ON APPEAL FROM IPSWICH CROWN COURT
His Honour Judge Holt
T20040326
Royal Courts of Justice
Strand, London, WC2A 2LL
14/07/2006
Before :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE LEVESON
and
THE HONOURABLE MR JUSTICE BEATSON
Between :
THE CROWN | |
- and - | |
LISA JOY LOIZOU |
(Transcript of the Handed Down Judgment of
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M. Levett (instructed by the Registrar) for the Appellant
C. Fender (instructed by CPS) for the Respondent
Judgment
LORD JUSTICE HOOPER :
Mr Justice Beatson made a substantial contribution to that part of this judgment which is concerned with legal professional privilege.
On 6th July 2005 in the Crown Court at Ipswich (H.H.J. Holt ) the appellant was convicted of transferring criminal property, £87,010 in cash, contrary to section 327(1) (d) of the Proceeds of Crime Act 2002.
She was jointly charged in a single count withJohn McCarthy, James Quilligan and Anastasios Gourzoulidis. McCarthy and Quilliganpleaded guilty on the first day of trial. Gourzoulidis, who was tried with the appellant, was also convicted. Petros Arampatzis was arrested, but failed to answer police bail on 16th August 2004 and is believed to have returned to Greece.
On 20th June 2004 in the car park of the Holiday Inn, Brook Street, Brentwood in Essex, cash totalling approximately £87,000 was transferred from a Vauxhall Vectra registration KGG03 UTC to a VW Polo registration LJ02 RFY. The transfer was made by at about 15.20 when a male passenger walked from the Polo to the Vectra and returned to the Polo carrying a pouch. The money was discovered in the Polo at 15.40 when it was stopped by police as it tried to leave the car park. Gourzoulidis was the driver of the Polo. Arampatzis was the front seat passenger.
The appellant was arrested at 15.35 in the rear seat of a Vauxhall Omega Y659 DWP which had arrived at the car park shortly after the transfer. Quilligan and McCarthy were arrested at about 16.10 on London Road Brentwood, having just entered a taxi. A mobile phone was found in the taxi.
The Omega had been under surveillance from shortly before 10am that morning when it left North London. The occupants were the applicant, Arampaztis, and 2 others. At 10.53 the vehicle entered the car park of a Little Chef near junction 29 of the M25 where the occupants met with Quilligan and McCarthy who were travelling in a VW Passat registration BG OYF.
At just after mid-day both vehicles left that car park and travelled to McDonalds at Laindon. At 12.29 customs officers entered McDonalds and observed the applicant, Arampaztis, Quilligan, McCarthy and others. They overheard a conversation between McCarthy and the applicant to the effect that time was pressing with regard to a meeting which should have taken place at 11.30.
The Omega and Passat left the McDonalds car park shortly after 13.30. The Omega obtained fuel from a Jet petrol station at 13.43 whilst the Passat waited nearby. The Omega then went to a point near the junction of the A127/M25 where it met with the Polo driven by Gourzoulidis at 14.02. The Omega and Polo moved in tandem towards the M25, moving onto the A12 towards Chelmsford. At 14.20 both vehicles stopped by a Total petrol station at the junction of the A1023 and M25 where they waited until 15.20.
At 14.20 the Passat drove into a Holiday Inn car park approximately 500 metres (1/2 mile) away. It then moved to the car park of a public house across the road. The Vectra arrived in the Holiday Inn car park at about 15.19. Shortly after the Polo arrived; there were 2 men in the rear, one of whom was McCarthy. The transfer was made. The applicant remained in the Omega at the Total garage during the transfer and Arampatzis remained in the Little Chef next to the garage. After the transfer, the Omega driven by a man called Kumas moved into the Holiday Inn car park and parked by the Polo. Arampaztis and the applicant were observed standing close to each other, then Arampaztis got into the Polo. The arrests followed.
It was the prosecution’s casethat the £87,000 in cash was “criminal property” which the defendants knew or suspected constituted a person’s benefit from criminal conduct. The prosecution did not identify the nature of the alleged criminal conduct. The prosecution alleged that the cash wasbeing transferred in connection with the purchase of cigarettes from Belgium.
The full court gave leave to appeal on four grounds, one of which Mr Levett has sensibly abandoned. The first ground relates to the direction given as to the meaning of "criminal property". It is clear law that the money must be criminal property at the time it is transferred. It is not sufficient that it becomes criminal property as a result of the transaction involving the transfer (see Loizou[2004] EWCA Crim 1579).
In his summing up to the jury the learned judge said:
“Firstly, there must be criminal property and that means property obtained as a result of criminal conduct and I made a simple example is the proceeds of a bank robbery, another example would be proceeds of a fraud. You do not have to be sure what the criminal conduct was, you just have to be sure that there was some criminal conduct which led to the creation of the particular criminal property. And you may infer that it was criminal property from the evidence before you, if you think it is right to make an inference. That is the first ingredient. The second ingredient is that there must be a transfer; that simply means that the criminal property must pass from one person to another. Thirdly, the particular defendant whose case you are considering must know about the transfer and intend to play a part in it. If you don’t know what is going on you can’t really be guilty of anything, so they have got to know what is going on; and, secondly, that person must know or suspect that it was a transfer of criminal property. Those are the three ingredients which the prosecution have to prove.” (Underlining added)
Mr Levett particularly focuses on the words which we have underlined. He submits that the judge should have said “which had previously led to the creation of the particular criminal property”, in order to make it clear that the property had to be criminal property at the time it was transferred. Whilst accepting that it might have been better if these words had been added in, we have no doubt that the jury were being told that the money had to be criminal property at the time it was transferred. That is made clear at the beginning of this passage. There is no suggestion that the property could become criminal on transfer. We see no merit in this ground.
The second ground, as developed during the course of argument, relates to the manner in which the trial judge directed the jury on the relevance of the pleas of guilty by Quilligan and McCarthy. The prosecution sought and obtained the leave of the judge to admit the two convictions under section 74 of the Police and Criminal Evidence Act 1984. The prosecution sought to rely on the convictions to prove that the money was criminal property before it was transferred.
The particulars of the offence to which the two co-defendants pleaded guilty were:
“Liza Loizou, John Mccarthy, James Quilligan and Anastasios Gourzoildis, together with Petros Arampatzis, on the 20th day of June 2004, transferred £87,010 in cash, which was criminal property, knowing or suspecting that the said cash constituted a person's benefit from criminal conduct.”
There was a basis of plea which Mr Levett brought to the attention of the judge when he made his now unchallenged ruling that the pleas of guilty were admissible. As to that basis of plea the judge said in his ruling:
“Now it is quite clear that … the basis of plea does not expressly refer to the money as being criminal property, but it is quite clear that by the pleas of guilty each defendant was admitting that it was criminal property. In my judgment it would be absurd to reach any other conclusion.”
