The Crime/Fraud Exception to Legal Professional Privilege
| Author | A.L.E. Newbold |
| Published date | 01 July 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02829.x |
| Date | 01 July 1990 |
The Crime/Fraud Exception to Legal Professional Privilege
A.L.E.
Newbold*
Legal professional privilege’ used to lie at the heart of the administration of justice in
this country. It protected bona fide communications between lawyer and client from
disclosure under all circumstances. Thus, it promoted the seeking of legal advice which
was thought to be vital if people were to comply with the law, pursue their civil rights
through the courts or attain effective representation in criminal proceedings.2 The need
to protect such communications had been recognised
as
being of the utmost importance
since the sixteenth century3 and had existed in its ‘modem’ form since the decision in
Greenough
v
GuskeZZ
in
1833.4
Moreover, the courts that developed and upheld legal
professional privilege always recognised that the achievement of such a protection could
not be obtained without cost. That cost was that some relevant evidence would not be
available to the executive authorities or in legal proceedings. Recognising and acknowledging
that cost, countless judgments propounded the view that the administration of justice was
better served by protecting bona fide communications between lawyer and client than by
*This article forms part of the author’s PhD thesis on Legal Professional Privilege.
1
There are
two
separate aspects of legal professional privilege, litigation privilege and lawyer-client privilege.
This article is concerned only with the lawyer-client aspect because the
Francis
&
Francis
case dealt
only with this aspect of privilege. Therefore, any definitions given of the requirements necessary for
privilege relate to lawyer-client privilege alone. Similarly, quotations from the Police and Criminal Evidence
Act 1984 omit those parts which relate to litigation privilege.
In
Greenough
v
Guskell
(1833) 1 My
&
K
98, 103,39 ER 618,620, Lord Brougham stated: ‘If, touching
matters that come within the ordinary scope of professional employment they [legal advisers] receive
a communication in their professional capacity, either from a client or on his account,
.
.
.
or,
which
amounts to the same thing, if they commit to paper in the course of their employment on his behalf,
matters which they know only through their professional relation to the client, they are not only justified
in withholding such matters, but bound to withhold them, and will not be compelled to disclose the
information or produce the papers in any court of law or equity, either as party or witness.
.
.
. The
foundation of this rule is not difficult to discover . .
.
It is out of regard to the interests of justice, which
cannot be upholden, and the administration of justice which cannot go on without the aid of men skilled
in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which
form the subject of all judicial proceedings.’
In
Anderson
v
Bunk
of
Brirish Columbia
[1876] 2 ChD
644,
649, Sir George Jessel MR stated:
‘as
by reason of the complexity and difficulty of our law, litigation can only be properly conducted by
professional men, it is absolutely necessary that a man . . . should have recourse to the assistance of
professional lawyers, and . .
.
it is equally necessary .
.
. that he should be able to make a clean breast
of it to the gentleman whom he consults.’
In
Wheeler
v
Le
Marchunt
(1881) 17 ChD 675, Sir George Jessel MR stated: ‘the obtaining of legal
advice and assistance, and
all
things reasonably necessary in the shape of communications to the lawyer,
are protected from production
or
discovery in order that legal advice may
be
obtained safely and sufficiently.’
In
Annesley
v
Earl ofAngleseu
17 How St Tr 1129, 1241 (Ex 1743) Mounteney
B.
stated: ‘an increase
of legal business, and the inabilities of parties to transact that business themselves, made it necessary
for them to employ other persons who might transact that business for them; that this necessity introduced
with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed
by attornies, in order to render it safe for clients to communicate to their attornies all proper instructions
for the carrying on those causes which they found themselves under a necessity of intrusting to their care.’
In
AM
&
S
Europe Lrd
v
EC Commission
[
19821 2 CMLR 264,320, the two Advocates General stated:
‘a right of confidential communication between lawyer and client is recognised as a fundamental
constitutional or human right, accessory or complementary to other such rights which are expressly
recognised, and that
as
such that right should be recognised and applied as part of Community law.’
Berd.
v
Lovelace,
Cary 88,21 ER 33 (Ch 1577);
Dennis
v
Codringron,
Cary 143,21 ER 53 (Ch 1580).
2
3
4
See
note 2.
472
The Modem Law Review
53:4 July 1990 0026-7961
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