PRIVILEGES

A privilege is a right by a witness not to reveal particular evidence even if they are able to and obliged otherwise to give evidence.

Legal Professional Privilege

This protects information that is confidentially communicated between a lawyer and their client (the witness). The reason for this right is that legal rights and obligations of citizens need to be understood, protected and enforced through legal assistance. There is a need to encourage people to seek such assistance. It applies to all legal communications and not just those related to litigation.

The privilege protects two aspects:

1. Communications
2. Litigation communications

Communications privilege:

• Genuine confidential communications which are made with the aim of giving or receiving legal advice between lawyer and client are protected from being disclosed.
• This applies only to those holding the right to practice law whether the lawyer works for themselves or for a salary from another.
• The material which is covered must be legal professional advice.
• The privilege does not cover communications made for furthering fraud or crime but only genuine queries about the legality of future conduct.
• Communication covers requests for legal advice that are either expressly or impliedly confidential as well as related documents.
• What is important is the reason for which the document was created. If the dominant purpose was to seek legal advice then this is sufficient.
• Under this privilege communications made to third parties are not protected unless the third party acts as an agent for the client.

Litigation Privilege: Material which a lawyer or a party to a dispute (or a pending dispute) creates with litigation as the main purpose is covered by the privilege. This includes memoranda, briefs and other communications. Copies of documents not covered covered themselves by the privilege which are used in order to get legal advice or to use in pending litigation are covered by the privilege.

Waiver A client may waive the privilege and choose not to assert the right. There is an assumption of waiver if privilege is not expressly claimed when document covered by the privilege is sought. If the client discloses the information to another then this waives their right. The court can impute waiver to prevent abuse of the privilege or unfairness.

Legal Professional Privilege may be removed by statute.

In practical terms there may be a claim for professional privilege in three circumstances:

1. Objection to search warrant/ compulsory inquiry
2. Refusal to allow documents to be inspected through discovery
3. Refusal to produce documents at trial or to give evidence about privileged communications

Privilege against self-incrimination:

The idea is that no-one should be compelled to self-incriminate. In practical terms this means that:

1. The accused is not a competent witness for prosecution
2. The accused has the right to remain silent: The witness can choose not to answer questions before the trial and to give evidence at trial. No comments adverse to them can be made because they did not testify and no adverse inference can be made by jury based on this.
3. Witnesses and citizens can refuse to answer or produce self-incriminating questions or documents: Unless parliament directs otherwise the courts will enforce this right.Corporations are not protected by this privilege.

Public Interest Immunity

• Outside public interest will be considered when the court decides whether information needs to be disclosed to ensure justice.
• Public policy concerns need to be taken into account and the court is able to make such a decision.
• There are two grounds upon which such a claim is made:

1. Contents claim: This is where government argues that the release of the material in question would be contrary to public policy for example it would pose a threat to national security.
2. Class claim: This is where the government argues that they would not be able to operate effectively if the information were to be released.

The public policy discretion may prevent otherwise admissible evidence from being allowed in court.