Privilege Against Self-Incrimination
There may be circumstances in which a witness (including a defendant) can refuse to answer questions or provide disclosure of relevant material in civil proceedings. This is where a witness relies on the privilege against self-incrimination.
This privilege is set out in the Civil Evidence Act 1968, s. 14 and entitles a person “to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to criminal proceedings for an offence or for the recovery of a penalty”. The privilege does not apply to protection from civil suits. The criminal proceedings or penalty must be one under UK law. However, the court does have a discretion to extend this privilege to cover offences and penalties abroad. The right also extends to the witness's spouse or civil partner also refusing to answer questions/produce material if it would incriminate that witness. In Blunt vPark Lane Hotel Ltd [1942] 2 KB 253 it was held that the risk of exposure to proceedings for an offence or a penalty must be reasonably likely.
In Versailles Trade Finance Ltd (in administrative receivership) v Clough [2001] EWCA Civ 1509 the Court of Appeal held that the privilege against self-incrimination could not be used as a defence to prevent an application for summary judgment going ahead. We will discuss summary judgment applications later in this chapter.
In addition, some statutes such as the Fraud Act 2006, s. 13 and the Theft Act 1968, s. 31 provide exceptions to the privilege against self-incrimination in civil proceedings relating to the recovery or administration of property or the execution of a trust or for an account of any property or dealings.
6.5