#14957 - Privilege Against Self Incrimination - Principles of Civil Procedure

Privilege against self-incrimination

Rule

• Not bound to answer questions or provide information if the answer or information would have a tendency to expose to criminal charge, penalty or forfeiture

• Must be

  • Real risk of criminal proceedings

  • Real risk that the answers and information will be used in the proceedings – Rank Film; Tully; Den Norske

    • = not technical approach as to whether ‘will lead to’ proceedings

• Must be claimed in response to specific questions or requests for information

  • Cannot be claimed broadly to provide information or testify

  • No answer to civil claim

  • Failure to plead will constitute a waiver – although in some circs can hand over information subject to right to claim privilege against self-incrimination

• Source – ECHR Art 6 – not expressly recognised but implied

  • ‘incriminate’ interpreted narrowly – only answers that would directly incriminate – Orkem v Commission (1989)

  • CF UK law – “tendency to incriminate” interpreted broadly – includes series of questions that leaves only an incriminating conclusion open

• Does not cover penalties under foreign law – but court has discretion

• Covers answers that would incriminate spouse or partner

• Can be abrogated –

  • but abrogation must be compatible with Art 6 under HRA

  • in the UK there are about 25 such abrogations

  • NB can create problems in contempt proceedings – usually express abrogation exists but if not can obstruct proceedings

Meaning of ‘coercion’

• ECtHR – size of fine relevant to determining whether there is compulsion & therefore whether breach of privilege

  • O’Halloran & Francis v UK – depends on degree of compulsion

    • Proportionality analysis?

  • King v UK (2004) (fines up to 300) <> JB v Switzerland (2001) fines of around 700 – surely not a material distinction & has created significant criticism

• Whether separate obligation makes a difference

  • Drink driving cases – separate offence not to provide information so question whether have been drinking not in breach

  • BUT isn’t that separate offence just a matter of drafting? And contempt proceedings in general constitute that separate offence

Application to corporations

• In UK – yes <> elsewhere mainly no

• A human right? Depends on justification

  • All groups – churches, trade unions, political organisations

  • Can’t be any distinction between claimant & defendant – must be on equal footing

  • Except for interrogatories – question re corps only arise in relation to pre-existing documents

• Justification – corporations have reputations to protect as well

• EPA v Caltex Refining

  • Gleeson CJ in NSWCA – intended to maintain proper balance between powers of Stae & rights & interest of citizens

  • Rejected by Mason CJ & Toohey J HCA – would be too difficult to enforce corporate crime & in any event corporations are different to persons – in quality & strength vis a vis state

Prohibited uses

• Common law – disclosures that might be used in prosecution or in making decision to prosecute – Tully

• SCA 1981 s 72(3) – provide for compulsory disclosure but recognise ‘use immunity’ – no statement can be used in evidence in criminal trial

  • IE allows civil trial to be resolved without criminal consequences

  • BUT doesn’t prevent derivative use – can uncover other evidence to same effect

• ECtHR in Saunders v UK – court’s ‘sole concern’ was with ‘the use made of the relevant statements made at trial’ – Saunders v UK (investigations under Companies Act – pleaded privilege)

  • Converts rule into rule about admissibility – ie can require disclosure but can’t use it at trial

  • Ld Hoffman – interpreted Saunders to mean that Art 6 didn’t cover extra-judicial inquiries such as regulatory investigations provided requests are for factual information – Green (investigation into disposal of toxic waste products)

• CF Shannon v UK (2006) ECtHR – no requirement that incriminating evidence obtained by coercion is actually used in trial

  • Looks inconsistent

  • Possible explanation – will allow privilege to be pleaded if there is a risk of it being used at trial <> if clear that won’t be used, and no such risk, then perhaps privilege not available

Rationale

• Doubts – Neuberger in Phillips v News Group (2012) – privilege against self-incrimination ‘has had its day in civil proceedings’ provided there is a use immunity

• Rationale – presents some difficulty

  • avoid ‘trilemma’

    • Testify correctly & be damned <> testify falsely & be convicted for perjury <> stay silent & be held in contempt

  • Avoid excesses of state power

  • Protect reliability of evidence before the court

    • Discourages ill-treatment of a suspect and discourages production of dubious confessions – Tully

    • Witnesses will just lie instead of incriminating themselves

    • But these don’t apply in civil proceedings

  • Respecting burden of proof

    • State can’t use monopoly on force to get suspects to do the work for them – therefore shouldn’t be required to disclose in civil context

    • BUT is there a difference between forcing defendants to give DNA & forcing them to give testimony? Arguably forcible DNA sampling is more...