Privileges

Question 1

PRIVILEGE

Answer 1

The Evidence Act (NRCD 323) abolished all existing common law privileges and hence the only privileges recognisable by law are those expressly provided for by the Evidence Act.

Question 2

What is privilege?

Answer 2

It is an exceptional or special right, immunity or exemption by which a person may refuse to give evidence or disclose a fact or prevent others from doing so in court proceedings or administrative enquiries. The rationale for the application of privilege is the protection of public policy, the sustenance of the inviolability of the individual’s human rights, the protection of the sanctity of certain socially valued confidential communication and the maintenance of justice in society. The disadvantages of privileges are that they hinder searches for truth in that they prevent the use of competence and relevance in the admissibility of evidence that may be relevant and reliable. Secondly, they negate the principle that every citizen has obligation to give evidence in judicial proceedings.

Question 3

What are categories of privilege?

Answer 3

As expressly provided for by the Evidence Act section 88, privilege is only allowed in specific head mentioned in the act, constitution or other enactment
•	Parliamentary
•	Judicial
•	Lawyer- client
•	Mental treatment of patient
•	Religious 
•	Against self-incrimination
•	Against compulsion to testify
•	Government informants
•	Trade secrets
•	Political voting
•	Marital communications
•	On compromise
•	Diplomatic immunities
•	Defences to actions in defamation

Question 4

What is the difference between privilege and public interest immunity?

Answer 4

Firstly, where a person satisfies the conditions for claiming privilege, he is entitled to refuse to answer the question or disclose the document in issue and there is no question of the judge balancing the particular weight of the claim of privilege against the value of the evidence of the trial.
Secondly, the heads of privilege are upheld for the benefit of clearly identified people. Those identified people who can claim the privilege may waive it and when that is done, no one else can claim it.
The third difference between the two is that a successful claim to privilege prevents certain people from being compelled to give evidence or disclose certain matters, but there will be no objection to those matters being proved by other evidence if available. Thus, if the primary source is privileged, one can resort to secondary evidence available. On the other hand, if a claim to public interest immunity succeeds, it will not be possible to prove the excluded facts by any means.

Question 5

Privilege vis-à-vis competence and compellability of witnesses

Answer 5

Privilege is also distinguished from the questions of competence and compellability of witnesses. Privilege only entitles witnesses to refuse to give evidence on particular matters. However, a witness who is competent but not compellable can choose whether to give evidence at all. If he so chooses to give evidence, he is liable to be cross-examined.

Question 6

Who bears the burden of proving privilege?- section 91

Answer 6

The person asserting privilege bears the burden of proving it that said, certain communications by their nature are presumed to be confidential in which case if a person is alleging that such communications that are presumed privilege are in fact not privileged, then that person bears the burden of proving that the communications are not confidential.

Question 7

The privilege against self-incrimination- Section 97(1)

Answer 7

“In any proceedings a person has a privilege to refuse to disclose any matter or to produce an object or a writing which will incriminate that person”

Section 97(2)- However if the court takes the view that it is necessary for the determination of an issue, then a person would not have privilege under section 97(1) in respect of:
•	Submitting to physical examination intended to record his corporal features and other identifying characteristics of his physical or mental conditions 
•	Furnish or take samples of body fluids for examination 
•	Speak, write, assume a posture, make a gesture, or do any other act for the purpose of identification 
While an accused is generally not obliged to testify, an accused who voluntarily testifies does not have the right to privilege in respect of refusing to disclose any matter or produce any object or writing that is relevant to any issue in the criminal action – Section 97(3)

Question 8

What amounts to incriminating evidence?- section 97(4)

Answer 8

A matter, an object or a writing will incriminate a person within the meaning of this Act if it
(a) constitutes, or
(b) forms an essential part of, or
(c) taken in connection with other matters already disclosed is a basis for a reasonable inference of,
a violation of the criminal laws of Ghana

Question 9

Who determines whether privilege has been established and how is this done?

