Maintaining privilege during criminal investigations
Produced in partnership with Aine Kervick and Will Hayes of Kingsley Napley
Maintaining privilege during criminal investigations

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:

  • Maintaining privilege during criminal investigations
  • Preserving privilege during a dawn raid/search and seizure
  • Can a dawn raid trigger litigation privilege?
  • LPP and interviews under caution/compelled interviews
  • Position of witnesses and suspects in interview, where it is the company under investigation and the company has a claim to privilege
  • Waiving privilege during individual interviews
  • Internal investigations
  • Step 1: Define your 'client'
  • Step 2: Define the privilege that attaches
  • Step 3: Have regard to the ‘dominant purpose test’ when creating any documents
  • More...

The aim of this Practice Note is to provide some guidance about how best to ensure that legal professional privilege (LPP) is maintained for the client during the various stages of a criminal investigation.

For information on legal privilege and how it applies in a criminal context, see Practice Note: Legal Professional Privilege in criminal proceedings. For information about LPP generally, see Practice Note: Legal professional privilege in civil proceedings.

Preserving privilege during a dawn raid/search and seizure

One possibility is that individuals/corporates under investigation receive a visit at their premises/homes, in order that the investigators can conduct searches of their property and arrest them for the purposes of interviewing them. This is often described as a 'dawn raid'.

Many individuals and corporate entities are not sufficiently prepared for these raids and it is often the case that LPP material is contained in computer files and dotted around the office/home, rather than separated off in electronic and hard copy files, clearly marked ‘Privileged and Confidential’.

Where LPP material is stored on a computer, the folders and documents should be identified and marked clearly as privileged so that the LPP material is not inadvertently accessed by the investigating officers.

It is important that all LPP material is identified to the investigator at the time of the raid, so that it is not seized and examined by them. If those conducting the

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