Privileged Communications and Evidence by Accomplice

This article is written by Chirayu Singh Thakur of 2^nd Semester of School of Law, MIT WPU

Abstract:

The concept of privileged communication and evidence by accomplice is recognized in various legal systems around the world, including in international criminal law and as well as in Indian Evidence Act, 1872. Privileged communication refers to certain confidential information that cannot be disclosed in court, such as communications between lawyers and clients or doctor-patient privilege. Evidence by accomplice refers to the testimony of a person who has aided or abetted in the commission of a crime. This research paper examines the legal framework governing privileged communication and evidence by accomplice in international criminal law. The Indian Evidence Act, 1872 perceives the idea of privileged communication and evidence by accomplice in India.

Keywords: Privilege, Communication, Evidence, Accomplice, International Criminal Law

Introduction:

“Privileged Communications” are specific types of confidential information that are legally protected from disclosure in court or other legal proceedings. These communications are regarded as privileged because they are thought to be necessary for the maintenance of certain important relationships, such as those between clients and their solicitors or between spouses.

Attorney-client communications, for example, are generally privileged, which means that a lawyer cannot be forced to reveal what their client has told them privately. Spousal communications are typically privileged as well, which means that one spouse cannot be forced to testify against the other in court.

An “accomplice” is someone who has aided or abetted another person in the commission of a crime. An accomplice may be charged with the same crime as the primary perpetrator, but he or she may also be offered a deal in exchange for testifying against the other party in exchange for a reduced sentence.

In terms of evidence, privileged communications are typically inadmissible in court, but this may vary depending on the circumstances and the type of privilege that applies. Evidence provided by an accomplice, on the other hand, may be admissible in court, but it is frequently subject to close scrutiny by the court due to the witness’s potential bias.

The Indian Evidence Act of 1872 is the primary law in India governing the admissibility and proof of evidence. The importance of favored privileged communication and evidence by accomplice in the administration of justice is recognized by the Act.

Privileged communication refers to specific classified information that is protected from disclosure in court, whereas evidence by accomplice refers to the testimony of someone who has aided or abetted in the commission of a crime. This research paper’s purpose is to provide an overview of the legal framework governing privileged communication and evidence by accomplice under the Indian Evidence Act of 1872.[1]

What is Privileged Communication in India:

Privileged Communication is a fundamental principle of the legal profession, which perceives the requirement for specific confidential communications to be safeguarded from disclosure in court. The Indian Evidence Act, 1872 perceives the following types of privileged communication:

1. Communications between lawyer and client (Section 126): This privilege safeguards the confidentiality of communications between a legal advisor and their client. It applies to both oral and written communications, and the privilege survives even after the client’s death.
2. Communications during marriage (Section 122): This privilege safeguards the confidentiality of communications between spouses. The privilege only applies to communications made during the means of the marriage and doesn’t reach out to communications made before or after the marriage.

When Privilege cannot be claimed?

The privileges under section 122 cannot be claimed in the following cases:

1. Where there is a civil suit or criminal proceedings between husband and wife.
2. Acts apart from communication: parties can testify the conduct of another, though not as to what he said.
3. If the spouse who made the communication or his representative interest gives his consent.
4. If the communication falls in the hands of the third person, the latter may give evidence of the same.[2]

What is Privileged Communication according to ICL:

The concept of privileged communication is recognized in various legal systems around the world, and the types of privilege recognized may vary depending on the jurisdiction. In international criminal law, the most common types of privileged communication include:

1. Lawyer-client privilege: This privilege safeguards confidential communications between a legal counselor and their client. It is recognized in the statutes of many international criminal tribunals, including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).
2. Doctor-patient privilege: This privilege protects confidential communications between a doctor and their patient. It is recognized by some international criminal tribunals, such as the ICTY, but not by others, such as the ICC.

When Privileges cannot be claimed under International Criminal Law?

