Áine Kervick

This Practice Note explains the issues relating to legal professional privilege which arise in cross-border criminal investigations and the practical steps which should be taken to protect legal professional privilege.

This Practice Note explains how the principles of legal professional privilege (LPP) apply in a criminal context. It explains the different categories of legal professional privilege, legal advice privilege and litigation privilege, and how these key concepts apply in criminal investigations and proceedings. This Practice Note also considers the impact of the decisions in SFO v ENRC, HSE v Jukes and R (on the application of Jet2.Com Ltd) v CAA on the dominant purpose test in litigation privilege and legal advice privilege and what constitutes ‘reasonable prospect of litigation’ in litigation privilege in criminal investigations. It also considers the difference in the protections afforded by legal advice privilege as opposed to litigation privilege in criminal proceedings.

This Practice Note explains how legal professional privilege (LPP) can be maintained for clients during the course of a criminal investigation including during dawn raids, during regulator searches and during interviews under caution and compelled interviews. The steps to be taken during internal investigations to preserve privilege (legal advice privilege and litigation privilege) are highlighted and privilege issues to consider when advising and preparing internal investigation reports into suspected criminal breaches are also included.

This Practice Note explains the scope of privilege against self-incrimination. It covers when privilege against self-incrimination may be raised in criminal proceedings and inquests and the practical considerations when advising clients during criminal investigations, interviews and during criminal hearings.