Seaton v Regina: CACD 13 Aug 2010

The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said this amounted to an infringement of legal professional privilege.
Held: Wilmot was not authority for any proposition about waiver of professional privilege. The issue was not addressed in that case.
Legal professional privilege is paramount, and no question should be asked to intrude upon it, including asking whether the solicitor had been told the same version as was now being given. The defendant should not be asked to waive his protection. He may however do so voluntarily. To describe what happened between himself and his solicitor is not to waive privilege entirely: ‘The test is fairness and/or the avoidance of a misleading impression.’ Merely saying that he was advised to make no comment does not waive privilege, but seeking to explain that advice may.
In fact in this case the prosecutor had not enquired further and the appeal failed.

Hughes LJ, Rafferty, Maddison JJ
[2010] EWCA Crim 1980, [2010] WLR (D) 234, [2011] 1 Cr App R 2
Criminal Justice and Public Order Act 1994 34
England and Wales
CitedRegina v Wilmot CACD 1989
Wilmot was charged with a series of six predatory rapes, committed by picking up women, some prostitutes, in one or other of two cars. The court considered the cross admissibility of similar fact evidence.
Held: Glidewell LJ said: ‘It has been . .
CitedDirector of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
CitedRegina v Condron, Condron CACD 17-Oct-1996
The defendants were charged with the supply of heroin. They had declined to answer police questions and it was on the record that their solicitor had advised them not to do so, on the grounds that he considered them unfit because they were . .
CitedRegina v Bowden (BT) CACD 10-Feb-1999
The defendant was charged with robbing a McDonald’s restaurant. He had refused to answer questions when interviewed on arrest, and his solicitor had put on record that this was on the grounds that the solicitor did not think the evidence strong . .
CitedRegina v Wishart CACD 2005
The defendant had relied on an alibi not advanced in police interviews. He had put in evidence the fact that he had had legal advice not to answer questions but had not adduced any evidence of the contents of or reasons for that advice. The Crown . .
CitedGeneral Accident Fire and Life Assurance Corporation v Tanter (‘The Zephyr’) 1984
When considering the extent to which a court should order partial disclosure of legally privileged advice, the test is one of fairness in the conduct of the trial. It should be left to the trial judge to determine whether a party in the evidence . .
CitedLoizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 11 November 2021; Ref: scu.421562