Private and Public Privilege in Criminal and Civil Cases

Question 1

what is privilege?

Answer 1

Privilege can be described as an exemption from the general obligation to give evidence if required.

It is described By Lord Denning in D v. NSPCC as: ‘… a privilege or a right to keep things secret- to keep things back from your opponent or from the court- so that they cannot get to know of them

Question 2

what is the difference between confidentiality and privilege?

Answer 2

Privilege is absolute in nature, once asserted. A claim of confidentiality remains at the discretion of the court

Question 3

what are the to types of legal professional privilege

Answer 3

Legal advice privilege

Litigation privilege

Question 4

Legal Professional Privilege:

Answer 4

Clients should be free to disclose all relevant facts to their solicitor without fear of disclosure. Lawyers can then better advice and prepare for trial.

Question 5

what are the five essential conditions for legal professional privilege to be established?

Answer 5

• A communication
• Conveyed in confidence (Bord na gCon v Murphy)
• Has to be between lawyers and his client, not 3rd parties
• has to be during a professional legal relationship (Buckley v Incorporated Law society)
• Has to be for the proposes of receiving or giving legal advice, not “legal assistance” (smurfit)

Question 6

what is litigation privilege?

Answer 6

Applies to confidential information contained in a communication, between a client and a lawyer – or agents- and the dominant purpose is to prepare for litigation.

Question 7

what are the two conditions for litigation Privilege

Answer 7

• Litigation must be pending or contemplated
• The dominant purpose for the preparation of the document must have been pending or contemplated litigation

Question 8

what are the facts of Waugh v Britsh Railways Borad

Answer 8

Here the defendants employed the plaintiff’s husband died in a railway accident. The plaintiff sought discovery of the defendant’s internal reports concerning the accident. The defendant claimed that those reports were privileged. The house of lords held that for the reports must have been anticipated litigation.
Here the reports were prepared for two equally important reasons, the anticipated litigation and to improve railway safety.

Therefore the dominant purpose test was not satisfied and the reports were not privileged

Question 9

what are the exceptions to legal professional privilege?

Answer 9

1. Communications in Furtherance of a crime or a fraud
2. Testamentary dispositions
3. Proceedings concerning the welfare of children
4. Communications that help an accused establish his innocence

Question 10

Communications in Furtherance of a crime or a fraud

Answer 10

The rationale for legal professional privilege is that is assists the administration of justice, so it is only right that communications in furtherance of a crime or fraud are not privileged.

In People (AG) v Coleman the accused was charged with carrying out illegal abortions on. The trial judge considered that the accused had written the list because he wanted his solicitor to induce these people to commit perjury. Therefor, he held that the document was not privileged as it suggested the commission of a crime

Question 11

Testamentary dispositions

Answer 11

If the intention or capacity of a testor is challenged in legal proceeding the courts may be prepared to overlook the doctrine of legal professional. As the client is dead there is arguably a less pressing need to maintain the privilege

Question 12

Proceedings concerning the welfare of children

Answer 12

Proceedings involving the welfare of children are inquisitorial rather than adversarial in nature. Therefore, there are fewer reasons for strictly applying the doctrine of legal professional privilege

Question 13

what are the three situations where legal professional privilege can be lost will be considered?

Answer 13

Loss by waiver; disclosure of expert reports in personal injury actions; and where privileged documents are disclosed by inadvertence

Question 14

communications that help an accused establish his innocence - R v Barton

Answer 14

The defendant was charged with fraudulent conversion and theft, alleged to have committed during the course of his employment in a solicitor’s office. He wanted certain documents from the office produced at his trial, which he claimed would help establish his innocence. A partner in the firm who had been subpoenaed argues that the documents were privileged. The court held that as the documents could help accused establish his innocence, no privilege should attach

Question 15

Without prejudice Communications

Answer 15

• Communications between solicitors that attempt to settle proceedings are commonly described as “without prejudice” communications. The reason why privilege attaches to such communications is that this encourages settlements.

