Principles of privilege

In R v Seaton [2010] EWCA Crim 1980, the Court of Appeal reviewed the law of legal professional privilege in the context of police station advice, and appears to have developed the law regarding the way in which ‘no comment’ interviews may be handled by advocates at trial.

It also appears to take a more restrictive approach to the use of privileged material, even if there has been a waiver.

The principles established are:

• Legal professional privilege is of paramount importance. There is no question of balancing privilege against other considerations of public interest;
• Therefore, in the absence of waiver, no question can be asked which intrudes upon privilege. That means, among other things, that if a suggestion of recent fabrication is being pursued at trial, a witness, including the defendant, cannot, unless he has waived privilege, be asked whether he told his counsel or solicitor what he now says is the truth. Such a question would require him either to waive his privilege or suffer criticism for not doing so. If any such question is asked by an opposing party (whether the Crown or a co-accused) the judge must stop it, tell the witness directly that he does not need to answer it, and explain to the jury that no one can be asked about things which pass confidentially between him and his lawyer. For the same reasons, in the absence of waiver, the witness cannot be asked if he is willing to waive his privilege;
• However, the defendant is perfectly entitled to open up his communication with his lawyer, and it may sometimes be in his interest to do so. One example of when he may wish to do so is to rebut a suggestion of recent fabrication. Another may be to adduce in evidence the reasons he was advised not to answer questions. If he does so, there is no question of breach of privilege because he cannot be in breach of his own privilege. What is happening is that he is waiving privilege;
• If the defendant does give evidence of what passed between him and his solicitor he is not thereby waiving privilege entirely and generally. That is to say he does not automatically make available to all other parties everything that he said to his solicitor, or his solicitor to him, on every occasion. He may well not even be opening up everything said on the occasion of which he gives evidence, and not on topics unrelated to that of which he gives evidence. The test is fairness and/or the avoidance of a misleading impression. It is that the defendant should not, as it has been put in some of the cases, be able both to ‘have his cake and eat it’;
• If a defendant says that he gave his solicitor the account now offered at trial, that will ordinarily mean that he can be cross-examined about exactly what he told the solicitor on that topic, and if the comment is fair, another party can comment upon the fact that the solicitor has not been called to confirm something which, if true, he easily could confirm. If it is intended to pursue cross examination beyond what is evidently opened up, the proper extent of it can be discussed and the judge invited to rule;
• A defendant who adduces evidence that he was advised by his lawyer not to answer questions, but goes no further than that, does not thereby waive privilege. This is the ratio of Bowden and is well established. After all, the mere fact of the advice can equally well be made evidence by the solicitor announcing at the interview that he gives it then and there, and there is then no revelation whatever of any private conversation between him and the defendant;
• But a defendant who adduces evidence of the content of, or reasons for, such advice, beyond the mere fact of it, does waive privilege at least to the extent of opening up questions which properly go to whether such reason can be the true explanation for his silence (Bowden). That will ordinarily include questions relating to recent fabrication, and thus to what he told his solicitor of the facts now relied upon at trial (Bowden and Loizou); and
• The rules as to privilege and waiver, and thus as to cross-examination and comment, are the same whether it is the Crown or a co-accused who challenges the defendant.

Notices

The significance of a fixed penalty notice was considered in R v Hamer [2010] EWCA Crim 2053. The court held that a notice could not impugn the character of a defendant because it was not:

• A conviction;
• An admission of guilt;
• Proof that a crime had been committed; or
• A stain on the defendant’s character.

It seems therefore that there will seldom be any reason to risk a prosecution in refusing to accept such a notice.

However, it will be wise to put a letter on record if the underlying facts are denied, otherwise those underlying facts might be proved in future proceedings, and the failure to dispute them be put to the defendant in cross-examination.

A similar approach is required to the issue of a ‘harassment’ notice, often in cases where the actions are denied and no further action is taken at that time.

There remains a risk that, while the Crown Prosecution Service has confirmed that the notice itself has no evidential weight, the underlying facts might still be proved in later proceedings and a failure to dispute be put in cross-examination.

Offences taken into consideration (TIC)

The care required in handling TICs is emphasised by the decision in R v Brett 20 EWCA Crim 524 (AG Ref 92 of 2009).

The court held that, where ­someone has been released from prison for sexual offences, and a further historic offence is identified, it does not follow that there can be no further imprisonment, notwithstanding that, had the matters been listed together, no ­additional sentence would have been imposed.

There had, said the court, been a lack of candour, even though behaviour since release gave no cause for concern.

However, solicitors must still advise a client to consider the need to ensure that there is an evidential basis before any offence is taken into consideration given that each may increase the seriousness of the crime for which he will be before the court.

New codes

Important guidance and a new Code for Crown Prosecutors came into force during 2010.

With regard to conditional cautions, a new Code of Practice in relation to adults came into force on 26 January.

The important change is that the guidance does not require an admission to be made by the offender prior to the prosecutor determining whether a conditional caution is an appropriate remedy.

This also has the effect that the prosecutor must be satisfied that there is sufficient available evidence without that admission to meet the full test under the Code for Crown Prosecutors.

This is of particular assistance to solicitors representing defendants in the police station where they have doubts about the strength of the prosecution case or the attitude of a prosecutor to the handling of the matter.

Solicitors have been reluctant to allow admissions to be made which may result in a conviction until the clarification, which is now available, has been obtained.

A new Code for Crown Prosecutors came into force in February.

It applies to all crown prosecutors including those in the Revenue and Customs division, associate prosecutors and to police officers when making charging decisions.

This edition of the code contains important changes and significant new paragraphs.

Under paragraph 4.2, a prosecutor may determine that a prosecution is not in the public interest, notwithstanding that at that point not all the likely evidence has been collected and considered.

Although the code describes these as rare incidences, defence solicitors will be able to identify a number of cases where it is clear from the outset that no prosecution would be permitted to continue.

Appropriate representations should be made.

Paragraph 4.6 provides that a prosecutor making the decision whether a prosecution is in the public interest shall have regard to any information that he or she has about the defence that might be put forward by the suspect.

The use of out-of-court disposals is significantly emphasised by the new code.

Paragraph 4.12 provides that a prosecution will usually take place unless the prosecution is sure that there are public interest factors tending against the prosecution which outweigh those tending in favour, or unless the prosecution is satisfied that the public interest may be properly served in the first instance by offering the defendant an opportunity to have the matter dealt with by an out-of-court disposal.

As before, the code lists factors tending in favour and tending against prosecution. However, the number of these factors has been significantly increased in the new edition.

Particular emphasis is placed on whether an out-of-court disposal is a sufficient ­remedy.

The new paragraph 7 deals with out-of-court disposals. These can be used where they are an appropriate response. If a caution or a conditional caution is offered but not accepted then a prosecution will follow.

However, if the police have offered a fixed penalty notice and the defence objects, the Crown will consider each matter on its own merits.

The Crown is now in a position to direct police officers to impose a caution which must inevitably lead to discontinuance if the police choose not to do so.

Paragraph 9.3. of the code emphasises the importance of keeping young offenders in the youth court: ‘Prosecutors must bear in mind that youths should be tried in the youth court wherever possible.

It is the court which is best designed to meet their specific needs.

A trial of a youth in the crown court should be reserved for the most serious cases or where the interests of justice required a youth to be jointly charged with an adult.’