Privilege against self-incrimination, civil proceedings & the Fraud Act 2006

The privilege against self-incrimination in the context of fraud is set to be increasingly important in the current economic climate. Henry Garfield and Kira King of Baker & McKenzie LLP look at the issue in the context of section 13 of the Fraud Act 2006. They consider the conflict between the privilege against self-incrimination as a fundamental right and the value of such information at trial.

Henry Garfield (henry.garfield@bakernet.com) is an associate and Kira King (kira.king@bakernet.com) is a trainee in the Business Crime Unit of Baker & McKenzie LLP, London.

The basic position under English law

The privilege against self-incrimination in civil proceedings is recognised as a basic freedom under English common law. It is restated in section 14 of the Civil Evidence Act 1968 as “the right of a person in any legal proceedings other than criminal proceedings 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 summary, this privilege exempts an individual from being compelled to disclose a document or provide information which might incriminate them by exposing them to subsequent criminal proceedings.