The law of evidence privilege

October 18, 2017 Law

Question 1

The inquiry here is whether the points that have been requested from the constabulary form the footing of legal professional privilege and are therefore non disclosable to the constabulary. In the jurisprudence of grounds privilege allows relevant, dependable and otherwise admissible grounds to be suppressed for grounds of public policy in civil and condemnable judicial proceeding. Legal professional privilege is one of the major privileges [ 1 ] . It consists of two overlapping strands: legal advice privilege, which embraces lawyer-client communications, and judicial proceeding privilege. Most successful claims to litigation privilege in English jurisprudence have involved 3rd party-lawyer communications, the authoritative illustration of which is the adept study commissioned by a attorney on behalf of a client [ 2 ] .

Legal professional privilege is conferred for the benefit of the client, and indirectly for the public involvement in advancing entree to justness and the efficient declaration of legal differences, non for the benefit of attorneies. Legal professional privilege is therefore much more than an ordinary regulation of grounds, limited in its application to the facts of a peculiar instance. It is a cardinal status on which the disposal of justness as a whole remainders.

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Communicationss which are made between a party or his legal advisors and a 3rd party will be privileged provided that the dominant intent in doing the communications was to obtain or supply advice in connexion with pending or contemplated judicial proceeding. The demand that advice in such a connexion be the dominant intent of the communicating was established by Waugh v British Railways Board. [ 3 ] Mentioning to solicitor-client privilege Lord Hoffmann said in R ( Morgan Grenfell Ltd ) v Particular Commissioner [ 4 ] : ”It is non the instance that LPP does no more than entitle the client to necessitate his attorney to keep back privileged paperss in judicial or quasi-judicial proceedings, go forthing the inquiry of whether he may unwrap them on other occasions to the implied responsibility of assurance. The policy of LPP requires that the client should be secure in the cognition that protected paperss and information will non be disclosed at all.”

Therefore a revelation of a client ‘s planned hereafter offense of force is to the full authorized by chapter 16.02 ( 3 ) of the Law Society ‘s Guide to the Professional Conduct of Solicitors. This proviso provides an exclusion to the duty otherwise resting on canvassers to continue client assurances. A canvasser is allowed to unwrap information necessary ‘to prevent the client or a 3rd party perpetrating a condemnable act that [ the canvasser ] believes on sensible evidences is likely to ensue in serious bodily hurt ‘ .

In the judgement of Lord Taylor of Gosforth CJ in R V Derby Magistrates ‘ Court ex p. B [ 5 ] . His Lordship went back to the roots of solicitor-client privilege and seized upon early judgements stressing that one time a canvasser receives privileged information ‘his oral cavity is shut forever’ [ 6 ] . This led Lord Taylor to reason in an oft-quoted transition [ 7 ] :

“Legal professional privilege is therefore much more than an ordinary regulation of grounds, limited in its application to the facts of a peculiar instance. It is a cardinal status on which the disposal of justness as a whole rests” Its concern is exclusions to the usually rigorous ethical responsibility to continue the confidentiality of client communications as discussed above. Nonetheless, against the background of the modern position of privilege as encapsulated by Lord Hoffmann, the Law Society ‘s permission to describe a client ‘s planned offense of force is nil less than the Society ‘s encouragement to its members to transgress what the House of Lords has referred to as ‘a cardinal human right protected by the European Convention for the Protection of Human Rights [ 8 ] ‘ , viz. solicitor-client privilege.

