Privilege (W8)

Question 1

F10.1 - Privileged relationships

Answer 1

Relevant and otherwise admissible evidence may be excluded on the grounds of either the privilege against self-incrimination or legal professional privilege.

Question 2

F10.1 - Principles of general application

Answer 2

(a) A person entitled to claim privilege may refuse to answer the question put or disclose the document sought.
(b) If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness.
(c) A party seeking to prove a particular matter in relation to which is or her opponent or a witness claims privilege, is entitled to prove the matter by other evidence.
(d) No adverse inferences can be drawn against a party or witness claiming privilege.
(e) A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed on the basis that it would succeed in some other jurisdiction.

Question 3

F10.2 - Scope of privilege

Answer 3

• s.1(2) Criminal Evidence Act 1898: ‘A person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings.’
• Subject to this, no witness is bound to answer questions in court if to do so would, in the opinion of the judge, have a tendency to expose the witness to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.
• Courts may substitute a different protection in place of privilege when requiring a person to comply with disclosure, e.g. where prosecuting authorities agree not to make use of the information.
• A witness may not claim privilege on the basis that his/her answer may expose them to civil liability
• Privilege also does not extend to answers which could expose a witness to criminal liability under foreign law.
• Subject to any statutory exceptions, an agent, trustee or other fiduciary of a party may claim the privilege in an action brought against him/her by that party for breach of that duty.

Question 4

F10.5 - Incrimination must be of the person claiming privilege

Answer 4

• The privilege against self-incrimination is restricted to the person claiming it and does not extend to answers which would tend to incriminate a spouse.
• A company may claim privilege in the same way as an individual, but the privilege is that of the company and would not extend to its office holders.

Question 5

F10.6 - Time for claiming privilege

Answer 5

• A witness may claim privilege only after having been sworn and the question put; the witness is not entitled to refuse to take the oath on the grounds of privilege.
• In practice, a judge will often warn the witness of a right not to answer a question but in the absence of such a warning, the witness must claim the privilege themselves.
• The witness may claim privilege at any stage in the proceedings.
• If the witness answers without seeking the protection of the court, those answers may be used in the proceedings in question and in any subsequent criminal proceedings against the witness.
• If a judge wrongly denies a witness the protection of privilege, anything the witness is then compelled to say is treated as having been said involuntarily and will be excluded from the subsequent criminal proceedings.

Question 6

F10.19 - Legal advice privilege

Answer 6

• Covers communications between clients and their legal advisers for the dominant purpose of obtaining or giving legal advice.
• Also covers documents evidencing such communications and documents intended to be such communications.
• It needs to be shown that the purpose of obtaining or giving legal advice was the dominant purpose.
• Communications must have been made either in the course of the relationship between client and legal adviser or with a view to its establishment.
• The privilege extends to the instructions given by the client to the solicitor or by the solicitor to the barrister and to counsel’s opinion taken by a solicitor.
• Documents from or prepared by independent third parties and passed to the lawyers for the purposes of advice are not privileged.

Question 7

F10.20 - Corporate clients

Answer 7

In the case of a corporate client, the privilege covers only:

(a) communications with those officers or employees expressly designated to act as ‘the client’ and not (b) documents prepared by other employees or ex-employees, even if they were prepared with the dominant purpose of obtaining legal advice
- With regard to (a), the communications will remain privileged if sent or given to the Board of Directors directly, instead of via the ‘designated officers or employees’, because the Board is the manifestation of the corporate client.
- If a solicitor is retained by a company to carry out investigations to provide the company with legal advice and that requires the solicitor to speak to employees (or others) who are not ‘designated officers or employees’, the communications will not be covered by legal advice privilege, even if the employees have been authorised by the company to speak to the solicitor.

Question 8

F10.26 - Main principles relating to litigation privilege

Answer 8

(a) Privilege is engaged when litigation is in reasonable contemplation.
(b) Once engaged, it covers communication between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of litigation.
(c) Conducting the litigation includes deciding whether to litigate and also whether to settle the dispute giving rise to the litigation.
(d) Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered.
(e) There is no separate head of privilege covering internal communication falling outside the ambit outlined above.

