It is only compelled evidence that may be protected by the privilege

It is only compelled evidence that may be protected

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self-incrimination. It is only “compelled” evidence that may be protected by the privilege. Accordingly, no privilege attached to objectionable images found on a computer during the execution of a search order. (a) Conditions for invoking the privilege a. The privilege must be claimed by the witness (claim explicitly, duty on the party of the witness) Hunnings v Williamson (1883), 10 Q.B.D. 459 R. v. Boyes (1861), 1 B. & S. 311 Triplex Safety Glass Co Ltd. v. Lancegaye Safety Glass 1934 Ltd. [1939] 2 K.B. 395 A corporation has legal personality it can claim privilege b. The risk of incrimination must not be fanciful (the risk must be reasonably likely if the witness answered the question, cannot invoke base on some remote probability) Blunt v. Park Lane Hotel Ltd. [1942] 2 K.B. 253 The D were being sued for defamation by a lady, alleged that she committed adultery. The P responded that she did not have to answer the interlocutory,
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because although adultery is not a criminal offense, the P may be affected. This is rejected. Triplex case supra It may be necessary to distinguish between the corporation and its officers and employees, and to consider whether all or only some of them any be at risk of criminal proceedings. Rank Film Distributors v. Video Information Centre [1981] 2 W.L.R. 668 The P are copyright script writers, suspecting that the D is in breach of their copy right of their films, and so P sought to apply for a search order. D invoke the self- incrimination, because according to statute, breach of copy right may be criminal although seldom being prosecuted. The Court decides that the self-incrimination may be invoked. The privilege could be relied on where a criminal charge was more than a contrived, fanciful, or remote possibility. The privilege may arise, not only when answering might increase the risk of being prosecuted, but also where the prosecution may make use of the answer in deciding whether to prosecute, and where the prosecution may seek to rely on the answer in establishing guilt. Merely asserting that there is a risk is not enough: the risk must be real and appreciable. Senior Courts Act 1981 (formerly Supreme Court Act 1981), s.72 The risk of documents being used against the party for the purposes of criminal proceedings is obviously greater in cases where the D is alleged to have been particularly dishonest, and the worse conduct alleged the greater the prospect of a successful claim to the privilege. In face of the fears that the privilege would operate to frustrate the use of search orders in intellectual property piracy claims, s72 is enacted. This has the effect of removing the privilege against self-incrimination in relation to claims involving the infringement of intellectual property rights and passing off, but also to provide that the answers given shall not be used in any related criminal prosecution.
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  • Fall '15
  • The Land, criminal law, Lawyer, Evidence law, Attorney-client privilege, Crown Proceedings Act 1947

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