BD-J in landmark Administrative Court case re self-incrimination in murder.

The attached judgment concerns the Administrative Court’s (Bean LJ and Hickinbottom J) granting of the Prosecution’s claim for the judicial review of a decision of a District Judge (Magistrates’ Court) to refuse to allow a witness to a murder to be deposed on the ground that to do so would infringe her privilege against self-incrimination.

It has been subject to reporting restrictions until now. They were lifted following verdicts at the end of July. It is a key decision on depositions, which are increasingly important in murder trials.

It includes important dicta relating to:
(1) the law concerning self-incrimination (see paragraphs 7-10):
(a) a witness must be sworn before she can claim self-incrimination “on her oath” and
(b) the protection of the privilege against self-incrimination cannot be invoked where to answer
the questions would not create a material increase in the risk of incrimination of the witness;

(2) the effect of obtaining evidence under compulsion: it cannot be used (paragraph 17); and

(3) the strength of an abuse of process argument in the event that a person is prosecuted in the face of assurance that she will not be prosecuted: it would be an abuse (paragraph 16).

Read more here