Privilege -Criminal .docx

***[Privilege -- 1 Q]*** ***[What are the general principles in privileged relationships? ]*** Relevant and otherwise admissible evidence may be excluded on the grounds of either the privilege against self-incrimination (see F10.2 to F10.16) or legal professional privilege. The following principl...

***[Privilege -- 1 Q]*** ***[What are the general principles in privileged relationships? ]*** Relevant and otherwise admissible evidence may be excluded on the grounds of either the privilege against self-incrimination (see F10.2 to F10.16) or legal professional privilege. The following principles are of general application: a. A person **entitled to claim privilege may refuse to answer the question put or disclose the document sought. The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial**. 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, and neither party can take advantage from it. **Thus, if a judge improperly rejects a claim to privilege made by a witness who is not a party to the proceedings, no appeal will lie, for there has been no infringement of the rights of the parties.** In Kinglake (1870) 11 Cox CC 499, where a claim to privilege made by a prosecution witness on the basis that his evidence would tend to incriminate himself was overruled by the judge, it was not open to D to object that the witness's evidence had been improperly admitted. c. **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** (see F10.44). d. **No adverse inferences may be drawn against a party or witness claiming privilege** (Wentworth v Lloyd (1864) 10 HL Cas 589). e. **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.** ***[What is the scope of privilege against self-incrimination? ]*** 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 No witness is bound to answer questions in court (or to produce documents or things at trial) 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 (of property) which the judge regards as reasonably likely to be preferred or sued for. 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. An affidavit sworn by a person in compliance with such an order **may then be inadmissible against the person in any subsequent criminal trial, but the Crown will not necessarily be prevented from using it to demonstrate inconsistency and thus to impugn the person's credit.** a case of fraudulent evasion of tax, D refused to hand over records of his takings, asserting that they contained accurate records. **It was held that evidence of the refusal, admitted for its relevance to his credibility, had not deprived him of his right against self-incrimination.** Penalties arise mainly under statutes relating to the revenue, and under EC regulations 'Additional damages', which may be awarded under statutes for breach of copyright, are not penalties. 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 (Witnesses Act 1806). Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law The question arose whether the privilege against self-incrimination under Article 6 can apply in **relation to pre-trial investigations in one jurisdiction where any trial would take place in another.** It was unnecessary to answer the question, but the Privy Council doubted whether it could be answered in categorical terms, because it **may depend on whether the applicant risks suffering a flagrant denial of justice in the requesting country**. However, it noted that this would not be the case in jurisdictions adhering to the Convention. Subject to any statutory exceptions **an agent, trustee or other fiduciary of a party may claim the privilege in an action brought against him or her by that party for breach of that duty.** ***[Should the incrimination be of the person claiming privilege? ]*** - In criminal cases, the privilege against self-incrimination is restricted to the person claiming it, and does not extend to questions the answers to which would tend to incriminate a spouse. - In holding that an accused's spouse, if she elects to testify, should be treated like any other witness, surely must have assumed that she cannot then claim privilege against the incrimination of her husband. - There is no privilege against incriminating strangers. - A company may claim privilege in the same way as an individual - The privilege is that of the company and therefore does not extend to incrimination of its office holders. ***[What is the scope of legal professional privilege? ]*** 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. **communications between client and 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]*** (Greenough v Gaskell (1833) 1 My & K 98; R (Jet2.com Ltd) v Civil Aviation Authority \[2020\] EWCA Civ 35, \[2020\] QB 1027), the privilege for such communications being known as legal advice privilege; and b. ***[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]*** (Waugh v British Railways Board \[1980\] AC 521 ), the privilege for such communications being known as litigation privilege. 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. The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege. 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**. evidence should come from the **person whose motivation and state of mind is in issue**, namely the client or, if the client is a company, the individuals responsible for giving instructions to the lawyers on the company's behalf. Evidence from the lawyers will be of secondary value. If **not satisfied on the basis of the evidence that a claim to privilege has been made out, as a last resort the court may inspect the documents, but should not do so unless either there is credible evidence that those claiming privilege have misunderstood their duty** or are not to be trusted with the decision-making, or there is no reasonably practical alternative. ***[What is legal advice privilege? ]*** - Legal advice privilege covers communications between clients and their legal advisers for the **dominant purpose of obtaining or giving legal advice.** It also covers documents evidencing such communications and documents intended to be such communications, even if not in fact communicated. - The 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 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 emanating from, or prepared by, independent third parties and passed to the lawyer for the purposes of advice are not privileged. ***[What about corporate clients? ]*** Legal advice privilege protects only direct communications between the client and the lawyer and evidence of the content of such communications, and that 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, prepared at the lawyer's request, or sent to the lawyer. As 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.** ***[What is litigation privilege? ]*** The main principles relating to the scope of litigation privilege -- a. The privilege is engaged when **litigation is in reasonable contemplation.** b. 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. 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 by the privilege**. e. There is **no separate head of privilege covering internal communications falling outside the ambit of the privilege as described above**. There is an additional restriction: the privilege only applies in the case of litigation that is adversarial, not investigative or inquisitorial. Court of Appeal doubted the correctness of the principle stated by the trial judge that no privilege attaches to a document created with the purpose of showing it to the prospective adversary (such as a position statement prepared for the purposes of a mediation). It was held that in both the civil and the criminal contexts, 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 such proceedings. The privilege extends to the identity and other details of witnesses intended to be called in adversarial litigation, whether or not their identity is the fruit of legal advice. A party has a legitimate interest in protecting the identity of witnesses the party intends to call until a late stage in the litigation. Litigation privilege, like legal professional privilege, **is a basic or fundamental right, and may only be intruded upon by force of subordinate legislation if the statute providing the subordinate instrument's vires makes it plain** that such an authority was intended to be conveyed. ***[What documents are covered? ]*** - The privilege covers documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation, but **not documents obtained by a party or the party's adviser for the purpose of litigation that were not created for that purpose.** - 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 the litigation. - **Privilege will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original is not, and has not at any time been, in the control of the party claiming privilege.** - 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. this principle d**oes 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**. Communications in furtherance of crime or fraud are a well-recognised exception to the principle of legal professional privilege, - a solicitor was compelled to disclose communications with D, in which D had sought his advice in drawing up a bill of sale alleged to be fraudulent. - 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. ***[What is waiver of privilege?]*** Legal professional privilege **where an accused refuses to answer police questions on the advice of his or her solicitor.** 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 (see F20.4), 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 seeks 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.** It is probably 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**. 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 acting within the scope of his or her authority as agent on behalf of the accused, and whether the revelation is made in the course of pre-trial questioning, in evidence before the jury, or in evidence on the voir dire which is not repeated before the jury.** There is a **distinction 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 by or on behalf of the defendant of information which because of its partial nature is misleading.