Answer 9

Section 91- The presiding officer (the judge)shall determine a claim of privilege in the manner provided in Part One of this Act
The court would not allow a claim to privilege unless it is satisfied that by disclosure, the accused will face a real danger of being prosecuted for violating any criminal law in Ghana. That is
“the court must see from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from being called to answer. The danger to be apprehended must be real and appreciable with reference to the ordinary operation of the law in the ordinary course of things; not a danger of an imaginary and unsubstantial character”

Question 10

Privilege on behalf of others/ evidence incriminating strangers or others

Answer 10

The privilege against self-incrimination only attaches to the person claiming it, i.e. a person cannot claim that disclosure by him will incriminate a 3rd party such as a partner, employer etc. hence a witness cannot refuse to answer questions put to him on the basis that his doing so would incriminate others. Since the privilege is a privilege against self-incrimination, officeholders, employees or agents of a company may claim the privilege themselves but cannot refuse to answer questions which would tend to incriminate the company, employer or the principal. Also if a person who has a right to privilege chooses to waive that right, no one else can claim the privilege on his behalf.

Question 11

Can privilege against self-incrimination be claimed in civil proceedings?

Answer 11

The general underlying view is that privilege is relevant in criminal proceedings to protect suspects and accused and hence there is skepticism in respect of whether this branch of privilege should apply in civil proceedings. It has been argued that there is no reason why the privilege against self-incrimination should be exercisable in civil proceedings and hence it is unjustifiable. The Evidence Act provides that privilege is available in all proceedings. Order 22 r 4 of C.I 47 provides that:
“Where a person objects to answering any interrogatories on the ground of privilege, the person may state the objection in the person’s affidavit in answer”
While this provision applies to interrogatories, it is uncertain whether it would be applicable to notices in respect of discovery or inspection.

Question 12

Lawyer-Client privilege- section 100(2)

Answer 12

This sought of privilege is aimed at protecting communications between a client and his lawyer relating to the conduct of on-going litigation. It protects communications made for the purpose of obtaining legal advice. It extends to communications between 3rd parties such as potential witnesses and experts for which the dominant purpose was in preparation for contemplated or pending litigation. The documents and communications under this category must have been brought into existence for the purpose of obtaining legal advice. Even though the privilege is referred to as lawyer-client privilege, for all intents and purposes the privilege is the client’s than the lawyer.

Question 13

section 100(2)

Answer 13

Section 100(2) provides as follows:
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication, reasonably related to professional legal services sought by the client, and made
(a) between the client or a representative of the client and the lawyer or a representative of the lawyer, or
(b) between the lawyer and a representative of the lawyer, or
(c) between the lawyer or a representative of the lawyer and a lawyer representing another person,
in a matter of common interest with the client or a representative of the lawyer

Question 14

The Protected Material

Answer 14

The client may and his lawyer must, subject to the client’s waiver, refuse to disclose written or oral communications between them made for the purpose of giving and receiving legal advice about any matter, whether or not litigation was contemplated at the time. As stated above, the communication must have been confidential and if not actually made in course of a relationship of lawyer and client must at least have been made with a view to the establishment of that relationship. Thus, when a communication is made in professional capacity for the purposes of giving or receiving legal advice, the whole communication is privileged. This, include any parts of it in which the solicitor conveys to the client information which he had received in a professional capacity from a third party.

Question 15

What does the protected material extend to?

Answer 15

i. The instructions given by the client to his lawyer,
ii. Counsel’s opinion written down
iii. Documents brought into existence768 (that is created by a party for the purpose of instructing the lawyer and obtaining his advice
iv. Copies of documents the originals of which were brought into existence for such a purpose769 and
v. A selection of pre-existing documents, whether obtained from the client or a third party, which are not in themselves privileged, but which have been copied or assembled by a solicitor and betray the trend of the advice which he is giving the client

Question 16

What does the protected material NOT extend to?

Answer 16

The privilege does not extend to a lawyer’s attendance notes recording what took place in chambers or in open court, in the presence of both parties to the litigation. Even though if a lawyer makes attendance note of a meeting or telephone conversation between the lawyers for each side would not per se be privileged. any subsequent communication by the lawyers to their respective clients, informing them about the discussion, will be privileged. Balabel v Air India

However, if a lawyer is instructed by two clients, communication between him and one of the clients will not be privileged against the other client in so far as they concern the subject-matter in which they are jointly interested. But the communication, whether or not the communication is disclosed to the other client, they will be protected as against outsiders.

Question 17

Communication with 3rd parties

Answer 17

Even if litigation is reasonably in prospect at the time a document is created, litigation privilege will not be available unless the document was created for the dominant purpose of that litigation. The litigation need not be the sole purpose of the document, but it is not sufficient to establish that the litigation was one of a number of purposes of equal importance.

Question 18

Waugh v British Railways Board

Answer 18

In Waugh v British Railways Board a claim was brought by a widow under the Fatal Accidents Act following the death of her husband, a train driver employed by the defendant Railways Board, in a collision. The House of Lords held that a report made by two officers of the Board shortly following the accident was not subject to litigation privilege.

