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
11. Privilege
Chapter
5. The Right to Silence and the Privilege against Self-Incrimination
Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law. The manner in which the Court of Appeal has resolved the issue of silence on legal advice has been subjected to particular criticism. The operation of section 34 has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury. The implications for the privilege against self-incrimination of statutory provisions that criminalize the failure to provide information to law enforcement authorities are also considered.
Chapter
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
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
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
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)
