Khan v Khan: CA 1982

The plaintiff gave the defendant a cheque for andpound;40,000 with which to buy a house for P. D applied the money to his own purposes, and P claimed. The defendants were required to swear affidavits setting out full details of the whereabouts of money which the plaintiff alleged had been stolen from him. D sought the protection of the privilege against self-incrimination, saying that though he might be protected by section 31 of the 1968 Act, he might also face a charge of forgery.
Held: The defendant could not rely on the privilege. The alternate charge which he might face was very little different to the theft charge, and he would be protected by section 31. The requirement to say what had become of that money had no bearing on his guilt of either theft or forgery.
The compulsion to answer questions as to the whereabouts of the money added nothing to the existing risk of prosecution for theft. The first defendant had already admitted that he had made out a blank cheque signed by the plaintiff in favour of the second defendant. In the light of that admission, any further question as to what happened to the money did not increase the pre-existing risk of prosecution under the Theft Act.
Stephenson LJ said: ‘But if an attempt were made to introduce any statement made by the first defendant in compliance with this order into proceedings for theft and forgery, the court would have to consider the substance of the proceedings and the real reason why he had not been excused from compliance with the order, and then the proceedings would be seen to be in substance proceedings for an offence under the Theft Act, and so he could not have been compelled to incriminate himself except for an offence under that Act. Accordingly, any such statement would not be admissible in evidence against him in the proceedings.’ and
‘I agree with the judge that ‘it is unlikely that there will be a charge of forgery,’ but he does not seem to have had in mind a prosecution charging both theft and forgery. I agree also that it is ‘often possible to find another offence outside the Theft Act,’ but I do not see how that stratagem could be prevented from defeating Section 31 by construing the section in a way which ignores or contradicts the reference to ‘an offence under this Act’ where those words first occur in subsection (1). In my opinion Mr. Slowe is right in construing the subsection as restricting its operation to incrimination of offences under the Act as well as to proceedings under the Act. However, where, as here, the substance of any foreseeable proceedings is a prosecution under the Theft Act, Section 31 applies and cannot be defeated.’ He expressed the principle as: ‘There must be a real risk of incrimination or material increase of an existing risk.’


Griffiths, Stephenson, Kerr LJJ


[1982] 1 WLR 513, [1982] 2 All ER 60


Theft Act 1968 31


England and Wales

Cited by:

CitedPhillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 May 2022; Ref: scu.462553