#10381 - Privilege - BPC Criminal Litigation (formerly BPTC) 2024/2025

PRIVILEGE

PRIVILEGED RELATIONSHIPS - GENERAL PRINCIPLE

(a) a person entitled to claim privilege ma refuse to answer the Q put or disclose the document sought

(b) if person entitled to claim privilege fails to / waives privilege, no other person may object (privilege is that of witness NOT parties)

(c) party seeking to prove particular matter in relation to which his opponent / a witness claims privilege is entitled to prove matter by other evidence, if available

(d) no adverse inferences may be drawn against party / witness claiming privilege

PRIVILEGE AGAINST SELF INCRIMINATION

• the rule

  • no one is bound to answer any Q or produce any document or thing if would have a tendency to expose him or his spouse to proceedings for a criminal offence or recovery of a penalty (s14 Civil Evidence Act)

    • must create a real and appreciable risk of a criminal charge

• to whom does the rule apply?

  • only the person claiming privilege

  • NOT to W's spouse

  • companies may be covered

• exceptions where privilege CANNOT be claimed

  • express statutory exceptions

1. does NOT protect D from answering Qs in current proceedings

2. civil proceedings for recovery / administration of property for execution of a trust / for account of property / dealings with property under Theft Act

3. certain prosecutions under Fraud Act (generally breach of fiduciary duty)

4. certain prosecutions under Insolvency Act

5. s98 of Children Act - proceedings re: case, protection and supervision of children

6. certain proceedings under Banking Act 1987

   • implied statutory exceptions

     • privilege impliedly abrogated if power created by statute otherwise ineffective

   • material obtained from D under compulsion but which exists independent of D's will e.g. documents acquired by warrant, bodily samples (breath, blood etc)

LEGAL PROFESSIONAL PRIVILEGE

Legal advice privilege

• protects solicitorclient communications made for giving or receiving legal advice, sought or given in a relevant legal context + for a non-dishonest purpose (objective test)

• belongs to client BUT solicitor under duty to assert (i.e. must refuse to disclose) unless client waives

• rationale: candid stating of facts without fear of compulsory disclosure

• applies to:

1. communications whose primary object = actual / contemplated civil / criminal proceedings + conclusions from such communications reached by a solicitor

2. instructions: client-solicitor + solicitor-barrister

• does NOT apply to

1. documents pre-existing the litigation

2. investment advice, patent advice, estate agent advice, advice by solicitor acting as business adviser

3. between 2 clients of same solicitor on same subject matter i.e. solicitor must disclose solicitor-client 1 communications with client 2 (except communications after conflict arises between 2 clients)

Litigation privilege

• protects solicitor/clientthird-party confidential communications where the dominant purpose in creating the document is to use it / its contents in order to obtain legal advice OR help in conduct of litigation reasonably prospective AT THAT TIME

• solicitorthird-party

  • protects letters to + statements / reports from witnesses / experts

• clientthird-party

  • legal advice aspect must be dominant purpose with a 'clear paramountcy' (Waugh v BRB) of the person commissioning the report (Re Highgrade) (objective test)

  • document must have come into existence for purpose of present litigation (Ventouris v Mountain)

  • protects copies / translations of unprivileged documents if copy made for purpose of...