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Chapter

Cover Evidence

9. Legal Professional Privilege  

Chapter 9 focuses on the doctrine of legal professional privilege. Technically, this encompasses two separate privileges: legal advice privilege, which protects communications between client and legal adviser; and litigation privilege, which protects communications between client or legal adviser and a third party, so long as preparation for litigation is the dominant purpose of the communication. Legal advice privilege, unlike litigation privilege, is regarded as ‘absolute’ and incapable of being overridden. The chapter also briefly looks at ‘without prejudice privilege’, aspects of which the House of Lords and Supreme Court have considered in relatively recent years.

Chapter

Cover Cross & Tapper on Evidence

IX. Privilege  

This chapter concerns privilege. A witness is ‘privileged’ when they may validly claim not to answer a question, or to supply information relevant to the determination of an issue in judicial proceedings. Because the effect is to deprive the tribunal of relevant evidence, powerful arguments are required for such rules. Modern law has reduced their number and scope, although this is arguably balanced by an increase in their status, which has been further enhanced by implementation of the European Convention on Human Rights (ECHR). This chapter discusses certain types of privilege: the privilege against self-incrimination, legal professional privilege, privilege for statements made without prejudice as part of an attempt to settle a dispute, and a privilege derived from the former for statements made to a conciliator.

Chapter

Cover Evidence Concentrate

11. Privilege  

This chapter looks at the rules relating to legal professional privilege and, in outline, the doctrine of the privilege against self-incrimination. Under these provisions potentially relevant evidence may be excluded at trial. The role of legal professional privilege in protecting defendants in criminal trials is outlined and the absolutist stance of the courts discussed. The chapter outlines the various immunities which are embraced under the privilege against self-incrimination. Summarizing some recent case law, the chapter reflects on the extent to which the privilege may now extend to a broader set of circumstances than the earlier authorities suggested. For example, the privilege may not necessarily be unavailable against the use of compelled questions in an administrative enquiry.

Chapter

Cover Murphy on Evidence

19. Public interest immunity and privilege II  

Privilege

A privilege is a rule of law that permits a witness to refuse to answer a question, or a party to refuse to produce certain materials. This chapter discusses the privilege against self-incrimination. Legal professional privilege, consisting of legal advice and litigation privilege, is explained along with the exceptions and the importance of the ‘dominant purpose’ rule in litigation privilege and the limitation of litigation privilege to adversarial, and not investigative or inquisitorial, proceedings. Other privileges, in particular the ‘without prejudice’ rule in civil cases, and the protection of sources of information contained in publications under the Contempt of Court Act 1981, s. 10, are also examined.

Chapter

Cover Legal Ethics

6. Confidentiality  

This chapter discusses the principle of confidentiality. It explains the protection of lawyer–client communications and it discusses professional guidance on confidentiality. It is clear that the duty of confidence is not an absolute one and there are circumstances in which it is appropriate, indeed even required, for a lawyer to disclose confidential information. The chapter explores when these exceptions to the general principle of protection of confidence arise. It goes on to examine the rule of legal professional privilege and the circumstances in which lawyers have a duty to disclose. The chapter discusses when a lawyer is permitted to breach confidence. In doing so, it looks at the broader ethical foundation for the duty of confidence.

Chapter

Cover Legal Ethics

5. Confidentiality  

This chapter discusses the principle of confidentiality. It explains the protection of lawyer-client communications and it discusses professional guidance on confidentiality. It goes on to examine the rule of legal professional privilege and the circumstances in which lawyers have a duty to disclose. The chapter discusses when a lawyer is permitted to breach confidence. In doing so, it looks at the broader ethical foundation for the duty of confidence.

Chapter

Cover The Modern Law of Evidence

22. Privilege  

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Art 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.

Chapter

Cover Concentrate Questions and Answers Evidence

10. Privilege and public policy  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers evidence excluded for policy or public interest considerations: public interest immunity (PII). A party, witness or non-participant in proceedings may refuse to disclose information, papers or answer questions, even though such material may be highly relevant and reliable. If PII applies, neither party has access to the evidence. For privilege, the areas most likely to occur in Evidence courses are privilege against self-incrimination and legal professional privilege. The former includes the right to silence of the defendant. The privilege against self-incrimination is generally upheld by common law and by implication by Art. 6 of the European Convention on Human Rights (ECHR). Legal professional privilege is a common law exclusionary rule principle that applies in civil and criminal proceedings.

Book

Cover Evidence

Andrew L-T Choo

Andrew Choo’s Evidence provides an account of the core principles of the law of civil and criminal evidence in England and Wales. It also explores the fundamental rationales that underlie the law as a whole. The text explores current debates and draws on different jurisdictions to achieve a mix of critical and thought-provoking analysis. Where appropriate the text draws on comparative material and a variety of socio-legal, empirical, and non-legal material. This (sixth) edition takes account of revisions to the Criminal Procedure Rules, the Criminal Practice Directions, and the Police and Criminal Evidence Act Codes of Practice. It also examines in detail cases on various topics decided since the last edition was completed, or the significance of which has become clear since then, including: • Addlesee v Dentons Europe llp (CA, 2019) (legal professional privilege) • Birmingham City Council v Jones (CA, 2018) (standard of proof) • R v B (E) (CA, 2017) (good character evidence) • R v Brown (Nico) (CA, 2019) (hearsay evidence) • R v C (CA, 2019) (hearsay evidence) • R v Chauhan (CA, 2019) (submissions of ‘no case to answer’) • R v Gabbai (Edward) (CA, 2019) (bad character evidence) • R v Gillings (Keith) (CA, 2019) (bad character evidence) • R v Hampson (Philip) (CA, 2018) (special measures directions) • R v K (M) (CA, 2018) (burden of proof) • R v Kiziltan (CA, 2017) (hearsay evidence) • R v L (T) (CA, 2018) (entrapment) • R v Reynolds (CA, 2019) (summing-up) • R v S (CA, 2016) (hearsay evidence) • R v SJ (CA, 2019) (expert evidence) • R v Smith (Alec) (CA, 2020) (hearsay evidence) • R v Stevens (Jack) (CA, 2020) (presumptions) • R v Townsend (CA, 2020) (expert evidence) • R v Twigg (CA, 2019) (improperly obtained evidence) • R (Jet2.com Ltd) v CAA (CA, 2020) (legal professional privilege) • R (Maughan) v Oxfordshire Senior Coroner (SC, 2020) (standard of proof) • Serious Fraud Office v Eurasian Natural Resources Corpn Ltd (CA, 2018) (legal professional privilege) • Shagang Shipping Co Ltd v HNA Group Co Ltd (SC, 2020) (foundational concepts; improperly obtained evidence) • Stubbs v The Queen (PC, 2020) (identification evidence) • Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (PC, 2019) (privilege against self-incrimination) • Volcafe Ltd v Cia Sud Americana de Vapores SA (SC, 2018) (burden of proof)