BCL Law Notes Principles of Civil Procedure Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Privilege against self-incrimination
Rule
Not bound to answer questions or provide information if the answer or information would have a tendency to expose to criminal charge, penalty or forfeiture
Must be
Real risk of criminal proceedings
Real risk that the answers and information will be used in the proceedings – Rank Film; Tully; Den Norske
= not technical approach as to whether ‘will lead to’ proceedings
Must be claimed in response to specific questions or requests for information
Cannot be claimed broadly to provide information or testify
No answer to civil claim
Failure to plead will constitute a waiver – although in some circs can hand over information subject to right to claim privilege against self-incrimination
Source – ECHR Art 6 – not expressly recognised but implied
‘incriminate’ interpreted narrowly – only answers that would directly incriminate – Orkem v Commission (1989)
CF UK law – “tendency to incriminate” interpreted broadly – includes series of questions that leaves only an incriminating conclusion open
Does not cover penalties under foreign law – but court has discretion
Covers answers that would incriminate spouse or partner
Can be abrogated –
but abrogation must be compatible with Art 6 under HRA
in the UK there are about 25 such abrogations
NB can create problems in contempt proceedings – usually express abrogation exists but if not can obstruct proceedings
Meaning of ‘coercion’
ECtHR – size of fine relevant to determining whether there is compulsion & therefore whether breach of privilege
O’Halloran & Francis v UK – depends on degree of compulsion
Proportionality analysis?
King v UK (2004) (fines up to 300) <> JB v Switzerland (2001) fines of around 700 – surely not a material distinction & has created significant criticism
Whether separate obligation makes a difference
Drink driving cases – separate offence not to provide information so question whether have been drinking not in breach
BUT isn’t that separate offence just a matter of drafting? And contempt proceedings in general constitute that separate offence
Application to corporations
In UK – yes <> elsewhere mainly no
A human right? Depends on justification
All groups – churches, trade unions, political organisations
Can’t be any distinction between claimant & defendant – must be on equal footing
Except for interrogatories – question re corps only arise in relation to pre-existing documents
Justification – corporations have reputations to protect as well
EPA v Caltex Refining
Gleeson CJ in NSWCA – intended to maintain proper balance between powers of Stae & rights & interest of citizens
Rejected by Mason CJ & Toohey J HCA – would be too difficult to enforce corporate crime & in any event corporations are different to persons – in quality & strength vis a vis state
Prohibited uses
Common law – disclosures that might be used in prosecution or in making decision to prosecute – Tully
SCA 1981 s 72(3) – provide for compulsory disclosure but recognise ‘use immunity’ – no statement can be used in evidence in criminal trial
IE allows civil trial to be resolved without criminal consequences
BUT doesn’t prevent derivative use – can uncover other evidence to same effect
ECtHR in Saunders v UK – court’s ‘sole concern’ was with ‘the use made of the relevant statements made at trial’ –...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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