Legal Professional Privilege: Tilting the Scales in Favour of Disclosure

Abstract

This article examines whether a different application of legal professional privilege does, or should, apply in civil and criminal contexts, particularly when the gain to one party is offset by a loss to the other. In R v Derby Magistrates’ Court; ex parte B, Lord Taylor of Gosforth asserted that ‘the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence’.

This article contends that when courts deal with legal professional privilege, it is not enough solely to consider the interests of the parties. Considerations of public justice equally come into focus. The problem, though, is not merely an academic one. Within the remit of the criminal justice system, there is manifestly a need to protect innocent criminal defendants from conviction. If the scales of justice are to tilt one way or the other, it must be in favour of disclosure, for non-disclosure jeopardises the position of the innocent who are falsely accused. Legal professional privilege is thus incongruous because of the contradiction between shielding client–counsel communications and admitting relevant evidence — particularly if the need arises to prove innocence in a criminal prosecution. Exemplifying that justice can be distorted; legal professional privilege tolerates a ‘probability of error’ for the sake of procedural convenience.

In attempting to reconcile the clash of values between these apparently irreconcilable domains, this article utilises the philosophies of esteemed jurisprudential scholars, Jeremy Bentham and John Henry Wigmore. Lapping at the collective legal conscience, their enduring pronouncements — dating back to 1780 — ebb and flow on the constant tides of legal change. With each new precedent or legislative amendment, their time-honoured decrees are cast out and reeled back in. For better or worse, these men are inextricably entwined in the legal netting that blankets an aspirational profession of eloquent men.

Keywords: legal professional privilege, R v Derby Magistrates’ Court, Lord Taylor of Gosforth, public justice, Jeremy Bentham, John Henry Wigmore