Privilege

INTRODUCTION

This fact sheet describes the law of evidence as it relates to claims of privilege in criminal cases.

PRIVILEGE - GENERAL

In general, evidence which is relevant to issues in legal proceedings should be admitted. This general principle is affected by situations where the reliability of the evidence in question (or its evidential value) are in doubt, or where allowing the evidence may be contrary to an aspect of public policy.

The law of privilege is concerned with the public policy aspect, and deals with situations in which a person, or body of persons can refuse to disclose information or documents even though the evidence in question is otherwise reliable and relevant to the issues in a particular case.

PRIVILEGE AGAINST SELF-INCRIMINATION

In general, this aspect of privilege can be claimed by anyone when called upon to answer questions or disclose documents, in that they may refuse to do so on the grounds that they may incriminate themselves.

For witnesses other than the accused, the scope of this rule was stated in Blunt v Park Lane Hotel as being; “no one is bound to answer any question if the answer would, in the judge’s opinion, have a tendency to expose the [witness] to any criminal charge or penalty, which the judge regards as reasonably likely to be preferred”.

The accused’s position is that s/he must answer questions that may implicate him/her in the offence charged, by virtue of Section 1(e) of the Criminal Evidence Act 1898, although it should be remembered that the accused doesn’t have to give evidence at all.

If the person entitled to claim privilege does not wish to do so, they may waive their right.

Where the other party has already got evidence of the matters for which the privilege is claimed, that party can use that evidence (unless the privilege claiming party is successful in obtaining an injunction presenting the use of such evidence).

LEGAL PROFESSIONAL PRIVILEGE

The general rule is that there is no privilege with regard to confidential statements made between a professional person and his client.

The exception to this rule is legal professional privilege which attaches to certain communications between lawyer and client, and to certain communications relating to pending or contemplated litigation between lawyer and/or client and third parties.

The scope of this privilege has been set by case law but the Police and Criminal Evidence Act 1984 S.10 (relating to the limits upon Police powers to search for and seize evidence) has been described as being an accurate reflection of the common law, i.e., (See R v Central Criminal Court ex parte Francis and Francis)

a) communications between lawyer and client for the purposes of giving/receiving legal advice, and

b) communications between lawyer/client and third parties where the dominant purpose is the intended use in pending/ contemplated litigation.

The leading case on what the “dominant purpose” is, is Waugh v British Rail Board (BRB) where an accident report prepared for BRB was claimed to be a privileged document at a civil trial brought by the victim’s relatives. The dominant purpose of the document was held to be the investigation of the accident, and the making of recommendations by which to prevent a future accident. This meant that the document was not privileged, whereas it would have been had the dominant purpose been the protection of BRB from liability for negligence etc.

As with the privilege against self incrimination, the client (but only the client) may waive their right to claim the privilege, and if the other party already has documentary evidence in their possession, they may bypass the privilege, unless the claimant is successful in obtaining an injunction against them preventing them from using that evidence.

WITHOUT PREJUDICE CORRESPONDENCE

This concept is of important in civil cases only, however, the phrase may be seen on letters from, for example organisations that are being investigated for food complaints or accidents investigations etc., where the information contained in the letters could have a bearing on the outcome of civil proceedings taken by, for example the aggrieved purchaser of the food, or the victim of the accident.

The concept allows both parties to communicate openly in the knowledge that should an agreement not be reached, and civil proceedings be initiated, neither party can rely on the “without prejudice communications”, and a case has to be proved by other means. The concept is therefore a convenient means of reaching a negotiated, informal, compromise.

Where officers are investigating criminal offences, the information gained from “without prejudice communications” may be utilised in exactly the same way as any other evidence (subject only to tests of relevance, and claims of privilege resulting in the successful application for an injunction preventing the use of that material).

REFERENCES

Blunt v Park Lane Hotel (1942) 2 KB 253.

Criminal Evidence Act 1898.

Police and Criminal Evidence Act 1984.

R v Central Criminal Court ex parte Francis and Francis (1988) 3 WLR 989, HL

Waugh v British Rail Board.

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