The privilege against self incrimination was lost by the act of voluntarily submitting to the rules of a professional institute. Leggatt LJ: ‘Waiver of privilege
We indicated to counsel that for the purposes of this appeal we were content to assume, without deciding, that the privilege from self-incrimination at least extends to investigations of a quasi-judicial character such as we are concerned with. We have also assumed that the privilege was sufficiently claimed by Mr Nawaz’s letter of 6th April 1994.
Mr Sears submitted in writing that the waiver of privilege against self-incrimination is analogous with the abrogation of privilege by statutory provision. Orally, he pressed the argument with less force. Perhaps he had concluded that abrogation and waiver are not analogous for abrogation consists in the deprivation by Parliament of a privilege which a person otherwise enjoys, whereas waiver occurs where a person voluntarily foregoes a privilege that is his. Abrogation deprives him of choice, waiver represents an exercise of choice. When a person enters a profession he accepts its duties and liabilities as well as its rights and powers. Similarly, he may acquire or surrender privileges and immunities. Nevertheless, the principle that privilege is not to be regarded as having been abrogated, except by express words or necessary implication, applies also to waiver.
In my judgment, acceptance of a duty to provide information demanded of an accountant constitutes a waiver by the member concerned of any privilege from disclosure. It is plainly in the public interest, as well as the interests of the profession, that the Institute should be enabled to obtain all such information in the possession of its members as is relevant to complaints of their professional misconduct.
Mr Sears sought to reinforce his argument by contending that it is wrong to suggest that by agreeing to be bound by the rules of the Institute Mr Nawaz impliedly waived his right to assert privilege. I do not see why. It is true that this court has declined to hold that when one person becomes the fiduciary servant or agent of another they are to be treated as having impliedly contracted, they will not invoke the privilege of self-incrimination against the other. In the case of membership of a profession, the member accepts its rules and agrees to abide by them and to fulfil their requirements. Upon becoming a chartered accountant, it shall be the duty of every member, in accordance with paragraph 8(a) in Schedule 2 of the Supplemental Charter, to provide such information as investigation may consider necessary to discharge its functions. Compliance with that duty necessarily and inevitably precludes the exercise of any privilege that would have excused the provision of the information.’
Judges:
Leggatt LJ, with whom Thorpe LJ, Mummery LJ
Citations:
Times 07-Nov-1996, [1996] EWHC Admin 149
Jurisdiction:
England and Wales
Cited by:
Cited – Holder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 04 October 2022; Ref: scu.136697