Legal Professional Privilege
| Date | 01 April 1971 |
| Published date | 01 April 1971 |
| DOI | 10.1177/002201837103500208 |
| Subject Matter | Article |
Legal professional privilege
THE Chancery Division
of
the
High
Court
of Justice is
not
perhaps the place to which one would first
turn
for a definitive
pronouncement
upon
the
proper
way to conduct acriminal prosecu-
tion.
In
Butler v. Board of Trade (1970, 3
All
E.R.
593), however,
Goff,
J.,
was called
upon
to determine whether the prosecution in a
criminal trial could produce in evidence aletter which
had
come
into
their hands almost fortuitously.
The
accused (who was
the
plaintiffin
the
present action) acted as a director of two companies
both
of
which were ordered to be compulsorily
wound
up.
He
was
then
prosecuted by
the
Board of
Trade
with having been knowingly
a
party
to the carrying on
of
the business
of
each of those companies
that
went
into
liquidation
with
intent
to defraud
the
creditors
of
those companies,
contrary
to s.332(3)
of
the
Companies Act, 1948.
A
woman
solicitor acted as solicitor for
both
the accused
and
the
companies.
During
her
absence, another
woman
solicitor acting as
her
locum tenens wrote to
the
accused aletter relating to his conduct
as director of those companies.
When
the
liquidation was ordered,
an
official of the
Department
of the Official Receiver in Companies
Liquidation called on
the
solicitor
and
collected the papers
of
the
companies. Among those papers was a copy of the letter in question.
The
Department
of
the
Official Receiver is a
department
of
the
Board of
Trade
which is charged
with
the
duty
of prosecuting such
offences as those alleged against the accused in
the
present case.
After
the
committal proceedings
had
been adjourned,
the
accused
brought
an
action by way of a special case in the Chancery Division
by
order
of
the
Court
under
R.S.C.
Ord.
33 r. 3, to determine
whether he
had
an
equity to claim adeclaration
that
the Board
of
Trade
were
not
entitled to produce
the
copy of
the
letter in their
possession
or
to call the solicitor as a witness in respect
of
it. This
procedure was necessary, as the accused could
not
claim
an
injunc-
tion, since no injunction
can
be obtained against the Crown,
and
the Board of
Trade
is the Crown for present purposes.
It
was in this
way
that
achancery
judge
came
to determine
the
admissibility
of
evidence in a criminal trial.
For
the purpose of the present proceedings, it was assumed
that
the solicitor's letter was unsolicited by the accused
and
that
it
was
133
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