Pump Court Chambers

The right against self incrimination for witnesses in Financial Remedy Proceedings

Blog 23rd November 2015

We have all been involved in representing clients who appear to have engaged in some form of criminal conduct during the course of the marriage. In financial remedy proceedings this usually takes the form of tax evasion or cheating the revenue.

During the course of the proceedings a party will generally be expected to have disclosed his bank statements, his tax returns and details of his true income. Often an examination of these documents will reveal that both parties will have enjoyed a standard of living which is only compatible with significant undeclared incomes.

At court it is often the case that during cross-examination it is suggested that a party has significant undeclared income. If true, this might amount to a criminal offence and were the party to answer questions this might expose him or her to a criminal penalty.

Many judges and counsel believe that a witness, when faced with a question which might incriminate him or herself in some form of criminal activity should be warned that they have the right not to answer such a question. In fact in R v K [2009] EWCA Crim 1640 the Court of Appeal examined whether the privilege against self- incrimination applied in financial remedy proceedings and concluded that it did not,

“As Lord Brandon of Oakbrook pointed out in Livesey v Jenkins, the requirement that the court should have the full and frank disclosure which it must have in order to discharge its duty is met by rules of court and those rules must be construed against that legislative background. In our view the purpose of the legislation would be frustrated if parties could withhold from the court relevant information, whether relating to their financial affairs or other matters on the grounds that to disclose would tend to incriminate them. For these reasons we are satisfied that parties to such proceedings are not entitled to invoke the privilege against self-incrimination in order to withhold information.”

Therefore a party to financial remedy may find him or herself being forced to answer questions which reveal that he or she has been involved in some form of criminal endeavour. However in R v K it was decided that while the transcript of what a party said in evidence might be disclosed to the relevant authorities, that evidence could not ordinarily be used in the criminal prosecution as it had been obtained under compulsion. However while the evidence of what was said cannot itself be used in a criminal trial, the evidence itself may be disclosed to the authorities and that might put the authorities on a train of enquiry which would lead them to obtaining sufficient evidence to prosecute the alleged crime without the need to rely on the evidence obtained under compulsion.


The simple fact is that those involved in criminal activity who find themselves embroiled in financial remedy proceedings have no option but to answer relevant questions, whether or not as a result they are exposing themselves to a potential criminal penalty.

You should advise the client of this hazard as soon as the issue arises but of course the client and his legal adviser may find themselves in great difficulty in negotiating a settlement based upon a false account of the client’s finances. If may be possible to make the disclosure without prejudice in which case the other party is arguably bound not to disclose it – but great care must be taken not to mislead the other party and the court and to advise the client that if the without prejudice disclosure of wrongdoing somehow finds its way into the hands of the police, then they will be able to rely on it despite the fact that it was disclosed in a without prejudice meeting.

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