Legal professional privilege

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Andrew GeorgeThe article Legal professional privilege is written by Andrew George, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Andrew has over 25 years of experience as a criminal defence lawyer. He has appeared in all Victorian criminal courts, various tribunals, and at Royal Commissions. He also practises international criminal law representing clients with interests overseas.

Andrew has been an accredited criminal law specialist ever since 1995. He has lived and worked in Papua New Guinea assisting in the establishment of that country’s first community legal service. He also represented an accused person in IBAC’s first major prosecution, Operation Fitzroy.

Lawyer and ClientIt was noted recently by the chief justice of New South Wales that there was a real threat to professional legal privilege at present. He had found 162 provisions that abrogate the right to legal professional privilege.

Legal professional privilege (LPP) is a rule of law protecting communications between legal practitioners and their clients. The aim of LPP is to stop the disclosure of communications other than under the compulsion of court orders. It is an incredibly important right for a client that the person they discuss their case with is not to then discuss it with someone else. The reason for this is blindingly obvious that to give people full opinions and advice about what to do with a case the lawyer needs to be filled in on all the details. If the client is looking over the lawyer’s back at who might come and read those communications then they will be more reluctant to give a complete account to the lawyer.

While the privilege is not absolute, we at Doogue + George believe that the lawyer-client communications (LPP material or potential LPP material should be insulated as much as possible from governmental interference). There was an interesting case in England recently which detailed how they go about assessing LPP product. That case was The Queen (on the application of Colin McKenzie) v Director of the Serious Fraud Office[1] concerned specifically with the question: whether, the process for isolating files that may contain LPP material into an electronic folder for review by an independent lawyer must itself be carried out by individuals who are independent of the seizing body.

That is a very complex way of saying, how do we make sure this is done properly?  When there is a case which involves vast volumes of materials, some of which is legally privileged, how should we assess whether they are privileged or not? We say that it should be done in the time honoured manner that the person from whom they are seized should be allowed to identify the LPP documents. That is they should go through and make that assessment and then a ruling should be made on those documents. The English way is to have electronic scanning of documents and then an assessment being made of those ones that the scanner perceives to have LPP. We consider this to be wrong partly as it is based too much on a good faith assessment of how matters are prosecuted. We have had countless cases where documents have been redacted where there is no good reason for their redaction other than it does not help the prosecuting authority to give us those documents. This trickles all the way down to the police who whenever notes are subpoenaed will cross out a note that is clearly relevant to the matter but which does them no credit.

A recent example for us was a prosecution where the policeman’s notes indicated that, at best, he had gotten his statement completely wrong. With no great surprise those notes were rubbed out. The prosecutor had the good sense to withdraw all of the charges presumably after having reviewed the material.

In the end, in relation to the English case, The Court accepted the Serious Fraud Office procedures that involve the use of in house IT staff to isolate the material potentially subject to LPP. The complainant’s unsuccessful argument was that the involved teams of employees of the SFO and the uploading of digital material unnecessarily exposed the LPP owner to an avoidable risk. That is the risk the LPP material would come to the knowledge of the prosecuting authority and be used to his disadvantage.

Unfortunately, the Court ruled in favor of the SFO and yet another possible safeguard for defendants was trampled.

[1] [2016] WLR(D) 42, [2016] EWHC 102 (Admin)
Date Published: 19 April 2016

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