Does the current law on legal professional privilege undermine or ensure the right to a fair trial?

Answer, giving reasons, in relation to legal professional privilege in civil and criminal proceedings.

Analysis of the question

The question is asking you to analyse the arguments for and against the protection of the common law rule on legal professional privilege. You need to be familiar with some of the controversial case law such as Derby Magistrates Court ex p B (1996).

Explain the history and general rationale of the principle. You could point out that the doctrine has evolved through the common law in response to new situations. It is generally assumed to have its origins in the seventeenth century fight against monarchical absolutism, in particular the use of the inquisitorial Star Chamber. Defendants needed protection from the state so that they could prepare their case with their lawyers without fear of state intrusion and therefore get the best advice. The growth of the adversarial system in the eighteenth and nineteenth centuries and the increased use of lawyers gave the doctrine more prominence and this led to the extension of the privilege to litigation. The following are arguments both supportive and critical of the current application of the doctrine.

Arguments in favour of the current approach

• Legal professional privilege is a fundamental right and deserves a very high standard of protection – see Derby Magistrates Court ex p B (1996). The House of Lords court held that the privilege was absolute and permanent.
• The current approach is flexible, and it is open to a witness to waive the privilege.
• The scope of the privilege has been made clearer by statutory intervention as in PACE s10.

The privilege does allow an exception if the purpose of communication between lawyer and client is to facilitate crime. See R v Cox and Railton (1884) and Francis v Central Criminal Court (1988). A more recent example is R v Minchin (2013) where the charge was a conspiracy to pervert the course of justice in relation to an allegedly false alibi. The Court held that material in support of the claimed alibi was not covered by legal professional privilege because there was independent evidence that it was false.

Arguments critical of the current approach

• Changes in the criminal law of evidence have not taken sufficient account of the need to protect the privilege. In R v Bowden [1999] 1WLR 823, the accused had no choice but to waive the privilege in order to resist the drawing of inferences of guilt under CJPOA s34.
• Defining some civil trials as inquisitorial has had unfortunate results, e.g. Re L is an incoherent way of dealing with the need to make inroads into legal professional privilege to protect vulnerable groups such as children.
• Ex p B is a controversial decision and arguably weakened the defence. Emson for example (2010, p. 205 comments '… there can be little doubt that to deny the accused access to cogent (and otherwise admissible) evidence of his innocence on the ground that it is privileged material will on occasion result in a violation of Article 6(1)’ He argues that ‘there is nothing in the Strasbourg jurisprudence to suggest that the privilege can be allowed to override all other considerations whatever the circumstances.’ Roberts and Zuckerman (2010, p320) are also critical of the decision and comment ‘secure access to legal advice has been prioritised over securing proof of innocence’. The concentration on legal professional privilege ignores other areas that may require privilege such as the doctor patient relationship. By contrast, the Canadian system provides some limited privilege for medical/psychiatric details for rape victims. The protection for journalists' sources under PACE and Contempt of Court Act 1981 is weak.
• Arguably, the definition of a client in relation to legal advice privilege is too narrow and out of step with international common law. Note that the decision in Three Rivers DC v Bank of England (No 5) (2003) was doubted in Director of SFO v Eurasian Natural Resources Corporation Ltd (2008). In Three Rivers DC v Bank of England (No 6) ( 2004) the House of Lords had not pronounced on the status of documents created by employees of the client in order for the latter to be covered by legal advice privilege

Conclusion

There are strong fair trial rights arguments for upholding the privilege but arguably it is now somewhat archaic in the face of development of multi-professional firms. Note that in R (on the application of Prudential Plc) v Special Commissioners of Income Tax (2010) the Court of Appeal refused to extend professional privilege to accountants. This applies particularly to civil suits. The privilege can be a means of preserving corporate secrecy, which may be against the public interest as in the BCCI litigation. Another argument is that public policy such as protection against terrorism may require limiting the privilege; see McE v Prison Service of Northern Ireland (2009). Tapper (‘Privilege, Policy and Principle’ (2005) 121 LQR 181) suggests that the privilege is at odds with the principle of freedom of information.’ English law on this issue is arguably less developed than that of the EU, see Kingdom of Sweden v Council of the European Union (2009) where the ECJ set out a detailed test for disclosure of legally privileged material taking into account the public as well as client interest.