Mr Levett submits that the judge, when directing the jury as to the effect of the pleas of guilty ought to have done so against the background of the basis of plea. Mr Levett had not sought to place before the jury the basis of plea in a redacted or unredacted form (redacted in order to remove those parts of the basis of plea which were very unhelpful to the appellant). Section 74 (3) provides that if a person is proved to have been convicted of an offence, “he shall be taken to have committed the offence unless the contrary is proved.” Mr Levett did not seek to prove the contrary. In any event, it seems to us that the judge's conclusion from his ruling which we have read out applies equally when one considers his direction to the jury. There was, in our view, no need to refer to the basis of plea; indeed, it would have been wrong to do so.
We turn to the ground of appeal which has given us more difficulty. Mr Levett submits that the judge was wrong when he ruled that the appellant had waived her legal professional privilege by answering questions put to her by Mr Levett. He also submits that the judge misdirected the jury when explaining to the jury the effect of section 34 of the Criminal Justice and Public Order Act 1994 (adverse inference from failure to mention facts). The appellant, having declined to answer questions at either of her interviews, had given in evidence a detailed account of what had occurred on the day. Thus a section 34 was appropriate. Mr Levett complains of the manner in which it was given.
At the conclusion of the hearing we asked for and received further written submissions from both counsel on this ground. We received these in May.
The questioning by Mr Levett which was to lead to the ruling that the appellant had waived privilege, was as follows:
“Q. Now you say that you relied on the advice of your solicitor to go "No comment" and you have explained that the reason for that was – well, would you just like to repeat it so that I've got it firmly in my head because I'm going to ask you why it was that you said "No comment" at the next interview.
A. Because of Chris Casey advised me on the next interview to say "No comment" because of the charge for money laundering because - - - -
Q. And what do you mean "Because of the charge of money laundering"?
A. He didn't see a charge. He couldn't understand why I was being charged with money laundering.
Q. And did you take his advice?
A. Yes.
Q. And why is it that you relied on his advice?
A. He's a solicitor and he was advising me.
Q. Now at any stage have you attempted to tailor in or fit any of your evidence so that you can make yourself sound better, you know, having heard what the prosecution's case - - - -
A. No.
Q. - - - - is about?
A. No.
Q. And have you told the jury the truth today?
A. Yes.”
Q. And at any stage did you know or suspect that this money that had been transferred was criminal property?
A. No.
We note that in the first interview there had been a long argument between the solicitor and Customs Officers “about the very purpose why he’d advised his client not to answer questions”.
In cross-examination, Mr Fender asked the following questions:
“Q. So when you were at the police station on the first occasion had you prepared, or had prepared for you that short written statement you were taken to by my learned friend Mr Levett. Was there any reason why you didn't want to make a clean breast of it then and say what you've told the jury about today, how you'd been embroiled in somebody else's business, you didn't know anything was going on that was dishonest, you were acting as a translator and that you'd been wrongly arrested for something that you had no knowledge of an no involvement in anything criminal, or anything like that.
A. No, because the Customs were talking about there'd been money involved. I'd never seen any money so why was I to be charged on a money laundering?
Q. Well, just put the niceties of the offence that you were being alleged to be involved in first of all, I'm just more concerned with you just feeling as though you wanted to tell the Customs Officers exactly what your role was in the events that they had mistakenly arrested you for. Do you follow? Just making a complete clean breast of it and saying, "Officers, you've just got it wrong. I was there because I was helping someone I thought was a perfectly legitimate businessman carry out this business and I'm, you know, I'm just an innocent dupe in all of this. I've got nothing to do with anything to do with the sales of cigarettes or tobacco, or money laundering" and just put it out there.
A. No, because my solicitor advised me not to say anything because there was no connection for me to be charged with money laundering.
Q. Well that was on 21st June.
A. Yeah.
Q. You went in August, didn't you?
A. Yeah.
Q. You were bailed by the police and you went back on 16th August and on that occasion you followed the same advice.
A. Yes.
Q. And said nothing to the police, or rather Customs.
A. Yes.
Q. But do you accept that you were asked a number of questions about your involvement in events of that day?
A. Yes.
…
Q. Yes. Now to all of those questions you exercised your right to remain silent. Yes?
A. Yes.
Q. On the advice of your solicitor. Did you tell your solicitor any of the account that you've given today?
MR LEVETT: Isn't this privileged?”
The jury were then asked to leave and, following argument, HHJ Holt ruled that the question could be asked:
“The defendant, Miss Loizou, was interviewed twice on 21 June and 16 August and on both occasions she, to summarise and use the vernacular, "went no comment".
When she was giving her evidence in-chief she was asked why she "went no comment". In the first interview that no comment was by means of a short prepared statement, apparently written by her solicitor. She said: "I said no comment on the advice of my solicitor, Mr Christopher Casey. He told me that he didn't see any charge for money laundering." There was no attempt by her counsel to try and cut her short, because there she was clearly giving evidence of the advice or the reason for the advice, not just the advice to keep silent. And when she was asked about the interview on 16 August there was no attempt beforehand, counsel being aware of what she had said on the previous occasion, to invite her to limit her evidence to whether she had been advised to go "no comment" and she gave the same answer: "Christopher Casey advised me to go no comment because he couldn't see any charge."
In those circumstances prosecuting counsel say there has been a clear waiver of privilege and he is entitled to ask her about that advise in accordance with the case of R v. Bowden –
…
The short statement in Archbold at paragraph 15-424 is: "A waiver of privilege will be involved if the defendant or his solicitor seeks to put forward in interview or in evidence the reason for such advice." The case of R v. Bowden (1999) 2 Cr. App.R., 176.
Mr Fender was not aware this point would necessarily arise, but being a well prepared prosecutor has a transcript of that case with him and we have all had the opportunity to look at that transcript and the summary in Archbold is correct. It seems to me there has been a clear waiver on the authority of R. v. Bowden and the evidence by Miss Loizou did not appear to be given inadvertently or by accident and it was repeated in respect of the second interview without any attempt by her experienced counsel to limit her evidence merely to say that she had been advised to go no comment. Therefore, in the circumstances I shall allow this line of questioning, there having been a waiver of privilege.”
Mr Fender then continued his questions in the presence of the jury:
“Q. Now everything that you've told the jury about today, your association with Mr Arampatzis and all the other people that were involved in the events of that day, 20th June, and before that time, do I understand you correctly that you didn't tell Mr Casey, your legal adviser, anything about that on either of the two occasions that you met him at the police station?
A. I told him briefly what had happened.
Mr Fender then addressed the same question in relation specifically to the second interview, which took place some two months after the first interview:
Q. Well, perhaps if I can leave it on this note then: did you discuss, even briefly, all the story that you've told the jury this morning.
A. No.
Q. Did you tell the solicitor anything of that?
A. No, we didn't have time. I just went straight into the interview with the officers.
Q. So he knew nothing about all the account that you gave this morning?
A. No”
In his speech to the jury Mr Fender alleged “recent fabrication”. In summing up HHJ Holt, after summarising the appellant’s evidence, said:
“Miss Loizou says that all that is true. If you conclude that it is, or may be, true, then that’s the end of it, she is not guilty.”
