Privilege Against Self-Incrimination Coursework

Legal Professional Privilege

The concept of privilege against self-incrimination is the one that forbids the government to compel any client to introduce some information that can easily incriminate him/her during a particular criminal process. This is why, in some countries, privilege again self-incrimination is considered to be the major right that allows not to testify against oneself if such information may lead to criminal liability. Legal professional privilege is considered to be a type of a rule of law with its own purposes and peculiarities. According to the Common law regulations, legal professional privilege is aimed to protect all types of communications observed between the client and legal professional advisor on the basis of client’s permission to be disclosed; it is necessary to underline the fact that it is client who has privilege, not a lawyer. Identifying the peculiarities of legal professional privilege, it should be noted that its main goal is to protect information being privileged from any production in the process of legal proceedings. It is usually strives to protect confidential communications between the client and lawyer for reaching the following purpose:

• Provide professional assistance or legal advice;
• Get the material necessary for use in legal proceedings.

The analysis of legal professional privilege gives an opportunity to stress that it is also aimed at protection of confidential information between the lawyer and some third parties, which are involved in the procedure because of possibility to obtain additional material. Legal professional privilege also aims to protect the communication between the above-mentioned third parties and the client. Such communication may be of different types: letters from and to lawyers concerning legal pieces of advice, file notes, which the client or his/her lawyer creates, witnesses’ statements, and other documents, created as responses to the lawyers. However, it is also necessary to admit that there are some kinds of documents, which cannot be protected by legal professional privilege. They are the letters of a lawyer addressed to some other part of court proceedings; a bill of costs, offered by a lawyer; statements of witnesses, which have more administrative purposes.

It should be noted that the privilege is considered to be a kind of derogation from accepted general rule stating that all the information as to the case is to be admissible before a tribunal or a court. According to its regulations, the client and the lawyer are to testify though some facts or communications can be not compellable in a documentary or oral form. (Maughan & Webb, 2005)

Without any doubts, legal professional privilege is one of the most difficult areas of law in any country. In spite of the fact that both a client and a lawyer should disclose all the necessary information to the court in order to solve the case, they have certain rules to follow and keep certain secrets, if their communication is considered to be a secret one. If there is not privilege, all e-mails, phone calls, and even faxes have to be presented.

It is known that the idea of legal professional privilege was firstly introduced by Wigmore. The essence of privilege lies in two considerable facts: “first, that the privilege was an immediate and natural exception to testimonial compulsion; secondly, that the early rationale for the privilege was a respect for the status or honour of the lawyer.” (Auburn, 2) So, the ideas of legal professional privilege are rather old, and its requirements have been changed from time to time. However, its major idea remains the same – those documents and information, which are regarded to be privileged should be confidential, and no one can find an access to it.

People have to have the right to keep secrets; however, such secrets are not appropriate for some legal cases. If we want to live properly and according to the law, we should follow certain rules and be aware when information should be disclosed or closed for other people, not involved directly into the case. However, some countries cannot still decide what kind of information should be announced and what facts may be hidden.

Legal Professional Privilege in England and Wales

Each country has it own peculiarities of its legal professional privilege. In this paper, we are going to analyze such countries like England and Wales, as the concept of legal professional privilege is considered to be widely used in Wales and England through the common law regulations. This principle is the background of state justice providing protection from evidence disclosure. It should be noted that most civil cases in England are observed in accordance with “standard disclosure” rules being an integral part of the Civil Procedure Rules.

The principle of legal professional privilege is regarded as the fundamental reason for the refusal of documents inspection; in Wales and England, privilege provides a substantive right of keeping the material in a confidential form; this principle is legally recognized by English common law and Human rights European Court making this aspect to be an integral part of privacy right guaranteed by Convention Article 8. As it was stated above, professional privilege is considered to be completely absolute and maybe overridden only according to the statute points.

According to the Civil Procedure Rules (Part 31.15), it is possible to inspect the documents during English civil procedure. If the party has the right to decline such inspection, it can use this right and does not allow to continue any kind of inspection, connected to this very case.

There are several requirements, which are inherent to legal profession privilege in England and Wales. First, if a communication between a client and a lawyer is considered to be privileged, it should be certainly confidential. However, if a client makes an attempt to instruct his/her own lawyer to repeat to some other party, such type of communication cannot be called confidential, this is why it cannot be privileged. So, in England and Wales, it is necessary to remember that consultations between a client and a lawyer have to be professional to get the status of privileged. If the facts, discussed between a lawyer and a client do not turn out to be the subjects of the case under consideration, but still, have some connection to it, these facts cannot be privileged as well.

To learn more about legal professional privilege in Wales and England, it is possible to analyze its major types thoroughly and clear up its features and functions. Officially, there are two basic forms of legal professional privilege in England and Wales, which are used for different social groups:

• Litigation Privilege
• Legal Advice Privilege

Legal advice privilege strives to protect the communications between client and lawyer to obtain legal advice. The peculiarities of this type of privilege are that it is the one of a client, but not a lawyer, this is why the client should be responsible for establishing the claims.