Without the rule any concession made during a negotiation would be admissible if the case went to court and if this were allowed fewer negotiations would take place

Question 16

how does one suceed in a claim of privilege under the heading without prejudice Communications?

Answer 16

To succeed in a claim of privilege under this heading it is vital that the party claiming the privilege show that communication was made; (a) In a genuine attempt to settle dispute and, (b) With the intention that if the negotiations proved unsuccessful the communication could not be disclosed in any proceedings without the consent of the party

Question 17

Sacerdotal Privilege - Cook v Carroll

Answer 17

In Cook v Carroll, the Supreme Court recognised an absolute privilege over confidential communications made by a parishioner to a priest.
He endorsed a test formulated by Wigmore
1. Communications must originate in confidence that they will not be disclosed.
2. The element of confidentiality must be essential to the relationship
3. The relationship should be one which the community feel should be sedulously fostered;
4. The injury which would result to the relationship should be greater than the benefit gained for the correct disposal of the litigation

Question 18

Journalistic privilege - Burke v Central independent TV plc

Answer 18

Journalistic privilege has traditionally been confined by the courts to situations where there is a tangible threat to the life or physical integrity of the individuals in question

For example in the case of Burke v. Central Independent TV plc

Here the plaintiff claimed damages for libel arising out of a television programme broadcast by the defendant. In the programme it was alleged that the premises owned by one of the plaintiffs was the financial nerve centre for the IRA. The plaintiffs obtained an order for discovery.

The defendants objected to producing certain documents which would lead to the identification of its sources as the life of those sources would be put at risk if their identities became known. The Supreme Court upheld the defendant’s claim of privilege as the constitutional right to life of the sources took precedence over the plaintiff’s right to their good name

Question 19

informer privilege - AG v Briant

Answer 19

Since AG v Briant the irish courts have accepted that privilege can be claimed in respect of the identities of informers.

The reason was that if their identities were revealed they would be in danger and if no privilege existed there would be fewer informer, which would make crime detention more difficult

Question 20

Public interest Privilege

Answer 20

It may be invoked by the executive on the basis that disclosure of a certain documents would be against the public interest.

While it was traditionally absolute, the Irish courts have held in the case of Murphy v Dublin Corporation and the Minister for Local government that it is up to the courts to determine whether relevant evidence should be withheld from disclosure

Accordingly, it is the state which bears the burden of asserting the privilege and persuading the court is should be upheld in any given case.

in each case the trial court must engage in a balancing exercise, weighing the competing public interests in disclosure and confidentiality.

He should weigh up the public interest in the administration of justice which favours disclosure against the public interest being put forward in favour of non-disclsoure.

Question 21

what are the principles for Public interest privilege

Answer 21

Ambiorox Ltd & Ors v. Min for the environment and ors. summarised the principles as:

1. Admin of justice is performed solely by the judiciary
2. Power to compel evidence and production of evidence is inherent in the judicial power and it is an ultimate safeguard of the state
3. Where a conflict arises between the 2 interests, it is the judicial power which will decide which public interest shall prevail.
4. The duty to make decisions does not mean that the court has a preference over which interest to support
5. It is for the judiciary to decide what evidence it will act on in any case to reach that decision.

Question 22

what are the two types of privilege

Answer 22

Public privilege: Invoked by the State (for national security, efficient admin of govt etc) yet down to the judiciary to decide after balancing out the competing interests, thus turns to a case-by-case analysis

private privilege: Invoked by a private party, usually related to some sort of relationship that society thinks is valuable and should be fostered (lawyer-client, doctor-patient); application of privilege turns on a legal test, balance between disclosure and confidentiality reflected in these legal rules

Question 23

Wigmore’s four conditions for private privilege:

Answer 23

1. confidential communications at its origin, meeting of minds
2. confidentiality must be essential to the full and satisfactory maintenance of relation
3. relation must be one which community thinks to be sedulously fostered
4. injury to the relation > benefit gained by disclosure