The judge then summarised the prosecution’s attack on the credibility of the appellant’s account:
“The prosecution say this is a tissue of lies and one reason you can be sure of this is that if it had been true, she would have come out with it in interview. The prosecution say it would have been very easy to say at least: ‘I am an innocent interpreter, indeed I was to be paid £200. I’m fed up that it took longer than promised and I am furious that I ended up being arrested.’ The prosecution say this was not said because she hadn’t yet thought up this story in answer to the questions which were put to her in interview. Indeed, Mr Fender went through a lengthy list of questions which had been put to her in interview and Miss Loizou agreed that they were put to her and she had declined to comment. The prosecution say that since then she has used the time to concoct this story and tailor it to the prosecution evidence.”
The judge continued:
“Now, if you agree with the prosecution and draw this conclusion, you must not convict wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution case and when deciding if her evidence about these facts is true. Having said that, you may draw such a conclusion only if you think it’s a fair and proper conclusion and that you are satisfied about three things: first, that when she was interviewed she could reasonably have been expected to mention these facts. Second, that the only sensible explanation for her failure to do so is that she had no answer at the time or none that would stand up to scrutiny, and, third, apart from her failure to mention those facts the prosecution case against her is so strong that it clearly calls for an answer.
You will also consider this matter: Miss Loizou, when she gave evidence, said that she had been advised not to answer these questions by her solicitor. How do you approach that explanation? Well, firstly, you will have to decide if she has, or may have, told you the truth about that. Second, if you conclude that she may have been so advised by her solicitor, then clearly it’s an important consideration, but it doesn’t automatically prevent you from drawing any conclusion from her silence. You should bear two things in mind: firstly, what had her solicitor been told by her? Had her solicitor been told about the account which she gave you? She was asked questions by Mr Fender about that and her answers were unclear. If she hadn’t, and it’s a matter for your judgement to decide, why not? Was it because she had yet to make it up, or was there indeed an innocent reason that she had not told her solicitor why she was with Petros that day? That’s the first thing to bear in mind.
The second thing to bear in mind is that a person given legal advice has the choice whether or not to accept it and indeed solicitors have a duty to tell their clients this. Moreover, she was clearly warned in the caution that failure to mention facts which she relied on at her trial might harm her defence.
Now those are the things to bear in mind. If you conclude at the end of your considerations that she could have told the police what she told you, but she genuinely relied on legal advice to remain silent, then you shouldn’t hold that silence against her. On the other hand, if you are sure that she had no answer and merely latched on to the legal advice as a convenient shield behind which to hide, you would be able to hold the silence against her in the way the prosecution invites you to do so. So it’s quite a lengthy process and that’s the way to approach it.”
It was pointed out to the judge that it was not disputed by the prosecution that she had been advised not to answer questions. The judge therefore returned to this issue later:
“Now, the second point is a matter where I have been assisted by further information, if you like. Can I go to Miss Loizou and her “No comment” interview and just remind you about that. She gave evidence that she was advised not to answer the questions by her solicitor, who indeed said that he didn’t think they amounted to a criminal charge, or the prosecution evidence at that stage amounted to a criminal charge. And it’s quite rightly pointed out, I didn’t add that second part when I reminded you of it and I apologise. But it goes further than that because apparently, and we haven’t heard the tapes quite properly, you’d be deluged with information if you had, but the tapes do make it clear that he gave that advice and so when I said there are two stages that you have to consider: firstly, whether she has or may have told you the truth that she was given that advice, she was indeed given that advice. What I then went on to say about, if you reach that conclusion, how you approach it still stands, but that first stage is clearly she was so advised and don’t be misled by my labouring, if I did, the first stage, that’s passed.
Mr Levett submits that the judge was wrong to allow the appellant to be asked whether she had given to her solicitor before the police interviews the account which she had given in evidence. Mr Levett also submits that, in any event, the judge was wrong, when dealing with section 34 of the Criminal Justice and Public Order Act 1994, to give the following direction to the jury (which we have already set out in paragraph 27 above):
“You should bear two things in mind: firstly, what had her solicitor been told by her? Had her solicitor been told about the account which she gave you? … If she hadn’t … why not? Was it because she had yet to make it up, or was there indeed an innocent reason that she had not told her solicitor why she was with Petros that day?”
We shall consider first of all whether the judge ought to have allowed the prosecution to ask the question. Mr Levett relies upon R v Derby Magistrates' Court ex parte B[1996] 1 AC 487 as demonstrating the great importance which the courts attach to legal professional privilege. The headnote reads in part:
“In 1978 the applicant went for a walk with a 16-year-old girl, who was later found murdered. The applicant was arrested and made a statement to the police admitting being solely responsible for the murder. Shortly before his trial at the Crown Court for murder he retracted that statement and alleged that although he had been at the scene of the crime his stepfather had killed the girl. The applicant was acquitted. In 1992 the stepfather was charged with the girl's murder and committal proceedings were commended before the stipendiary magistrate. The applicant gave evidence for the prosecution and repeated his allegation that his stepfather had murdered the girl. Counsel for the stepfather, in cross-examining the applicant, asked about the instructions he had initially given to his solicitors when admitting to the murder. The applicant declined to answer on the grounds of legal professional privilege. An application was thereupon made on behalf of the stepfather, pursuant to section 97 of the Magistrates' Courts Act 1980, for a witness summons directed to the applicant's solicitor requiring production of the attendance notes and proofs of evidence disclosing the relevant instructions.”
Lord Taylor considered the authorities and in particular the case of Ataou [1988] QB 798. As to that case Lord Taylor said (page 503):
"...under the principle stated in Reg. v. Ataou, if it be correct, the judge is required to approach an application for production of documents protected by legal privilege in two stages. First he must ask whether the client continues to have any recognisable interest in asserting the privilege and, secondly whether, if so, his interest outweighs the public interest that relevant and admissible documents should be made available to the defence in criminal proceedings."
Lord Taylor continued (page 503):
"So stated, the principle seems to conflict with the long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged. It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court."
Lord Taylor then looked at the history of the privilege in order to see whether these traditional views were borne out by the authorities. Having examined those authorities, Lord Taylor continued (page 507):
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
Lord Taylor then considered the arguments submitted on behalf of the applicant by Mr Goldberg and said (page 507):
"Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), as to which we did not hear any argument. Mr. Goldberg's difficulty in other areas, legal professional privilege is a field which Parliament has so far left untouched."
Lord Taylor referred to the argument of the amicus curiae that the rule should not be absolute and should permit the court to conduct a balancing exercise. Lord Taylor continued (page 508):
"But the drawback to that approach is that once any exception to the general rule is allowed, the client's confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had "any recognisable interest" in asserting his privilege. One can see at once that the purpose of privilege would thereby be undermined."