Question 9

F10.26 - Additional restriction for litigation privilege

Answer 9

The privilege only applies in the case of litigation that is adversarial, not investigative or inquisitorial.

Question 10

F10.26 - Further considerations for litigation privilege

Answer 10

• Legal advice given to head off, avoid or settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending proceedings.
• The privilege extends to the identity and other details of witnesses intended to be called in adversarial litigation.
• Litigation privilege is a basic or fundamental right and may only be intruded upon by the force of subordinate legislation if the statute providing the subordinate legislation makes it plain that such an authority was to be conveyed.

Question 11

F10.27 - Types of document covered by litigation privilege

Answer 11

• Covers documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation.
• Doesn’t cover documents obtained by a party or the party’s adviser for the purpose of litigation that were not created for that purpose, i.e. a copy or translation of an unprivileged document in the control of a party does not become privileged merely because the copy or translation was made for the purpose of litigation.
• Privilege will attach where a solicitor has copied or assembled a selection of third party documents for the purposes of litigation, if its production will betray the trend of the advice given to the client but this does not extend to a selection of own client documents, or copies or translations representing the fruits of such a selection.

Question 12

F10.36 - Communications in furtherance of crime or fraud

Answer 12

• These are a well-recognised exception to the principle of legal professional privilege.
• If a client applies to a legal adviser for advice intended to facilitate or guide the client in the commission of crime or fraud, the legal adviser being ignorant of the purpose for which the advice is sought, the communication between the two is not privileged.
• Although a court may look at the communications in question to decide whether they came into existence for such a purpose, as a rule the court should not do so: there must be some exceptional factor of real weight before the court examine the closed material and the mere fact that the test is not satisfied on the open material is not such a factor.
• In a case of conspiracy to pervert the court of justice in relation to an allegedly false alibi, it was held that material in support of the purported alibi held by the solicitors was not protected by privilege because there was ‘free-standing and independent’ evidence of the conspiracy.
• The exception does apply if the legal adviser is aware of or party to the crime/fraud, but not if the adviser merely volunteers a warning to the client that the conduct could result in prosecution.
• Where documents have been generated by, or report on, conduct constitutes a crime under the data protection legislation, and those documents are relevant to an issue in the proceedings, they will not be protected from disclosure by legal professional privilege.

Question 13

F10.41 - Waiver of privilege and the Criminal Justice and Public Order Act 1994, s.34

Answer 13

• Communications between accused and solicitor prior to interviews by the police are subject to privilege.
• If an accused gives as a reason for not answering that he or she has been advised by a solicitor not to do so, that advice does not amount to a waiver of privilege.
• But if the accused wishes to invite the court not to draw an adverse inference under CJPO s.34, it is necessary to go further and state the basis or reason for the advice. This may well amount to a waiver of privilege so that the accused or the accused’s solicitor can be asked whether there were any other reasons for the advice, and the nature of the advice given.
• Information that the prosecution seek to draw from failure to mention facts at interview is that they have been subsequently fabricated. It is open to an accused to attempt to rebut this inference by showing that the relevant facts were communicated to a third party, usually the solicitor, at about the time of interview. This does not waiver privilege.
• It is desirable that the judge should warn counsel or the accused that the privilege may be taken to have been waived if the accused gives evidence of the nature of the advice.

Question 14

F10.42 - Revealing the basis or reason for solicitor’s advice

Answer 14

• if the defence reveal the basis or reason for the solicitor’s advice to the accused not to answer police questions, this will amount to a waiver of privilege whether the revelation is made by the accused or by the solicitor, and whether it is made in the course of pre-trial questioning, in evidence before the jury, or in evidence on the voir dire.
• ‘There is a difference between having to reveal what was said to a solicitor to rebut an allegation of recent fabrication and volunteering information about the legal advice…in the former scenario the reason privilege has not been waived is that there is no way of dealing with the allegation other than by revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of the voluntary provision…of information.’