The trial of Francesca and Elisabetta Grillo is going on at Isleworth Crown Court this week. As it is still in front of the jury, we are not going to be looking at any details of the case, but want to look at a point that a few people have raised – what are the legal consequences of Nigella Lawson (a witness in the trial) admitting to having used cocaine?
Does a witness have to answer questions that involve admitting a criminal offence?
The general rule is that a witness who is called to give evidence has to answer every question asked of them. This is even if it is embarrassing or something that they don’t wish to answer because it concerns private matters.
However, there has been a very long rule that a witness is not required to answer questions if the answers are liable to expose them to a prosecution. If you like your latin, then “Nemo tenetur seipsum accusare” – ‘no one is bound to be their own accuser’.
A classic statement is given by LCJ Goddard : “the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.” (Blunt v Park Lane Hotel  2 KB 253).
This rule is not absolute. There must be some risk of a prosecution in the UK (foreign proceedings wouldn’t count) so if a Judge concludes that there wouldn’t be a prosecution, then the privilege can’t be claimed (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation  AC 547). There are also various statutory exceptions.
A defendant who gives evidence cannot use the privilege to avoid answering questions for charges that he is standing trial (for obvious reasons).
The privilege has to ‘claimed’. That means that the witness has to ask the Judge to be excused from answering a question. If he doesn’t, and gives incriminating answers, then these can later be held against him. If the Judge wrongly refuses a claim for privilege however, then this wouldn’t be the case.
There is no legal obligation on a Judge to warn a witness that they have this right (although most do, at least nowadays).
Is this ‘taking the 5th’?
Yes. Although saying that in a UK courtroom may not go down particularly well. Taking the 5th comes from the Fifth Amendment of the US Constitution – “No person shall … be compelled in any criminal case to be a witness against himself“. In this area, English and American law are pretty closely aligned.
Although this comes up in American films and TV shows, it is not a recent invention. It comes from England of the 17th Century (and probably before) when ‘Freeborn John’ Lilburne was hauled before the Star Chamber and refused to enter a plea.
What happened in Nigella’s case?
The short answer is that we don’t know. We will have a look at this in more detail when the trial has concluded.