“The report was prepared for a dual purpose: for what may be called railway operation and safety purposes and for the purpose of obtaining legal advice in anticipation of litigation, the first being more immediate than the second, but both being described as of equal rank or weight.”
The House of Lords concluded that, in order to claim privilege, the litigation purpose would have to be the dominant purpose. Accordingly, privilege was not available.

Question 19

Guinness Peat Properties Ltd v Fitzroy Robinson partnership

Answer 19

In Guinness Peat Properties Ltd v Fitzroy Robinson partnership , the court held that the dominant purpose of a document would be ascertained by an objective view of the evidence as a whole, having regard not only to the intention of its author, but also to the intention of the person or authority under whose direction it was procured.

Question 20

What is Legal advice privilege?

Answer 20

This privilege attach to communications between client and legal advisor, even if no litigation is contemplation by the client- Green v Gaskell. Even though the legal professional privilege applies to communication made with the object of retaining a legal advisor, even if litigation or retainership is not intended, the relationship of lawyer and client must at least be contemplated and the communication must be fairly referable to that relationship. However, it must be emphasized that “the mere fact that the person speaking is a lawyer and the person to whom he speaks is his client affords no protection”. The privilege has been held to cover information communicated by the solicitor to the client for the purpose of tendering advice, despite the information emanating from a third party, being passed on as received, despite there being no litigation in prospect.

Question 21

Privilege of client

Answer 21

Lawyer-client privilege belongs to the client however pursuant to section 100(3), it may be claimed by:
• A client’s guardian or committee
• The personal representative of a deceased client
• the successor in interest of a client who was an artificial person; or
• the person who was the client’s lawyer at the time of the communication, or the representative of the lawyer, but that person may not claim the privilege if there is no other person in existence who is authorized by paragraph (a), (b), (c) or (d) of this subsection to claim the privilege, or if that person is otherwise instructed to permit disclosure by a person so authorized

Question 22

What is the duration of privilege?

Answer 22

As stated by Lindley MR in Caicraft v Guest, ‘once privileged always privileged” meaning that, once a particular client’s privilege has attached to a document, it remains for his benefit and that of his successors in title. As was held in Minet v Morgan, for instance, documents relating to property rights which are held to be privileged in the hands of one person continue

Question 23

When can privilege not be claimed?-section 101

Answer 23

A person does not have a privilege under section 100

(a) if, apart from the communication, sufficient evidence has been introduced to support a finding of fact that the services of the lawyer were sought or obtained to enable or aid a person to commit or plan to commit a crime or intentional tort; or
(b) as to a communication relevant to an issue between parties who claim an interest in property through the same deceased client of the lawyer; or
(c) as to a communication relevant to an issue of breach of duty by a lawyer to a client of the lawyer, or a client to the lawyer of the client; or
(d) as to a communication relevant to the formalities of the execution of a writing by a client, where the lawyer or a representative of the lawyer is an attesting witness to the execution of the writing; or
(e) as to a communication relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a lawyer sought by them in common, when offered in a proceeding between any of the clients.

Question 24

EXCEPTIONS TO PRIVILEGE

Answer 24

Waiver of privilege – section 89

Fraud- Section 101(a)

Question 25

Waiver of privilege – section 89

Answer 25

(1) Except as otherwise provided in this section, a person who would otherwise have the privilege to refuse to disclose or to prevent any other person from disclosing a particular matter does not have a privilege, if that person or any other person while the holder of the privilege has voluntarily disclosed or consented to the disclosure of a significant part of that matter.
(2) A disclosure of a privileged matter where the disclosure itself is a privileged communication does not affect the right of a person to claim the privilege.
(3) A waiver of a joint privilege to refuse to disclose or to prevent any other person from disclosing a particular matter by a holder of the joint privilege does not affect the right of any other holder to claim the privilege
Privilege is personal to the holder and hence it may therefore be waived by the person entitled to it. The privilege will be deemed to have been waived if the one entitled to it does anything that may be interpreted to mean that he does not intend to insist on the privilege. The waiver may come about intentionally or unintentionally where the party consents to the disclosure or where a witness starts voluntarily to disclose what would otherwise have been prevented from being disclosed or where he deliberately waives the privilege.

