Scope of privilege against self-incrimination

River East Supplies Limited (the claimant) sought judicial review of a production order requiring it to produce certain documents in response to a request for mutual legal assistance from U.S. regulators.

Criminal investigation in the U.S.

The United States Food and Drug Administration Office (FDA) had been carrying out a criminal investigation into the trade of counterfeit drugs, which included investigating the claimant. The FDA issued a letter of request to the UK Central Authority (the UKCA), requesting mutual legal assistance (the Letter). The relevant UK police force applied for a Production Order. The application contained a copy of a superseding indictment detailing the allegations made against the claimant, but did not contain a copy of the Letter. The claimant sought disclosure of the Letter in order to check that the material listed in the Production Order matched that detailed in the Letter. The UKCA resisted disclosure on the basis that maintaining confidentiality of letters of request was vital for the UK to provide and receive mutual legal assistance. At first instance, the court refused disclosure of the Letter and granted the Production Order.

The claimant appealed, arguing that:

− the Production Order should have been based on the Letter itself, rather than the UKCA’s interpretation of it, ie the Letter should have been disclosed with any necessary redaction applied; and
− the production of the material requested in the Production Order may infringe the claimant’s privilege against self-incrimination.

Letters of request are confidential and do not have to be disclosed

Letters of request are confidential and are not disclosed, either to the court or to a party affected, held Simon LJ and Sir Kenneth Parker (sitting as a High Court Judge). In some cases, justice or principles of fairness may require that information as to the nature of a criminal investigation be provided,¹ and in others, the nature of the application might indicate that further information is provided.² Moreover, where a witness statement given in support of an application made following a letter of request refers to that letter of request, production of the letter may be ordered (see here for coverage of this issue in a previous edition of this Review). However, no such considerations arose in this case. The UKCA application and the superseding indictment were available to the judge at first instance and to the claimant, and provided a detailed and comprehensive explanation of the criminal investigation. Those documents were sufficient for the Production Order.

Privilege against self-incrimination – an important distinction

There is a clear distinction between statements that a suspect has been compelled to make against its will and so-called “independent” material that has been obtained through the use of compulsory powers:

• statements made against a suspect’s will: these would not have existed save for the compulsory discovery process. Such statements are contrary to a suspect’s right to remain silent and, therefore, fall within the scope of the privilege against self incrimination; and
• independent materials that come into existence independently of (and usually prior to) any compulsory discovery process do not fall within the scope of the privilege. Such material can include, for example, pre-existing documents acquired under a warrant or production order.

The material sought by the Production Order, which consisted of the claimant’s internal documents created in the years prior to the FDA investigation commencing, was indisputably “independent”. As such, the privilege against self-incrimination did not apply. Their Lordships also considered that there are “powerful arguments” (set out in R (Bright) v Central Criminal Court [2001] 1 WLR) that Parliament had, under the Police and Criminal Evidence Act 1984, excluded the privilege in the context of production orders, although they didn’t decide the issue.

COMMENT

When faced with compulsory discovery (for example, in the form of a production order or warrant) for material that might expose it to the risk of criminal proceedings, a party will usually attempt to resist disclosing such material. This case serves to highlight the difficulties such a party might face in claiming that any such material is subject to the privilege against self incrimination. It is likely that the material in question will, as it was in this case, be historical and, as such, will have come into existence independently of the compulsory discovery process, ie it will be considered “independent”. The weight of judicial authority suggests that, as such, the material will not attract any privilege against self-incrimination. However, although their Lordships considered that there was no uncertainty in this regard, the instant decision was rendered in the High Court and, as such, absolute clarity may only be achieved when a case comes before the Supreme Court.

Where a party has a good claim to privilege against self incrimination, it is, of course, important to remember that any such claim must be made before the material in question is disclosed. Failure to assert privilege against self-incrimination before material is disclosed will result in a loss of that privilege.

Footnotes:

Further information
This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication. If you wish to receive this publication, please contact Amy Edwards, amy.edwards@allenovery.com.​