Under international criminal law, privileged communications and evidence by accomplices can also be subject to certain limitations and restrictions. Here are some instances where privileged communications and evidence by accomplices cannot be claimed under international criminal law:

1. Crimes Against Humanity: The principle of privileged communications cannot be claimed as a defense in the context of crimes against humanity. The reason for this is that these crimes are considered to be of such a serious nature that they should not be shielded by any form of privilege.[3]
2. War Crimes: Similarly, the principle of privileged communications cannot be claimed as a defense in the context of war crimes. This is because such crimes involve serious violations of the laws and customs of war, and any attempts to shield evidence or communications could potentially obstruct the investigation and prosecution of these crimes.[4]
3. Accomplice Testimony: The evidence provided by an accomplice can be admissible in international criminal trials, provided that certain criteria are met. However, in some cases, the evidence provided by an accomplice may be considered unreliable or untrustworthy, and therefore, it may not be given much weight in the final determination of guilt or innocence.[5][6]

Evidence by Accomplice in India:

In India, evidence given by an accomplice is governed by Section 133 of the Indian Evidence Act, 1872. The section provides that an accomplice is a competent witness and his evidence is admissible in court. However, the court must exercise caution while relying on such evidence and must ensure that it is corroborated by other independent evidence that connects the accused with the commission of the offense.

The Supreme Court of India has held that while the evidence of an accomplice is admissible, it is inherently weak and cannot be relied upon without validation. In the case of Sajjan Kumar v. State, the Supreme Court held that the evidence of an accomplice must be viewed with suspicion and must be corroborated by other evidence before it can be relied upon to convict an accused.

In India, the court is required to caution the jury or the judge that the evidence of an accomplice is inherently weak and must be corroborated. Failure to do so may result in a reversal of the conviction on appeal. Furthermore, if the accomplice is granted pardon by the court, the court must ensure that the evidence provided by the accomplice is corroborated by other independent evidence before relying on it.

Overall, the admissibility and weight of evidence given by an accomplice in India is subject to strict rules of evidence and must be approached with caution by the court.

And here are some case laws related to evidence by accomplice in India:

1. In the case of Pakkirisamy v. Emperor, AIR 1937 Mad 145, the court held that the evidence of an accomplice is inherently weak and requires corroboration.[7]
2. In the case of Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622, the Supreme Court held that the evidence of an accomplice must be validated by independent evidence in material particulars.[8]
3. In the case of State of Rajasthan v. Kalki, (1981) 3 SCC 627, the Supreme Court held that an accomplice’s evidence is not necessarily unreliable, but must be examined with caution and validated by independent evidence.[9]
4. In the case of Sarwan Singh Rattan Singh v. State of Punjab, (1983) 2 SCC 16, the Supreme Court held that the conviction of an accused based solely on the evidence of an accomplice is not sustainable, and that the evidence must be validated by independent evidence.[10]
5. [11]

It’s important to note that the admissibility and weight given to evidence by an accomplice may vary depending on the specific facts and circumstances of each case, and the court’s assessment of the credibility and reliability of the accomplice’s evidence.

Evidence by Accomplice according to ICL:

The admissibility and weight of evidence by accomplice varies between legal systems. In international criminal law, the admissibility and weight of evidence by accomplice is generally governed by the Rules of Procedure and Evidence of the relevant tribunal. The most common approach is to admit the evidence, but to require corroboration by other evidence in order to establish its reliability. The weight given to the evidence by the tribunal will depend on the circumstances of the case and the level of corroboration provided.

Under International Criminal Law, the evidence given by an accomplice is generally admissible in court, subject to certain safeguards. Article 69 of the Rome Statute of the International Criminal Court (ICC) provides for the admissibility of evidence, including the evidence provided by an accomplice.[12]

However, the ICC and other international tribunals have recognized the inherent unreliability of evidence given by an accomplice and have developed safeguards to ensure that such evidence is not given undue weight. The ICC, for instance, has established criteria to evaluate the reliability of accomplice evidence, such as the nature and degree of the accomplice’s involvement in the alleged crime, whether the accomplice has a motive to lie, and whether the accomplice’s evidence is consistent with other evidence.

Furthermore, international tribunals often require that the accomplice’s evidence is corroborated by other independent evidence before it can be relied upon to convict the accused. The requirement of corroboration is intended to ensure that the evidence given by an accomplice is not used as the sole basis for a conviction.

