• Both legal professional privilege and the privilege against self-incrimination are doctrines whereby potentially relevant evidence may be excluded at trial. The rules relating to both differ.

 

Legal professional privilege

• Legal professional privilege is the only privilege which applies by rule to communications between a professional adviser and his client, its purpose being to ensure the parties to legal action proceedings are not constrained in preparing their action. It applies in civil and criminal proceedings.

• Legal professional privilege is a common law principle, which is acknowledged in s10 Police and Criminal Evidence Act (PACE) 1984.

• Legal professional privilege is implicitly but not explicitly contained within Art 6 of the European Convention on Human Rights (ECHR).

• This privilege covers: (1) advice privilege: communications conveying legal advice between a lawyer and his client; there does not have to be litigation in mind; (2) litigation privilege: communications between lawyer, client, and third parties (eg other professionals) for the purpose of pending or contemplated litigation.

• The privilege does not protect communications covering fraud.

• The privilege remains even if the party to whom it attached could gain no further benefit from it.

• The privilege prevents facts from being disclosed but does not prevent facts in the documents from being proved by other means.

• The privilege may be lost by waiver, deliberate or accidental.

 

The privilege against self-incrimination

• The principle is protected by common law, by statute and Art 6.

• The privilege is based on the concept that an individual should not be expected to offer evidence to the state or answer questions which might lead to his conviction.

• The privilege is enshrined in s14(1) Civil Evidence Act 1968.