Privilege Flashcards
What is it?
Right not to answer questions in certain circumstances. If it is successfully claimed then contempt of court charge cannot be liable or enforced.
It may be an objection to certain questions, or prevent one party from getting to documents.
General rule of privilege is that of that witness who is being called upon to testify and that they are entitled to waive that privilege if they wish.
If they do waive the privilege the other party has no right of objection, but may object if the privilege is wrongly upheld, depriving that party of vital evidence it was intending to lead.
There is a difference between confidentiality and privilege.
Many combinations are confidential that they can prevent the information being disclosed, unless it is actually privileged in a legal sense then content can still be used.
Doctor and patient regarded are confidential, cannot refuse under privilege to give information regarding patient. Higher level in privilege than confidentiality
Privilege against self-incrimination (non-accused)
All witnesses, in criminal and civil cases, have a privilege against answering a question(s) in court that might incriminate them. Fundamental, Livingstone v Murray
The rule allows the question to be put, and permits an answer - it only prevents the answer having to be given.
Regarded as the judge’s duty to advise witness as to privilege when particular question appears to trigger it
(Kirkwood v Kirkwood (1875) 3 R 235 - )Normally judge will be very careful intervening with the questioning.When witness refuses then judge decides whether it is incriminating
No set procedure for determining whether an answer is genuinely incriminatory: “the secret must be told [to] see whether it should be kept” (R v Cox and Railton (1884) 14 QBD 53)
It can only be invoked when there is a real possibility of a criminal prosecution. If it exposes civil claim then it’s fine, but must be criminal. Doesn’t need to be a confession, may just be involvement of the crime. Must be in danger of criminal prosecution if admitted.
Doesn’t apply to answers which may incriminate a spouse of the witness.
Questions designed to elicit evidence of Adultery are in a special category
Where admission comes in an affidavit as opposed to oral evidence, the privilege does not affect admissibility.
Privilege can be removed by statute where the wider public interest outweighs the individuals right
Marital Communications privilege
Civil cases - S3 of Evidence (Scotland) Act 1853 suggests that the spouse is neither competent nor compellable witness. This then creates a privilege. It ends with divorce, although no direct authority. Former spouse claim during marriage. It is that of the spouse witness alone, they can waive that privilege if they wish. Even if privilege is successfully claimed then can hear same evidence from 3rd party.
Criminal Case - Compellable and Competent witness
Legal Advise - Client privilege
These are confidential and privileged. It applies it both types of cases. Covers communications, written and oral, and the identity of the client, they don’t need to be given in court.
Legal advice privilege is limited to qualified legal advisers, not an accountant who gives legal advice during work. R v Special Commissioner of Income Tax
May not extend to in house lawyers in competition investigations
Privilege belongs to the client and can be lost if waived or if the solicitor is called by the client as a witness.
Insure that client can talk to solicitor in confidence, and it would be undermined if they could betray that.
It is absolute in nature (R v Derby Magistrates Court
Unsure about when relationship is in contemplation - HM Advocate v Davie
In England protected
All communications made throughout relationship, but not available after it ends
Communications and observations - Unknown whether observations are privileged or not.
For privilege to operate communication must be for legal advice - R v Manchester Crown Court - time and date
Doesn’t apply where very issues is whether their was a relationship
Doesn’t apply to communications between legal adviser and client where legal adviser directly involved in criminal conduct.
Illegality execution further extended, if solicitor was being used. Conoco v Commerical Law Practice - Firm of solicitors wrote to Conoco had info, blackmail
Position is not settled if evidence of communication comes from another source and is illegally obtained, but if innocently obtained it seems that will be admissible McLeish v Glasgow Bonding Co - Defenders in civil action got a letter to potential medical witness,
Position on 3rd person in lawyer-client meeting is not clear
Communication post litem motam
While litigation is under contemplation, any communications between individuals on the subject of the contemplated litigation are privileged. Not just solicitor one, but with other individuals. Mostly applied in civil
It needs to be made in contemplation. Must be a communication made when it is in the mind of a party that litigation may occur - After it is apparent that there is going to be litigious contention.
The rationale is to allow investigations into a cliam to take place with out risk of disclosure of results to the other side, it does not necessarily apply.
Privilege does not necessarily apply to a communication made with a mixed purpose, only one of which is a contemplated litigation. Waugh v British Railways Board
Two exceptions
1) Does not extend to communications between employee to employer where employee present at accident, if that report is is made at or around the time of the accident
2) Does not extend to communications where subject matter of a particular report has been materially altered or destroyed as a consequence of examination
Communication in aid of settlement privilege
Any communication made between parties to a dispute while negotiating will attract privilege i.e. the terms of the negotiation and any concessions cannot be revealed in court, if the cases does not settle.
The courts will consider whether the content of a letter is privileged or whether parts of it are, whether the words “without prejudice” are attached or not. It is not determinative, the court will draw the distinction.
A distinction was drawn between negotiations and statements of fact or unequivocal admissions- the latter two will not be privileged, see e.g. Daks Simpson Group v Kuiper 1994 SLT 689
