T20 -Privillege Flashcards
What is the concept of privilege in legal proceedings?
Privilege allows individuals to refuse to answer questions or disclose documents, and no adverse inferences can be drawn from claiming it.
( basically person can say that this info is priv and cant be used against them)
Privilege is personal, meaning only the person entitled to it can claim it, and others cannot object on their behalf.
If privilege is claimed, the other party may attempt to prove the information through other evidence.
What are the two categories of privillege?
1) legal professional privilege; and
2)privilege against self-incrimination.
What is legal privilege and its main application?
Legal privilege includes communications between a lawyer and client for legal advice (legal advice privilege) and communications related to pending or contemplated litigation (litigation privilege).
Its main application is to prevent a defendant from having to disclose information about the legal advice they have received.
Can privilege be waived, and when might this occur?
Yes, privilege can be waived. If a defendant wants to rely on privileged information, they can.
The court will usually warn the defendant before revealing privileged information.
This often arises when a defendant explains their silence at the police station TO AVOID AN INFERENCE under s34 CJPOA 1994.
When does a defendant waive privilege regarding advice not to answer questions in an interview?
A defendant does not waive privilege if they simply explain their failure to answer questions due to legal advice.
However, IF THEY EXPLAIN THE REASON FOR THE ADVICE, THEY THEN HAVE WAIVED THEIR PRIVILEGE
Can a defendant rebut a suggestion of recent fabrication without waiving privilege?
yes, a defendant can rebut a suggestion of recent fabrication by providing evidence that the defence was disclosed to a solicitor at the police station, without waiving privilege.
Are communications in furtherance of crime or fraud protected by privilege?
No, communications in furtherance of crime or fraud are not covered by legal professional privilege.
- rmbr like the drug case in conference
Who carries the evidential burden for claiming privilege?
The party claiming privilege carries the evidential burden, and it is up to the court to decide if privilege can be claimed.
What does legal advice privilege cover?
Legal advice privilege covers communications between a client and legal adviser made for the dominant purpose of obtaining legal advice.
What are the requirements for communications to be covered by legal advice privilege?
he communications must occur in the course of the client-legal adviser relationship or with the intention of establishing such a relationship.
Does legal advice privilege cover documents?
Yes, it covers documents that evidence those communications or are intended to be communications, even if they were not actually communicated.
(This includes instruction from client to solicitor, solicitor to counsel AND COUNSEL OPNION
Does legal advice privilege extend to documents from third parties?
No, it does not cover documents from third parties, even if they are handed to the legal adviser for the purpose of obtaining advice.
In the case of corporate clients, who does legal advice privilege cover?
It only covers communications with the person designated to act as the client or the board of directors, not other employees.
When is litigation privilege engaged?
Litigation privilege is engaged when litigation is on reasonable contemplation.
What does litigation privilege cover?
It covers communications between clients, legal advisers, and third parties, where the dominant purpose is to enable the legal adviser to advise or act in the litigation.
Can litigation privilege apply alongside legal advice privilege?
Yes, litigation privilege can apply to communications between lawyer and client even if legal advice privilege also applies.
What is privilege against self-incrimination?
It allows a witness to refuse to answer questions or produce material if it would expose them to a criminal charge or penalty.
Can a Defendant refuse to answer questions if they choose to give evidence?
No, if a Defendant gives evidence, they cannot refuse to answer questions that may incriminate them, or an inference may be drawn under s35 CJPOA 1994, suggesting they have no answer because they are guilty.
Can privilege be claimed if the answer might expose someone to civil liability or criminal liability under foreign law?
No, privilege cannot be claimed on that basis, though extradition proceedings and Article 6 ECHR may need to be considered.
Is incrimination privilege personal?
Yes, incrimination is personal and cannot be claimed for someone else.
Can a company claim privilege?
Yes, a company can claim privilege in the same way as an individual.
In regards to privillege, do rmbr comms between solicitor and client in police station are private but remember where the communication from the client is tells a reason for this it can amount partial waive privillege
ALWAYS ALWYAS
PRVILLEGE IS ALWAYS WITH THE CLIENT NOT THE SOLICITOR
IF REBUT THE FABRICATION OF THE P THEN NOT WAIVE PRIVELLEGE GENERALY, BUT IF THE CLIENT
“HE HAD GONE FURTHER AND EXPLAINED THE REASON FOR THE ADVICE” = wiave the privillege , ONLY THEN IF CALL THE SOLICITOR THEN WOULD HE BE ABLE TO TELL THE ADVICE
Where a person is not designated as a client, then legal adivce privllege would not be attracted if he prep a doc.
the privillige only lies where the person is designated as a client and board of directors
ex: A is charged for fraud, A denies this claim. A has B and C who works in the same place as A who involved in the place of fraud. B and C is to be called as witness, A is worried,that C is going to tell info that might incriminate A and B . What advice to give?
C is entitled to claim priv and she will not have to give answer that incriminate her
failed, caused, permitted,
