5 February 2020
Self-incrimination protection and procedure in transatlantic civil cases
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For most witnesses, refusing to answer questions for fear of self-incrimination is an anxious decision to take; all the more so in the context of civil and criminal cross-border litigation. A decision to answer questions or to claim self-incrimination protection has potentially life-changing consequences. For clients who have already been subject to criminal investigations and even criminal trials, a request to provide evidence as a witness in follow-on US or UK civil litigation may be particularly unwelcome. This article considers self-incrimination protection generally under English law in criminal investigations and its application to witnesses in civil cases who face a risk of incrimination either in the UK or overseas.
English civil proceedings
In English civil proceedings, a person may be compelled to give oral testimony, but subject to certain important statutory exceptions, cannot generally be compelled to give an answer that would expose him to criminal prosecution or recovery of a penalty. One of the most important statutory exceptions to the privilege against self-incrimination in civil proceedings is section 13 of the Fraud Act 2006. This provides that, in proceedings relating to the recovery of property, the privilege against self-incrimination does not apply, but a statement made by a witness is not admissible against him or his spouse/civil partner in a prosecution for offences of criminal fraud.
Where a witness in English civil proceedings may have an exposure to criminal prosecution abroad, the English court has a discretion to allow the witness to claim protection from self-incrimination under foreign law. For example, in a recent London Commercial Court case, a witness for whom this firm acted was successful in claiming privilege on the grounds of the foreign incrimination risk relating to a major US FCPA investigation.
In the US, by contrast, we understand that the courts do not take account of the risk of incrimination outside the US, so a witness giving evidence in the US would not be protected from the risk of incrimination in the UK if he could not avail himself of the Fifth Amendment.
English criminal proceedings
In English criminal investigations, an individual is classed as either a suspect or a witness (there is no equivalent to the US designation of “subject”). A suspect (who, if charged, becomes a defendant) still has a right to silence, just as in the US. However, English law has considerably diluted this right since the early 1990s. A judge may now permit a jury to draw an adverse inference if a suspect fails to mention when questioned a fact which he later relies on at trial and which it would have been reasonable for him to have mentioned at the investigative stage.
In relation to witnesses in English criminal investigations, numerous law enforcement agencies are equipped with statutory compulsory powers to obtain answers to questions as well as documents. However, the quid pro quo for overriding the privilege against self-incrimination is that such testimony cannot be used against the witness in criminal proceedings (other than in a prosecution for failing to provide the testimony without reasonable excuse or providing deliberately false or misleading testimony). It is relatively rare for suspects in English criminal investigations to be interviewed under compulsion, but this can happen especially in cases where there are criminal and regulatory investigations running in parallel.
Use of compelled testimony in US proceedings
In the United States, the Fifth Amendment, derived from English common law, protects a defendant from compulsion “to be a witness against himself” and is strictly applied by the courts. Once a witness has established a real possibility of the oral testimony sought being used against him in a US criminal prosecution, he cannot be required to answer questions. A judge cannot invite a jury to draw an adverse inference against a defendant who properly asserts his Fifth Amendment rights.
In US criminal investigations, there is no equivalent to the compulsory interview powers that are now a common feature of English criminal law. As explained above, the English regime allows oral testimony to be obtained by compulsion as long the witness is shielded from its use against him in criminal proceedings. In contrast, US law forbids it being obtained at all where a self-incrimination risk is demonstrated (unless full direct and derivative use immunity is granted).
The US courts’ distaste for ‘the fruit of the poisoned tree’ was illustrated in the recent case of United States v Allen. The court overturned convictions relating to alleged LIBOR manipulation on the basis that a prosecution witness had seen evidence compelled from the defendants by the UK’s Financial Conduct Authority, even though the compelled evidence itself had not been relied upon. Even the derivative use of compelled testimony by US investigators was therefore deemed to be contrary to the Fifth Amendment.
Whilst Allen is helpful in delineating the circumstances in which compelled testimony should not be shared by a UK criminal law enforcement agency with its US counterpart, challenges can still arise where evidence is obtained in England for use in US civil proceedings.
Obtaining evidence in the UK for use in civil proceedings in the US
Where a US civil court seeks the assistance of the English High Court to obtain evidence from a witness who cannot or will not attend trial in person in the US, the procedure for obtaining such testimony is set out in the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) (‘the Convention’).
The process starts with a request (a ‘Letter of Request’ or ‘Letters Rogatory’) from the US court to the relevant ‘Central Authority’ in England (in this case, an office of the High Court in London) for assistance in obtaining the evidence sought. Assuming the Central Authority approves the request, it then falls to the High Court to obtain the evidence requested.
Under Article 9 of the Convention, this is carried out under the law (and corresponding rules and procedures) of the executing state. In other words, there is no expectation that the High Court should imitate or assume the powers of the US court in obtaining the evidence. Rather, the evidence should be obtained through the same powers and procedures as the High Court would employ to compel a witness in its own proceedings. Having said this, by request of the US court, the High Court may adapt these powers and procedures (e.g. to mirror the methods by which the evidence would have been obtained in the US) provided these are possible and practical and do not conflict with English law. Subject to any such adaptations, the witness will ordinarily be summonsed to give evidence before an Examiner appointed by the High Court under an order requiring him to attend a deposition hearing.
