Topic 16- Privilege Flashcards

1
Q

What are the two key types of privilege?

A

Privilege against self-incrimination

Legal professional privilege

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2
Q

Can adverse inferences be drawn against a party claiming privilege?

A

No

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3
Q

If a person is entitled to claim privilege, can a person object?

A

No

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4
Q

If a person is entitled to privilege, can they refuse to answer certain questions?

A

Yes

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5
Q

What is privilege against self-incrimination?

A

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

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6
Q

What are the two types of communication protected by legal professional privilege?

A

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

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7
Q

Can a legal adviser give oral evidence where there is legal professional privilege?

A

NO

Only where the client waives the privilege

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8
Q

Can a client give oral evidence where there is legal professional privilege?

A

Yes, but they will be waiving the privilege

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9
Q

What is litigation privilege?

A

Privilege applying to communications between lawyer and client for the purposes of contemplating legal proceedings

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10
Q

Who does the evidential burden lie on for claiming privilege?

A

The evidential burden lies on the party claiming privilege

They must prove that the comms were privileged

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11
Q

Who decides whether comms are privileged?

A

The question of privilege is for the court

They must carefully consider the evidence supporting the claim

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12
Q

What does legal advice privilege cover?

A

It covers comms between client and legal adviser for the dominant purpose of obtaining legal advice

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13
Q

What must be shown for legal advice privilege to be established?

A

Must be shown that the purpose of obtaining the legal advice was the dominant purpose

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14
Q

Does legal advice privilege extend to corporate clients?

A

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

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15
Q

What are the main principles surrounding litigation privilege?

A

Where litigation is reasonably contemplated

Covers comms between parties or lawyers and third parties for the purpose of contemplating litigation
- eg, settling, etc

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16
Q

What type of litigation does litigation privilege cover?

A

Only covers adversarial

NOT investigative or inquisitorial

17
Q

What type of documents are covered by litigation privilege?

A

Any documents that were obtained for the dominant purpose of litigation

18
Q

What is the key exception to legal professional privilege?

A

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

19
Q

What must be proved before disclosure of legal professional privilege due to criminal or fraudulent purposes?

A

There must be prima facie evidence that it was the client’s intention to obtain advice in furtherance of a criminal purpose

20
Q

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?

A

No, this will not waive privilege