Legal Privilege: If in Doubt, Say Nowt!

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13 May, 2024

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Craig MacKenzie
Partner

It's crucial for clients to understand that the information shared with their lawyer is privileged, meaning it will remain confidential in almost all circumstances. This rule, known as legal privilege, is a cornerstone of our justice system, providing you with a sense of security and protection.

Legal privilege is critical to a functioning justice system, and the reasoning for this is expressed in this leading quote from case law:

'The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have resource to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating [of] his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.'

A separate type of privilege is litigation privilege, so if a solicitor instructs an expert to prepare a report, the starting point is that the client's instructions remain confidential.

However, it's important for defendants in the criminal justice system to be cautious. When you interact with individuals outside your legal team, any information you share with them may not be protected by privilege and can be used against you. This underscores the need for careful communication.

This issue most commonly arises when defendants are remanded in custody or into a hospital environment, and they engage with medical personnel. There is a belief that what is said to a doctor always remains secret. Whilst the relationship between doctor and patient is indeed confidential, this does not mean that it cannot be used in a criminal case against the patient.

Likewise, discussions with probation officers and youth justice professionals are not privileged, although it will only sometimes be in the interests of justice to admit the evidence. The Court of Appeal has previously made this observation:

'...it would in our view be contrary to public policy to breach the confidentiality of discussions of the kind save for very good reason. Such discussions are not subject to privilege in the sense that something a defendant or appellant tells his lawyers would be; and the internal rules of Camden Social Services (or of any other local authority's officers) are not binding in the courts; but we regard them as well drafted, sensible and worthy of respect. There is a distinction between disclosure necessary to avoid imminent future criminality (in particular a threat to someone's life or safety) and the obtaining of admissions to past offences. It would be extremely unfortunate if convicted defendants (whether young or adult) were deterred from speaking to those charged with their supervision or rehabilitation until any appeal against conviction had been dealt with.'

Clearly, it would be better if nothing was said rather than hoping for the exclusion of such admissions.

For more information contact Craig MacKenzie in our Crime department via email or phone on 01772 220 022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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