The right to remain silent belongs to the suspect. A witness is in the opposite position: a witness summoned in a criminal case is obliged to appear and to answer questions truthfully, and can be compelled to do so. Our article on the suspect’s right to silence deals with that position; this one deals with everyone else.
When may a witness refuse to answer?
Three exceptions to the duty to testify matter in practice.
The first is family privilege. Close relatives of the accused – a spouse or registered partner, former spouse, and relatives in the direct line and to a defined degree in the collateral line – may decline to give evidence altogether. The privilege belongs to the witness, not to the accused, and it must be invoked; a witness who begins answering can be held to it.
The second is professional privilege. Those whose profession imposes a duty of confidentiality – lawyers, doctors, notaries, clergy – may refuse to answer about what was entrusted to them in that capacity. The privilege exists for the benefit of those who confide in them, which is why it cannot simply be waived at the professional’s convenience.
The third is the privilege against self-incrimination. A witness may refuse to answer a particular question where answering would expose him to prosecution. This is a question-by-question privilege rather than a right to say nothing at all.
Investigations by regulators and the tax authority
Outside criminal proceedings, extensive duties to cooperate apply. Supervisory authorities can require information and documents, and the tax authority has wide powers to demand information, backed by sanctions for refusal.
The limit is the principle that no one may be compelled to incriminate himself. The distinction the courts draw is between material that exists independently of the will of the person concerned – documents, records, data – which can be compelled, and statements, which cannot be compelled for the purpose of imposing a punitive sanction. Where a statement is given under compulsion in a supervisory context, its use in a subsequent punitive procedure is restricted.
The practical consequence is that a person asked to attend an interview by a regulator should establish first in which capacity they are being spoken to: as a person with a duty to cooperate, or as a suspect who must be cautioned. Those are different conversations with different rights, and the distinction is not always volunteered.
Employees interviewed by their employer
An internal investigation is not a criminal one, and there is no right to silence in it as such: an employee has a duty to cooperate with reasonable instructions. But an employee cannot be required to incriminate himself in a way that would be used to dismiss him without any safeguards, and where the matter may become a criminal case, an employee is entitled to take advice before answering. Employers conducting investigations should be aware that a statement obtained under pressure is worth considerably less later than one obtained properly.
Advice
If you have been summoned as a witness, invited to an interview by a regulator, or asked to take part in an internal investigation, it is worth establishing your position before you attend rather than afterwards. Please contact Law & More.
