Self-incrimination protection and procedure in international cases

February 2020  |  SPECIAL REPORT: CORPORATE FRAUD & CORRUPTION

Financier Worldwide Magazine

February 2020 Issue

Litigation is always an unwelcome experience, and criminal litigation even more so. This article considers the particularly difficult scenario where a business transaction concludes successfully, but subsequently unravels and descends into litigation. Worse still, an allegation of criminal conduct has been made in the jurisdiction where the transaction took place, and an investigation is underway. Those based in the UK may have an expectation of robust judicial processes upholding the rule of law, but what if such protections are weak in the investigating jurisdiction? What are the issues which arise when testimony is required in overseas litigation, while at the same time a parallel criminal investigation considers the same allegations?

For most witnesses, refusing to answer questions for fear of self-incrimination is an anxious decision to take. This is even more relevant in the context of civil and criminal cross-border litigation, where the decision to answer questions or to claim self-incrimination protection has potentially life-changing consequences. This article considers the protections against self-incrimination in criminal investigations under English law generally, and their application to witnesses in civil cases who face a risk of prosecution either in the UK or overseas.

Approaches to compelled evidence

The first and fundamental point to make about the privilege against self-incrimination is that it does not only apply to statements which amount to a confession, nor should it imply guilt on the part of the person exercising the privilege. A witness may believe his or her evidence to be exculpatory as to the allegations generally, but nonetheless a prosecutor may seek to use that evidence in order to build a case, for example as an admission of ‘neutral’ facts that a prosecution would normally have to prove on its own evidence. To this end, the UK court recognises that a great degree of latitude should be granted to the witness in assessing whether evidence may be a ‘link in the chain’ of a criminal case against them.

In English civil proceedings, a person may be compelled to attend court to give evidence but is able, subject to important exceptions, to claim the privilege against self-incrimination. In other words, a person is entitled to refuse to give an answer that would expose him or her to criminal prosecution or recovery of a penalty. In the context of alleged fraud, a significant statutory exception is section 13 of the Fraud Act 2006, which provides that the privilege against self-incrimination does not apply in proceedings relating to the recovery of property. However, a statement made under this exception is not admissible against the witness or his or her spouse or civil partner in a prosecution for offences of criminal fraud.

In English criminal investigations, numerous law enforcement agencies, including the Serious Fraud Office (SFO), the Financial Conduct Authority (FCA), the National Crime Agency (NCA) and Her Majesty’s Revenue & Customs (HMRC), are equipped with statutory compulsory powers to obtain witness evidence, as well as documents. However, the quid pro quo for overriding the privilege against self-incrimination is that such testimony cannot be used against the witness in criminal proceedings, other than in a prosecution, for failing to provide the testimony without reasonable excuse or providing deliberately false or misleading testimony. It is relatively rare for suspects in English criminal investigations to be interviewed under compulsion, but this can happen, especially in cases where there are criminal and regulatory investigations running in parallel.

Other jurisdictions take different approaches to compelled testimony. In the US, for example, law enforcement may not compel a witness to give evidence at all where a self-incrimination risk is demonstrated, except where full, direct and derivative use immunity is granted. Other jurisdictions may have no qualms about compelled testimony being relied upon in criminal proceedings.

Obtaining evidence in the UK for use in civil proceedings overseas

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) sets out the framework by which an overseas civil court may seek the assistance of the English High Court to obtain evidence from a witness who cannot or will not attend trial in person. The process starts with a request, be it a ‘Letter of Request’, sometimes also known as ‘Letters Rogatory’, from the overseas court to the relevant ‘central authority’ in England, in this case, an office of the High Court in London, for assistance. Assuming the central authority approves the request, it then falls to the High Court to obtain the evidence requested.

