Freezing orders – the privilege against self-incrimination explained

What is the right to privilege against self-incrimination?

Privilege against self-incrimination exempts a person from being compelled on threat of punishment to produce documents or provide information which might in England and Wales:

• incriminate him / her in criminal proceedings; or,
• expose him / her to a penalty.

Where does this right of privilege against self-incrimination derive from?

It is based on both common law privilege (judge made law) and section 14(1) of the Civil Evidence Act 1968.

Section 14(1) of the Civil Evidence Act 1968 Act codifies the common law and provides the circumstances in which a respondent may use the right to privilege against self-incrimination:

“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:

• 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
• 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 or civil partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty.”

Whom may the respondent protect using the privilege against self-incrimination?

The respondent can protect:

• him / herself, whether an individual or company
• the respondent’s spouse or civil partner

The respondent cannot protect third parties

With regard to companies and directors, a director may invoke the privilege for the company in respect of company documents.

However, if the respondent is a company it has no privilege not to incriminate its directors.

How to I know when I can reply on privilege of self-incrimination?

In general, privilege against self-incrimination can be sought in relation to any documents or information:

• which might increase the risk of prosecution; or
• upon which the prosecution might wish to rely:
• in establishing guilt; or
• in making their decision whether to prosecute or not.

In circumstances where:

• you are being compelled to furnish those documents or information to the applicant; and
• there would be a penalty for non-compliance.

How likely does a prosecution have to be in order to rely on privilege against self-incrimination?

The risk must be “real and appreciable”. This means that the risk must be apparent to the court and established objectively.

A remote or insubstantial risk is not sufficient. Equally a “mere possibility” that the facts might disclose an offence with which the party might be charged is insufficient.

Can my reliance on privilege against self-incrimination be used against me?

It depends.

A party can rely on the privilege against self-incrimination while also claiming his innocence. The court has found no inconsistency in a claim for privilege on the basis of another party’s allegations of criminality which are denied.

However, a judge in the civil proceedings may be entitled to draw adverse inferences against the respondent when the privilege is invoked.

• it is imperative that the respondent raises the privilege against self-incrimination in the most effective way;
• a large part of what adverse inferences (if any) may be drawn from invoking the privilege against self-incrimination will depend on how well the respondent invokes the privilege, preferably following careful consideration by his solicitors;
• this includes the contents of correspondence with the applicant’s solicitors as well as what is said in the affidavits or in written evidence in support of court applications made by the respondent.

Legal advice and representation are essential in cases such as these.

Incrimination under foreign laws

There may be circumstances where the privilege against self-incrimination may not be available under the common law because the risk of prosecution is not in the UK, but in a foreign jurisdiction.

In such situations the court may, in the exercise of its discretion, take into account the risk of adverse consequences befalling the respondent or third parties if there is compliance with the relief sought.

• the court therefore has a discretion to take into account the risk of incrimination under foreign law when deciding whether to make an order against a respondent compelling disclosure;
• significant weight is given to whether the protection afforded by the relevant foreign criminal procedure meets the European standard and is fair;
• if the respondent would have a right under the foreign criminal procedure corresponding to Article 6 rights under UK law then the foreign trial judge will have jurisdiction to exclude evidence when it would be unfair to admit it.

In summary, the fairer the foreign criminal procedure the less likely it is that adverse consequences would befall the respondent – meaning that privilege against self-incrimination would not be available.

Exceptions to the privilege against self-incrimination

There are several statutory exceptions to the privilege against self-incrimination and are outside the scope of this booklet. However, the most frequently encountered exceptions are the following

• investigations by company inspectors;
• examinations by liquidators under section 236 of the Insolvency Act 1986; (ii) Official Receiver’s requests for documents and information from a bankrupt;
• where the respondent may be incriminated in respect of an offence under the Theft Act 1968;
• under section 13 of the Fraud Act 2006 in relation to questions arising in any proceedings relating to the recovery of property which may incriminate the respondent for any offences involving fraudulent conduct or purpose.

It is important to keep in mind that even if the respondent cannot rely upon the privilege against self-incrimination, for example because one of the exceptions applies, this does not necessarily mean that the documents or information disclosed may be used in evidence against him in any future prosecution. Although the rules on criminal evidence and procedure are outside the scope of this booklet. Such admission of information provided under compulsion by the respondent would likely deprive the respondent of the fair trial to which he would be entitled under Article 6 and would therefore be excluded under section 78 of the PACE 1984.

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In almost all situations good legal advice taken early from solicitors is necessary in order to understand your rights in this areas of law. Francis Wilks & Jones is the county’s foremost firm of freezing order solicitors. Call now for a consultation.