Issues of privilege in cross-border criminal investigations
Produced in partnership with Áine Kervick of Kingsley Napley and Will Hayes of Kingsley Napley

The following Corporate Crime practice note produced in partnership with Áine Kervick of Kingsley Napley and Will Hayes of Kingsley Napley provides comprehensive and up to date legal information covering:

  • Issues of privilege in cross-border criminal investigations
  • England and Wales
  • Europe
  • European Commission
  • USA
  • Definition of client
  • Waiver
  • Internal investigations
  • China
  • Hong Kong
  • More...

Issues of privilege in cross-border criminal investigations

The rules relating to privilege, disclosure and waiver can vary widely from one jurisdiction to another.

In recent years, we have seen international cooperation between enforcement agencies growing. This is evident in examples of deferred prosecution agreements (DPA) involving multiple jurisdictions and cooperation between the UK and other countries such as France and the USA. See Practice Note: DPAs in practice.

With multi-jurisdictional issues, it is important to seek advice on privilege from a lawyer from each jurisdiction involved to ensure that important material retains privilege and that the risks to the client are minimised. For example, disclosure of privileged material on the basis of a limited waiver in one jurisdiction may amount to a complete waiver of privilege over that material in another jurisdiction.

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

For information on legal privilege and how to maintain privilege in criminal investigations, see Practice Notes: Legal Professional Privilege in criminal proceedings and Maintaining privilege during criminal investigations.

England and Wales

The courts in England and Wales have long recognised privilege as a fundamental right which cannot be swept aside lightly.

In England and Wales, the courts will assess the privileged status of communications under the law of England and Wales only.

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