Lord Taylor did not accept that argument.
Lord Keith and Lord Mustill agreed with Lord Taylor. Lord Lloyd also agreed with Lord Taylor. He stressed the principle that a client must be free to consult his legal advisers without fear of his communications being revealed (page 509):
"If the client had to be told that his communications were only confidential so long as he had 'a recognisable interest' in preserving the confidentiality, and that some court on some future occasion might decide that he no longer had any such recognisable interest, the basis of the confidence would be destroyed or at least undermined".
Lord Lloyd accepted that there may be cases where the principle will work hardship on a third party seeking to assert his innocence, but it was in the overall interests of the administration of justice to preserve the principle intact.
Lord Nichols agreed with Lord Taylor with one proviso. He was unattracted by the argument that a client could insist on non-disclosure even when disclosure would not prejudice the client. This reservation is not of relevance in the present case.
Mr Levett submits, rightly in our view, that this case shows that the protection of legal professional privilege is regarded as so fundamental that it “trumps” (our words not his) any claim of a defendant to show his innocence by relying upon material protected by another’s legal professional privilege.
Mr Levett referred us to Wilmot (1989) 89 Cr. App. R. 341, at 352 (a pre-section 34 case) where Glidewell LJ said :
"In the course of his submission to us, Mr. Boal told us that when he was pressing the defendant in cross-examination as to whether the account he had given was recently fabricated, he asked the defendant: ‘Did you tell your solicitor the truth?" The defendant paused and said: "I don't want to answer that question.’ Mr. Roberts submitted that that was an improper question, that it led the recorder perhaps to take the line he did, and in itself had a damaging impact. In our view – it is easy to be critical of counsel who asked questions in the heat of battle, so to speak - it is a question which should not have been asked. We hope that that question or anything approximating to it will not be asked again of defendants. We think it was unfair. It put the defendant in an impossible position. We also think that if it had been answered, the answer would have been inadmissible. So the question was not a proper question anyway. Mr. Boal himself when pressed by this court conceded that the question was not an appropriate one and suggested that what he really ought to have asked was: "When did you first tell anybody the story you have told the jury?" That would have been a perfectly proper question and there could have been no possible objection to that."
Mr Levett also relies on Wishart [2005] EWCA 1337.
The appellant was convicted of four robberies. His defence was one of alibi. He said that at the time of the robberies he had been at his father's house. When interviewed by the police under caution after a private consultation with his solicitor, Mr Dongworth, the appellant made "no comment" answers to all questions. At trial he said that he had given a no comment interview on the advice of his solicitor. In cross-examination the appellant was asked whether he had told the solicitor whom he had consulted prior to the interview that he had been with his father at the time of the robberies. The appellant answered that he thought that he had done so. It was put to him that he was lying and that his alibi was a recent fabrication. The judge then directed that the solicitor who was no longer acting for the appellant should provide any notes of the conference with the appellant. Counsel for the appellant informed the court that the notes contained no reference to an alibi but she claimed privilege for what they did say. The prosecution invited the judge to read the notes and decide whether they should be disclosed. The judge did so and ordered disclosure.
The solicitor's notes revealed that the appellant had admitted presence at, but not participation in, the first three robberies and of the fourth had said that he had done the robbery. When the appellant was recalled to give evidence he denied making any such admissions to the solicitor.
An application to discharge the jury on the grounds that what the appellant had told his solicitor was privileged and should not have been admitted in evidence was rejected. The judge said that the appellant had gone further in his evidence than making the bare assertion that he had not answered questions on the advice of his solicitor. He had said that he thought that he had told his solicitor that he had an alibi for the period of the robberies. The judge concluded that the appellant had waived privilege in what he had told his solicitor. The judge said that the jury were entitled to know that he had not told his solicitor about the alibi when considering whether or not to draw an adverse inference of silence.
Following the ruling the prosecution recalled the solicitor to give evidence in rebuttal of the appellant's assertion that he had not said what was recorded in the notes. His solicitor said that if the appellant had mentioned an alibi he would have advised him to answer the questions in interview and to tell the police about the alibi. In the course of summing up the judge told the jury to take into account what they had been told by the appellant and by the solicitor about what had led to the giving of advice to make no comment. Counsel for the appellant submitted that the judge's decision that the appellant had waived privilege was wrong. Summarising this submission the Court said:
“13. … The appellant had gone no further than saying that he had made a no comment interview on legal advice. Such a statement did not waive privilege. The appellant was bound to answer the judge's question and in doing so he did not disclose the reasons or basis for the advice which he had been given and so he had not waived privilege in that way. In support of his submissions Mr Russell-Flint relied on the decisions of this court in R v Condron [1997] 1 Cr.App.R 185 and R v Bowden [1999] 2 Cr.App.R 176. ”
Counsel for the respondent submitted that the privilege was waived when the appellant said that he thought he had told his solicitor about the alibi.
Tuckey LJ started the judgment by saying:
“1. Section 34 of the Criminal Justice and Public Order Act 1994 has recently been described by this court as a notorious minefield. As Lord Woolf said, the inter-relationship between this section and legal professional privilege is ‘singularly delicate’. Nevertheless on this appeal the Crown invite the court to take an adventurous step forward and say that a defendant will impliedly waive privilege in any case where he gives evidence that he made a no comment interview on legal advice and indicates that he will invite the jury not to make an adverse inference against him.”
Having set out the facts Tuckey LJ said:
“15. It is first necessary to identify what was privileged and how and to what extent, if any, it was waived. Section 10(1) of the Police and Criminal Evidence Act 1984 defines legal professional privilege as ‘communications between a professional legal adviser and his client made in connection with the giving of legal advice to the client’. A waiver will ordinarily occur where a client chooses, for whatever reason, to reveal the effect of a communication protected by privilege. In this case everything which was said at the pre-interview conference between the appellant and his solicitor was privileged. It is well-settled that merely by saying he gave a no comment interview on legal advice a defendant does not waive privilege. The waiver in the present case is said to have occurred during the appellant's cross-examination when it was being suggested to him that his alibi defence was a recent fabrication. The questions were perfectly proper. The Crown were entitled to ask whether he had told anyone about his alibi before trial. But what is the position if a defendant says in answer to such questions, as the appellant did here, that he did tell someone else earlier? The answer to this question is apparently given by Lord Bingham, CJ, in Bowden at page 182 where he says:
‘When a defendant at trial deposes to facts which he has not mentioned at an earlier stage, and it is suggested to him that these facts are an invention or fabrication after the event, the defendant may rebut that accusation by asserting and calling evidence to show that he mentioned the facts to another person at that earlier stage, and no waiver of privilege is involved even if evidence is given (by him or his legal adviser) that this disclosure was made to the legal adviser.’
