Topic 16- Privilege Flashcards
What are the two key types of privilege?
Privilege against self-incrimination
Legal professional privilege
Can adverse inferences be drawn against a party claiming privilege?
No
If a person is entitled to claim privilege, can a person object?
No
If a person is entitled to privilege, can they refuse to answer certain questions?
Yes
What is privilege against self-incrimination?
This is where an accused is not bound to answer questions in court if it could criminate himself as to the offence charged
Eg, saying no comment
What are the two types of communication protected by legal professional privilege?
Comms between client and legal adviser for the dominant purpose of giving legal advice
Comms between client or legal adviser and third parties, for the dominant purpose of giving legal advice
Can a legal adviser give oral evidence where there is legal professional privilege?
NO
Only where the client waives the privilege
Can a client give oral evidence where there is legal professional privilege?
Yes, but they will be waiving the privilege
What is litigation privilege?
Privilege applying to communications between lawyer and client for the purposes of contemplating legal proceedings
Who does the evidential burden lie on for claiming privilege?
The evidential burden lies on the party claiming privilege
They must prove that the comms were privileged
Who decides whether comms are privileged?
The question of privilege is for the court
They must carefully consider the evidence supporting the claim
What does legal advice privilege cover?
It covers comms between client and legal adviser for the dominant purpose of obtaining legal advice
What must be shown for legal advice privilege to be established?
Must be shown that the purpose of obtaining the legal advice was the dominant purpose
Does legal advice privilege extend to corporate clients?
Yes, but only comms with employees expressly designated as the client
Does not cover docs or comms prepared by employees, even if they were prepared for legal advice purposes
What are the main principles surrounding litigation privilege?
Where litigation is reasonably contemplated
Covers comms between parties or lawyers and third parties for the purpose of contemplating litigation
- eg, settling, etc
What type of litigation does litigation privilege cover?
Only covers adversarial
NOT investigative or inquisitorial
What type of documents are covered by litigation privilege?
Any documents that were obtained for the dominant purpose of litigation
What is the key exception to legal professional privilege?
Communications in furtherance of crime or fraud
If the advice intends to facilitate or guide to the client towards committing a crime or fraud
This will not be privileged- but only if there is evidence that it was the client’s intention to obtain the advice for criminal purposes
What must be proved before disclosure of legal professional privilege due to criminal or fraudulent purposes?
There must be prima facie evidence that it was the client’s intention to obtain advice in furtherance of a criminal purpose
If an accused gives reasoning as to why they made a no comment interview (on the advice of his lawyer), does this constitute as a waiver of privilege?
No, this will not waive privilege
But there are exceptions