In addition to the safeguards related to reliability and validation, international tribunals may also grant accomplices immunity or leniency in exchange for their testimony. Such measures are intended to encourage cooperation with the prosecution and to ensure that accomplices are not punished more severely than the main perpetrators of the crime.

Overall, while evidence given by an accomplice is generally admissible in international criminal proceedings, it is subject to strict scrutiny and safeguards to ensure its reliability and fairness.

Case Laws which can help us in understanding Privileged Communications and Evidence by Accomplice for India as well as globally.

Sure, here are some cases related to privileged communications and evidence by accomplices in India and other countries:

1. [13]
2. [14]
3. [15]
4. [16]
5. [17]

It’s important to note that the laws and case precedents related to privileged communications and evidence by accomplices can vary significantly between countries and jurisdictions.

Conclusion:

This research paper has examined the legal framework governing privileged communication and evidence by accomplice in international criminal law and under the Indian Evidence Act, 1872. Privileged communication refers to certain confidential information that cannot be disclosed in court, such as communications between lawyers and clients or doctor-patient privilege, while evidence by accomplice refers to the testimony of a person who has aided or abetted in the commission of a crime.

Privileged communication is a fundamental principle of the legal profession and is recognized in various legal systems around the world. The Indian Evidence Act, 1872 perceives the following types of privileged communication: communications between lawyer and client, communications during marriage, and others. However, there are circumstances under which privilege cannot be claimed. For example, the privilege between spouses cannot be claimed where there is a civil suit or criminal proceedings between husband and wife, and it cannot be claimed where the communication falls into the hands of a third person.

International criminal law recognizes the concept of privileged communication, and the most common types of privilege recognized include lawyer-client privilege and doctor-patient privilege. The principle of privileged communication cannot be claimed as a defense in the context of crimes against humanity and war crimes because these crimes are considered so serious that they should not be shielded by any form of privilege.

Evidence provided by an accomplice can be admissible in international criminal trials, provided that certain criteria are met. However, in some cases, the evidence provided by an accomplice may be considered unreliable or untrustworthy, and therefore, it may not be given much weight in the final determination of guilt or innocence.

In conclusion, the legal framework governing privileged communication and evidence by accomplice is complex and varies depending on the jurisdiction and circumstances. Privileged communication is an essential principle that protects confidential communications between certain individuals, such as lawyers and clients or spouses, while evidence by accomplice can provide important evidence in criminal trials, but it is subject to scrutiny due to the witness’s potential bias. Understanding the legal framework surrounding these concepts is crucial to ensuring that justice is served fairly and impartially.

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[1] Singh, Avtar, and Harpreet Kaur. “Legal Professional Privilege in India.” Indian Journal of Science and Technology, vol. 10, no. 7, 2017.

[2] (1897) ILR 19 All 465, Indian Kanoon, Case Laws #1 Ram bharose    V.    State Of Uttar Pradesh (1954) #2 M.C. Verghese    V.    T.J. Ponnan (1970) #3 Queen Empress    V.    Donoghue (7 May, 1897)[2]

[3] The Rome Statute of the International Criminal Court (Article 27)

[4] The Geneva Conventions (Article 49)

[5] The International Criminal Court (ICC) Rules of Procedure and Evidence (Article 69)

[6] Case Laws Prosecutor    v.    Tihomir Blaškić: In this case before the International Criminal Tribunal for the former Yugoslavia (ICTY)

[7] Pakkirisamy    v.  Emperor, AIR 1937 Mad 145.

[8] Shivaji Sahebrao Bobade    v.    State of Maharashtra, AIR 1973 SC 2622.

[9] State of Rajasthan    v.    Kalki, (1981) 3 SCC 627.

[10] Sarwan Singh Rattan Singh v.    State of Punjab, (1983) 2 SCC 16.

[11] Chandra Prakash    v.    State of Rajasthan, (1996) 3 SCC 622.

[12] Article 69 of the Rome Statute of the International Criminal Court (ICC)

[13] State    v.    Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600

[14] United States    v.    Zolin, 491 U.S. 554 (1989)

[15] R    v.    Preddy, [1996] 2 Cr App R 562

[16] R    v.    Lising, [2008] 1 SCR 625

[17] Mallard    v.    The Queen, [2005] HCA 68