The crime/fraud exclusion to solicitor-client privilege denies the protection of privilege to communications between canvasser and client which are conducted in promotion of a offense or fraud. If the client is seeking legal aid in transporting out a hereafter offense ( or fraud ) the communicating with his or her canvasser is non privileged. The ‘in promotion ‘ requirement to the exclusion is important [ 9 ] . It embodies the policy behind the exclusion, that privilege should non screen communications used for the intent of hedging the jurisprudence and should be at that place to protect those who are good [ 10 ] . On the other manus, if the ground behind the solicitor/client communicating is something other than interrupting the jurisprudence, the crime/fraud exclusion does non use [ 11 ] . It is for this ground, for case, that the crime/fraud exclusion does non impact a client ‘s admittance to his or her canvasser of the committee of a past offense. Communications of this kind are made all the clip in the class of readyings to support a condemnable charge. Not being in promotion of the offense, such admittances remain privileged. It can therefore that whilst under normal fortunes it would be the instance that the information requested was non disclosable and fell within the kingdom of legal professional privilege that the information will fall into the class of crime/fraud exclusion. This information will hence be disclosable and the house will hold to unwrap the information to the prosecution

Question 2

In both civil and condemnable instances, the sentiments of the informants are non, in general, admissible. They are usually confined to saying the facts. It is the position of the tribunal that it, that is the justice or justice and jury, are every bit good equipped as the informant to pull illations from the facts to which the informant testifies.

But there are many issues that the tribunal is required to find which are so far removed from the court’s experience that it needs to obtain the sentiment of experts to assist it find the issue in inquiry.

“If affairs arise in our jurisprudence which concern other scientific disciplines or modules, we normally apply for the assistance of that scientific discipline or module which it concerns”

The sentiment of an adept informant is admissible if the expert is qualified, the field of expertness is a recognized one and the tribunal considers the sentiment to be helpful. It is hence likely that both the prosecution and the defense mechanism will be able to acknowledge the grounds that they require.

The responsibilities of an adept informant of sentiment were summarised by Cresswell J in the civil instance of The Ikarian Reefer [ 12 ] : ‘An expert informant should supply independent aid to the Court by manner of nonsubjective indifferent sentiment in relation to affairs within his expertness… ‘ .

The Crown Court ( Advance Notice of Expert Evidence ) Rules 1987 which require after commitment for a condemnable test that any party who ‘proposes to abduce adept grounds ‘ must supply the other parties with ‘a statement in authorship of any determination or sentiment ‘ relied upon and, upon written petition, must do available ‘the record of any observation, trial, computation or other process on which such determination or sentiment is based and any papers or other thing or substance in regard of which any such process has been carried out [ 13 ] ‘ . Similar proviso is made for drumhead tests [ 14 ] . Evidence that is non disclosed is excluded, but may be admitted with the tribunal ‘s leave. The purpose is to give parties the chance to see and look into adept grounds offered against them before the test and to cut down the clip taken to place the adept grounds that is non in difference.



Butler V Bd of Trade [ 1971 ] ch 680

National Justice Compania V Prudential Assurance ( THE IKARIAN REEFER ) [ 1993 ] 2 LLOYD ‘S REP 68

R ( Morgan Grenfell Ltd ) v Particular Commissioner [ 2002 ] UKHL 21 at [ 29 ]

R V Derby Magistrates, ex p. B [ 1995 ] 4 All ER 526

Pacey V London Tramways Co ( 1876 ) 2 ExD 440

Skinner v Great Northern Ry ( 1874 ) LR 9 Ex 298

Worrall V Reich [ 1955 ] 1 QB 296

Wilson V Rastall ( 1792 ) 4 Term Rep 753 at 759

Legislative acts

Crown Court ( Advance Notice of Expert Evidence ) Rules 1987 ( SI No 716 )

Magistrates ‘ Courts ( Advance Notice of Expert Evidence ) Rules 1997 ( SI No 705 )

Journal Articles

Newbold A, ( 1990 ) ‘The Crime/Fraud Exception to Legal Professional Privilege ‘ 53 Modern Law Review 472


Auburn, J, ( 2000 ) “ Legal Professional Privilege: Law and Theory Hart Publishing: Oxford

Denis I, ( 2002 ) “The Law of Evidence” , Sweet and Maxwell Ltd

Murphy P, ( 2003 ) “Murphy on Evidence” Oxford University Press

Munday R, ( 2005 ) “Evidence” , Oxford University Press

Roberts P & A ; Zuckerman A, ( 2004 ) “Criminal Evidence” , Oxford University Press



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