Legal professional privilege in criminal proceedings
Produced in partnership with Aine Kervick and Will Hayes of Kingsley Napley
Legal professional privilege in criminal proceedings

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

  • Legal professional privilege in criminal proceedings
  • What is privilege?
  • Legal professional privilege (LPP)
  • Legal advice privilege
  • Legal advice privilege—the dominant purpose test
  • Litigation privilege
  • Litigation privilege—a reasonable prospect of litigation?
  • SFO v ENRC
  • Health and Safety Executive v Jukes
  • Direct party to the litigation
  • More...

The aim of this Practice Note is to provide some guidance on the principles of legal professional privilege (LPP) as they apply in criminal investigations and prosecutions.

For information and guidance on how to maintain LPP for a client during the course of a criminal investigation, see Practice Note: Maintaining privilege during criminal investigations.

What is privilege?

Privilege can be divided into four main headings:

  1. legal professional privilege

  2. common/joint interest privilege (although strictly speaking this is a subset of legal professional privilege)

  3. without prejudice privilege

  4. privilege against self-incrimination

This Practice Note will deal only with LPP in a criminal context. For more general information about legal professional privilege, see Practice Note: Legal professional privilege in civil proceedings.

For information on other types of privilege, see Practice Notes: Privilege—joint and common interest privilege, Privilege—solicitor and client confidence, Privilege against self-incrimination and Without prejudice communications.

Legal professional privilege (LPP)

LPP is recognised by the courts as a fundamental right. The justification for the protection of LPP has at its heart the desire to enable a client to fully inform his or her lawyer of all relevant information including ‘family secrets, company secrets, personal foibles and indiscretion’ without fear that the information he or she provides will be divulged by the lawyer against the client’s instructions. See Jones v Smith (1999) 1 LCR 455 (not reported by LexisNexis®).

A client ‘must be able to consult his lawyer in confidence, since

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