priveldge Flashcards
more v brown & root wimpey highland fabrication
sometimes refered to as confidentiality
witness refused to answer infor secret by contract HELD that is not legot in court confidentiality NOT covered by PRIVELDGE thus can be disclosed
confidentiality is part of law of OBL
priveldge is part of law of EVIDENCE
EXCEPTION PRIVVELDGE NOT APPLY TO REPORT TO EMPLOYER BY EMPLOYEE OF ACCIDENT STRAIGHTFORWARD OFTEN WITNESSED
Conoco v the commercial law practice
LAWYER- CLIENT PRIVELDGE
covers not only the content of sol-client com , but even clients ID
EXCEPTION could extend to a case where the lawyer and client are tryoing to take advantage if crim act. commercial law practice new of fraud told Conoco that if they slip a few quid they will reveal the id of the fraud. commercial law practice argue they are boud by priveledge HELD bound by relevant exception
A client is not crim if JUST ASKS FOR BEST CRS OF ACTION
it is JUST IF THE ASK HOW TO FURTHER THEIR CRIM PURPOSE
hm v davie
LAWYER- CLIENT PRIVELDGE if no sol-client relationship. then = admissabel
lecturer strongly disagrees priveldge held to apply unless expressly stated not acting official capacity
miscosta SA v shetlands council
LAWYER- CLIENT PRIVELDGE
where sol is alledged to have been concered in an aledged illegal act by client
lawyer part and parcel to crim act whether know it or not IRRELEVANT PRIVELEDGE WONT APPLY
ANDERSON V ST ANDREWS AMBULANCE ASSOCIATION
COMMUNICATIONS IN POST LITEM MOTAM. are ones made I contemplation of litigation. they are always protected by evidential priveldge, even if they are NOT themselves sol- client relations. no party can recover material which the other party has drawn up for the purpose of prepping his own case
young v national coal board
COMMUNICATIONS IN POST LITEM MOTAM there is some confusion regading records/ reports of investigations following accident
l j clerk once arms length details of weapons can be protected anything generated once a possible ground has been guaranteed is protected if it can be seen as part of investigation of a case
marks and sparks v british gas
COMMUNICATIONS IN POST LITEM MOTAM there is some confusion regading records/ reports of investigations following accident
EXCEPTION gas further covers all initial reports on litigation reports to employer of the facts outerlayer case
s.3 evidence (Scotland) 1853
COMMUNICATION BETWEEN
provides that nothing in that provision: shall in any proceedings render any husband competent or compellable to give against his wife evidence of any matter communicated during marriage
obliged to give evidence for NOT obliged to give evidence against
COMMUNICATIONS IN AID OF NEGOTIATION
NDAs repeatedly held incompetent to prove against anadmission which he has made in an attempt to compromise the case for such transactions are commonly arranged upon mutual concession. THEY WILL NOT BE EVIDENCE IN THE EVENT OF THE ATTEMPT BEING UNSUCCESFUL
assessor for Dundee v elder
use of words “without prejudice”
is neither necessary nor sufficient to confer evidential priveledge mere use of words does not confer priveldge (fyfe v miller)
BUT
however in this case the words without prejudice were vital to claim of priveldge
simpson group v Kuiper
SCOPE OF PRIVELDGE:
priveledge does not extent to all matters said or written during the crs of negotiations but inly admissions or concessions made with view to securing settlements
would not prevent an unequivocal admission of liable from preventing priveledge of that statement
civil evidence 1995 s.1 and 2
SCOPE OF PRIVELDGE
s. 1 REGARDS TO CHILD OR BREAKDOWN OF MARRIAGE
s. 2 EXCEPTION- NOT APPLY TO ADOPTION/ FORMAL PROCEEDINGS OR CONTRACTS DAMAGE DURING THE MEDIATION THE PRIVELDGE WONT APPLY
PRIVELDGE OF PARTIES NOT MEDIATIONPARTIES INCLUDE CHILD IF THEY UNDERSTAND SIGNIFICANCE OF WHAT IS GOING ON
ALL PARTIES WIAVE THE PRIVEDGE THEN THE MEDIATOR HAS NOT STANDING TO ENVOKE PRIVELDGE
mv m
SCOPE OF PRIVELDGE
anything said during family mediation = inadmissible
will not apply to causal mediation ONLY apply to mediations carried out by a body the L.prresident recognised
LIVINGSTON V MURRAYS
PRIVELDGE OF SELF INCRIM
it is a sacred and iviolable principle of the crim jurisprudence of scot, that no man is bound to criminate himself
s.2 1874 evidence further amendment act
PRIVELDGE OF SELF INCRIM
NO WITNESS CAN BE MADE TO ANWER A Q IF IT WOULD INCRIM THEMSELVEs
s.266 1995
art 6 echr
PRIVELDGE OF SELF INCRIM
. IF you give evidence for coaccused you retain priveldge with which YOU ARE CHARGED
COOACCUSED DO NOT HAVE TO INCRIM THEMSELVES WHEN GIVING EVIDENCE
however if decides to give evidence at his own trial that PRIVELDGE IS LOST
macmillian v murray
PRIVELDGE OF SELF INCRIM
the privedge does not apply where the person being asked the questions can no longer be pros for the crime in q
Greenan v hm adv
PRIVELDGE OF SELF INCRIM
canibus plants found in house. daughter pleads not guilty. then admits ti involvement with father. she is then Q with GREENAN role. she sought to decline to answer. AS SHE HAD ADMITTED RESP FOR THE OFFENCE SHE WAS OBLIDGED TO ANSWER AN Q ABOUT THE OFFENCE
once priveldge waived a person cannot use it to avoid answer q of detail. same goes for admitting guilt
HM ADV v ENTWHISTLE
PRIVELDGE OF SELF INCRIMI
apply outwith scot???
