PROCURATOR FISCAL
AGAINST
NEIL HUMPHRIES

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2014SCDUND6

 

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

 

 

NOTE

 

By

 

Sheriff K. J. McGowan

 

In the cause

 

PROCURATOR FISCAL

 

Against

 

NEIL HUMPHRIES

 

 

Introduction

• [1]The accused in this case appeared for trial facing a charge of threatening or abusive behaviour, contrary to Section 38 of the Criminal Justice and Licensing (Scotland) Act, 2010.
• [2]Prior to the trial commencing, I was addressed by the procurator fiscal depute and the defence agent about an issue which was thought would affect how the trial proceeded.
• [3]The issue was this: some time after the accused had appeared from custody and been released on bail, he had, on the advice of the Veterans’ Association, (“the VA”) been persuaded to consider seeking alternative legal representation. (It appeared that the VA had itself been contacted by the accused’s then partner, who was the complainer in the present case.)
• [4]The VA had recommended that the accused see the agent who appeared before me, with whom they had had some previous dealings in connection with other cases. Arrangements had been made and a meeting had taken place at which the defence agent, the accused, the complainer and the VA representative had all been present (“the meeting”).
• [5]The Crown was proposing to lead evidence from the complainer as to certain things the accused was alleged to have said during that meeting which were contended to be of an incriminatory nature (“the putative confession”).
• [6]The defence position was that anything that might have been said amounted to solicitor/client discussions; as such was subject to the privilege of confidentiality (“privilege”); and as such was inadmissible.
• [7]It became apparent that there was a potential factual dispute about not only what was said at the meeting, but also the context of the meeting (i.e. was it one where “legal advice” was being sought and tendered).
• [8]In these circumstances, I concluded that since I could not determine the question of admissibility without hearing evidence as to the circumstances and content of the meeting itself, the appropriate procedural mechanism was for there to be a “trial within a trial”.
• [9]The trial commenced on that basis. At that stage, I understood the Crown position to be that privilege did not apply because the meeting was not truly one where advice was being sought and given.

  The evidence

• [10]By agreement, the complainer was taken straight by the procurator fiscal depute to her evidence as to the circumstances in which the December meeting had come about. When he sought to elicit evidence about the content of that meeting, objection was taken on the grounds that the meeting was one between solicitor and client and that accordingly what had passed between the accused and the defence agent was subject to privilege and thus not admissible.
• [11]It was agreed that I should hear that evidence under reservation in order to allow me to rule on its admissibility which I proceeded to do. I then heard parties’ submissions on the questions privilege and admissibility.

  Grounds of decision

  The issue

• [12]The starting point is that evidence of what a person said (hearsay) is not normally admissible.
• [13]An exception to that rule is a statement against interest (e.g. a “confession” or an “admission”) said to have been made by an accused person. Such a statement, although hearsay, is admissible against the accused person. That is type of evidence which the Crown sought to adduce in this case.
• [14]But anything said by a person to his lawyer where the lawyer is being asked qua lawyer to give legal advice is covered by privilege: Three Rivers District Council v Governor and Company of the Bank of England [2005] 1 AC 610, cited in Walker & Walker at paragraph 10.2.1.
• [15]The accused’s position in the present case was it was clear from the evidence of the complainer that the putative admission made by the accused to his solicitor had been made in the context of a solicitor/client meeting at which advice was being sought and tendered. As such it was privileged in the sense of being confidential – and not admissible.
• [16]It did not matter that remark was made in the context of an initial meeting. The privilege was unaffected by the presence of other parties.
• [17]In the light of the evidence about the circumstances and nature of the meeting, the Crown accepted that evidence of what the accused said to his solicitor would normally confidential and as such not admissible.
• [18]However, the Crown went on to argue that principle of privilege that arose in respect of solicitor/client communications was itself subject to an exception where there had been a waiver of confidentiality.
• [19]The right to assert privilege lay with the client (the accused in the present case), but that right could be waived. That was what had happened here – the accused had made an admission in the presence of the complainer and that deprived him of the right to confidentiality which he would otherwise have had: “The Law of Evidence in Scotland”, Walker & Walker, 3^rd edition, paragraph 10.1.7; R v Tompkins (1978) 67 Cr App R 181 at 184.
• [20]The result was that the privilege of confidentiality flew off and the evidence of the complainer as to the putative admission made by the accused was admissible.

