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Pleading the Fifth Amendment – the privilege against self-incrimination

Sarah Lucy Cooper of Thomas More Chambers considers whether parties to family proceedings do have to answer every question or produce every requested document

Image of Sarah Lucy Cooper, Barrister, Thomas More Chambers

Sarah Lucy Cooper, barrister, Thomas More Chambers

To the outside world it may seem that family lawyers never need to concern themselves with the technicalities of evidence. However, as we know, the reality is rather different.

A fundamental tenet of civil litigation is that a party has the right not to incriminate him or herself and is not bound to answer any question if his/her answer would, in the opinion of the court, tend to expose that person to any criminal charge or penalty which the court regards as reasonably likely to be preferred.

Caselaw is clear that the consideration of whether a statement or admission might incriminate will be interpreted widely, providing the maximum protection for the potential witness – see R v K [2009] EWCA Crim 1640 at paragraphs 10-14 and Rio Tinto Zinc Copn v Westinghouse Electric Corpn [1978] AC 547, per Lord Denning:

"if there is some risk of them [proceedings] being taken – a real and appreciable risk  as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose documents."

This fundamental principle is reflected both in common law – Blunt v Park Lane Hotel [1942] 2KB 253 – and in decisions from the ECHR including Heaney & McGuiness v Ireland (2001) 33 EHRR 12 ECHR.

However, this right can be abrogated either expressly in the statute or by implication. This has important implications for the way that family proceedings are conducted if parties are forced to answer questions and to provide documentation.

It is important also to consider the penalty for a refusal to answer a question in cases where there is no privilege against self-incrimination – see for example Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 in which Johnson J held that where a party refuses to answer questions the court should usually draw inferences that the allegations are true. A refusal to answer a question or provide a document is, of course, also a matter of contempt.

Fear of Foreign Proceedings
In any case the privilege against self-incrimination does not extend to proceedings overseas, ie fear of proceedings being brought in a foreign country - see s14 Civil Evidence Act 1968.

This principle of law has been affirmed in two recent cases. In JSC BTA Bank v Ablyazov & others [2009] EWCA Civ 1125 the Court of Appeal refused to allow a party not to disclose information on the grounds that such information might be used by prosecuting authorities in Kazakhstan. The Court of Appeal concluded that "in relation to self-incrimination with respect to proceedings abroad, there is no entitlement to privilege". See in particular the forceful comments by Sedley LJ:  

"[H]ow has an exclusionary rule designed to promote justice by preventing the use of torture or pressure to extract confessions become transmuted into a personal right which is able to defeat the ends of justice?" [para 35]

"The fact that the claimants have been driven to offer this unsatisfactory form of confidentiality as a foil to the privilege against self-incrimination is another reason for concern as its expansion from a protection against state oppression into a fraudster's refuge." [para 42]

The Court of Appeal, albeit in bankruptcy proceedings, took the same approach in Rottman v Brittain  [2009] EWCA Civ 473. Fear of prosecution in Germany was not a reason for a refusal by a bankrupt to answer questions at public examination. However, the Court of Appeal did decide that the hearing should be held in private. 

Family Proceedings
(a) Public law cases under the Children Act
In public law cases there is no privilege against self incrimination.

The Children Act 1989 in section 98(1) provides in terms that, in relation to Parts IV and V [ie respectively Care and Supervision, and Protection of Children], no person is excused from giving evidence on any matter, or answering any question put to him during the course of his evidence, on the ground that to do so might incriminate him or his spouse or civil partner in an offence.

The other side of the coin is that pursuant to section 98(2) such statements or admissions "shall not be admissible in evidence against the person making it, or his spouse or civil partner in proceedings for an offence other than perjury".
This is the clearest example of an express provision abrogating the privilege against self-incrimination.

However, as to the scope of the s98(2) protection against criminal prosecution, sadly it does not in fact "do what it says on the tin" . Section 98(2) does not provide an absolute guarantee that there will not be consequences in the criminal context arising from such a disclosure in the civil proceedings. Caution must therefore be used before advising clients, and no judge in the family proceedings can or should give a guarantee of confidentiality to a party.

