Evidence Law Essay

Question 1

The question here is whether the items that have been requested from the police form the basis of legal professional privilege and are thus not disclosable to the police. In the law of evidence privilege allows relevant, reliable and otherwise admissible evidence to be suppressed for reasons of public policy in civil and criminal litigation. Legal professional privilege is one of the major privileges. It consists of two overlapping strands:   legal advice privilege, which embraces lawyer-client communications, and litigation privilege. Most successful claims to litigation privilege in English law have involved third party-lawyer communications, the classic example of which is the expert report commissioned by a lawyer on behalf of a client.  

Legal professional privilege is conferred for the benefit of the client, and indirectly for the public interest in promoting access to justice and the efficient resolution of legal disputes, not for the benefit of lawyers. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

Communications which are made between a party or his legal advisers and a third party will be privileged provided that the dominant purpose in making the communications was to obtain or provide advice in connection with pending or contemplated litigation. The requirement that advice in such a connection be the dominant purpose of the communication was established by Waugh v British Railways Board. Referring to solicitor-client privilege  Lord Hoffmann said in R (Morgan Grenfell Ltd) v Special Commissioner:    

"It is not the case that LPP does no more than entitle the client to require his lawyer to withhold privileged documents in judicial or quasi-judicial proceedings, leaving the question of whether he may disclose them on other occasions to the implied duty of confidence. The policy of LPP requires that the client should be secure in the knowledge that protected documents and information will not be disclosed at all."

Therefore a disclosure of a client's planned future crime of violence is fully authorized by chapter 16.02(3) of the Law Society's Guide to the Professional Conduct of Solicitors. This provision provides an exception to the obligation otherwise resting on solicitors to preserve client confidences. A solicitor is allowed to disclose information necessary 'to prevent the client or a third party committing a criminal act that [the solicitor] believes on reasonable grounds is likely to result in serious bodily injury'.

In the judgment of Lord Taylor of Gosforth CJ in R v Derby Magistrates' Court ex p. B.   His lordship went back to the roots of solicitor-client privilege and seized upon early judgments emphasizing that once a solicitor receives privileged information 'his mouth is shut forever'.     This led Lord Taylor to conclude in an oft-quoted passage:  

"Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests"

Its concern is exceptions to the normally stringent ethical duty to preserve the confidentiality of client communications as discussed above. Nonetheless, against the background of the modern view of privilege as encapsulated by Lord Hoffmann, the Law Society's permission to report a client's planned crime of violence is nothing less than the Society's encouragement to its members to breach what the House of Lords has referred to as 'a fundamental human right protected by the European Convention for the Protection of Human Rights', namely solicitor-client privilege.

The crime/fraud exception to solicitor-client privilege denies the protection of privilege to communications between solicitor and client which are conducted in furtherance of a crime or fraud. If the client is seeking legal assistance in carrying out a future crime (or fraud) the communication with his or her solicitor is not privileged. The 'in furtherance' prerequisite to the exception is crucial.   It embodies the policy behind the exception, that privilege should not shield communications used for the purpose of evading the law and should be there to protect those who are good.

On the other hand, if the reason behind the solicitor/client communication is something other than breaking the law, the crime/fraud exception does not apply.   It is for this reason, for instance, that the crime/fraud exception does not affect a client's admission to his or her solicitor of the commission of a past crime. Communications of this sort are made all the time in the course of preparations to defend a criminal charge. Not being in furtherance of the crime, such admissions remain privileged.

It can therefore that whilst under normal circumstances it would be the case that the information requested was not disclosable and fell within the realms of legal professional privilege that the information will fall into the category of crime/fraud exception. This information will therefore be disclosable and the firm will have to disclose the information to the prosecution

Question 2

In both civil and criminal cases, the opinions of the witnesses are not, in general, admissible. They are normally confined to stating the facts. It is the view of the court that it, that is the judge or judge and jury, are as well equipped as the witness to draw inferences from the facts to which the witness testifies.

But there are many issues that the court is required to determine which are so far removed from the court's experience that it needs to obtain the opinion of experts to help it determine the issue in question.

"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns"

The opinion of an expert witness is admissible if the expert is qualified, the field of expertise is a recognised one and the court considers the opinion to be helpful.  It is therefore likely that both the prosecution and the defence will be able to admit the evidence that they require.

The duties of an expert witness of opinion were summarised by Cresswell J in the civil case of The Ikarian Reefer:  

'An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise...'.  

The Crown Court (Advance Notice of Expert Evidence) Rules 1987 which require after committal for a criminal trial that any party who 'proposes to adduce expert evidence' must furnish the other parties with 'a statement in writing of any finding or opinion' relied upon and, upon written request, must make available 'the record of any observation, test, calculation or other procedure on which such finding or opinion is based and any document or other thing or substance in respect of which any such procedure has been carried out'.   Similar provision is made for summary trials.   Evidence that is not disclosed is excluded, but may be admitted with the court's leave. The intention is to give parties the opportunity to consider and investigate expert evidence offered against them before the trial and to reduce the time taken to identify the expert evidence that is not in dispute.  

Bibliography

Cases

  • Butler v Bd of Trade [1971] ch 680
  • National Justice Compania V Prudential Assurance (THE IKARIAN REEFER) [1993] 2 LLOYD'S REP 68
  • R (Morgan Grenfell Ltd) v Special Commissioner [2002] UKHL 21 at [29]  
  • Pacey v London Tramways Co (1876) 2 ExD 440
  • Skinner v Great Northern Ry (1874) LR 9 Ex 298
  • Worrall v Reich [1955] 1 QB 296
  • Wilson v Rastall (1792) 4 Term Rep 753 at 759

Statutes

  • Crown Court (Advance Notice of Expert Evidence) Rules 1987 (SI No 716)
  • Magistrates' Courts (Advance Notice of Expert Evidence) Rules 1997 (SI No 705)

Journal Articles  

  • Newbold A, (1990) 'The Crime/Fraud Exception to Legal Professional Privilege' 53 Modern Law Review 472

Books

  • Auburn, J, (2000) " Legal Professional Privilege: Law and Theory Hart Publishing: Oxford
  • Denis I, (2002) "The Law of Evidence", Sweet and Maxwell Ltd
  • Murphy P, (2003) "Murphy on Evidence" Oxford University Press
  • Munday R, (2005) "Evidence", Oxford University Press
  • Roberts P & Zuckerman A, (2004) "Criminal Evidence", Oxford University Press 


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