Legal Privilege in Criminal Cases Generally, and Money‐Laundering Cases in Particular
| Date | 01 March 2000 |
| DOI | https://doi.org/10.1108/eb027259 |
| Published date | 01 March 2000 |
| Pages | 26-36 |
| Author | Jonathan Fisher |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control — Vol. 4 No. 1
Legal Privilege in Criminal Cases Generally,
and Money-Laundering Cases in Particular
Jonathan Fisher
INTRODUCTION
Significant problems arise where an investigating
authority searches premises for relevant material
and the holder of the material asserts a claim of
legal privilege over some, if not all, of the documents
concerned. Invariably the holder's claim is rejected by
the investigating authority, either on the ground that
legal privilege does not attach to the category of
material in question, or if it does attach, the privilege
falls away because the material was brought into
existence to further a fraudulent purpose. How are
disputes between the investigating authority and
the holder of the material to be resolved? How is
the true status of the material to be determined?
Difficulties of this kind are often experienced in
investigations into serious tax fraud,1 although the
problem is not necessarily so confined. Investigating
authorities such as the Inland Revenue, Customs
and Excise, the Serious Fraud Office, the Department
of Trade and Industry, and the Crown Prosecution
Service encounter similar problems when seeking to
obtain information in exercise of search and seizure
powers, or powers to produce information following
service of notice under statutory powers.
Typically problems occur when an investigating
authority obtains material from a solicitor's office,
where cither the solicitor or his client is suspected
of complicity in serious fraud. In these circumstances
the searching officers will inevitably come across
documents subject to legal privilege. Sometimes
copies of documents subject to legal privilege are
found at the homes or business premises of those
identified as suspects in an investigation. Occasionally
legally privileged documents may be retained in an
accountant's files, or a banker's files, or at the offices
of a financial intermediary who provides offshore
corporate or trust services.
The crux of the problem is born out of a tension
between two competing principles of public interest.
On the one hand it is axiomatic that a person must be
able to obtain legal advice and assistance in total
confidence that his privacy will be respected.
Indeed, a person's right to privacy is specifically
protected by Article 8 of the European Convention
on Human Rights, to be incorporated into domestic
law under the Human Rights Act 1998 coming into
force on 2nd October, 2000. On the other hand there
is an equally plain public interest justifying access by
an investigating authority to material relevant to an
investigation into serious fraud. How is the tension
between these competing principles of public interest
resolved?
Juristically, the criminal law endeavours to resolve
this tension in two different ways. First, the criminal
courts are careful to circumscribe the application of
legal privilege in definitional terms to a com-
paratively small category of documents in which
legal advice or assistance is given. Secondly, the crim-
inal courts robustly set aside legal privilege where
used by a client (or his solicitor) as a cloak for fraudu-
lent activity. It is a truism that legal privilege is
capable of being manipulated by a dishonest client
so as to keep investigating authorities in a state of
ignorance about the nature and extent of his
fraudulent activities.
However, until recent times the criminal law
omitted to establish a practical mechanism to resolve
these competing principles that is accepted by the
parties concerned as conclusive. The scope for dispute
is enormous. A dispute may arise as to whether a
document falls within the category of documents
protected by legal privilege. In some cases no more
than a small section of a document may contain
legal advice and assistance. In other cases the body
of a document may be protected by legal privilege
but not the appendices attached. There may be
problems at a secondary level. The investigating
authority may have reasonable grounds to believe
that a document has been created in the course of a
criminal endeavour, but the client and/or the
holder of the document may vigorously dispute this
assertion.
At the end last year, in a trilogy of cases — R v
Customs and Excise Commissioners ex parte Popely2
(judgment 4th October, 1999); R v Inland Revenue
Commissioners ex parte Tamosius3 (judgfnent 5th
November, 1999); and R v Chesterfield Justices ex
parte Bramley4 (judgment 5th November, 1999) —
Journal of Money Laundering Control
Vol.
4, No. 1, 2000, pp. 26-36
© Henry Stewart Publications
ISSN 1368-5201
Page 26
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