In support of this statement of the law, Lord Bingham relied on the earlier decisions of this court in Wilmott (1989) Cr.App.R 351, at page 351 and 352 and Condron at page 197D to E. In the latter case this court said:
‘However, it should be borne in mind that the inference which the prosecution seek to draw from failure to mention facts in interview is that they have been subsequently fabricated. It is always open to a party to attempt to rebut this inference by showing that the relevant facts were communicated to a third person, usually the solicitor, at about the time of the interview (see Wilmott). This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated; the solicitor is, for this purpose, in the same position as anyone else.’
16. It could be argued that in such circumstances what a defendant says to his solicitor is a privileged communication and that he waives privilege in that communication by volunteering that he has made it. But that is not what this court has said in the three cases to which we have referred which have not been doubted in any more recent cases where the earlier decisions have been followed. Even if we thought there was some reason to doubt this well-established line of authority, we are bound to follow it.
17. It is worth underlining that what this court has said about waiver of privilege is confined to the situation where a defendant is trying to rebut an allegation of recent fabrication. If a rationale for the rule is required it must be that a defendant against whom a potentially very damaging allegation of recent fabrication is made should be entitled to defend himself without running the risk that in doing so he will lose the protection of privilege.
18. This court's decisions assume that there has been some communication to the solicitor or someone else of facts not mentioned in interview. Here there was no such communication. The appellant had said nothing about an alibi to the solicitor. Does this make a difference? Has the appellant waived privilege so that the Crown may call the solicitor to say that no such communication has been made to him? And, if so, can he also be asked what the appellant did in fact tell him?
19. The cases to which we have referred make it clear that the answer to each of these questions is ‘no’. The logic of the authorities to which we have referred is that a defendant's assertion in defence of an allegation of recent fabrication that he has told his solicitor something he omitted to mention in interview does not waive privilege. This must be so whether the assertion is true or false. If true there is at least a communication. If false there is none. Still less do we think it is open to the Crown in such a case to discover what information a defendant did in fact provide.
20. The position in the present case is even more striking and emphasises the practical difficulties associated with the Crown's case and the potential for unfairness. The appellant was asked by counsel whether he had told any of his legal advisers about the alibi. His initial response was that he had told his barrister, as was no doubt the case. But the Crown were compelled to concede in argument that this answer also constituted a waiver of privilege in respect of these instructions, upon which the Crown, if so advised, could take a statement from counsel as to the scope of the instructions (regarding the alibi, if not more) and treat counsel thereafter as a potential witness. It is also striking that the answer which is said to constitute the waiver as regards the instructions to the former solicitor was provoked by a question from the judge himself. This of itself, if the Crown is correct, presented difficult case management problems. But in any event if this is a permissible route to the Crown eliciting otherwise privileged material, questions of this kind will become commonplace and in their train there will be frequent arguments as to the legitimacy of the question, the appropriateness of warnings to the witness and the scope of waiver that results.
21. The circumstances in which privilege will be waived were considered in Condron and Bowden. If a defendant states the basis or reason for the advice to go no comment (Condron page 197C) and if a suspect goes beyond saying that he declines to answer on legal advice and explains the basis on which he has been so advised, or if his solicitor acting as his authorised representative gives such an explanation, a waiver of legal professional privilege is involved (Bowden page 183F).
22. Subject to Mr Anelay's first point this analysis is sufficient to dispose of the appeal. The appellant did not waive privilege, the judge should not therefore have ordered production of Mr Dongworth's notes and allowed the appellant to be cross-examined on them, or admitted the evidence of Mr Dongworth in rebuttal. The notes and Mr Dongworth's evidence about them were near fatal to the appellant's defence and so his conviction cannot stand.
Tuckey LJ then turned to section 34 and said:
“23. This conclusion does not deprive section 34 of all effect in a case such as this. It is well-established that it is not enough for a defendant simply to assert that he has made a no comment interview on legal advice in order to avoid a section 34 direction. The defendant's explanation is left to the jury to consider in accordance with the JSB standard direction. In a case such as this the judge would obviously remind the jury of the defendant's evidence that he had told his solicitor the facts which he failed to mention in interview and if the solicitor was not called to support the defendant's assertion it would be open to the Crown and the judge in his summing-up to comment upon this omission. This is what happened in R v Bui[2001] EWCA Crim. 1752 (see paragraph 36). ”
At the conclusion of the judgment Tuckey LJ turned to the submissions referred to in the first paragraph of the judgment:
“24. We return finally to Mr Anelay's first submission. He conceded, rightly in our view, that a defendant's bare assertion that he made a no comment interview on legal advice did not of itself waive privilege. However, he submitted that if the jury were to be invited to consider whether a defendant "had or might have had an answer to give but genuinely and reasonably relied on legal advice to remain silent" (see paragraph 5 of the JSB direction) the defendant must impliedly waive privilege to enable the jury to see or hear the reasons or basis for the advice so as to give proper consideration to whether they should or should not draw adverse inferences. If this submission is correct then of course the appellant waived privilege in this case and examination of the circumstances which we have considered above would be unnecessary.
25. This submission, if correct, would make substantial inroads into legal professional privilege. This privilege is of paramount importance and Parliament has so far left it untouched -- see R v Derby Magistrates Court ex parte B[1986] AC 487. Section 34 says nothing about privilege. The decisions of this court, which are binding on us, do not give any support for Mr Anelay's submission. A claim for privilege will often deny a court the best evidence available to determine a particular issue, but that has never been a reason for saying that privilege has impliedly been waived. We therefore reject Mr Anelay's first submission.”
We were also referred to Bowden [1999] 2 Crim. App. Rep. 176, in which Lord Bingham CJ set out and applied passages from Condron and Roble.
We have already noted the two propositions of law which the Court in Wishart deduced from Bowden and other cases. First, a defendant who merely gives evidence that he made no comment on the advice of his solicitor does not thereby waive his privilege. (A justification for this rule can be found in Beckles [2004] EWCA Crim 2766, paragraph 43). Secondly, a defendant (or his solicitor if called) who gives evidence of what was said to the solicitor in response to a prosecution allegation of recent fabrication does not thereby waive privilege.
The facts in Bowden were that a robbery took place in Macdonalds and £9,500 was stolen. Shortly after the robbery, the appellant went on holiday to the Canary Islands and was photographed there in a celebratory pose outside a McDonald's restaurant. On return to England he was interviewed by the police but, on legal advice, declined to answer questions. After the interviews his solicitor made a statement setting out the grounds on which that advice had been given. At trial the Crown led evidence of his refusal to answer pre-trial questions, but not of the solicitor's statement.
The appellant testified that the holiday had been paid for by his mother and gave an explanation why he and his companion had posed for the photograph outside Macdonalds.
In order to put forward a reason why the jury should not draw a section 34 adverse conclusion against the defendant, evidence had been elicited from the interviewing police officer of the defendant’s solicitor’s statement of the grounds upon which he advised the defendant not to reply to questions in interview. According to the officer the solicitor had stated that he was not satisfied that the defendant was the person on a video shown to him by the police and that the remaining evidence was circumstantial. He considered any charge of robbery could not be sustained, and that was why he gave the defendant the advice which he had.
