Criminal Evidence

Topic 20

Privilege
 • This lecture will cover section 20 of the
Criminal Litigation Evidence and Sentencing
syllabus

Lecture
objectives
• It is designed to supplement your own reading
and research

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 • Sometimes evidence that is both relevant and
admissible is nevertheless excluded on the basis
that it is privileged.
Introduction • There are two types of privilege
to Privilege • Privilege against self-incrimination
• Legal Professional Privilege

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 • A person entitled to claim privilege may refuse
to answer a question or produce a document
• If a person who is entitled to claim privilege does
not do so, no other party can object
General • If a party wants to prove an issue in relation to
which privilege is being claimed and there is
Principles other NON-PRIVILEGED evidence, the party
may rely on that
• No adverse inference may be drawn from the
claiming of privilege – but note special rules for
suspects/defendants (dealt with later in slides)

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 • A witness may refuse to answer questions which
would tend to incriminate him or her

• Incriminate here means tending to expose them

Privilege to a criminal charge or penalty
Against Self-
Incrimination • Only applies to self-incrimination. Can’t refuse
to answer on the grounds that it incriminates
someone else, including a spouse (but note rules
on competence and compellability)

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 • A suspect in police custody has the right to remain
silent – this is part of the wider privilege against
self-incrimination

• But, not answering questions when in police

custody and being interviewed on suspicion of
having committed a crime may lead to adverse
inferences being drawn – see previous sessions on
this issue and s34 CJPOA 1994

Suspects/Defendants • Also a D may refuse to give evidence on his own

behalf during the trial, but if he elects to give
evidence he can be asked any questions,
notwithstanding that the answers may incriminate
him in relation the crime he is being tried for – see
s1(2) of the Criminal Evidence Act 1898. (Note,
however, that D can refuse to answer any questions
about crimes he is not on trial for)

• A refusal by D to give evidence in his trial or

refusing to answer questions about the charge he is
being tried for, when in the witness box, may lead
to adverse inferences being drawn – see previous
sessions and s35 CJPOA 1994

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 • Defined in s10 of PACE 1984
• A client MAY and a legal adviser MUST
(unless the client waives privilege)
Legal • Refuse to answer questions or produce
documents relating to
Professional
Privilege • Communications subject to
• Legal Advice Privilege, or
• Litigation Privilege

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 • Legal Advice Privilege protects communications
between the client and his/her legal adviser
• Relating to the giving or obtaining of legal
advice

Legal Advice • Made in the course of that relationship or with a

view to its establishment
Privilege • Covers direct communications between client
and lawyer
• Doesn’t cover documents prepared by a third
party and handed to the lawyer for the purposes
of advice

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 • Covers communications between client or
lawyer and third parties
• Sole or dominant purpose for the
communication must have been to enable the
lawyer to advise in relation to pending or
Litigation contemplated litigation

Privilege • Includes identity of witnesses proposed to be

called (subject to requirements in CPIA 1996)
• Does not apply where document was obtained
for purposes of advising on litigation but was
not created for that purpose

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 • Communications between client and lawyer or
between client or lawyer and a third party in the
furtherance of crime or fraud are an exception
Communications and are NOT subject to privilege.
in Furtherance of
Crime or Fraud • Even if the lawyer does not realise that the client
is seeking the advice in order to commit a
crime/fraud, privilege still will not attach to that
advice.

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 • A client may waive privilege.
• Waiver often arises when a client has refused to
answer questions in interview on the basis of
legal advice.
• Discussions before interview are, of course,
privileged.
Waiver of • If the client says that he didn’t answer because
he was advised not to answer, that doesn’t
Privilege amount to waiver.
• If the client seeks to argue that an adverse
inference should not be drawn under s34 CJPOA
1994 he will need to state the reason or basis for
that advice and that may well constitute waiver.
• A judge will usually warn counsel or the
Defendant if privilege is likely to be waived.

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