The Attorney General v The Jamaican Bar Association
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs,Lord Hamblen |
| Judgment Date | 09 February 2023 |
| Neutral Citation | [2023] UKPC 6 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0084 and 0053 of 2021 |
[2023] UKPC 6
Lord Briggs
Lord Kitchin
Lord Hamblen
Lord Burrows
Lord Richards
Privy Council Appeal No 0084 and 0053 of 2021
Privy Council
Lisa White Faith Hall (Instructed by Charles Russell Speechlys LLP (London))
Allan S Wood KC Symone Mayhew KC Caroline Hay KC Sundiata J Gibbs (Instructed by AxiomDWFM)
Richard Mahfood KC M Georgia Gibson Henlin KC Emile G R Leiba Weiden Daley (Instructed by Signature Litigation LLP (London))
Lord Briggs and
This hard-fought litigation raises the question whether certain aspects of the statutory regime in Jamaica for combatting money laundering, in its application to Attorneys-at-Law (“the Regime”), violate without demonstrable justification certain rights guaranteed by the Jamaican Constitution, so that they should be declared void. A three-judge panel of the Supreme Court of Judicature of Jamaica (“the Full Court”) concluded that they did not, but the Court of Appeal decided that they did. Both courts were unanimous in their fundamentally opposed conclusions, supported in each case by lengthy and scholarly reasons in reserved judgments of more than 150 and 250 pages respectively. There were nonetheless no disputes of primary fact, although in their written evidence the parties differed in the emphasis which they placed upon aspects of the background.
The Parties
The claimant in this litigation, and the respondent to these appeals, is the Jamaican Bar Association (“the JBA”). It is a guarantee company with its membership drawn from Jamaican Attorneys-at-Law (“attorneys”). Its objects are to promote the interests of attorneys, the administration of justice and the civil liberties of the people of Jamaica. Its pursuit of this claim is in no sense motivated by narrow professional self-interest. Rather it is submitted that the Regime, in its application to attorneys, is destructive of the essential confidentiality of the lawyer-client relationship and puts at unacceptable risk the continued integrity of legal professional privilege (“LPP”), upon which the ability of Jamaican citizens to obtain reliable legal advice and representation heavily depends.
The first defendant, and first appellant in these appeals, is the Attorney General of Jamaica (“the AG”) who seeks to uphold (and now reinstate from having been quashed by the Court of Appeal) those parts of the Regime challenged by the JBA. The second defendant, and second appellant, is the General Legal Council of Jamaica (“the GLC”), which is a statutory body created by section 3 of the Legal Profession Act (“the LPA”) as the professional regulator of attorneys, charged with upholding standards of professional conduct and vested with wide disciplinary and intervention powers. Fourteen of its seventeen members are legal practitioners, nominated by the JBA. The Regime gives the GLC an extended regulatory role in relation to attorneys for antimoney laundering purposes, and it makes common cause with the AG in seeking to uphold the validity of those parts of the Regime thus far successfully challenged by the JBA.
The vehicle by which Jamaica has given constitutional force to widely recognised human rights is the Charter of Fundamental Rights and Freedoms (“the Charter”) which was introduced by amendment made in 2011 as Chapter III of the Constitution. So far as is relevant for present purposes, the Charter provides as follows:
“13
…
(2) Subject to sections 18 and 49, and to subsections (9) and (12) of this section, and save only as may be demonstrably justified in a free and democratic society-
(a) this Chapter guarantees the rights and freedoms set out in subsections (3) and (6) of this section and in sections 14, 15,16 and 17; and
(b) Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.
(3) The rights and freedoms referred to in subsection (2) are as follows-
(a) the right to life, liberty and security of the person and the right not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offence of which the person has been convicted;
…
(j) the right of everyone to-
(i) protection from search of the person and property;
(ii) respect for and protection of private and family life, and privacy of the home; and
(iii) protection of privacy of other property and of communication;
…
(p) the right to freedom of the person as provided in section 14;
…
(4) This Chapter applies to all law and binds the legislature, the executive and all public authorities.
…
14.
(1) No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances-
…
(b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted;
…
(f) the arrest or detention of a person
(i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or
(ii) where it is reasonably necessary to prevent his committing an offence;
…”
For present purposes the guaranteed rights in issue are privacy, liberty and the freedom from search of property. Privacy is guaranteed by the combination of section 13(3) (j)(ii) and (iii). Liberty is guaranteed by the combination of section13(3)(a) and (p) and section 14(1). Freedom from search of property is guaranteed by section13(3)(j)(i). For the determination of the issues in these proceedings the most important of these guaranteed rights is privacy.
Long before the enactment of the Charter, and indeed before the making of the European Convention on Human Rights on which the Charter is loosely based, the common law of both England and Jamaica conferred important rights of confidentiality upon the clients of attorneys (solicitors in England). They may usefully be grouped under two headings, namely confidentiality and privilege.
First, equity recognised that the nature of the attorney-client relationship imposed an obligation on the attorney to keep confidential all dealings with and information about the client, derived from the discharge by the attorney of the retainer by the client. Secondly, the client was accorded privilege from the enforced disclosure of information and documents arising from two types of professional service provided by the attorney, namely the giving of legal advice and the conduct of litigation. Separately the privileges are usually called legal advice privilege and litigation privilege. Collectively they are generally labelled legal professional privilege (“LPP”).
There are important similarities and differences between confidentiality and privilege arising from the attorney client relationship.
Significant similarities include, first, that both confer rights exclusively upon the client, and duties exclusively upon the attorney. Thus the client may waive either of them at any time and to any extent. But the attorney must uphold them at all times, even after the end of the relationship, unless authorised to do otherwise by the client. Secondly (and this is common ground) whereas both could be cut down or attenuated by Parliament, both are now constitutionally guaranteed in Jamaica, so that they can only be invaded, if at all, if the derogation is demonstrably justified in a free and democratic society: see section 13(2) of the Constitution. Thirdly there is no confidence, or privilege, in iniquity. This means that neither may be used to prevent or restrict the disclosure of information or documents which are generated in the commission of crime or fraud. There are differences between the way in which this principle affects confidence and LPP, but they do not call for examination here.
There the main similarities end, and the differences between attorney client confidentiality and LPP are of greater importance for present purposes. First, confidentiality extends to protect a far broader range of information and documents than does LPP, all the more so now that attorneys increasingly offer professional services in areas which may involve neither the giving of legal advice nor the conduct of litigation. By contrast the extent of LPP is relatively strictly confined, not least because LPP is, but confidentiality is not, a ground for the client refusing to give inspection of relevant documents or the provision of relevant information in answer to interrogatories in civil litigation or under cross-examination in litigation generally, thereby at least impeding to some extent the ability of the court to determine the truth about matters in dispute.
Although legal advice privilege is not limited to documents which expressly seek, or give, legal advice, there must be a ‘relevant legal context’ in which the communication occurs if it is to be privileged: see Balabel v Air India [1988] Ch 317. That limitation serves the purpose of LPP, which is to enable the client to obtain reliable legal advice in confidence, and it serves to separate and exclude from privilege communications of a purely business nature between attorney and client, such as where the client is using the attorney as a mere business agent, for example for the collection of rents: see Balabel at pp 331G to 332B.
Secondly, and this is a corollary of the first, attorney client confidence is, on its own and apart from privilege, only a heavily qualified form of protection, whereas LPP is, or is almost, absolute. As already noted,...
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