Lecture notes
PRIVILEGE NOTES
PRIVILEGE NOTES - BPTC, Criminal Litigation In conjunction with BPP Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
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PRIVILEGE NOTESa. The privilege against self-incrimination
GENERAL PRINCIPLE: courts will uphold a W right to refuse to answer questions or disclose
documents if to do so would make that person liable to incriminate themselves.
F10.1 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 his privilege, no other
person may object. The privilege is that of the W, and neither party can take advantage
from it. If a judge improperly rejects a claim to privilege made by a W who is not a party
to the proceedings, no appeal will lie, for there has been no infringement of the rights
of the parties.
(c) A party seeking to prove a particular matter in relation to which his opponent or a W
claims privilege, is entitled to prove the matter by other evidence
(d) No AI may be drawn against a party or witness claiming privilege
(e) A claim to privilege is to be determined with domestic law and cannot succeed on the
basis that it would succeed another jurisdiction.
F10.2 A defendant’s right to refuse to answer questions was removed from the CL by s1(2)
CEA 1898: 'A person charged in criminal proceedings who is called as a W may be asked any
question in CE notwithstanding that it would tend to criminate him as to any offence with
which he is charged’. Subject to s. 1(2), 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 him 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 him in any subsequent criminal trial, but the Crown will not necessarily be prevented
from using it to demonstrate his inconsistency and thus to impugn his credit.
A W may not claim privilege on the basis that his answer to the question put would expose
him to civil liability (Witnesses Act 1806).
The privilege does not extend to answers which would expose the W 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 by that party for breach of that duty.
F10.5 The privilege against self-incrimination is restricted to the person claiming it- does not
extend to questions the answers to which would tend to incriminate a spouse. A person
cannot claim privilege to protect another person, even a spouse and cannot be invoked to
,protect against possible civil liability. Accused spouse if elects to testify is treated like any other
witness and surely must have assumed that she cannot then claim privilege against the
incrimination of her husband (Pitt [1983]).
For a company the privilege is that of the company and does not extend to incrimination of
its office holders.
If a person claims privilege to protect what information he has, he cannot prevent the same
information being acquired by other routes- it only extends to him, and any investigatory
body is entitled to consider how else to access the info.
b. Legal professional Privilege
Exists when a client communicates with a lawyer. The evidential burden of establishing that
a document or communication is privileged lies on the party claiming privilege.
F10.16 A client may, and his legal adviser must (subject to the client's waiver), refuse to give
oral evidence or to produce documents relating to:
(a) Legal advice privilege: Communications between the client and his legal adviser made
for the 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 was to enable the legal adviser to advise
or act in relation to litigation that was pending or in the contemplation of the client.
The privilege also covers items enclosed with or referred to in such communications and
brought into existence in connection with the giving of legal advice or in contemplation of
legal proceedings and for the purposes of such proceedings (s10(1)(c) PACE)
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 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. The evidence should come from the person whose
motivation and state of mind is in issue; 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 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.
Under the DPA 1998, personal data is exempt from the subject information provisions if they
consist of information in respect of which a claim to legal professional privilege could be
maintained in 'legal proceedings'.
, Legal proceedings, for these purposes, means proceedings in any part of the UK and therefore
a subject access request can be refused if there is a privilege according to UK law, but not
where non-disclosure would only be possible under foreign law
F10.19 (a) Legal Advice Privilege → Client and legal advisor. It is clear that communications
must have been made either in the course of that relationship or with a view to its
establishment. 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. Protects only direct
communications between client and lawyer and the evidence of the content of such
communications. Documents emanating from, or prepared by, independent third parties and
passed to the lawyer for the purposes of advice are not privileged.
If a solicitor is retained by a company to carry out investigations to provide the company with
legal advice and that requires him 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 him
F10.22 (b) Litigation Privilege → client, or lawyer and third parties, communications with the
sole purpose to enable the lawyer to advise/act in relation to contemplated litigation.
Attaches 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 W’s he intends to call until a late stage in litigation.
F10.23 Types of Documents Covered → documents created by a party for the purpose of
instructing the lawyer and obtaining his advice (but not docs obtained by a party or his adviser
for the purpose of litigation that were not created for that purpose). If the third-party
communication is generated during/in contemplation of litigation, privilege is likely to attract
but if there is no litigation involved, then the documents supplied to a lawyer from a third
party for more general advice is usually not protected by privilege.
A copy of an unprivileged document in the control of a party does not become privileged
merely because the copy was made for the purpose of the litigation. BUT privilege will attach
to such copy if the copy was made for the purpose of litigation and the original is not/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 he is giving his 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.
F10.32 Communications in furtherance of crime or fraud→ exception to the principle of legal
professional privilege. If a client applies to a legal adviser for advice intended to guide the
client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose
for which his advice is sought, this communication between them is not privileged
(Cox (1884). The principle can be relied upon only if there is prima facie evidence that it was
the client's intention to obtain advice in furtherance of his criminal or fraudulent purpose.
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