Under Article 9 of the Convention, this is carried out under the law, and corresponding rules and procedures, of the executing state. In other words, there is no expectation that the High Court should imitate or assume the powers of the foreign court in obtaining the evidence. Rather, the evidence should be obtained through the same powers and procedures as the High Court would employ to compel a witness in its own proceedings. Having said this, by request of the foreign court, the High Court may adapt the powers and procedures employed, for example to mirror the methods by which the evidence would have been obtained in the foreign court, provided these are possible and practical, and do not conflict with English law. Subject to any such adaptations, the witness will ordinarily be summonsed to give evidence before an examiner appointed by the High Court under an order requiring him or her to attend a deposition hearing.

The risk of self-incrimination

What protections exist for the witness in a civil deposition hearing if he is concerned that the evidence he might give could be used against him in criminal proceedings in another country?

Article 11 of the Convention addresses this question. It provides that a witness may refuse to give evidence where he has a privilege or duty to do so, either under the law of the executing state, such as English law, or under the law of the requesting state, provided the requesting state has specified the relevant privilege or duty in its request, or subsequently confirmed its existence on enquiry by the executing state.

The availability of the privilege against self-incrimination in English proceedings, when England is the executing state, under the 1975 Act has been the subject of much litigation. The test applied by the English courts is whether there are reasonable, rather than fanciful, grounds for the witness to believe that the evidence sought might be used against him in criminal proceedings in England and Wales. Reasonable grounds is a less onerous threshold than might appear on first reading. The relevant case law is clear that the court should not seek to assess the probability of the evidence being used in criminal proceedings, and the witness is certainly not required to prove that it is, for example, more likely than not. Rather, the witness simply must demonstrate that there is ‘a real and appreciable risk – as distinct from a remote or insubstantial risk’. Once this relatively low hurdle has been cleared, the court should give the witness ‘great latitude’ in judging for himself whether a particular question might be used against him. The court should then exercise its discretion as to the necessary steps required to protect the witness’s privilege, which could include excusing him from giving evidence at all. Again, it is important to remember the effect of section 13 of the Fraud Act 2006, which prevents a witness relying on self-incrimination protection in English civil proceedings relating to the recovery of property.

Similarly, when considering the foreign right to protect against self-incrimination under the law of the requesting state, i.e., it is for the witness to establish the possibility, rather than the likelihood, of prosecution in order to engage the protection. Thereafter, the availability of the protection is only available where it is either conceded or explicitly referenced in the request. If neither, the UK court will not form an opinion on foreign law but will allow the foreign court to adjudicate.

It is therefore crucial to understand whether the privilege against self-incrimination is available in the requesting state. A recent example of the application of the principle in the administration of Hague Convention requests from the US to the UK is seen in MicroTechnologies. In this case, a witness sought to set aside a deposition order, on the basis that its execution would result in his providing evidence that could incriminate him in the US. Although he succeeded at first instance, on appeal the High Court concluded that the availability of his Fifth Amendment rights meant that the order should be enforced, even if in practice this meant he would answer no questions. The purpose of the Convention was for one court to assist another. As such, the English court should ask itself what approach would have been taken had the US court conducted matters itself. In this case, the witness would have been required to attend a deposition and ‘take the Fifth’, rather than being excused from attending entirely.

Returning to the hypothetical scenario, great care is needed to ensure that witnesses are fully aware of their rights under both UK law and the law of the requesting state in response to cross-border mutual assistance requests made in civil or criminal cases. A witness should take appropriate advice from UK and foreign lawyers when faced with any requirement to give evidence where an international risk of incrimination may exist. The decision to claim the privilege is a critical protection, which may prevent the escalation of a criminal investigation overseas.

Jessica Parker is a partner and Nick Barnard is an associate at Corker Binning. Ms Parker can be contacted on +44 (0)20 7353 6000 or by email: jp@corkerbinning.com. Mr Barnard can be contacted on +44 (0)20 7353 6000 or by email: nb@corkerbinning.com.

© Financier Worldwide

BY

Jessica Parker and Nick Barnard

Corker Binning

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