Privilege

Privilege
SYLLABUS REFERENCE
20. Privilege
 The privilege against self-incrimination,
 The principles that apply to legal professional privilege, including waiver of
privilege. Section 4: Cases involving Youths

READING:
Required Reading
 CLS Evidence Manual 2014, Chapter



Privilege
 Relevant and admissible evidence may be excluded on the grounds of either
o The privilege against self-incrimination; or
o Legal professional privilege; and
o ‘without prejudice’ correspondence


General application principles:
(a) a person entitles to claim privilege may refuse to answer the question put, or
disclose the application sought
a. the judge should not balance the claim to privilege against the
evidence in the trial
(b) if a person entitled to claim privilege fails to do so or waives the privilege no
other person may object
a. if a judge improperly rejects a claim to privilege made by a witness
who isn’t a party to the proceedings, no appeal will lie, if there has
been infringement to the rights of the parties
(c) a party seeking to prove a particular matter in relation to which his opponent
or a witness claims privilege, is entitled to prove the matter by other
evidence
(d) no adverse inferences may be drawn against a party or witness claiming
privilege
(e) a claim to privilege falls to be determined in accordance with domestic law
and cannot succeed simply on the basis that it would succeed in some other
jurisdiction

Privilege against self-incrimination
 restricted to the person claiming it and does not extend to questions which
would tend to incriminate a spouse
 an accuse spouse should be treated like any other witness, cannot then claim
privilege against the incrimination of her husband
 there is no privilege against self-incriminating strangers


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,  a company may claim privilege in the same way as an individual
 the privilege is that of the company and therefore does not extend to
incrimination of its office holders
 No person is obliged to reveal a fact if doing so renders it reasonably likely that
proceedings will be commenced that expose him to the risk of any criminal
charge or sanction

R v Boyes (1861), Cockburn J:
o The risk of prosecution and punishment must be ‘real and appreciable with reference to the ordinary
operation of the law in the ordinary course of things; not a danger of an imaginary and unsubstantial character’
 The privilege against self-incrimination is also enshrined in Article 6 of the ECHR
 The privilege extends not only to the evidence that the person might give but to documents, items or information that the
person is requested to provide during proceedings

‘Real and appreciable danger’
 The evidence must create the risk of incrimination
 If there is already strong evidence against the witness on the matter to which the privilege is said to relate, the privilege
will not apply
 Furthermore, if the risk can be a avoided, the privilege will not apply
 Where the sanction or punishment that is faced is trivial, the court may also conclude that there is no real and
appreciable danger

To whom does the privilege apply?

 In criminal cases the privilege only applies to the person asserting it
 In civil cases the privilege extends to spouses (Civil Evidence Act 1968, s 14(1)(b))
 Companies can also be covered by the privilege
o However, in such circumstances, the privilege excuses an employee of the company from giving testimony (or
disclosing evidence) which would incriminate the company; it does not excuse him from incriminating an
employee of the company other than himself

Privilege evidence that is revealed
 If a witness answers questions without claiming the privilege, the evidence can be used against the witness in subsequent
proceedings
 However, if the witness does claim privilege and is wrongly refused (and therefore forced to answer), the evidence must
be excluded in the subsequent proceedings


Statutory exceptions

Express statutory exceptions
Scope:
 The privilege does not protect the accused in criminal proceedings from
answering questions in respect of those proceedings (Criminal Evidence Act
1898, s 1(2))
o They can incriminate themselves
o Witnesses are not bound to answer any question in court that can expose
him to any criminal charge, penalty or forfeiture
 The court may substitute a different protection in place of the privilege when
requiring a person to comply with disclosure order
o
 An affidavit sworn by person in compliance with such an order may be then
inadmissible against him in any subsequent criminal trial
o Crown will not necessarily be prevented from using it to demonstrate his
inconsistency and thus to question his credit



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