Report No. 69

IV. English Law

70.17. Principle of the common law, how modified in England.-

The principal doctrines relevant to section 132 having been dealt with, we now proceed to a consideration of the manner in which and the extent to which they have found recognition in the law. We shall first consider the English law. It is a deep-rooted principle of the common law that no one should be obliged to criminate himself out of his own mouth. This is one branch of the Privilege. The other branch of the privilege concerns penalties and forfeitures. Civil actions for penalties or forfeitures are liable to be oppressive and this accounts for the other branch on the privilege-prohibition of questions which may lead to penalty or forfeiture1.

This common law rule as to self-incrimination was recognized in England in a number of statutes. Section 2 of the Evidence Act, 1881 (14 and 15 vict., C. 99), for examine, rendered the parties to a cause competent and compellable to give evidence, but section 3 expressly provided that nothing there in contained "shall render any person compellable to answer any question tending to incriminate himself." A similar provision was made in section 5 of the Foreign Tribunals Evidence Act, 1856 (19 and 20 Vict., C. 113) and section 4 of Evidence by Commission Act, 1859 (22 Vict., C. 20). The protection of the English rule applies equally to parties and to witness, and a witness cannot be forced to answer questions or interrogatories having such a tendency.

1. Cross Evidence, (1974), p. 83.

70.18. As this rule, howsoever wholesome, was prone to be abused, certain limitations are recognised by the Courts both in England and in America. In R. v. Boyes, (1861) 30 LJQB 301, Cockburn, C.J. observed that the object of the law was to afford to a party called upon to give evidence in a proceeding, inter alia, protections, against being brought, by means of his own evidence, within the penalties of the law; but it would be to convert a salutary protection into a means of abuse, if it were to be held, that a more imaginative possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.

It was also observed that the danger to be apprehended by the person must be real and appreciable, having regard to the ordinary operation of law in the ordinary course of things and not a danger of any imaginary and unsubstantial character, having reference to some extra-ordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. It was also laid down that to entitle a party called as a witness to the privilege, the Court must see from the circumstances of the case, and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer1. It must be noted that the Civil Evidence Act, 1968, abolishes the rule whereby a person cannot be compelled to answer any question or to produce any document or thing if to do so would tend to expose him to a forfeiture; the section is confined to civil cases.

1. See also Reynolds (in re:), (1882) 20 Ch D 294: 15 Cox's CC 108 (CA).

70.19. No protection against civil liability.-

Even at common law, the privilege against self-incrimination does not extend to questions tending to expose the witness to any other civil liability1 (including liability to an affiliation order2) or to a finding of adultery3.

1. Witnesses Act, 1806.

2. S. v. E., (1967) 1 QB 367: (1967) 1 All ER 593.

3. Blunt v. Park Lane Hotel, (1942) 2 KB 253: (1942) 2 All ER 187.

70.20. Statutory amendment in England.-

It may be stated that in England, the privilege against incriminations of self or spouse in civil proceedings has been the subject matter of a statutory provisio.- section114, Civil Evidence Act, 1968.

Sub-section (1) of that section makes two provisions as to the right of a person in any legal proceedings other than criminal proceedings2 to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty. In the first place, it provides that the right shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law. In this respect, a narrow scope is given. But it also provides that the right shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the husband or wife of that person to proceedings for any such criminal offence or for the recovery of any such penalty.

By sub-section (2), any existing enactment recognising such a privilege shall be construed as providing also that any answer or evidence given by the person concerned shall not be admissible in evidence against the husband or wife of that person in the proceedings or class of proceedings in question. Under sub-section (3), references to "giving evidence" are construed as references to giving evidence in any manner, whether by furnishing information, making discovery, producing documents or otherwise.

