ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Privilege 393
he was not being placed under any compulsion to incriminate himself—he had
done that already.
Per curiam: It is dangerous to assess the strength of the claim to privilege on
thebasisofthemotiveofthepersonseekingtoinvokeit.Therewillbemany
cases where it will be ‘‘convenient’’ for a defendant to rely upon the privilege.
Often his motives will be mixed. But even if the motives are mixed that is no basis
for refusing the protection against self-incrimination. The court should not refuse
protection merely because it suspects the good faith of the person seeking to deploy
the privilege. After all, the principle applies to one who wishes to avoid conviction
as much as to the innocent who wishes to avoid the inconvenience of a prosecution.
Khan v Khan [1982] 1 W.L.R. 513; R. (on the application of the Crown Prosecution
Service) v Bolton Magistrates’ Court [2003] EWHC 2697 (Admin); [2004] 1 W.L.R.
835 applied. Den Norske Bank ASA v Antonatos [1999] Q.B. 271 distinguished.
[Reported by Vanessa Higgins, Barrister]
Lawrence McNulty for the defendant.
Andrew Edis, Q.C. and Annabel Darlow for the Crown.
Commentary. The court’s judgment, on a relatively straightforward matter, is
surprisingly muddled. Although the concepts of legal professional privilege and
privilege against self-incrimination are distinguishable (see Phipson on Evidence,
16th edn (2005), para.23-15), they are used interchangeably throughout. What was, in
fact, at issue was the appellant’s privilege against self-incrimination; the immunity that
he was claiming did not relate to any communication with a legal adviser. The appellant
had entered a guilty plea and the issue of his privilege against self-incrimination arose
in the context of his evidence as a witness for his co-defendant. Although a witness
may be compelled to answer questions put to him in cross-examination, this is subject
to the privilege against self-incrimination. The classic statement on the extent of the
privilege (to which the court made no reference) is provided in Boyes (1861) 1 B. & S.
311. There it was said that the privilege exists where there is a ‘‘reasonable ground
to apprehend danger to the witness from his being called to answer’’. In other words,
the appellant could only claim privilege in relation to any risk that answering questions
might reasonably have left him open to further charges or punishment.
The judgment contains little by way of illustration of the matters on which the
appellant was cross-examined. However, the law is clear and if the trial judge properly
concluded that the matters on which he was questioned fell within the scope of his
position statement, the appellant could not claim the privilege. However, against the
backdrop of a relatively brief position statement relating to a guilty plea, whether
or not the matters on which the appellant is questioned go beyond the confines of
that statement may generally involve fine judgments. In circumstances such as those
found in the present case, it may, as a matter of good practice, be preferable to deal
with sentencing before a defendant is permitted to proffer testimony for or against
a co-accused. Where a defendant gives evidence against a co-accused the fact that
there is no possibility of a reduced sentence may help to ensure that the evidence he
gives is reliable. On the other hand, where he gives evidence for a co-accused, until
sentence is determined, the defendant might have a legitimate claim to privilege on
the basis that information that he provides under cross-examination might adversely
affect the sentence that is handed down. To this extent, requiring him to answer
questions put to him in cross-examination might expose him to the risk of a degree of
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