Crown counsel then submitted that by putting in evidence the solicitor's statement, the defence had thereby waived the legal professional privilege which would have otherwise protected confidential communications between the appellant and his solicitor. The judge ruled in favour of that submission and the appellant was then cross-examined as to whether he had told his solicitor that his mother had paid for the holiday and why the photograph had been taken. The appellant said that he could not remember whether he had told the solicitor this. He did remember receiving the advice. The appellant was convicted and appealed on the ground that there had been no waiver of legal professional privilege and that the prosecution should not have been permitted to cross-examine the appellant as they did.
In summing up to the jury the judge gave a standard section 34 direction. The judge identified the “facts” which had not been mentioned in interview: the circumstances of the holiday and how the photograph had come to be taken.
The judgment of this Court was delivered by Lord Bingham CJ. The defendant had waived his legal professional privilege and it was open to the prosecution to cross-examine him as to what he had said to his solicitor. His counsel had deliberately elicited evidence of the solicitor’s statement and there was nothing to suggest that counsel was acting outside the scope of his authority. At pages 183-184 the Court stated: (i) the solicitor’s statement to the police officer constituted the waiver of privilege, (ii) it would have been open to the prosecution to have adduced the statement as evidence against the defendant had it chosen to do so, (iii) the position would have been the same if a statement of the same kind had been made by the defendant, and (iv) there would be no waiver of privilege if, during pre-trial questioning, the suspect or his solicitor said that the suspect declined to answer questions on legal advice and the evidence called by the prosecution at trial were limited to reporting that simple statement.
The crucial part of the judgment in that case is at p 184. The Court stated:
“If, at trial, the defendant or his solicitor gives evidence not merely of the defendant's refusal to answer pre-trial questions on legal advice but also of the grounds on which such advice was given, or if (as here) the defence elicit evidence at trial of a statement made by a defendant or his solicitor pre-trial of the grounds on which legal advice had been given to answer no questions, the defendant voluntarily withdraws the veil of privilege which would otherwise protect confidential communications between his legal adviser and himself, and having done so he cannot resist questioning directed to the nature of that advice and the factual premises on which it had been based.” (Underlining added)
We note that the “factual premises” on which the advice had been based was (on the evidence) the absence of a sufficient prosecution case against the defendant. On the solicitor’s account, as given to the officer, the advice did not depend upon anything said by the defendant to the solicitor. Nonetheless the Court held that the “factual premises” included what was, or what was not, said by the defendant to his solicitor.
We should also note that the ECHR in Condron v. UK(2001) 31 EHRR 1, paragraph 60 later confirmed that if defendants make the content of their solicitor’s advice a live issue, they cannot complain that the scheme of section 34 “is such as to override the confidentiality of their discussions with their solicitor”.
The instant case is very similar to Bowden. When Mr Levett asked the appellant what advice she had received from her solicitor, he, on behalf of his client, thereby waived privilege. That is not disputed by Mr Levett. Although the solicitor had made it clear during the interview that he had given the advice to remain silent because what was being alleged “didn’t amount to a criminal charge”, nonetheless, according to Bowden, the prosecution is permitted to cross-examine the defendant to see whether she had then given to her solicitor the account which she had given in evidence about the events of the day.
Mr Levett submits that it was not fair for the prosecution to ask such questions, primarily for two reasons. First, he makes the point -- which is undoubtedly true -- there was no challenge to the fact that the solicitor gave the advice and no challenge to what advice he gave. This was not therefore a case where the prosecution were challenging the credibility or accuracy of the defendant as to whether she had been advised and what were the terms of the advice. Secondly, in this case, as Mr Levett submits, the advice given by the solicitor was in no way dependent on what he was told, if anything, by his client. The solicitor must have been giving his advice on the strength of what had been disclosed to him by Customs and not because of what he had (or had not) been told by his client. Mr Levett relies on these factors to distinguish this case from others. The question is whether they distinguish it from Bowden where such questions were permitted. Unless the circumstances of the present case are distinguishable, that decision binds us.
We know from Wishart and the cases referred to therein that a defendant who gives evidence of what he said to his solicitor in response to a prosecution allegation of recent fabrication does not thereby waive privilege. Mr Levett submits in his further written submissions that counsel for the prosecution was not suggesting in his cross-examination that the appellant had recently fabricated her account. In our view Mr Fender was in effect doing that as the judge properly identified in the summing up (see paragraph 25 above). But Mr Fender’s allegation of recent fabrication followed the defendant’s evidence in chief. If Mr Levett had not asked his client about the advice which she had received, Mr Fender could not lawfully have asked the questions which he did. Is he also precluded from doing so after Mr Levett had asked his client about the advice which she had received?
In his very helpful submissions prepared following the hearing of the appeal, Mr Fender wrote:
“Case law since Condron and Condron has not explored the application of the principles of privilege and its waiver in criminal cases. Nor has there been any exploration of the principles of disclosure ancillary to privilege which has been deliberately or unintentionally waived.”
He submits that the approach in criminal cases reflects general practice in civil cases. He continues:
5. ‘Fairness’ underpins the question of what disclosure there should be by a party who has partially waived privilege in relation to a document or communication. In General Accident Corporation Ltd v Tanter[1984] 1 WLR 100, Hobhouse J reviewed the relevant authorities and summarised eight principles in relation to privileged communications deployed at trial. The fourth and sixth principles are significant here:
‘Fourth, the waiver of a part of the document or conversation is a waiver of the whole of that document or conversation as was stated in Lyell’s case, and as the subject of decision in Burnell v. British Transport Commission [1956] 1 QB 187 and Great Atlantic Insurance Co. v. Home Insurance Co. [1981] 1 WLR 529…
Sixth, by adducing evidence at a trial one does get involved in potential further waiver. The underlying principle is one of fairness in the conduct of the trial and does not go further than that. The fact that this principle does not arise unless you adduce the evidence at the trial is clearly stated in the judgment of Mustill J. and it was clearly raised by the facts in the Doland case and it was likewise raised by the facts in the Great Atlantic and Burnell cases. Further, if the evidence is adduced then the extent of the waiver relates to the transaction to which the evidence goes. The extent of the transaction has to be examined and where it is what somebody said on a particular occasion, then that is the transaction. It is not the subject matter of those conversations. It does not extend to all the matters relating to the subject matter of those conversations.’
6. The reference to the judgment of Mustill J. in the above passage is a reference to his judgment in Nea Karteria Maritime Co Ltd v. Atlantic and Great Lakes Steamship Corpn (an unreported case from 1978). In explaining his stance on waiver and consequential disclosure, Mustill J. relied on the decision of Burnell v British Transport Commission [1956] 1 QB 187. The facts can be stated shortly. In a personal injury action, a witness for the Plaintiff was cross-examined on a previous statement he had made. He agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on the ground of privilege. The trial judge ordered disclosure. His order was upheld on appeal.
