Unit 20 Privilege Flashcards
What are the two types of privilege in criminal proceedings?
(1) Privilege against self-incrimination
(2) Legal professional privilege (LPP)
What are the general principles of privilege?
- A person entitled to claim privilege may refuse to answer the question put or disclose the document sought.
- The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial.
- If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness, and neither party can take advantage from it.
- A party seeking to prove a particular matter in relation to which his or her opponent or a witness claims privilege, is entitled to prove the matter by other evidence.
- No adverse inferences may be drawn against a party or witness claiming privilege.
- A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed simply on the basis that it would succeed in some other jurisdiction.
What is the scope of the privilege against self-incrimination?
Any W other than D is not bound to answer Qs or produce docs if it would tend to incriminate him in E&W law.
I.e. D cannot claim this kind of privilege
Can the court order additional measures to be put in place so that the privilege against self-incrimination can be waived?
The courts may substitute a different protection in place of the privilege when requiring a person to comply with a disclosure order, provided adequate protection is available, as when the prosecuting authorities unequivocally agree not to make use of the information.
Is exposure to CIVIL liability included in the privilege against the self-incrimination?
No. A witness may not claim privilege on the basis that his or her answer to the question put would expose him or her to civil liability. Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law.
Can a party claim privilege against self-incrimination to prevent them incriminating a spouse?
No, the incrimination must be of the person claiming the privilege. A wife called to give evidence against their husband, cannot then claim privilege instead of giving answers.
Similarly, you can’t claim privilege bc the info would incriminate a stranger
Can a person claim privilege bc disclosing that info would expose them to criminal liability under foreign law?
No
Can a company claim privilege bc it would incriminate itself by revealing the evidence?
Yes - however, the privilege is that of the company and therefore does not extend to incrimination of its office holders.
What is the scope of legal professional privilege?
A client may, and his or her legal adviser must (subject to the client’s waiver), refuse to give oral evidence or to produce documents relating to two types of confidential communication:
(a) Legal advice privilege :communications between the client and his legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time; and
(b) Litigation privilege: communications between the client or his legal adviser and third parties, the sole or dominant purpose of which is litigation that was pending or in the contemplation of the client
What is legal advice privilege?
Communications between the client and his legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time
What is litigation privilege?
Communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client
What additional items does legal professional privilege cover?
The privilege also covers items enclosed with or referred to in such communications and brought into existence
(i) in connection with the giving of legal advice or
(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings
Where does the burden of proof lie with LPP? What is the court’s role in deciding questions of LPP?
The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege.
But, the question of privilege is for the court; the mere assertion of privilege or statement of the purpose for which a document was created is not in itself determinative. The court must consider carefully the evidence supporting the claim, which should be specific enough to show something of the deponent’s analysis of the documents and the purposes for which they were created, preferably by reference to such contemporaneous material as can be referred to without disclosing the privileged matters.
What needs to be established to claim Legal Advice Privilege?
- Needs to be 1 of 2 types of communication:
(i) Communications between clients and their legal advisers for the dominant purpose of obtaining or giving legal advice; or
(ii) documents evidencing such communications and docs intended to be such communications even if not in fact communicated
- Giving legal advice must have been the dominant purpose
- The communications must have been made either in course of relationship between client or and legal advisor or with a view to its establishment
What kinds of communications does LAP extend to and which ones does it not cover?
Extends to instructions given by the client to solicitor, or by solicitor to barrister, or opinion of counsel
However, docs emanating from independent third parties passed to lawyer for purposes of advice are not privileged