||All England Reporter
|| All ER (D) 429 (Jul)
||Court of Appeal, Criminal Division
Moses LJ, Treacy J and Sir Michael Wright
||Michael Ivers (assigned by the Registrar of Criminal Appeals) for the defendant.
||Stephen John (instructed by the Crown Prosecution Service) for the Crown.
||26 July 2007
Privilege - Legal professional privilege - Solicitor and client - Statement by solicitor in police interview sought to be adduced by prosecution in cross-examination - Whether waiver of legal professional privilege.
Privilege Legal professional privilege. There was no difference in principle whether the prosecution or defence had adduced evidence of the events which were said to have constituted the waiver of legal professional privilege. The essential question was whether legal profession had been waived, rather than the stage at which waiver had taken place. Where a solicitor stated in the presence of his client that he would not be answering questions in interview, and gave reasons or grounds for why he had given that advice, privilege was waived by the defendant through the mouth of his agent acting in the scope of his authority. That was not to say that the circumstances of the waiver or how the waiver was sought to be deployed by the prosecution were not important factors for the judge's consideration. Judges should not assume that the prosecution were entitled to take advantage of waiver in every case when waiver in law had in taken place. They had to exercise independent judgment as to whether it was fair to permit the prosecution to exploit the wavier.
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