‘It seems to me that the judge was correct, because although this statement may well have been privileged from production and discovery in the hands of the Transport Commission at one stage, nevertheless when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in a case of this kind, if privilege is waived as to the part, it must, I think, be waived also as to the whole. It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or opposing counsel, a sight of the rest of the document, much of which might have been against him.’
7. In Nea Karteria, Mustill J. said
‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.
8. Templeman LJ agreed with this passage in Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All E R 485 at 492f-j. In short, it is submitted that a defendant who has revealed the nature of any advice not to answer questions under caution runs the risk of being cross-examined as to whole of those communications. Some of those communications may have been set down in attendance notes and be the subject of cross-examination, especially if the legal advisor is called to give evidence of behalf of the defendant. Given that privilege is a right of a party to litigation not to disclose certain communications, once part of a communication has been revealed the whole of the communications within the transaction should be. In civil cases, such a step would be commensurate with the duty of full and frank disclosure in litigation so that the court can satisfy itself that evidence is not being cherry-picked by the party relying on the waived communication.
9. A case from the High Court of Australia, A-G for the Northern Territory v Maurice[1986] 161 CLR 475 demonstrates ‘fairness’ operating in favour of the party unintentionally waiving privilege. This was a claim by aboriginals in relation to certain land. A document, called the Claim Book, was lodged with the Land Commissioner. It was prepared using other source material which had not been disclosed. The Court found that the use to which the Claim Book was put at trial did not create a misleading or unfair result. Consequently, documents which were source material for the preparation of the waived document were not ordered to be disclosed. In this case, the authorities were reviewed, including Burnell, Tanter, Nea Karteria and Great Atlantic.”
Mr Fender then concludes:
“10. In the context of the silence provisions in a criminal trial, once a defendant in evidence has indicated his reliance on advice and the associated reasons for failing to answer questions under caution, the issues become ones of genuineness and reasonableness in the defendant’s actions. In certain cases, a defendant may genuinely rely on advice and not answer questions. Nevertheless, a question remains as to whether that reliance was reasonable or not. In Regina v Hoare & Pierce[2004] EWCA Crim 784 Auld LJ stated at [54 and 55]:
‘It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. The section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is…
The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because he had no or no satisfactory explanation to give’.
11. It is submitted that asking a defendant what the factual basis for the advice given is a permissible line of cross-examination. It goes to examine the issues of genuineness and reasonableness, and to explore whether the defendant’s actions in making no comment at interview were tactical or not. The credibility of the defendant must also be an important factor here as well, where cross-examination beyond the waived communication must be permitted. If cross-examination beyond the reason given for advice was not permitted, such reliance could frustrate the operation of the legislation in the way described inCondron.
12. In summary, cross-examination of the Appellant (‘Did you tell your solicitor…?’) would have been permitted by the learned Judge’s ruling. Cross-examination was consistent with Condron and Bowden, and civil cases which touch upon the court’s powers to control fairness within proceedings, and the rules upon the degree of any waiver and its effects.”
Mr Levett accepts that Mr Fender in his further written submissions accurately summarises the civil law. He cites Mann J in Fulham Leisure Holdings Ltd v. Nicholas Graham and Jones [2006] EWHC 158. In paragraph 11 Mann J identified the “relevant process”:
i) One should first identify the “transaction” in respect of which the disclosure has been made.
ii) That transaction may be identifiable simply from the nature of the disclosure made – for example, advice given by counsel on a single occasion.
iii) However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed.
iv) When that has been done, further disclosure will be necessary if that is necessary in order to avoid unfairness or misunderstanding of what has been disclosed.
Mr Levett also refers to Legal Professional Privilege by Jonathan Auburn (2000) at page 215.
Mr Levett submits that the approach in criminal cases should be the same as that in civil cases; partial waiver should be determined “by the transaction and fairness”, and in the circumstances of the present case, and in particular the factors we set out in paragraph 53 of this judgment it was not fair to ask the appellant what she had said to her solicitor before he advised her not to comment in her police interviews.
It is clear that legal professional privilege is a fundamental condition on which the administration of justice as a whole rests: Derby Magistrates.
The authorities, in particular Wishart and Bowden, establishthat, while the object of sections 34 to 37 was to weaken the protection which criminal defendants had previously enjoyed against the drawing of inferences adverse to them from such failures and refusals in the circumstances specified, they do not affect the law on legal professional privilege. In Bowden’s case this Court stated (at page 181) that:
“since [the sections] restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege.”
Once, however, the defendant or the defendant’s solicitor gives evidence of the content of or the reason for the advice given, privilege is waived: see paragraphs 60 of this judgment in which we set out what we have described as the crucial part of the judgment in Bowden.
At page 185 the Court in Bowden stated that where grounds for doing so exist, the control of the admissibility of such evidence is either by the application of section 78 of the Police and Criminal Evidence Act 1984 or by an application that the judge direct the jury not to draw inferences adverse to the defendant from his silence at interview. It was also stated that, if on the voir dire evidence is elicited by or on behalf of the defence of the grounds on which the defendant was advised by his lawyer not to answer police questions, “that will amount to a waiver of privilege for all purposes” (emphasis added) and (at pp 185-186) that the defendant “cannot at any stage have his cake and eat it; he either withdraws the veil and waives privilege or he does not … and his privilege remains intact. But he cannot have it both ways.”
Both Mr Fender and Mr Levett accept that a waiver may be partial. It is also common ground that, apart from legal professional privilege, what the appellant did not say to her solicitor is relevant.
We have some difficulty in translating the word “transaction” to the criminal context of an interview. Whether or not a better word can be found, we take the view that the process of giving advice to this appellant can be seen as one transaction.
We turn to the question of the extent of any disclosure and its basis once there has been a waiver of legal professional privilege. In the cases cited to us the basis is said to be “fairness” and, with one exception, “fairness” is given as a reason for requiring full disclosure of the evidence on the point so as not to mislead; i.e. it operates against the party who has waived privilege: see Burnell v British Transport Commission [1956] 1 QB 187 and Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp. The exception is the decision of the High Court of Australia in AG for Northern Territory v Morris [1986] 161 CLR 475. In that case, as Mr Fender stated, “fairness” operated in favour of the party who had waived privilege. That case suggests that if the evidence that has been given which amounts to a waiver of legal professional privilege does not mislead the finder of fact, here the jury, fairness requires no further disclosure.
