Chapter 18 Multiple Choice Questions

. If a party to legal proceedings claims public interest immunity, from what is that party claiming immunity?

The party is claiming immunity from prosecution. Public Interest Immunity is the legal (and more correct) title for diplomatic immunity'. The party claims immunity from prosecution and also civil suit (following amendments to the Civil Evidence Act 1995).

The party is claiming immunity from either testifying at court or calling witnesses. However, subject to the hearsay provisions of the Criminal Justice Act 2003, witness statements and other documentary evidence will be admissible as an exception.

The party is claiming immunity from the conduct of proceedings in court. The modern name for this is 'closed material procedure'.

The party is claiming immunity from producing or disclosing documents on public interest grounds.

. In terms of legal professional privilege, what are the potential consequences if a suspect's solicitor states at the start of a police interview that, acting on legal advice, the suspect will make 'no comment' to all questions on the grounds that the police have not disclosed the complainant's statement? Please select all that apply.

Legal professional privilege will be waived, i.e. the suspect will not be able to claim privilege for any communications between her and her solicitor leading up to the interview.

As legal professional privilege will have been waived, it is likely to be necessary for the suspect's solicitor to testify in court as to the legal advice to the suspect to remain silent.

Legal professional privilege will not be waived because, in criminal proceedings in particular, it is regarded as a 'fundamental human right, long established in the common law'.

There are no consequences in law because the suspect has the benefit of the privilege against self-incrimination.

. 'At common law, legal professional privilege attaches to an original document or communication and also to secondary evidence of the contents. To hold otherwise would be to "drive a coach and horses" through the rule'.

True

False

. In H [2004] 2 AC 134 the House of Lords provided detailed guidelines about the approach that courts should take when considering public interest immunity applications. Please select all that apply.

Identify whether the material sought to be withheld may weaken the prosecution case.

Ask whether there is a real risk of serious prejudice to an important and identified public interest.

Ask whether the accused's interests can be protected without disclosure, or whether disclosure can be ordered in such a way as to afford adequate protection to the public interest.

If limited disclosure is possible, the prosecution may be invited to prepare formal admissions of fact, summaries or extracts, or redacted versions of the documents in question.

. It has long been a rule of English law that there is no 'privilege', as such, for informants, either in criminal or civil proceedings. Accordingly, there is nothing to prevent a party from asking a witness a question or adducing evidence that would tend to reveal the identity of any person who has provided information that has led to the institution of proceedings.

True

False

. Although there may be waiver of legal professional privilege, partial waiver is impossible. As soon as the content of some privileged communications between a solicitor and a client have been revealed, that opens up all such communications to scrutiny. Privilege will have been lost in its entirety.

True

False

. A prosecutor picks up from the courtroom floor a note that the accused has written to his advocate, providing him with instructions and which he has accidentally dropped during an adjournment. Is the prosecutor entitled to cross-examine the accused on the document or is it privileged?

The note remains privileged, as it was made in the course of seeking and giving legal advice. Therefore, although the note is plainly relevant, the prosecutor may not cross-examine the accused on the contents of this note.

The note remains privileged as it was made in the course of litigation. Therefore, although the note is plainly relevant, the prosecutor may not cross-examine the accused on the contents of this note.

Privilege has been lost once it is in the possession of the prosecution. Admissibility depends essentially on the relevance of the document and the method by which it has been obtained is irrelevant. Therefore, the prosecutor may cross-examine the accused on the contents of this note, unless the judge exercises his discretion to exclude any evidence relating to the note.

Privilege has been lost once it is in the possession of the prosecution. Admissibility depends essentially on the relevance of the document and the method by which it has been obtained is irrelevant. Therefore, the prosecutor may cross-examine the accused on the contents of this note. However, the note has been obtained unfairly and, accordingly, any evidence relating to the note will be excluded.

. 'Is the probative value so important to a fair resolution of the issues in the action and the exigencies of the public interest in achieving a fair resolution of the issues in the action to outweigh the risk of harm outlined in the certificate?' The preceding statement regarding the withholding of documents for reasons of public interest immunity has been described as what?

The Campbell v Tameside MBC balance.

The Air Canada balance.

The Wiley balance.

The Conway v Rimmer balance.

. The Supreme Court has stated that the closed material procedure must be regarded 'with distaste and concern'.

True

False

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