Legal professional privilege in corporate criminal investigations
| DOI | 10.1177/0022018318779834 |
| Published date | 01 August 2018 |
| Author | Michael Stockdale,Rebecca Mitchell |
| Date | 01 August 2018 |
| Subject Matter | Articles |
The Journal of Criminal Law
2018, Vol. 82(4) 321–337
Legal professional privilege
ª The Author(s) 2018
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in corporate criminal
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DOI: 10.1177/0022018318779834
investigations: Challenges and
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solutions in the modern age
Rebecca Mitchell
Northumbria University, UK
Michael Stockdale
Northumbria University, UK
Abstract
This article considers two areas that arise in the context of corporate criminal investigations
relating to claims of legal professional privilege: the extent to which litigation privilege may attach
to communications made in the context of such investigations and the difficulty of identifying the
client for the purposes of legal advice privilege. These issues are of particular significance where a
company is or may be the subject of an investigation by specialist prosecuting authorities, such as
the Serious Fraud Office. We identify the policy considerations justifying litigation privilege and
whether they continue to explain the current ambit of the privilege. With particular reference to
the extent to which the privilege is capable of attaching to communications made for the purpose
of working towards a potential settlement, we consider how the constraints upon its ambit
operate in the context of corporate criminal investigations. In relation to legal advice privilege,
we demonstrate that it is possible to give a coherent explanation of the jurisprudence in this area
which, while accepting that decisions are fact-specific, should enable corporations and the courts
to identify the client within the corporation with a greater degree of confidence.
Keywords
Legal professional privilege, legal advice privilege, litigation privilege, corporate criminal
investigations
Corresponding authors:
Rebecca Mitchell, Northumbria Law School, Northumbria University, Newcastle upon Tyne UK.
Michael Stockdale, Northumbria Centre for Evidence and Criminal Justice Studies, Northumbria Law School, Northumbria
University, Newcastle upon Tyne UK.
Emails: rebecca.mitchell@northumbria.ac.uk; m.w.stockdale@northumbria.ac.uk
322
The Journal of Criminal Law 82(4)
Introduction
Companies are becoming potentially criminally liable for an increasing number of offences.
Examples include failure to prevent bribery1 and more recently failure to prevent the facilitation of tax
evasion.2 Concerns about potential criminal liability can lead to internal investigations by a company,
whether in response to an investigation by bodies such as the Serious Fraud Office (SFO) or due to
concerns that the company has been doing something it should not in this context, which might, for
example, result in a decision to self-report in order to potentially avoid prosecution.3 Similarly, internal
corporate investigations may take place in the context of preparing for and presenting evidence to an
external inquiry. Internal investigations, interactions with investigating bodies and legal advice taken in
relation thereto may all produce communications which may be the subject of claims of legal profes-
sional privilege, both litigation privilege and legal advice privilege.
The ambit of litigation privilege is subject to three significant constraints, namely, that litigation must
be in reasonable contemplation, that it must be at least the dominant purpose of the communication and
that the litigation must be adversarial. When determining whether litigation privilege attaches to com-
munications made in the context of a corporate criminal investigation, the crucial issue is whether the
21st-century courts will apply these constraints narrowly so as to limit the ambit of a privilege which had
its origins in the adversarial litigation of an earlier age. The criminal process is now less adversarial/more
case managed. Further, companies and the courts are now grappling with very different regulatory and
investigatory regimes which lead to increasingly blurred lines around when litigation will be in con-
templation. Where litigation privilege is not available, for example, because litigation was not in
reasonable contemplation at the time when an internal investigation took place, then the availability
of legal advice privilege is crucial to protect communications with lawyers from disclosure. In the
corporate context, legal advice privilege may be unavailable if communications with the company’s
legal advisers are not made by a person or body within the company designated as the client. In addition,
the type of communications taking place between the client and the lawyer impacts on the availability of
legal advice privilege.
This article begins by exploring the ambit of litigation privilege in corporate criminal investigations.
It identifies the policy considerations that traditionally underlie the existence of the privilege. It con-
siders the extent to which the ambit of the privilege has been the subject of a more recent ‘policy of
confinement’ by the judiciary. It also considers how the constraints upon the ambit of the privilege
impact on its operation in the context of corporate criminal investigations. In assessing the potential
scope of the privilege, it takes into account the fact that the role of lawyers in such scenarios goes beyond
preparation for litigation and encompasses communications for purposes such as avoiding contemplated
criminal litigation, perhaps by entering into a civil settlement or considering the merits of entering into a
Deferred Prosecution Agreement (DPA).
The identification of the client for the purposes of claiming legal advice privilege in the corporate
context is then discussed. The major issue is that while the authorities require the court to identify a
client within the corporation, they provide limited guidance on how to do so. Based on consideration of
attribution theory and the nature of delegated authority as it operates in the corporate context, and with
reference to the membership of, and actions performed by, the client group within the corporation, we
demonstrate that it is possible to give a coherent explanation of the jurisprudence in this area which,
while accepting that decisions are fact-specific, should enable corporations and the courts to identify the
client within the corporation with a greater degree of confidence.
1. Section 7 of the Bribery Act 2010, see, for example, ‘CPS secures first conviction for failure to prevent bribery’ Law Society
Gazette, 9 March 2018.
2. Sections 45, 46 of the Criminal Finances Act 2017.
3. For example, under the SFO guidance on Corporate self-reporting. Available at: https://www.sfo.gov.uk/publications/gui-
dance-policy-and-protocols/corporate-self-reporting/ (accessed 18 April 2018).
Mitchell and Stockdale
323
The final section of the article provides advice for corporations on maximising the protection pro-
vided by litigation and legal advice privilege in the corporate context.
Litigation Privilege and Corporate Criminal Investigations
In considering how the courts should approach a claim of litigation privilege arising from a corporate
criminal investigation, it is important to identify the policy considerations underlying the existence of the
privilege and to consider whether they are applicable in the context of the 21st-century English and
Welsh criminal process.
Unlike legal advice privilege,4 protecting the confidentiality of communications between the
legal adviser and the client does not form the sole policy justification underlying the existence
of litigation privilege.5 Rather, litigation privilege (which, arguably, can arise where proceedings
are conducted by a litigant in person, with no legal adviser involved6) is fundamentally a creature
of the adversarial trial process rather than one of the lawyer and client relationships. As Lord
Rodger of Earlsferry explained, it
is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties
assembles his own body of evidence and uses it to try to defeat the other, with the judge or jury determining
the winner. In such a system each party should be free to prepare his case as fully as possible without the risk
that his opponent will be able to recover the material generated by his preparations.7
Reference to the leading authorities that catalysed the development of what is now known as
litigation privilege in the context of 19th-century adversarial litigation confirms that it has long
formed part of the concept of an adversarial trial.8 They make clear that a party, ‘is not bound to
communicate evidence . . . obtained for the purpose of litigation’9 and that just as a party has ‘no right
to see [an] adversary’s brief’ a party also has ‘no right to see that which comes into existence merely as
the materials for the brief’.10
A Trend of Confinement?
In The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd, Andrews J
identified a trend of confining the scope of litigation privilege.11 The essence of such confinement is the
existence of three constraints that the courts have imposed upon its operation, namely, that (a) litigation
must be in progress or in contemplation; (b) the communications must have been made for the sole or
dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or
inquisitorial.12
4. In relation to the underlying policy rationale of which see Regina (Prudential plc and another) v Special Commissioner of
Income Tax [2013] UKSC 1 at 21.
5. See Charles J in S....
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