ENGLAND UNREPORTED CASE PRIVELEDGE ALLOWED WHERE WITNESS LIABLE TO PROS IN ENGLAND
hm adv v airs
contempt of court s.10
THERE IS NO PRIVELDGE FOR DOC, JOURNOS FAM ECT
BUT
court may have discrestion to excuse witness from answering. Any journo that refuses to answer a proper Q in court they are in CONTEMPT. s.10 …
A journo may refuse to disclose sources but not what they know unless disclosure necessary for national secutrity
can you be tried twice for same offence
no so priveldge applies
if a accuses b+c of beating them up at same time = same charge .IMMUNTIY FOR SUB PROS
if however a accuses b of being verbally abusive with c coming up later to beat them up two separate offences and events THUS NO PRIVELDGE
public interest immunity def
this is the claim that a doc should not be disclosed because it would be harmful to public interst. public interest must be wighted against the admin of justic
Conway v rimmer
2 TYPES OF PUBLIC INTEREST
A. public interest that harm shall not be done to the antion by disclosure of docs
B.that the admin of justice shall not be frustrated by withholding doc which must be produced if justice is to be done
who can claim public interest- for the the court NOT the minister to decide. court can overrul certificate if it belives that iit outweighs PUBLIC JUSTICE VIEW
Duncan v camel laird
PUBLIC INTEREST IMMUNITY: TOPOLOGY MRS D. widow of service man had gone down with the ship sued contruction design liable HELD cannot discuss in corts whether warship has defects ESP IN TIME OFF WAR
Higgins v burton
WHO CAN CLAIM PUBLIC INTEREST IMMUNITY P11 ONLY ASSERTED BY GOV MINISTER- CRWON PRIVELEDGE
al-megrahi v hm adv
WHO CAN CLAIM PUBLIC INTEREST IMMUNITY preclude the leading of evidence if the disclosure may prejudice relationship with other gov.
withhold info info that will adversely effect foreign gov ANY INTERESTED PARTY COULD RAISE THIS PLEAS
r v lewes justices
WHO CAN CLAIM PUBLIC INTEREST IMMUNITY public service could not operate if info put into public domain. COURT will now asses the claim that functioning of public service = undermine
Glasgow corp v central land board
WHO CAN CLAIM PUBLIC INTEREST IMMUNITY- A ministers PII objection is not final. the scotttish courts have always asserted the right to review a PII critificate
d v national society for prevention of cruelty to children
MIGHT IT BE IN PUBLIC INTEREST TO REFUSE DISCLOSER
D was investigated for bogas child cruelty wanted to obtain the ID of the person who had made this cliame.
HL should not be revealed as the NSPCC has an analogy with the police PII was upheld eventhough NSPCC IS A PRIVATE BODY AND no official certification of public interest (POTENTIAL SCOT FOR EXPEANTSION)
ab v glagow and west of Scotland transfusion service
MIGHT IT BE IN PUBLIC INTEREST TO REFUSE DISCLOSER
-national security and defence
international relations
- state papers(matters of high level gov policy)
- low level policy communication and routine reports
- confidentiality and the protection of sources of info(police will never disclose informants)
the class/ contents distinction define
used to be public interest outweighs justice NOW this is reversed. so justice outwieghts public service a claim than an entire class of doc was immune from disclosure a claim that specific docs were immune due to contents PII CLAIMS MUST ALWAYS BE BECAUSE OF THEIR CONTENTS DIINCTION NO LONGER RELEVANT