The matter is complicated by a tendency identified by Auburn, Legal Professional Privilege (2000), p 216 on the part of courts to treat partial disclosure as a formalised category divorced from its underlying rationale. He states that the consequence is that some courts “simply look to whether there has been a partial disclosure and fail to ask the essential question whether the partial disclosure has actually led to unfairness or prejudice”. Auburn criticises any tendency to look only at whether there has been a partial disclosure and states that “fortunately” many cases in the Commonwealth stay closer to an investigation of the actual unfairness of the disclosure. Although AG for Northern Territory v Morris is the only example cited for this proposition, we consider it to be correct in principle. If, as Burnell v British Transport Commission and Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp. state, “fairness” underlies the rule, it can hardly only operate in one direction to permit the inclusion of evidence as it did in those cases, but not operate to justify not including it, where the partial disclosure has not misled. Bowden should not be seen as an example of this court doing that. The passage from the judgment set out at paragraph 60 above contains no reference to fairness, and the statement that revealing the content of advice “will amount to a waiver of privilege for all purposes” (emphasis added) is not qualified in any way. But the fact that this court stated that control on admission is to be inter alia by section 78 of PACE suggests that the court was alive to this factor.
The question whether the evidence creates a misleading impression or risks doing so depends on the issue before the finder of fact. In our case that issue is “the section 34 question”; that is whether the appellant’s reason for exercising her entitlement to be silent is the legal advice genuinely given and genuinely accepted or whether it is because she had no or no satisfactory explanation to give: see Hoare & Pierce [2004] EWCA Crim 784. Paragraph 54 of the judgment in Hoare & Pierce draws a distinction between the defendant's belief in his entitlement to remain silent which may be genuine and his reason for exercising it which may not be reliance on that entitlement. The prosecution submit that the question asked in the case before us goes to the issues of genuineness and reasonableness and to explore whether the appellant's actions were tactical or not: see written submissions, paragraph 11, set out in paragraph 68 of this judgment. Realistically, in this case “genuineness” is not in issue. The solicitor gave the advice and there does not appear to have been any evidence to put in question the appellant's belief that she was entitled to rely on the advice. In any event, according to Hoare & Pierce, it is immaterial to the section 34 question whether the solicitor rightly or wrongly believed that, as a matter of law, the defendant was not required to answer the police officers’ questions or whether he or she believed they had a right to rely on the advice of the solicitor: paragraph 56. The question is whether it was the advice rather than the absence of a satisfactory explanation which caused the appellant to make no comment.
It is in our judgment potentially misleading for the jury in considering this issue to have only the appellant’s answers in chief before them without further evidence as to the context or, in the language used by this Court in Bowden, the factual underpinning of the advice given to her.
Mr Levett’s submission is that it was not fair for the prosecution to ask the question because this was not a case where the prosecution was challenging the credibility or accuracy of the defendant as to whether she had been advised and what were the terms of the advice. He also submitted that it was not fair because the advice was in no way dependent on what, if anything, the solicitor had been told by the appellant. The factors relied on by Mr Levett (see paragraph 64 of this judgment) do not grapple with or meet the point derived from Hoare & Pierce set out in paragraphs 63 and 74 above: that is whether her reason for exercising her entitlement to remain silent was the legal advice. If the disputed question was not asked, all the jury would know is that the solicitor gave advice for the reason given. They would have no factual material upon which to assess whether she “latched onto it” other than her evidence that she relied on the advice. The defendant would be able to go beyond the assertion that she relied on legal advice by providing, as she did here, some colour and detail about her reliance upon that legal advice without the counterbalancing information that assists in resolving the section 34 question identified in Hoare & Pearce (and set out in paragraph 80 of this judgment).
There is another problem with reliance on these factors. They do not afford a ground for distinguishing this case from Bowden. In Bowden the prosecution was not challenging the credibility of the defendant as to whether he had been advised or as to its terms; it simply had not led evidence of the solicitor’s statement (which this court ruled it could have done). Secondly, in Bowden the solicitor’s advice in that case did not depend in any way on what the defendant had told the solicitor but on the quality of the video. Nevertheless, this court held that cross-examination as to what the defendant in that case said to his solicitor was permitted. Moreover, since, in Bowden, a section 34 direction was sought and given, the prosecution in that case was in effect making an allegation of recent fabrication in a similar way to which the allegation was made in the present case.
For these reasons, there is no material distinction between this case and Bowden. We return to the distinction we refer to in paragraph 53 of this judgment. Can it be said that the importance attached to legal professional privilege requires the rule in the line of cases considered and applied in Wishart’s case to be extended in this way? We have concluded that it does not. There is a distinction between having to reveal what was said to a solicitor to rebut an allegation of recent fabrication and volunteering information about the legal advice over and above stating that the refusal to answer questions was as a result of receiving such advice. In the former scenario the reason privilege has not been waived is there is no way of dealing with the allegation other than by revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of the voluntary provision by or on behalf of the defendant of information which because of its partial nature is misleading.
The statements of principle by the House of Lords in the Derby Magistrates Court case and by in this court in Wishart are of course important. But they are of limited assistance to us in the particular circumstances of this case save as background statements of principle. This is because those cases were not concerned with waiver of legal professional privilege but with the scope of such privilege. The House of Lords in the Derby Magistrates Court case was dealing with the argument that it should construe section 97 of the Magistrates Court Act 1980 as a tool to get discovery of privileged documents in the hands of a third party not otherwise admissible. The applicant in that case had stated he was not willing to waive privilege: see page 501. What was argued was that, in the interests of justice, the court should balance the public interest favouring protecting confidence between solicitor and client and the public interest in ensuring that all relevant evidence is available to the defence in deciding whether to order production. Their Lordships considered that to do this would be to enunciate a new exception to legal professional privilege in the face of the long established rule that “once privileged, always privileged”: see Lord Taylor at 503, set out in paragraph 31 of this judgment. The statements of Lord Taylor, including the comment that legal professional privilege is a field which Parliament has so far left untouched, must be seen in that context.
This Court in Wishart did consider waiver but held that privilege had not been waived in the circumstances of that case. In paragraphs 24 and 25 of its judgment the court rejected the submission that merely inviting the jury to consider whether a defendant “had or might have had an answer to give but genuinely and reasonably relied on legal advice to remain silent” (see paragraph 5 of the JSB direction) constituted an implied waiver of privilege by the defendant. It did so because that submission, if correct, would make substantial inroads into legal professional privilege which is of paramount importance and has so far left untouched by Parliament, including section 34. The court was not dealing with the consequences at common law of an effective waiver of privilege.
For these reasons we have concluded that HHJ Holt rightly allowed the questions to be asked and that the appeal cannot succeed on this ground.
We turn finally to the second part of this ground of appeal. Mr Levett submits that the judge misdirected the jury when explaining the effect of section 34. We have already identified and set out the relevant passage in the summing-up (paragraph 28 above). We have also summarized the trial judge’s direction in Bowden, which was not criticized by the Court.
In deciding whether the appellant could reasonably have been expected to mention in interview the “facts” (i.e. the events of the day and why she was present) about which she gave evidence and in deciding whether she had an answer at the time to the allegations being put to her in interview, what she said, or did not say, to her solicitor at the time must be relevant. We see no merit in this ground.
The appeal is, for these reasons, dismissed.