R v King
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN |
| Judgment Date | 11 January 1983 |
| Judgment citation (vLex) | [1983] EWCA Crim J0111-5 |
| Docket Number | No. 3226/C/82 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 January 1983 |
[1983] EWCA Crim J0111-5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Dunn
Mr. Justice Lawson
and
Mr. Justice Hirst
No. 3226/C/82
MR. R. SMITH appeared on behalf of the Appellant.
MR. B. WALSH Q.C. and MR. P. HOFFMAN appeared on behalf of the Crown.
The judgment I am about to read is the judgment of the court, although Lawson J. is unable to be present this morning.
The question of law which falls for decision in this appeal is whether legal professional privilege attaches to a document in the possession of a handwriting expert, which emanated from the appellant and was sent by him to his solicitors for examination by the expert, so as to render the document inadmissible in evidence when the expert was called on subpoena by the Grown as a witness at the trial of the appellant.
The question arises in this way. The appellant was charged with a man named Bush on an indictment which included a count of conspiracy to defraud the suppliers of Bush's insolvent jewellery company, Ford Bush Diamonds Ltd. of 11 York 'lace, Leeds, between May and August 1930, by false representations that the company was solvent, that the business was being conducted honestly, that King was named Stevens (who did not exist) and that the company intended to pay for goods supplied or to return goods sent on approbation.
In the course of preparation for the trial, the Crown had reason to believe that certain documents were being manufactured by the appellant for the purpose of his defence. The appellant's solicitors requested the Crown to send a number of company documents in the possession of the Crown to a Mr. Radley, the handwriting expert. It therefore occurred to some bright person in the prosecution team that it would be interesting to discover what other documents had been sent to Mr. Radley as control documents to compare with the documents produced by the Crown. Accordingly subpoenas ad test and duces tecum were served on Mr. Radley.
At the trial objection was taken, in the absence of the jury, to Mr. Radley being called to produce any documents in his possession emanating from the defence, on the ground that such documents constituted a communication for the purpose of enabling the appellant's solicitors to advise or act in the proceedings, and were consequently privileged. After hearing submissions on both sides the judge ruled that such documents were not privileged. The Crown did not seek to adduce evidence from Mr. Radley as to the instructions given by the solicitors to him. They simply wished to ascertain what documents he had received from the solicitors and his findings upon examination of those documents.
In fact the Crown struck gold. Mr. Radley produced a document, which became Exhibit 257, purporting to be an invoice dated 26th February 1981, printed with the address "F. & M. Jewellery, Queen's Arcade, Leeds." for the sum of £5,000 for diamond jewellery. The signature purported to be that of A. Josephs. Mr. Radley said the signature had been taken by a tracing from another Exhibit 138, which could only have come into the appellant's hands after the committal proceeedings. If the signature had been genuine, it would have supported a possible defence that Josephs, who shared an office at 11 York Place, was party to the conspiracy and was calling himself Stevens, Moreover, F. & M. Jewellery was the name of a business set up by Bush at the end of June 1980. The evidence of Flockton, an employee of Bush who was called by the Crown, was that at the time of the move to Queen's Arcade Bush was on holiday in Corfu, and the appellant had assisted in the move and visited Queen's Arcade to receive messages from an answering machine and to deliver advertising material.
Although the appellant did not give evidence, his case was that he took no part in running the business and had no access to the books of F. & M. Jewellery. The Crown said Exhibit 257 gave the lie to that and further, that the appellant must have been responsible for the forgery of Josephs' signature in order to throw blame on Joseph? and exculpate himself. This, said the Crown, was the hallmark of a guilty man.
At the conclusion of the trial, the jury convicted the appel-lant, who now appeals against conviction. The first ground of appeal being that the judge was wrong in law in ruling that no legal privilege attached to Exhibit 257, and that to permit the Crown to call Mr. Radley to produce the document was a material irregularity.
Mr. Smith, on behalf of the appellant, submitted in this court that any communication passing between a solicitor and a third party for the purpose of taking advice was privileged. He relied on a passage in Cross on Evidence, fifth edition, at page 286, in the following terms: "The rationale of the head of legal professional privilege under consideration was succinctly stated by the Law Reform Committee to be to facilitate the obtaining and preparation of evidence by a party to an action in support of his case'. The privilege is essential to the adversary system of procedure which would be unworkable if parties were obliged to disclose communications with prospective witnesses." While accepting that there is no property in a witness, Mr. Smith submitted that at common law an expert who had been consulted by solicitors for one party should not be called as a witness by the other party to give evidence as to any communication sent to him by the solicitors. Mr. Smith submitted that Exhibit 257 formed part of the communication from the defendant's solicitors to the expert.
Alternatively, Mr. Smith submitted that if that was not the general rule, there is a difference between civil actions and criminal trials, and that in criminal trials privilege extends not only to communications requesting advice, but also to the article which the client submits as the subject matter upon which the advice is to be given. He relied in support of that proposition on a dictum of Swanwick J. in F. Truman (Export) Ltd. v. Metropolitan Police Commissioner 1977 1 QB 952, at pp. 961 and 963.
Dealing first with the general position, the rule is that in the case of expert witnesses legal professional privilege attaches to confidential communications between the solicitor and the expert, but it does not attach to the chattels or documents upon which the expert based his opinion, nor to the independent opinion of the expert himself. (See Harmony Shipping Co. v. Davis & Others 1979 3 All E.R. 177 per Lord Denning M.R. at p. 181). The reasons for that are that there is no property in an expert witness any more than in any other witness and the court is entitled, in order to ascertain the truth, to have the actual facts which the expert has observed adduced before it in considering his opinion.
In general then no privilege will attach to Exhibit 257. It was one of the documents examined by Mr. Radley, upon which he based his opinion, and the court was entitled to have it adduced in evidence. Is there any difference because the document was examined in criminal proceedings rather than in civil proceedings? On principle we can see no reason why that should be so. It would be strange if a forger could hide...
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