Unit 20 Privilege

Question 1

What are the two types of privilege in criminal proceedings?

Answer 1

(1) Privilege against self-incrimination

(2) Legal professional privilege (LPP)

Question 2

What are the general principles of privilege?

Answer 2

1. A person entitled to claim privilege may refuse to answer the question put or disclose the document sought.
2. The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial.
3. 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, and neither party can take advantage from it.
4. A party seeking to prove a particular matter in relation to which his or her opponent or a witness claims privilege, is entitled to prove the matter by other evidence.
5. No adverse inferences may be drawn against a party or witness claiming privilege.
6. A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed simply on the basis that it would succeed in some other jurisdiction.

Question 3

What is the scope of the privilege against self-incrimination?

Answer 3

Any W other than D is not bound to answer Qs or produce docs if it would tend to incriminate him in E&W law.

I.e. D cannot claim this kind of privilege

Question 4

Can the court order additional measures to be put in place so that the privilege against self-incrimination can be waived?

Answer 4

The courts may substitute a different protection in place of the privilege when requiring a person to comply with a disclosure order, provided adequate protection is available, as when the prosecuting authorities unequivocally agree not to make use of the information.

Question 5

Is exposure to CIVIL liability included in the privilege against the self-incrimination?

Answer 5

No. A witness may not claim privilege on the basis that his or her answer to the question put would expose him or her to civil liability. Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law.

Question 6

Can a party claim privilege against self-incrimination to prevent them incriminating a spouse?

Answer 6

No, the incrimination must be of the person claiming the privilege. A wife called to give evidence against their husband, cannot then claim privilege instead of giving answers.

Similarly, you can’t claim privilege bc the info would incriminate a stranger

Question 7

Can a person claim privilege bc disclosing that info would expose them to criminal liability under foreign law?

Answer 7

No

Question 8

Can a company claim privilege bc it would incriminate itself by revealing the evidence?

Answer 8

Yes - however, the privilege is that of the company and therefore does not extend to incrimination of its office holders.

Question 9

What is the scope of legal professional privilege?

Answer 9

A client may, and his or her legal adviser must (subject to the client’s waiver), refuse to give oral evidence or to produce documents relating to two types of confidential communication:

(a)   Legal advice privilege :communications between the client and his legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time; and

(b)   Litigation privilege: communications between the client or his legal adviser and third parties, the sole or dominant purpose of which is litigation that was pending or in the contemplation of the client

Question 10

What is legal advice privilege?

Answer 10

Communications between the client and his legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time

Question 11

What is litigation privilege?

Answer 11

Communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client

Question 12

What additional items does legal professional privilege cover?

Answer 12

The privilege also covers items enclosed with or referred to in such communications and brought into existence

(i) in connection with the giving of legal advice or

(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings

Question 13

Where does the burden of proof lie with LPP? What is the court’s role in deciding questions of LPP?

Answer 13

The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege.

But, the question of privilege is for the court; the mere assertion of privilege or statement of the purpose for which a document was created is not in itself determinative. The court must consider carefully the evidence supporting the claim, which should be specific enough to show something of the deponent’s analysis of the documents and the purposes for which they were created, preferably by reference to such contemporaneous material as can be referred to without disclosing the privileged matters.

Question 14

What needs to be established to claim Legal Advice Privilege?

Answer 14

1. Needs to be 1 of 2 types of communication:

(i) Communications between clients and their legal advisers for the dominant purpose of obtaining or giving legal advice; or
(ii) documents evidencing such communications and docs intended to be such communications even if not in fact communicated

2. Giving legal advice must have been the dominant purpose
3. The communications must have been made either in course of relationship between client or and legal advisor or with a view to its establishment

Question 15

What kinds of communications does LAP extend to and which ones does it not cover?

Answer 15

Extends to instructions given by the client to solicitor, or by solicitor to barrister, or opinion of counsel

However, docs emanating from independent third parties passed to lawyer for purposes of advice are not privileged

Question 16

In the case of corporate clients, what does legal advice privilege cover?

Answer 16

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, prepared at the lawyer’s request, or sent to the lawyer.

This means that 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 17

When is litigation privilege engaged?

Answer 17

When litigation is in reasonable contemplation. 

Question 18

What does ‘conducting litigation’ mean for the purposes of litigation privilege?

Answer 18

Conducting the litigation includes deciding whether to litigate and also whether to settle the dispute giving rise to the litigation.

Question 19

Are documents in which privileged litigation information cannot be disentangled from the rest of the document or docs which would otherwise reveal such information or advice covered by the privilege?

Answer 19

Yes

Question 20

Is there a separate head of privilege covering internal communications falling outside the ambit of the litigation privilege or LAP?

Answer 20

No

Question 21

Which communications does litigation privilege cover, once engaged?

What types of documents are NOT covered by it?

Answer 21

Once engaged, it covers communications 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 the litigation.

Does not cover:

1. Documents obtained by a party or the party’s adviser for the purpose of litigation that were not created for that purpose.
2. Does not cover a copy / translation of an unprivileged doc just because the copy was made for litigation, unless the copy made for purpose of litigation and original is not, and has never been in control of party claiming privilege
3. Privilege will also 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 principle does not extend to a selection of own client documents, or copies or translations representing the fruits of such a selection, made for the purposes of litigation.

Question 22

How are communications in furtherance of crime or fraud affected by privilege?

Answer 22

Not covered

E.g. If a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a 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.

Question 23

What is the position of privilege if the accused is advised on a no comment in a police interview by their solicitor?

Answer 23

• Communications between accused and solicitor prior to interviews by the police are subject to the privilege.
• If an accused gives as a reason for not answering that he or she has been advised by the 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 the CJPO 1994, 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, if the accused’s solicitor is also called, the solicitor, can be asked whether there were any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons.
• However, it should be borne in mind that the information which the prosecution seek to draw from failure to mention facts in 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 the interview. This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated.

Question 24

Who counts as a legal advisor for the purpose of privilege?

Answer 24

Unless a statutory exception is relied upon, legal professional privilege only applies to solicitors, barristers and appropriately qualified foreign lawyers. It does not apply to other professionals with specialist knowledge of the law who advise upon it such as accountants and surveyors.