Frances Murray of Kangs Solicitors discusses the issue of Legal Professional Privilege (‘LPP’) in relation to criminal prosecutions and, by way of illustration, refers to a multi million pound boiler room fraud being prosecuted at Southwark Crown Court where Kangs Solicitors represents one of the Defendants.

This prosecution is the product of an extensive Financial Conduct Services (‘FCA’) investigation over a period of years.

During the course of the FCA investigation, officers uplifted a vast amount of material including much that is potentially subject to LPP.

The FCA has instructed independent Counsel to examine the status of around 11,000 items that are at present ‘quarantined’.

Similarly, experts in the field of LPP material at Kangs Solicitors are conducting their own assessment of the material and  Kangs have been invited to present representations in relation to material thought to be caught by the ‘crime / fraud exception’.

Crime / Fraud Exception | Kangs Fraud Solicitors

LPP protects advice a lawyer gives to a client on avoiding committing a crime [Bullivant v Board of Trade [1971] Ch 680] but it does not extend to documents which themselves form part of a criminal or fraudulent act, or communications which take place in order to obtain advice with the intention of carrying out an offence [R v Cox & Railton (1884) 14 QBD 153].

It is irrelevant whether or not a lawyer is aware that they are being used for that purpose when providing the advice. [Banque Keyser Ullman v Skandia [1986] 1 Lloyds Rep 336].

Intention of Carrying Out an Offence

It is not just the client’s intention which is relevant for the purpose of ascertaining whether information was communicated for the furtherance of a criminal purpose.

It is sufficient that a third party intends the lawyer / client communication to be made with that purpose (e.g. where the innocent client is being used by a third party) [R v Central Criminal Court ex p Francis & Francis [1989] 1 AC 346].

Knowing a Transaction Constitutes an Offence

If a lawyer knows a transaction they are working on relates to a principal offence, the lawyer risks committing an offence.  In these circumstances, communications relating to such a transaction are not privileged and are disclosable.

Suspecting a Transaction Constitutes an Offence

If a lawyer merely suspects a transaction might constitute an offence, the position is more complex.

If the suspicions are correct, communications with the client are not privileged.

If the suspicions are unfounded, the communications should remain privileged and are therefore non-disclosable.

Prima Facie Evidence | Kangs Solicitors Defending Fraud Allegations

If a lawyer suspects that they are potentially being involved by a client in a fraud, the courts require prima face evidence before LPP can be displaced [O’Rourke v Darbishire [1920] AC 581]. 

The sufficiency of that evidence depends on the circumstances and it is easier to infer a prima facie case where there is substantial material available to support an inference of fraud.

Kangs Experience | Specialist Fraud and LPP Solicitors

In our above-mentioned case before Southwark Crown Court, Independent Counsel instructed on behalf of the FCA has served a Master Report together with a schedule of all those items currently in ‘quarantine’.

Our specialist team is meticulously reviewing the material in order to ensure that nothing subject to LPP is released into the hands of the FCA.

Further, the team is examining whether or not those items categorised as caught by the ‘crime / fraud exception’ have been correctly categorised to ensure that nothing prejudicial to our client is released.

Who can I Contact? | Kangs Solicitors

If you require assistance in relation to LPP material, or the status of potentially LPP material that has been uplifted by the authorities during the investigation stage of any case, we will be happy to advise and guide you.

Our specialist team can be contacted through the following:

John Veale
jveale@kangssolicitors.co.uk
020 7936 6396 | 0121 449 9888

Frances Murray
fmurray@kangssolicitors.co.uk
020 7936 6396 | 0121 449 9888