Khan v R

The privilege against self-incrimination protects a witness only where a compelled answer creates a real and appreciable danger of incrimination, or materially increases an existing risk. A witness who has formally pleaded guilty and admitted the relevant factual basis cannot invoke the privilege against questions confined to those admissions. Such answers do not strengthen the existing case against the witness.

The court must assess the objective tendency of the question to incriminate. A witness’s motive, convenience or suspected bad faith in claiming the privilege does not itself justify refusing protection. The court left open the availability of the privilege where foreign criminal proceedings and extradition are in issue.

The appellant pleaded guilty to a terrorism-financing conspiracy on a signed Crown position statement accepting the prosecution allegations and factual basis relevant to sentence. His co-defendant, Palvinder Singh, was tried separately. Called as a defence witness, the appellant sought to exculpate Singh by accepting sole responsibility for conduct said to have been carried out jointly.

In cross-examination, the appellant repeatedly refused to answer questions about matters covered by his plea, claiming the privilege against self-incrimination because of a United States indictment. Fulford J held that the appellant was obliged to answer questions about matters already admitted, dealt with him summarily for contempt, and imposed 12 months’ imprisonment consecutive to the terrorism sentence. The appeal concerned whether those refusals were protected by privilege.

1. Appeal dismissed. The appellant was not entitled to refuse answers about matters which he had already admitted by his guilty plea and the signed position statement.

2. The privilege against self-incrimination protects against being compelled to convict oneself out of one’s own mouth. It applies where there is a reasonable ground for apprehending a real and appreciable danger of incrimination. It does not apply where answering creates no material increase in the existing risk or does not strengthen the case against the witness. The principle in Khan v Khan [1982] 1 WLR 513 supported that conclusion.

3. The appellant had already voluntarily admitted guilt on Count 1 and accepted the prosecution case set out in the opening note. Questions testing the truth of those admissions, or concerning their subject matter, could not worsen his position in any future United States proceedings. He was therefore not being compelled to incriminate himself afresh. The attempt to use privilege to prevent effective testing of evidence favourable to Singh was impermissible.

4. Extradition Act 2003, section 80 barred extradition for an offence for which the appellant had already been convicted. The asserted foreign risk could therefore concern only matters distinct from Count 1.

5. Den Norske Bank ASA v Antonatos [1999] QB 271 did not assist the appellant. Its concern with a potentially retractable earlier statement becoming a formal admission was far removed from a witness who had already made formal admissions in open court.

6. The judge was entitled to conclude that the appellant’s reasons were not genuine. However, the court cautioned that motive and good faith are not the legal test. The inquiry is objective: whether the question in fact exposes the witness to a future criminal risk. The court expressly left unresolved the effect of Article 6 and extradition upon privilege in relation to foreign proceedings.

• Court of Appeal (Criminal Division): dismissed the appeal against the conviction for contempt of court, [2007] EWCA Crim 2331.
• Crown Court at Snaresbrook: Fulford J dealt with the appellant summarily for contempt on 17 March 2006 and imposed 12 months’ imprisonment consecutive to the sentence for the terrorism offence.