Litigation privilege is a type of immunity that aims to protect the communications keeping them confidential for the purpose of contemplated or actual litigation. Usually, it covers such points like defamation or liable. This kind of privilege may be classified according to its specific circumstances, this is why it can be either qualified or absolute. Litigation privilege may appear only after litigation or some other adversarial proceedings start. This is why this type of privilege is considered to be broader than legal advice one in Wales and England. According to this very privilege, communications, which happen between lawyers, agents, clients, and some other parties to start and develop litigation, may be considered as privileged.

The communications covered by the privilege principles contain letters and other papers being passed between party representative and involved solicitors. As it was mentioned above, not all types of communications can be completely protected; privilege is spread only for the following communications listed below:

• Communication observed between client’s agent s and his professional legal advisers;
• Those, which provide legally important information or advice;
• Communications with litigation reference;

It should be noted that in case of procedure being held in a foreign court, any communication is to be privileged concerning English proceedings. According to the English law, the following persons participate in the legal professional privilege: barristers, solicitors, native and foreign legal advisors, trademark agents and patent agents, licensed conveyances, patent agents and employees representatives involved in tribunal hearing.

Journalist’s Privilege

There are so many spheres, which are more or less connected to legal professional privilege. Of course, some people find out some information and want to share it with someone else. However, there are certain times and situations, when information cannot be divulged or, at least, its sources should be anonymous. Such situations are mostly inherent to the sphere of politics and journalism. Legal professional privilege is also expressed in the sphere of journalism. Journalist’s privilege is another right that is inherent to all journalists to refuse any divulging of confidential information. In legal proceedings, “journalistic material” is kept confidential in the form of special documents. It is necessary to underline the fact that this material means the information created for journalistic purposes. It is necessary to underline the fact that material is not compulsory being a part of national newspaper publication or the person concerned to be a member of journalists’ union; anyway, in accordance with legal professional privilege, “journalistic material” is to be held confidentially being in the possession of its creator. (Zander, 229)

The privileged valid claim leads to the witness’ prohibition from question answering in case the required information is attached by the privilege. One should underline the fact that the communication which is once privileged, remains to be so always. In some situations, the privilege is called “common interest” covering common interest of several persons being involved. In such cases the interest is easily identified; though if this determined interest ends up, the privilege never follows the representatives separately. According to the law, professional privilege can be impliedly or expressly waived by a person concerned or his agent; in case a document is submitted to evidence, one can observe waived privilege in its respect.

In the process of privileged documents discovery, the papers can be passed to the other party that is considered to be a mistakable step. It should be noted that in such cases privilege waiver is usually assumed. If the documents are obtained improperly or by deception, so, they are not to be used by clients.

Besides, it is important to stress that any communications aimed at crime or fraud committing are never privileged; in case the fraud is related to the client, the third party or an adviser may act through an innocent person. Fraud is considered to be a broad concept widening to the “iniquity” embracing a plan of entering into transactions for the client’s creditors’ prejudice. Nevertheless, it should be noted that only in case of strong fraud event expression, the court will order the disclosure of documents like these. (Auburn, 151).

If we talk about journalist’s privilege, it is necessary to admit that journalists, unlike doctors or lawyers, do not have enough privilege to refuse information’s disclosure in Wales and England. The government admits that journalists are such people, who should not have any standing to withhold information as well as the other citizens. This is why the idea of journalist’s privilege turns out to be a burning question for a long period of time. Of course, there should be some information that has to be hidden, but if a journalist is aware of it, he/she should announce it within a certain period of time. We should also take into account the fact that journalist want to preserve their sources. The sources of information, which are so important for any journalist, are usually people. If we talk about journalist’s privilege, we should remember about journalist’s ethics. To be sure that in future, the chose source will share significant information, journalists should usually promise their anonymity.

Without any doubts, it is high time to assert journalist’s privilege in many countries, and England and Wales are one of them. Information usually has its source, and sometimes, this source wants to remain unknown. This is why the right for journalist’s privilege is either important as legal professional privilege between a lawyer and a client. And it is crucial important to divide journalists from other people, because the volume of information ordinary citizens may hide is not the same to the information, journalists may share.

Civil Liberties and Human Rights: England and Wales

In the United Kingdom, civil liberties and human rights have a formative and deep history; their development has begun from Magna Carta, an English legal charter, and experienced the peak of common law in the 18^th century. The states documents concerning human rights and civil liberties were created at the period of working class struggles for their rights of being a part of trade unions and having chance to vote. This step caused parliament response and as a result the attitude to universal liberties changing their positions under the consequences of two great wars. It is necessary to underline the fact that the United Kingdom identified its positions in civil liberties by means of joining to European Convention on Human Rights. The Convention drafting was led through expression of traditional libertarian theory being gradually applicable in state law of the UK and being followed by Human Rights Act enactment in 1988.