It is also important that clients are aware of the limitations of s98(2) when speaking to anyone involved in a public law case as caselaw is unclear which types of disclosures are covered by the s98(2) protection and which are not. See, for example, the following cases which take different views on disclosures to social workers, guardians, experts etc:

Prosecution still possible
A crucial case is that of Re EC (Disclosure of Material) [1996] 2 FLR 725 in which it was decided that transcripts of an admission made by a father could be disclosed to the police who would be free to use them for questioning him. The s 98(2) protection extended only to statements being admissible in evidence in criminal proceedings and not to police enquiries. This has a particularly significant impact in the light of the recent Criminal Justice Act 2003 s119. The CJA 2003 s119 provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible. In practice this means that in cases in which the police are given transcripts of admissions made in family proceedings and then interview defendants using those transcripts, the defendant could be cross-examined on the same in the criminal trial. Of course, there could still be arguments as to the admissibility of the interviews within the criminal proceedings.

In addition, it is vital to realise that any argument as to fairness in relation to the admissibility of previous, inconsistent statements would be modified if there were a co-defendant. Such statements are much more likely to be admitted if a co-defendant so desires.

The upshot is that s 98(2) is a very leaky sieve indeed.

(b) Ancillary relief
The leading case is now R v K [2009] EWCA Crim 1640, which despite being a criminal case was decided by a Court of Appeal including Mr Justice Holman from the Family Division. It is highly relevant to all family practitioners and has changed the law dramatically from what practitioners had understood the position to be in ancillary relief claims.

Prior to R v K, it had been assumed on the basis of A v A [2000] 1 FLR 701 that ancillary relief claims fell into the category of other civil proceedings, namely that there was an absolute right not to incriminate oneself and that equally therefore what was said/done in an ancillary relief claim could have criminal repercussions later down the line. Although strictly obiter, Mr Justice Charles in A v A said:

"In my judgment correctly it was not argued before me that the privilege against self-incrimination had been removed in respect of proceedings for ancillary relief, and it follows, that, as is generally the case in relation to the disclosure of material in civil actions and notwithstanding the duty to make full and frank disclosure therein (see Jenkins v Livesey [1985] 1 AC 424), parties to ancillary relief proceedings can assert the privilege. If this was not the case it would be a factor in the decision-making process as to further disclosure."

The Court of Appeal has radically departed from this view, ruling in terms that given the nature of s25(1) MCA and the nature of the discretionary exercise that a court has to embark on, namely an assessment of the information to which the court must have regard under s25(1), that there can be no privilege against self-incrimination.

The case involved H who in his Form E, Questionnaire, open negotiations and without prejudice negotiations had made certain admissions which tended to incriminate him in relation to tax evasion. The Form E and Questionnaire were later supplied to the Inland Revenue by "an informer".

Lord Justice Moore-Bick, having considered s25 and the wording on a Form E, stated at paragraph 31:

"The fact that a party is compelled by rules of court to disclose information and documents does not of itself abrogate the right privilege against self-incrimination. On the contrary, a party to civil proceedings who is required to give disclosure pursuant to CPR part 31 is entitled on that ground to withhold production of documents that tend to incriminate him. Moreover, the Family Proceedings Rules do not expressly exclude the privilege, so in the absence of other considerations it would be difficult to argue that they had achieved such a significant result. The argument in the present case, however, is, and must be, that the rules, which are contained in secondary legislation and have the approval of Parliament, must have been intended to have abrogated the privilege, since the court could not discharge the duty imposed on it by section 25 unless the parties were required to disclose all relevant information, even if tending to incriminate them. In our view that argument is well would be impossible for the court to discharge its duty under section 25 of the Act if it were deprived of the information on which it is required to act. For these reasons we are satisfied that parties to such proceedings are not entitled to invoke privilege against self-incrimination in order to withhold information."

