would fundamentally undermine the privilege it is noteworthy that in relation to the defendant’s right to silence in criminal cases the courts have distinguished between providing a defendant with an incentive to give evidence (the risk of adverse inferences being drawn from a decision not to give evidence) and compulsion, see for example Lord Diplock in Haw Tua Tau v Public Prosecutor [1982] A.C. 136.
Since the passing of s. 35 of the Criminal Justice Act 1994 a criminal court may, in certain circumstances (as to which see chapter 3), make such inferences from an accused’s failure to give evidence or answer questions as seem proper. It is submitted that it would be anomalous in the extreme for a civil court to have to afford a witness a greater degree of protection arising out of his silence in the face of a mere risk of prosecution than that given to a defendant actually on trial.
Whilst the position is by no means certain, it is submitted that provided they are limited to those which necessarily follow from the claim being made, the judge is entitled to draw such inferences from the successful making of a claim to the privilege as seem to him to be proper in all the circumstances provided also that in the context of the case, and in particular the importance of the issues at stake, so far as the claimant is concerned, the judge is satisfied that the claimant would not thereby be deprived de facto of his right to make the claim. If the judge is not so satisfied he should indicate to the claimant at the time the claim is made that he does not intend to draw any adverse inference from the making of the claim. It is submitted that such an approach might well be accepted by the European Court of Human Rights.
1.9.2 Criminal cases
In criminal cases a witness, other than the defendant, who refuses to answer a question on the grounds that his answer may tend to criminate him will do so in the presence of the jury. They will have to have explained to them by the trial judge the basis upon which such a claim can be made. It is submitted that it would be wholly artificial to suggest that they would not be entitled to draw such inferences as seem proper to them from that witness making the claim. Indeed if the witness is giving evidence for the prosecution it would surely be unfair to give such a direction.
As noted earlier the accused’s position is wholly different and is governed by proviso’s (e) and (f) to s. 1 of the Criminal Evidence Act 1898. In essence if the Crown have satisfied the requirements enabling them to ask a question, the answer to which might tend to show that the accused had committed some offence other than that which the court is trying, then the accused will have to answer it. As already indicated any refusal to do so may be the subject of adverse inference by virtue of s. 35 of the Criminal Justice and Public Order Act 1994, unless the court in its general discretion excuses him from doing so.
1.10 Statutory Inroads And The Way Ahead
1.10.1 General
Parliament has identified a number of areas where it is considered that the public interest in the proper administration of justice, and in particular in ensuring that all relevant material is before the court, outweighs the rationale for the privilege. However in all cases, as we shall see, some measure of protection is afforded to the party being required to "betray" himself.
2.10.2 Section 31 of the Theft Act 1968
Reference has already been made to s. 31 of the Theft Act 1968, which provides :-
"(1) A person shall not be excused, by reason that to do so may incriminate that person or the wife or husband of that person of an offence under this Act-
(a) from answering any question put to that person in proceedings for the recovery or administration of any property, for the execution of any trust or for an account of any property or dealing with any property; or
(b) from complying with any order made in any such proceedings;
but no such statement or admission made by a person in answering a question put or complying with an order made as aforesaid shall, in proceedings for an offence under this Act, be admissible in evidence against that person or (unless they were married after the making of the statement or admission) against the wife or husband of that person.
The section effectively removes the privilege for offences under the Act. That provision is however limited in its effect by a number of factors, in particular it has been held that a conspiracy to commit an offence under the Theft Act is not an offence "under the Act" and therefore not within s. 31: see Sociedade Nacional V Lundqvist, ibid. This means that unless the witness acted alone the privilege may still be claimed.
It will not avail the witness to raise the possibility of prosecution for some offence other than that excluded from consideration by s. 31 if the reality is that the "substance" of any prosecution would be for offences under the Theft Act 1968. So that in Khan v Khan, ibid, where the first defendant was alleged to have misappropriated monies which had come into his hands in the form of a cheque, it was held that, whilst the possibility of a prosecution for forgery (an offence not under the Act) could not be excluded, any prosecution would be in substance a prosecution in relation to the theft of the money, and therefore "proceedings for an offence under the Act" so that the privilege did not apply.
