The price of admission

The privilege against self incrimination is embedded in our common law. It is regarded as a corollary of the duty of the state to respect an individual’s presumption of innocence and to refrain from seeking to incriminate himself by means of his forced testimony. In an important year, the implementation of the Fraud Act 2006 (FrA 2006) in January 2007 has  seen the privilege severely curtailed in civil and criminal proceedings.

SECTION 13

Included in this short criminal statute is s 13. In contrast to previous statutory limitations of the ambit of the privilege, for example the Supreme Court Act 1981, s 72 which only applied to intellectual property cases, this section is designed to virtually eliminate the privilege from domestic litigation.
Section 13 seeks to cure a perceived deficiency in the common law, identified by judges. This was perhaps best encapsulated by Lord Justice Browne-Wilkinson in Sociedade Nacional de Combustiveis de Angola UEE and others v Lundqvist [1991] 2 QB 310, [1990] 3 All ER 283: “The clearer the fraud alleged, the stronger will be the claim to the privilege against self-incrimination.”

It is plain that this section applies equally to civil and criminal proceedings. Section 13(2) repeats the formula first found in the Theft Act 1968, s 31(1) which removed the privilege in connection with offences created by that statute against the quid pro quo that answers would not be used against the maker.

While this section is intended to be of the widest application in all proceedings it, however, has three potential inherent limitations.

Property

First, sub-s (1) abolishes the privilege only in relation to proceedings in relation to “property”. This is then defined by sub-s (3).
This limitation was considered by Mr Justice Gross in Kensington International Ltd v Republic of Congo [2007] EWHC 1632 (Comm), [2007] All ER (D) 209 (Jul). The point here was whether or not proceedings for Norwich Pharmacal relief—proceedings for obtaining of information or documents—were proceedings relating to property. The court held that such ancillary proceedings should not be considered in isolation from the predicate proceedings and therefore the limitation did not apply (paras 51–55). It is plain, therefore, that the courts will not be attracted to technical arguments seeking to take a narrow conception of what is meant by property.

Related offences

Second, sub-s (2) defines the risk of incrimination to an offence created either under FrA 2006 or a “related offence”. Related offence is defined by sub-s (4). This includes not only the Serious Fraud Office’s favourite offence, conspiracy to defraud, but also those covered by sub-s (4)(b).

The wide ambit of ss 2–4 which define how the fraud offence created by s 1 can be committed, coupled with sub-s (4), ensures that the privilege will apply to a variety of offences which reasonably might not be described as frauds. For example, forgery and counterfeiting, tax evasion or insider dealing. However, the issue is whether related offence also includes offences such as bribery and corruption, which do not demand proof of dishonesty.

These arguments were considered by Gross J in Kensington, where he took a broad and purposive view of what this section was designed to achieve. He held that corruption offences do involve a form of fraudulent purpose or conduct and thus they come within the statutory definition of related offence.

Retroactivity

Third, a further issue considered by Gross J was that of retroactivity. It is plain that in relation to the offences created by FrA 2006 they are not retroactive.

Again, Gross J was dismissive of an argument which would restrict FrA 2006, s 13 to proceedings which commenced after 15 January 2007. The court held that the section applied to all proceedings taking place after the above date (para 80).

Last month, Gross J’s judgment on s 13 was upheld by the Court of Appeal (see [2007] EWCA Civ 1128, [2007] All ER (D) 120 (Nov)). The reasoning of Lord Justice Moore-Bick followed that of Gross J.

OFFENCES UNDER FOREIGN LAW

Is it likely that the privilege will be extended to apply to offences under foreign law? It would be an irony if pursuant to s 13 the ambit of the privilege was curtailed in relation to the risk of domestic incrimination, then the courts widened it to cover the risk of foreign incrimination. How likely is this?
It is established authority that the privilege does not apply against the risk of incrimination under the penal law of another country (see Brannigan v Davison [1997] AC 547, [1996] 3 WLR 859). This rule exists for two principal reasons, that:
- to extend the privilege to this circumstance would result in foreign law determining the operation of English court process; and
- the courts of England should as far as possible avoid having to decide issues pertaining to the meaning or application of foreign laws.

While self-evidently these reasons are sound, I believe their appeal is being eroded by the interaction of two recent developments.

European Convention

The Human Rights Act 1998 determined that the European Convention of Human Rights (the Convention) is not only now an intrinsic part of UK law but also that in the event of conflict, the European Court of Human Rights’ (ECtHR’s) jurisprudence should prevail. Thus UK law on self incrimination must therefore be considered through the prism of this jurisprudence. The root of it is Saunders v UK (Application 19187/91) (1996) 23 EHRR 313. Here the ECtHR said (at para 68):

“The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or repression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention.”

The ECtHR has also held that the UK—by virtue of being a member of the Council of Europe—cannot extradite an individual if this would result in a breach of Art 3 of the Convention (protection against torture or inhuman treatment) by the foreign requesting state. This is called the Soering principle after Soering v UK (Application 14038/88) (1989) 11 EHRR 439. While this case and its successor, Chalal v UK (1996) 23 EHRR 433, were decisions made in connection with Art 3, the English courts have accepted in extradition and expulsion cases at least that a breach of Art 6 (right to fair trial) or another Convention right could be a bar, but successful reliance demands a very strong case and in relation to Art 6 there must be a risk of a flagrant denial of justice (see R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 3 All ER 785). In the context of self incrimination, it would be necessary to show that there was a real risk of a foreign court breaching the English protection provided by FrA 2006, s 13(2).

Extra-territorial foreign criminal law

The “long-arm” jurisdiction of the US to prosecute offences committed through conduct outside its territory has been the subject of much recent attention and concern in the UK; the “Enron 3” (see R (on the application of Bermingham) v Serious Fraud Office [2006] EWHC 200 (Admin), [2006] 3 All ER 329) and Norris v Government of the United States of America [2007] EWHC 71 (Admin), [2007] 2 All ER 29, now en route to the House of Lords, have become cause célèbres in this regard.

Bearing in mind that many alleged frauds have an international element, the risk that involuntary self-incriminatory evidence given in UK proceedings under FrA 2006, s 13 will in turn provide a foreign prosecutor with both admissible evidence (s 13(2) being of no application) and the basis for an extradition request is now greater then ever.

In the light of these new realities the survival of the exclusion on the privilege against self incrimination in relation to foreign proceedings and its compatibility with the decision in Saunders is increasingly doubtful. It is submitted that this issue will, in the light of s 13, fall to be considered in the near future.

David Corker is a solicitor at Corker Binning Solicitors