The risk of self-incrimination
What protections exist for the witness in a civil deposition hearing if he is concerned that the evidence he might give could be used against him in criminal proceedings (whether in the UK, US or any other country)?
Article 11 of the Convention addresses this question. It provides that a witness may refuse to give evidence where he has a privilege or duty to do so either:
(i) under the law of the executing state (i.e. English law); or
(ii) under the law of the requesting state (i.e. US law), provided the requesting state has specified the relevant privilege or duty in its request, or subsequently confirmed its existence on enquiry by the executing statement.
The English law governing the conduct of civil mutual assistance depositions is the Evidence (Proceedings in Other Jurisdictions) Act 1975 (‘the 1975 Act’), section 3 of which provides that:
(1) A person shall not be compelled by virtue of an order under section 2[of the 1975 Act] above to give any evidence which he could not be compelled to give –
(a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction; or
(b) subject to subsection (2) below, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction.
(2) Subsection (1)(b) above shall not apply unless the claim of the person in question to be exempt from giving the evidence is either –
(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or
(b) conceded by the applicant for the order;
and where such a claim made by any person is not supported or conceded as aforesaid he may (subject to the other provisions of this section) be required to give the evidence to which the claim relates but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.
s3(1)(a) of the 1975 Act (i.e. the ‘English side’) has been the subject of much litigation, most recently and substantively in Ablyazov. The test applied by the English courts is whether there are reasonable (rather than fanciful) grounds for the witness to believe that the evidence sought might be used against him in criminal proceedings in England and Wales. ‘Reasonable grounds’ is a less onerous threshold than might appear on first reading. The relevant case law is clear that the court should not seek to assess the probability of the evidence being used in criminal proceedings, and the witness is certainly not required to prove that it is (for example) more likely than not. Rather, the witness simply has to demonstrate that there is ‘a real and appreciable risk – as distinct from a remote or insubstantial risk’. Once this (relatively low) hurdle has been overcome, the court should give the witness ‘great latitude’ in judging for himself whether a particular question might be used against him. The court should then exercise its discretion as to the necessary steps required to protect the witness’s privilege, which could include excusing him from giving evidence at all. It is also very important to remember the effect of section 13 of the Fraud Act 2006 (see above), which prevents a witness relying on self-incrimination protection in English civil proceedings relating to the recovery of property.
By contrast, with regard to section 3(1)(b) of the 1975 Act (i.e. the ‘US side’), a witness may assert his Fifth Amendment rights. The test for doing so is analogous to that applied in s3(1)(a) (see above). It is for the witness to establish the possibility, rather than the likelihood, of prosecution in order to engage the protection.
The availability of the Fifth Amendment is an important factor in the administration of Hague Convention requests from the US to the UK, as seen in the MicroTechnologiescase. In this case, a witness sought to set aside a deposition order, on the basis that its execution would result in his providing evidence that could incriminate him in the US. Although he succeeded at first instance, on appeal the High Court concluded that the availability of his Fifth Amendment rights meant that the order should be enforced, even if in practice this meant he would answer no questions. The purpose of the Convention was for one court to assist another. As such, the English court should ask itself what approach would have been taken had the US court conducted matters itself. In this case, the witness would have been required to attend a deposition and ‘take the Fifth’, rather than being excused from attending entirely.
In summary, great care is needed to ensure that witnesses are fully aware of their rights under both US and UK law when faced with giving evidence either in UK civil proceedings or in response to cross border mutual assistance requests made in civil or criminal cases. A witness should take appropriate advice from UK and US lawyers when faced with any requirement to give evidence where an international risk of incrimination may exist.
 See s14 Civil Evidence Act 1968. Exposure to a penalty includes an administrative fine: see Rio Tinto Zinc Corporation and others v Westinghouse Corporation  2 WLR 81.
 See Arab Monetary Fund v Hashim  EWCA Civ 1298; Brannigan v Davidson  AC238 and JSC BTA Bank v Ablyazov & Krapunov  EWHC 289 (Comm).
 See United States v. Balsys, 524 U.S. 666 (1998).
 Most notably the Serious Fraud Office under the ‘Section 2’ powers of the Criminal Justice Act 1987, but also the Financial Conduct Authority, the National Crime Agency and Her Majesty’s Revenue & Customs.
 In criminal cases, a separate mutual assistance regime applies, governed by the UK/US Treaty on Mutual Legal Assistance in Criminal Matters (Treaty Series No.4 (1997)) and the Crime (International Co-operation) Act 2003, both of which provide for the right to self-incrimination protection in each jurisdiction to be protected.
 Although as observed by the court in MicroTechnologies LLC v Autonomy Inc  EWHC 3268 QB, it should strive to achieve the same result as if the proceedings had been heard in the US.
 Should there be a dispute between the parties as to whether a privilege or duty exists, the English Civil Procedure Rules lay down a process whereby the Examiner or the court may order the witness to provide the evidence nonetheless. The Senior Master of the High Court will then hold the disputed evidence, and ask the requesting court to rule on whether the witness was entitled to refuse, following which the disputed evidence will be provided or retained as appropriate.
 JSC BTA Bank v Ablyazov & Khrapunov  EWHC 289 (Comm).
 Westinghouse Electric Corp Uranium Contract Litigation MDL Docket 235 (No.2)  AC547 at p574.
 Ibid. at p574.
 MicroTechnologies LLC v Autonomy Inc  EWHC 3268 (QB).