1. Section 14, Civil Evidence Act, 1968 (C-64).

2. The Act does not apply to criminal proceedings.

70.21. Forfeiture.-

As regards forfeiture, which is also mentioned in section 132, it was held in Pve v. Butterfield, (1864) 34 LJQB 17 (220): 122 ER 1038, that a witness may refuse to answer a question which tends to show that he has done an act which would render him liable to forfeit property. That was an action of ejectment. The court refused to compel the defendant to answer interrogatories, where the answer would tend to show that he had incurred forfeiture by breaching the covenant not to under-let. The following is from the judgment as reported in the Law Journal:

"Cockburn, C.J According to the authorities which have been cited and the expressions used by the text-writers who have written upon the subject, those rules are perfectly fixed and established, that no man shall be compelled to give an answer which shall have an effect leading to the forfeiture of his estate........."

"Crompton J.: It is a principle of the law of evidence which these courts have always recognised as applicable to the examination of witnesses, and everything shows that they were averse to extending the power of discovery to cases of forfeiture. From the earliest times the rule has been adopted in the court of equity with regard to discovery."

Mellor, J. concurred.

The equitable rule against assisting a common informer or aiding a forfeiture was noted by Lord Esher1. Equity did not grant discovery or order interrogatories in aid of a forfeiture of property, and that seems to be the origin of the prohibition against questions the answer whereto would tend to establish liability to forfeiture2. In England, this part of the privilege has, in civil cases, been abolished by statute3, as already stated.

1. Earl of Mexborough v. W. Urban District Council, (1897) 2 QB 111 (115).

2. Cross Evidence (1974), p. 244.

3. Section 1(1)(a), Civil Evidence Act, 1968.

70.22. As to questions imposing a penalty, the rule that a witness cannot be obliged to answer a question which would expose him to the risk at a penalty seems to have originated in the doctrine that equity would not insist on a common informer for making an order of discovery in his favour.1

1. Cross Evidence, (1974), p. 244.

70.23. Statutory Exceptions in England.-

There have been statutory exceptions in England to the privilege against self-incrimination. We are at the moment concerned with the most important one, applicable to the accused. An accused who gives evidence on his own behalf under the Criminal Evidence Act,1 cannot object to answering a question because of its tendency to criminate him as to the offence charged. There are other statutes under which the privilege cannot be invoked in special proceedings, such as examinations in bankruptcy.

For example, under section (3) of the Theft Act, 1968, a witness may not refuse to answer any question in proceedings for the recovery, of administration of property or the execution of a trust on the ground that to do so might incriminate him or his spouse of an offence under the Act; but the witness's answers are not admissible against him in subsequent proceedings for an offence under the Act, or, unless they married after the answer was given, his spouse. Several other statutes contain similar provisions for special situations.

1. Section 1(c), Criminal Evidence Act, 1898 (English).

70.24. After this discussion of the background in which the section was enacted and of certain theoretical aspects, we proceed to deal with a few points that require consideration.

V. Tendency to Incriminate

70.25. The meaning of "tend to incriminate".-

The privilege conferred by section 132 applies if there is a "tendency" to incriminate. This is based on the English law. The tendency must, however, be real and appreciable. In R. v. Boyes, (1861) B&S 311, a witness had declined to answer a question on the ground that it might tend to incriminate him, but the plea was rejected because he had already been pardoned and the pardon was produced by the Solicitor-General. As to the objection of the witness that he could still be impeached by Parliament, the court held that the danger to be apprehended must be real and appreciable with reference to the ordinary operation of law in the ordinary course of things.

70.26. Tendency to incriminate indirectly.-

At the same time, it should be noted that the privilege applies not only to answers directly incriminating the witness, but also to answers that tend to do so indirectly. A number of such answers taken together, or taken with other evidence, might incriminate the witness in such a way that if he is forced to answer, the danger avoided by the privilege will occur1 .

1. R. v. Stoney, (1832) 5 C&P 213.

70.27. But the witness's own view is not necessarily to be accepted: the court can override it. As Goddard L.C.J. observed:1

"The rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for. This rule was laid down by the Queen's Bench in R. v. Boyes, 1861 B&S 311, and the words in which I have stated it are those of Stephen, J. in Lamb v. Munster, (1882) 10 QBD 110 (Stephen, J.).

"A party can also claim privilege against discovery of documents on the like grounds: see Hunninos v. Williamson, (1883) 10 QBD 459."

1. Blunt v. Parklanekotee, (1943) 2 All ER 187 (189).

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