Question 26

Fraud- Section 101(a)

Answer 26

Section 101(a0 of the evidence Act provides as follows:
“No person has a privilege under section 100 if, apart from the communication, sufficient evidence has been produced to support a finding of fact that the services of the lawyer were sought or obtained to enable or aid any person to

Question 27

Section 103- Mental treatment privilege

Answer 27

“A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between that person and a physician or psychologist or any other persons who are participating in the diagnosis or treatment under the direction of the physician or psychologist where the communication was made for the purpose of diagnosis or treatment of a mental or an emotional condition”

NOTE: From the wording of the provision, this category of privilege is limited to confidential communication on mental and emotional treatment but not general medical practice and covers only physicians, psychologists and those assisting the doctor or psychologists such as nurses and medical attendants.

Question 28

When would the court disallow mental treatment privilege?

Answer 28

Notwithstanding the provisions of 103(1), the court may disallow a claim of mental treatment privilege if:
“(a) in a proceeding to commit the person who was the patient the information sought is relevant to the determination of whether that person should be committed, or
(b) in a criminal or civil proceeding, the person claiming the privilege raises a matter relating to a mental or emotional condition, or
(c) a Court has ordered the person who was the patient to submit to an examination of the mental or emotional condition of that person by a physician or psychologist.”

Question 29

Who can claim mental treatment privilege?

Answer 29

“(a) that person personally; or

(b) that person’s guardian or committee; or
(c) that person’s personal representative if that person is deceased; or
(d) the person who was the physician or psychologist or any other person who participated in the diagnosis or treatment under the direction of the physician or psychologist, unless that person is otherwise instructed to permit disclosure by a person authorised to claim the privilege by paragraph (a), (b), (c) or (d) of this subsection”

Question 30

Religious Advice privilege- section 104

Answer 30

“A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication by that person to a professional minister of religion who is prevented from disclosing the communication by the code of the religion of that minister and has been consulted in a professional role as a spiritual adviser.”

For this category of privilege to apply, there should be consultation with a professional minister of religion which is expected to be confidential in that it should not be communicated to third party by the code of ethics of the religion of the minister.

Question 31

Who can claim privilege under religious advice?

Answer 31

(a) that person personally; or
(b) that person’s guardian or committee; or
(c) that person’s personal representative if that person is deceased; or
(d) the professional minister of religion

Question 32

Privilege for informants- section 107

Answer 32

“The Government has a privilege to refuse to disclose and to prevent any other person from disclosing, the identity of a person who has supplied the Government with information purporting to reveal the commission of a crime or a plan to commit a crime.”

The rational of this category of privilege is that, those who supply information to the police on the commission of crimes need to protected so that they are not met with reprisal and also to ensure that people freely give information on the commission of crimes so that information leadings to detection of crime does not dry up. Only the government or persons authorized by government such as state attorneys state prosecutors etc. can invoke this privilege. The privilege cannot be claimed where the person claiming it appears as a witness in the case or where the Government has already disclosed the information elsewhere.

Question 33

Compromise/ settlement negotiations- Section 105

Answer 33

(1) A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, to the tribunal of fact, information concerning the furnishing, offering or accepting by that person or the authorised representative of that person, of a valuable consideration in compromising a claim which was disputed as to validity or amount, and information concerning conduct or statements made as an integral part of the compromise negotiations.
(2) A person does not have a privilege under subsection (1) if that person or the conduct or statements of the authorised representative relating to the compromise were made with the intention that they would not be privileged from disclosure to a tribunal of fact.

Question 34

Compromise/ settlement negotiations

Answer 34

In civil actions statements made without prejudice with a view of settlement are privileged and may not be disclosed if the attempt at settlement subsequently fails. Without privilege communications mean that such communications are inadmissible in any subsequent litigation connected with the same subject matter, whether between the same or different parties. The key consideration is not the phrase “without prejudice” but whether the communications were made in an attempt to settle the dispute

Question 35

Marital communications- Section 110

Answer 35

(1) A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made between that person and the spouse of that person during their marriage.
(2) A communication is confidential if it is not intended to be disclosed, and made in a manner reasonably calculated not to disclose its contents, to a third person.

Question 36

Marital communication

Answer 36

Spouses have the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between themselves during the subsistence of the marriage. For this privilege to apply the marriage must be subsisting and the communication must be confidential (i.e. a communication that is not meant to be disclosed). Note that it is not every conversation or communication that takes place between married couples that will justify the invocation of privilege. The requirement is that parties should intend the conversation to be confidential, this would turn on the facts of each case.