Further along in the judgment the Court of Appeal makes clear that this abrogation of privilege in the ancillary relief proceedings does, of course, carry benefits as far as the criminal proceedings are concerned as any statements obtained under compulsion [which included Form Es, Questionnaires, comments made at open meetings ....] could not be used in criminal proceedings:

"[T]he use of the admissions made by K in the ancillary relief proceedings would deprive K of the right to a fair trial to which he is entitled under Article 6 of the ECHR and must therefore be excluded by the judge ...." [para 43]

The court also made clear that in relation to the admissions made in the open meeting these could also not be used as they provided orally information which should otherwise have been in the Form E and/or Questionnaire. Clients need therefore to understand that prior to embarking upon an application for AR that they will be required by the court to "come clean".

The court did however decide that, given that the without prejudice statements were not made under compulsion but rather to advance negotiations, there was no reason why in principle they could not be relied upon by the Inland Revenue for a prosecution as:

"[T]he public interest in prosecuting crime is sufficient to outweigh the public interest in settlement of disputes."  [para 72]

(c) TOLATA – cohabitation claims
One might assume that in such a case, governed by the CPR, the right not to incriminate oneself is retained as there is no duty on the court to enquire into the assets comparable to that under s25 duty.

CPR 31.3 provides that:

" a party to whom a document has been disclosed has a right to inspect that document except where-
(b) the party disclosing the document has a right or a duty to withhold inspection of it".

One of the grounds for asserting a right to withhold inspection is that of the privilege against self-incrimination. So far, so good. However, the Fraud Act 2006, brought into force on January 15th 2007, provides at section 13 that:

"(1) A person is not to be excused from –

(a) Answering any question put to him in proceedings relating to property, or
(b) Complying with any order made in proceedings relating to property,

on the ground that doing so may incriminate him or his spouse or civil partner of an offence under this Act or a related Act.

(2) but in proceedings for an offence under this Act or a related offence, a statement or admission made by a person in –

(a) answering such a question, or
(b)complying with such an order,

is not admissible in evidence against him ....

(3)"Proceedings relating to property" means any proceedings for-

(a) the recovery or administration of any property,
(b) the execution of a trust
(c ) an account of any property or dealings with property,
and property means money or other property whether real or personal (including things in action and other intangible property).

(4)"Related offence" means-

(a) conspiracy to defraud,
(b) any other offence involving any fraudulent conduct or purpose."

Since this would seem to cover any TOLATA proceedings, again the right to assert any privilege against self-incrimination has been expressly abrogated. Importantly s13 of the Fraud Act 2006 is retrospective in effect in the sense that in future proceedings it applies to events before the Act came into force as well as those afterwards – see Kensington International v The Republic of Congo [2007] EWHC 1632 [Comm].

(d) Children Act section 8 cases, ie private law
An interesting issue arises in relation to private law Children Act proceedings, in particular in relation to fact finding hearings.

Section 1 (3) of the Children Act says: 

" a court shall have regard in particular to ....

(e) any harm which he has suffered or is at risk of suffering ...."

See also the Domestic Violence Practice Direction 14th January 2009 para 3:

"the court must at all stages of the proceedings consider whether domestic violence is raised as an issue, either by the parties or otherwise."

And at para 5:

"In considering, on an application for a consent order for residence or contact, whether there is any risk of harm to the child, the court shall consider all the evidence and information available."

It is a moot point as to whether the combined effect of s1 and the DVPD confers a duty analogous to the s25MCA duty of the court to enquire into the circumstances pursuant to R v K. Arguably there is such a duty, in which case there is no right to privilege against self incrimination and a client cannot refuse to answer questions or to provide documentation.

Whilst the privilege against self incrimination appears to be all but dead and buried in most areas of family law, there is never any guarantee that prosecution will not follow using material derived from the very same family proceedings. Clients need to understand that they now may well be stuck between a rock and a hard place.