#13706 - Privilege Against Self Incrimination - BPC Civil Litigation

PRIVILEGE AGAINST SELF- INCRIMINATION

• Under the privilege no person is obliged to reveal a fact if doing so renders it reasonably likely that proceedings will be commenced that expose him to the risk of any criminal (NOT CIVIL liability or criminal liability under foreign law but can extent to penalties under EC law) charge or sanction

• R v Boyes: the risk of prosecution and punishment must be real and appreciable with reference to the ordinary operation of the law in the ordinary course of things not a danger if an imaginary and unsubstantial character.

  • Therefore the evidence must create the risk of incrimination. If there is already strong evidence against the witness on the matter to which the privilege is said to relate, the privilege will not apply. Also, if the risk can be avoided the privilege will not apply.

    The court must decide if such a danger exists, but doubt will be resolved in favour of the party or W. the objection must be taken personally by W on oath.

• The privilege extends not only to the evidence that the person might give but to documents, items or information that the person is requested to provide during proceedings.

• TO WHOM IT APPLIES:

  • The privilege applies only to the person asserting it. In other words, A could not exercise the privilege on the grounds that his answer would incriminate B. EXCEPTION: In civil cases the privilege extends to spouses => therefore a spouse can assert a privilege against incriminating her spouse.

    Note that the privilege does not protect the accused in criminal proceedings from answering questions in respect of those proceedings

    Companies can also be covered by the privilege. However the privilege excuses an employee of the company from giving testimony which would incriminate the company – it does not excuse him from incriminating an employee of...