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Glossary

Abrogation of the privilege against self-incrimination occurs when a statutory provision explicitly provides that the common law privilege has been largely or completely removed in contexts in which it might otherwise have been claimed. Abrogation should not be confused with provisions removing or limiting the privilege in a particular context only.

Adversarial systems require the judge to be an impartial arbitrator of facts presented in evidence by the parties to proceedings, and imply some degree of equality between the parties. These systems are also known as accusatory, so named because a person or representative of the community makes an accusation of criminal offending against a suspect.

Anton Piller orders are orders made by judges in civil proceedings requiring parties on whom they have been served to answer questions and provide access to their premises for inspection purposes. They are used when one party fears that the other will conceal, remove or destroy incriminating evidence. The order is named after the English Court of Appeal decision in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 (CA).

Civil penalties arise out of civil proceedings, and their aim is to punish or discipline the defendant rather than to compensate the plaintiff. Examples of civil penalties can include fines, disqualification and striking off. In this paper, the privilege against liability to a civil penalty is referred to as the penalty privilege.

Common law is a phrase used to describe the body of law applying in jurisdictions modelled on the English system, and which is judge-made rather than enacted by legislation.

Derivative use immunities are immunities from the admissibility of evidence discovered as a consequence of compelled self-incriminating information being given (eg, self-incriminating answers leading to the discovery of relevant documentary evidence). In this paper, derivative use immunities will be referred to by the less technical name use fruits immunities.

Inquisitorial systems are systems of justice in which the judge has an investigative as well as an adjudicative role and proceeds with an inquiry on his or her own initiative (unlike adversarial systems where the parties conduct investigations and present the evidence).

Mareva injunctions are orders made by judges in civil proceedings which freeze the assets of a party so that he or she cannot remove them to other jurisdictions, or otherwise deal with them, to forestall the effects of an adverse judgment. The case in which the injunction first applied was Sociedade Nacional de Combustineis de Angola UEE (“Sonangol”) v Lundquist [1990] 3 All ER 283.

Penalty privilege – see Civil penalties above.

Real evidence comprises an object put in evidence. It does not include a document relied upon as a record of an assertion or statement. Real evidence includes body samples, weapons, fingerprints, handwriting exhibits, identification evidence etc.

Testimonial evidence comprises a statement offered as proof of the truth of that which is asserted.

Transactional immunities are immunities from prosecution arising as a direct or indirect result of giving compelled self-incriminating information (eg, when self-incriminating evidence is compulsorily disclosed in civil proceedings, an immunity from subsequent criminal prosecution may be granted).

Use fruits immunities – see Derivative use immunities above.

Use immunities are immunities from the admissibility of self-incriminating information in proceedings (eg, when self-incriminating evidence is required in civil proceedings, an immunity from its use in other civil, or in criminal, proceedings may be granted).