  Discussion

• [21]The reported cases all seem to deal with written communications. I was not referred to, nor have I been able to find, any cases where the question of privilege or waiver thereof of oral communications has been at issue. However, it appears to me that the principles which apply in relation to documents should apply to oral communications also.
• [22]It does not seem to be in doubt that the privilege of confidentiality can be waived: “Evidence”, Davidson, W. Green & Son Ltd, 2007, paragraph 13.31; Walker &Walker, paragraph 10.1.5.
• [23]Plainly, if a party expressly waives the right to confidentiality, no controversy will arise.
• [24]The concept of implied waiver also seems to be recognised and flows from “publication”.
• [25]So the question which arises in this case is whether the circumstances of the putative confession made in the presence of the complainer invite the inference that the accused had waived his right to confidentiality?
• [26]On the one hand, this was plainly a meeting at which the accused was seeking and obtaining legal advice.
• [27]In addition, a limited disclosure of confidential information does not operate as a complete waiver of privilege. For example, where a party to a litigation agreed to a request from a judge to see confidential reports to verify their dates and the premise on which they were compiled was held not to have waived privilege: Barclay v Morris 1998 SC. Nor was waiver established when confidential information was disclosed to an expert, and the expert’s report, referring to that information was itself intimated to the other party to a litigation: W’s Parent and Guardian v Douglas 2006 GWD 37-737.
• [28]These cases suggest that the courts will tend to protect solicitor/client privilege.
• [29]On the other hand, the purpose of privilege is to enable a person to obtain legal advice freely, without the risk that communications between them might be disclosed later to a future opponent: Walker & Walker, paragraph 10.2.2.
• [30]The law does not seem to be very clear in either Scotland or England as to the status of confidential material which falls into the hands of third parties: Walker & Walker, paragraphs 10.1.6 and 10.1.7. As the learned authors observe, it seems hard to rationalise the loss of privilege if the party entitled to has played no (voluntary) part in the disclosure.
• [31]The contrary argument is that privilege operates merely to prevent the communication being produced, and cannot be relied upon to render it inadmissible once obtained: Tompkins.
• [32]The facts in Tompkins were highly unusual. The defendant went to trial, accused of handling a stolen stereo set. The owner identified it as his by its having a loose button. The defendant denied that it had ever been loose, and demonstrated that it was not. However, during an adjournment, a representative of the prosecution picked up from the floor of the court a note from the defendant to his counsel, saying that the button had been loose and that he had stuck it on with glue. Crown counsel put the note to the defendant in cross-examination and asked him if he still stuck to his previous answer. He did not and he was convicted.
• [33]On appeal, it was held that a note from a defendant to his counsel was not privileged against being used by prosecution counsel if it comes into his possession by whatever means. The defendant had convicted himself from his own mouth. There was no breach of natural justice and indeed natural justice demanded the defendant’s exposure. Counsel for the Crown's behaviour was perfectly proper, and no irregularities, material or otherwise, had occurred.
• [34]It is not immediately obvious how the restriction of privilege to the prevention of a communication being produced should operate in the case of an oral communication as distinct from a document.
• [35]I do not think that the mere presence of a third party at the meeting is determinative. For example, if the meeting in this case had been attended by the accused, his solicitor and the VA representative only, I would not have held there to be waiver of privilege, since the VA representative seems to have been there in the role of go-between. I can conceive also of a situation where a party might take along a supporter such as a friend or relative to a meeting with the party’s lawyer. In that kind of situation, my view is that the fact that a “trusted” third party overheard communications between a solicitor and his or her client would not invite the inference that privilege had been waived. But in the present case, the putative confession was voluntarily made in the presence of the complainer, who, although she cannot perhaps be exactly characterised as the accused’s opponent, was certainly somebody who had a contrary interest in the case.
• [36]That appeared to me to be the decisive factor and I repelled the objection and admitted the complainer’s evidence of the putative confession.