Self-Incrimination and the Threat of Prosecution under Foreign Law: Brannigan v Davison
| Author | Rosemary Pattenden |
| DOI | 10.1177/136571279800200105 |
| Published date | 01 January 1998 |
| Date | 01 January 1998 |
| Subject Matter | Case Notes |
Self-incrimination and the
threat of prosecution under
foreign law:
Brannigan
v
n
m
vavison
By Rosemary Pattenden
University
of
East Anglia
rannigan
v
Davison
[1996]
3
WLR
859,
possibly one of the last appeals to
the Judicial Committee of the Privy Council from New Zealand,
addressed the question of whether the privilege against
self-incrimination extends to evidence whose provision infringes foreign, but
not domestic, criminal law. The negative answer which their Lordships gave
can be applied in England only in criminal proceedings because
s.
14
of the
Civil Evidence Act
1968
has already restricted the privilege to incrimination
under the criminal law of any part of the
UK.
Nevertheless,
Brannigan
v
Davison
is of relevance to English civil proceedings. Before this decision it had been
thought that in a civil action a judge had no option but to compel a witness to
give evidence that exposed the witness to a foreign prosecution:
[Iln a civil action the court does not have a discretion to permit a
witness giving evidence at the trial to refuse to disclose relevant
and admissible facts which are not covered by any recognised
privilege.'
Brannigan
v
Davison
is highly persuasive authority that any court may treat a
witness faced with the trilemma of perjury, contempt
or
self-accusation in
respect of foreign law more humanely. How this is to be done will be
explained shortly.
The defendant, Sir Ronald Davison, was a former Chief Justice of New
Zealand. He had been appointed the commissioner in charge of an inquiry
1
Per
Hoffniann
J.
Arub
Monrtury
Fund
v
flushim
(No.
2)
119901
1
All
ER
673.
681.
The position is
different at the discovery stage because an order for discovery is discretionary.
r
44
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
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