Ambit of Legal Professional Privilege
| DOI | http://doi.org/10.1177/002201839906300511 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
TheJournal of
Criminal
Law
Browne-Wilkinson in R v
Manchester
cc.
ex p DPP [1993] 1 WLR 1524
that
no
'precise test' could be applied. Even Lord Bridge's frequently
quoted question, 'does
the
matter
affect the conduct of the trial?' was
later described by
him
as 'a helpful pointer,
not
atest'. Simon Brown U
rehearsed
the
decisions in
the
four cases in
the
House of Lords
and
in the
other
authorities
upon
the
interpretation of
the
two Acts (of 1933
and
1981)
and
came to
the
conclusion that both sets of provisions are equally
integral to
the
administration of justice
and
that
the
decisions on
the
one
can be applied to cases arising
out
of the other. The three questions
usually asked, namely, 'Is
the
matter
concerned with
the
conduct of the
trial?', 'Is it
an
integral part of the trial?' and 'Does it arise as an issue
between
the
Crown
and
the defendant?' would seem to be accepted as
most likely to apply a relevant test. Simon Brown Upointed to
the
fact
that adefendant
who
is temporarily protected by a suspended order
may
always, following a successful appeal against conviction, have the
opportunity to
return
to
the
judge to ask him to reconsider
the
question.
In
the
light of that possibility,
the
High Court's lack of jurisdiction to
intervene is
not
so stark aconclusion as it may seem at first to be, for, as
the learned Lord Justice added, such alater approach to
the
judge
'would be likely to prosper'.
Ambit of Legal Professional Privilege
R v
Manchester
ee,
exp
Rogers
[1999] 1 WLR 832
The police believed
that
the
applicant for judicial review in this case was
in his flat at the time at which an assault was made on a
man
whose
injured body was later found in the corridor outside
the
flat
and
who
died some time later of his injuries. The police also believed
that
the
applicant was the
man
who
was picked up by a taxi at about
that
time
outside
the
building
and
taken to a firm of solicitors.
It
became import-
ant
for their investigation that they should learn
whether
he
had had
an appointment with the solicitors
and
at
what
time,
and
whether
he
had
kept
that
appointment,
and
at
what
time he had arrived. A police
constable therefore
put
before a judge astatement in which he deposed
to
the
matters set
out
in para 2 of Sched 1 to the Police
and
Criminal
Evidence Act 1984
(PACE),
there described as the first set of access
conditions. The police sought the production of any record or log
recording
the
time of arrival at
the
solicitor's premises of
the
applicant.
The order as originally drafted related to a record or log which might
show
the
time of his arrival, while the order as 'clarified' by
the
judge on
asecond occasion on which he considered it was said by the applicant to
be 'different'
and
'wider' in that it related to the question
whether
he
had had
an appointment and
whether
he had kept it. The judge held
that the proposed order was
not
in breach of legal professional privilege,
since
that
privilege applies to 'communications' between solicitor
and
410
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