United States v Allen and privilege against self-incrimination

Peter Binning and Robert Hanratty of Corker Binning examine how United States v Allen has effectively immunised compelled UK testimonies from use in a subsequent US prosecution.

Lawyers in the UK practising in white-collar crime need to take account of the decision in United States v Allen No. 16-898 (2d Cir 2017), which was handed down on 19 July 2017 by the United States Court of Appeals for the Second Circuit. The decision means that information obtained from persons interviewed by the UK Serious Fraud Office (SFO) under section 2 of the Criminal Justice Act 1987 or by the FCA under section 171 of the Financial Services and Markets Act 2000, cannot be used by a prosecutor in US criminal proceedings against the interviewee personally.

The court ruled that the Fifth Amendment’s prohibition on use of compelled testimony in US criminal proceedings applies even when a foreign sovereign has compelled the testimony. The constitutional protection of privilege against self-incrimination thus prohibits the use and derivative use of foreign compelled testimony in a US criminal case against the defendant who provided that testimony.

Read the full article in Global Investigations Review here, behind a paywall.