Chapter 19 Multiple Choice Questions

. In proceedings for breach of contract, a defendant was cross-examined and relied on the privilege against self-incrimination to justify refusing to answer questions about his financial position on the grounds that it would prejudice him in unrelated matrimonial proceedings (related to the division of the matrimonial assets following his divorce). Is he correct?

Yes, the defendant may rely on the privilege against self-incrimination. No witness is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the witness to 'adverse inferences' in any other proceedings.

No, the defendant may not rely on the privilege against self-incrimination. No witness is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the witness to the possibility of criminal, but not matrimonial, proceedings.

Yes, the defendant may rely on the privilege against self-incrimination. The modern effect of this rule is that a witness may be asked a question that has a tendency to expose the witness to 'adverse inferences', but the witness's answer may not be admitted as evidence against him/her in later criminal or matrimonial proceedings.

No, but the defendant may rely on legal professional privilege. No witness is bound to answer any question if the answer thereto would, in the professional opinion of the judge, have a tendency to expose the witness to the possibility of criminal proceedings.

. 'Inroads into the right to silence caused by the provisions of the Criminal Justice and Public Order Act 1994 have served to undermine the privilege against self-incrimination'.

True

False

. There is no right to withhold disclosure of documents on the basis of a risk of incrimination in relation to criminal proceedings abroad.

True

False

. A witness may refuse to answer questions, or produce any document or thing, if to do would tend to expose that person's spouse or civil partner to criminal proceedings.

True

False

. Where the driver of a vehicle has been involved in certain road traffic offences there is a duty under s. 172 of the Road Traffic Act 1988 for the keeper of a vehicle to provide information as to the identity of the driver. Is this contrary to article 6 of the European Convention of Human Rights?

Yes because this leads to a form of 'compulsory questioning' and, as such, is contrary to the privilege against self- incrimination, which is provided for expressly by article 6.

Yes because leads to a form of 'compulsory questioning' and, as such, is contrary to the privilege against self- incrimination. This privilege is not provided for expressly by article 6 but the jurisprudence of the European Court of Human Rights makes it clear that if the accused is deprived of the privilege this will always involve a breach of article 6.

Yes because this leads to a form of 'compulsory questioning' and, as such, is contrary to the privilege against self- incrimination. This privilege is not provided for expressly by article 6, but the jurisprudence of the European Court of Human Rights makes it clear that if the accused is deprived of the privilege it will invariably involve a breach of article 6. Here the accused is being prosecuted for a criminal offence and, therefore, should not be subject to compulsory questioning.

No. This privilege is not provided for expressly by article 6, but the jurisprudence of the European Court of Human Rights makes it clear that if the accused is deprived of the privilege it will normally, but not inevitably, involve a breach of article 6. However, the public interest may, on occasions, lead to the conclusion that there is no breach of article 6 where, as with s. 172, the potential penalty is moderate and non-custodial.

. In what terms did Sir Gordon Slynn describe legal professional privilege in AM & S (Europe) Ltd v Commission of the European Communities (Case No. 155/79) [1983] QB 878?

This principle is concerned with the protection or privilege of the lawyer.

Legal professional privilege is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law.

Legal professional privilege is much more than an ordinary rule of evidence…it is a fundamental condition on which the administration of justice as a whole rests.

It springs essentially from the basic needs of man in a civilised society to be able to turn to his lawyer for advice and help.

. X is buying a number of properties and has instructed a firm of solicitors. The police suspect that X's relative Y is funding the purchase of the properties through drug trafficking and have applied for a production order in relation to the firm's conveyancing files relating to X. There is no evidence that X is aware of the source of the funds and the solicitors, who are equally ignorant of the circumstances, want to resist production of the files on the basis that they are subject to legal professional privilege.

The files are 'items subject to legal professional privilege' under s. 10 of the Police and Criminal Evidence Act 1984. The privilege exists between X and the solicitors and is not undermined by a third party's intentions or purpose.

The files are not protected as 'items subject to legal professional privilege' under s. 10 of the Police and Criminal Evidence Act 1984 because they were held 'with the intention, whether of the holder or any other person, of furthering a criminal purpose'. It does not matter that neither the solicitors nor X are aware of the criminal purpose.

The files would not be protected as 'items subject to legal professional privilege' under s. 10 of the Police and Criminal Evidence Act 1984 if X or the solicitor had a criminal purpose. However, a third party's 'intention of furthering a criminal purpose shall not affect the privilege' attaching documents in the hands of the solicitors.

The files are 'items subject to legal professional privilege' under s. 10 of the Police and Criminal Evidence Act 1984. The privilege would normally be lost because a third party's 'intention of furthering a criminal purpose' can affect the privilege between a party and their solicitor. However, it is preserved on these facts because Y is related to X. Privilege may extend to family members by virtue of the 'familial or spousal privilege rules', which have been widely criticised as arcane and outdated.

. A claimant seeks the disclosure of a defendant's solicitor's time sheet in order to demonstrate that, contrary to what the defendant claimed, he had not been to his solicitor's office on the relevant day. The defendant's whereabouts on that day is a relevant fact in issue in the case. Does the defendant have legal professional privilege in respect of the time sheet on the basis that it is protected by 'legal advice privilege'?

The time sheet is not protected as 'legal advice privilege' because the communication between the defendant and his lawyer should relate to the provision of legal advice. Here, the time sheet entries clearly do not pertain to the giving of legal advice.

The time sheet is protected as 'legal advice privilege'. Although the time sheet is not a direct communication between the defendant and his lawyer it is 'real evidence' created in the course of providing legal advice and, thus, is also protected.

The time sheet is protected as 'legal advice privilege'. Although the time sheet is not a direct communication between the defendant and his lawyer it was created in the course of continuing legal instructions and is, therefore, protected.

The time sheet is not protected by 'legal advice privilege' because, although the communication between the defendant and his lawyer was made in the course of the provision of legal advice, there was no existing or contemplated litigation.

. Which of the following individuals may, potentially, be covered by 'legal advice privilege'? Please select all that apply.

Accountants.

Barristers.

Assay Masters.

Legal Secretaries.

. Communications made between a party (or the party's legal adviser on his/her behalf) and a third party are privileged at the instance of the party if, but only if two conditions are met. The document must have been made with which two conditions?

(1) For the sole purpose of litigation, which is a distinct possibility in the future, and (2) with the dominant and specific purpose of using it for obtaining advice about the anticipated litigation.

(1) For the specific purpose of litigation where there is a general apprehension of future litigation and (2) with either the sole or dominant purpose of using it for obtaining advice about actual or anticipated litigation.

(1) For the dominant purpose of pending or contemplated litigation and (2) with one of the purposes of using it for obtaining advice about the anticipated litigation.

(1) For the specific purpose of litigation, where future litigation is reasonably in prospect and not a mere possibility, and (2) with either the sole or dominant purpose of using it for obtaining advice about actual or anticipated litigation.

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