The relationship between civil liberties and human rights has always been considered from the position of two sides of the same coin. The determination of the right is shown through someone’s demand in doing or getting something, and the liberty can be identified as the freedom from others’ interference in accordance with presumed rights.

Nevertheless, comparison of this two political and law aspects has shown that human rights are much broader. Speaking about Wales and England, one can say that they cover substantive and moral assertions considering what is really necessary for liberty, life, and happiness, allowing developing human personality to complete potential. As to the positions of the civil rights, one should stress that they are closely connected with public life and society living in accordance with governmental principles (Foster, 2003).

Human Rights Act, adopted in 1988, appeared to be an important element giving an opportunity to appeal directly to the British courts on the basis of Human Rights European Convention. This aspect influenced parliamentary sovereignty as not all courts strike down laws, which are democratically decided; in some cases judges may stick to the point that Parliament has no intention of derogation from the positions of Convention rights; this fact can be considered a kind of claim precondition to Strasbourg court as domestic legal system exhausting. In the United Kingdom, the principle reason for justification and incorporation from the Government and advocates was the necessity of saving cost and time.

The principle instrument of international human rights as well as in the UK is considered to be the to privacy respect though the privacy is not clearly indentified a as notion and this aspect has no strong limits. Privacy is one of the human rights positions taking the significant position in modern period. Analyzing Human Rights European Convention, one should admit that it covers the discretion area to the national authorities and courts over the norms and standards through which the Convention protects the freedoms and rights; this phenomenon is known in UK law as “margin of appreciation”. The tolerance of various standards is influenced by maintenance of the right essence insisted by the Court. This concept is considered to be applied to different Act articles being pronounced in respect of established regulations and rights.

The doctrine virtue is covered by its recognition as to differences in cultures of the states impacting social problems and measurements of national courts.

One of the most significant influences, produced on the UK law, is considered to be proportionality expressing the necessity of balance achievement between legitimate collective goals and it burden; it should be stressed that it requires the achievement of collective goals through the methods causing no impact on the freedoms and rights limitation of the individuals involved. The court is the one deciding the appropriateness of proportionality. In accordance with the court judgments “sufficient ad relevant” reasons are identified being advanced by the position of public authority and involved in the decision taking process covering the determination of possible safeguards against abuse.

In accordance with the Human Rights Act, section 3, the courts of the United Kingdom are to provide legislation interpretation for the purpose of compatibility approved by Convention rights. This aspect applies the interpretive obligation influencing all the state courts covering inferior courts, tribunals and magistrates courts. It should be noted that subordinate legislation is always affected from the positions of the primary legislation. In case the court made the decision that primary legislation is not to be interpreted and cannot provide an effect in a compatible manner of the convention, the “declaration of incompatibility” takes place. It is necessary to underline the fact that only High courts and tribunals.

One of the Human Rights requirements is concentrated around “public authorities” and placement of the duty in accordance with the position of the Convention rights. In England and Wales the tribunal or court is considered to be a public authority being bound to act on the basis of Convention compatibility. The tribunals and courts have the right to select private legal relations, for example, employment law or defamation, for the purpose of providing effect on the Convention values.

The positions and aspects established in civil liberties and human rights documents experienced long and deep history coming through alterations under the influence of social and political factors. (Foster, 123)

Conclusion

The ideas of legal professional privilege and self-incrimination are one of the most burning ones in the sphere of law. When a court investigates this or that case, it is crucially important to take into consideration the facts, which have to be announced and should be hidden. This is all about legal professional privilege that is considered to be the major theme of this paper. This piece of work managed to investigate the basic principles of legal professional privilege identifying its position and role in England and Wales’ law system. The analysis of basic privilege types, litigation privilege and legal advice privilege, allowed to recognize the cases of their involvement and examining the documents and communications protected by the privilege. It is necessary to underline the fact that human rights and civil liberties overview has shown the positions of the national law in England and Wales in accordance with its attitude to the society and public authority. Also, the ideas of journalist’s privilege were investigated in this paper. This investigation proves that some information just has to be hidden, because confidentiality remains one of the most considerable rights of all humans.

The introduction of the legal professional privilege provided a king of strong protection to the client in the process of case proceedings keeping his communications in the confidential form; one should stress that such aspects in the UK national law can be considered as a tolerant and moral link between the law and society.

Works Cited

1. Auburn, J. Legal Professional Privilege: Law and Theory. Hart Publishing, 2000.
2. Foster, S. Human Rights and Civil Liberties. Pearson Education, 2003.
3. Maughan, C. & Webb, J. Lawyering Skills and the Legal Process. 2^nd Edition. Cambridge University Press, 2005.
4. Zander, M. Cases and Materials on the English Legal System. 10^th Edition. Cambridge University Press, 2007.