As already noted the section contains some measure of protection as to the use to which the "statement or admission" can be put by rendering the same inadmissible in any proceedings for an offence under the Act. Presumably this would be held to also impose the same restriction on the use of any documents disclosed but the section is not without ambiguity.
1.10.3 Section 72 of the Supreme Court Act 1981
Section 72 of the Supreme Court Act 1981, Parliament’s response to Rank Film v Video Information Centre,, abolishes the privilege where it is claimed that the person will be exposed to prosecution for a "related offence" in High Court civil proceedings for :-
(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;
(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and
(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.
"Related offence" is defined in sub-section 5 as : -
(a) in the case of proceedings within [(a) or (b) above]
(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or
(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;
(b) in the case of proceedings within [(c) above], any offence revealed by the facts on which the plaintiff relies in those proceedings.
Protection is afforded to the witness by sub-section 3 which renders any statement made by virtue of the section inadmissible in proceedings for any related offence.
The judgement of Lord Oliver of Aylmerton in Crest Homes Plc v Marks and Others, ibid, contains some useful guidance on the meaning of this section. At p 856 D he stated :
"This much is clear, that the privilege against self-incrimination is withdrawn only so far as the answer or compliance with the order would expose the defendant to proceedings for a "related offence"...Secondly, to be a related offence, the offence must be one which is committed by the very act of infringement complained of or one committed in the course of carrying out that infringement or it must be an offence involving fraud or dishonesty which is committed in connection with the infringement complained of or an offence revealed by the facts on which the plaintiff relies in the proceedings."
Crest Homes Plc is authority for the proposition that whether or not contempt proceedings brought in an action for infringement of copyright are in respect of a "related offence", as to which considerable doubt was expressed, Parliament, out of an abundance of caution, had by sub-section 4 of s. 72 removed any argument that sub-section 3 afforded the witness any protection.
1.10.4 Section 98 of the Children Act 1989
This section provides that :-
"(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from-
(a) giving evidence on any matter; or
(b) answering any question put to him in the course of his giving evidence,
on the ground that to do so might incriminate him or his spouse of an offence.
(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury."
The section applies to applications for Care or Supervision Orders (part iv) and Protection Orders (part V) and is self-explanatory.
It was held in Kent County Council v K [1994]1 W.L.R 912 that the use of such a statement in the course of cross-examination of the witness in subsequent criminal proceedings against a person other than the witness himself would not be a use "against" the witness for the purposes of sub-section 2. The case also contains useful guidance on the circumstances where leave to disclose the material (Under rule 4.23 of the Family Proceedings Rules 1991 (SI 1991 No 1247) should be given.
3.10.5 Miscellaneous statutes
There have been a number of other statutory inroads into the privilege. Lord Templeman commented on this in Istel v Tully by stating at 53 G :-
"Parliament has recognised in a piecemeal fashion that the privilege against self-incrimination is profoundly unsatisfactory when no question of ill-treatment or dubious confessions is involved."
Lord Templeman then lists a number of such provisions including two of those dealt with above and s. 434 of the Companies Act 1985, Section 291 of the Insolvency Act 1986 and s. 2 of the Criminal Justice Act 1988.
3.10.6 Reform
It is submitted that the way ahead is for Parliament to extend the provisions of s. 31 of the Theft Act to all offences in which the criminality may be categorised as involving the dishonest or unfair enrichment of the perpetrator although the section itself needs redrafting. This proposal has been judicially endorsed at the highest levels. Lord Russell of Killowen in Rank Film v Video Information Centre at 448 F made such a plea for reform and Sir Nicholas Browne-Wilkinson V.-C. in Sociedade Nacional v Lundqvist stated :-
"I express the hope that Parliament will consider, as a matter of urgency, extending the provisions of s. 31 of the Theft Act so as to remove the privilege against self-incrimination in relation to all civil claims relating to property (including claims for damages) but on the terms that the statements made in the documents disclosed are not admissible in any criminal proceedings, including conspiracy to defraud whether under statute or at common law. If that is not done, I fear that the effectiveness of civil remedies designed to redress fraud will be seriously impaired."
Until Parliament answers these calls the anomalies created by the operation of the privilege will continue to occur and more judges will be driven to uphold claims with ever increasing reluctance.
TOBY WYNN
11 Kings Bench Walk, Temple, London EC4 and
3 Park Court, Leeds, LS1 2QH