Gibbins, R v

The fraud exception prevents legal advice privilege from attaching to communications made to further or facilitate crime or fraud. At the preliminary admissibility stage, the judge need only be satisfied on a prima facie basis that there was fraud and that the disputed communication was created as part of, or in furtherance of, it. The criminal standard of proof does not apply to that preliminary question. The judge may consider the document itself and the surrounding evidence. The jury retains the ultimate task of deciding whether fraud is proved beyond reasonable doubt and what weight to give the document.

The appellant was tried with co-defendants for an alleged conspiracy to defraud investors through access-to-funds agreements. His former solicitor prepared draft instructions for counsel. The appellant annotated them, including a note beside Law Society correspondence warning that similar transactions were invariably fraudulent.

Field J ruled at a preliminary hearing that the annotations indicated an intention to obtain advice on an incomplete and false basis for use in furthering the alleged fraud. The fraud exception therefore removed legal professional privilege, and the judge refused to exclude the document under section 78 of the Police and Criminal Evidence Act 1984.

With the judge’s leave, the appellant appealed. The central issue was whether the fraud exception required proof beyond reasonable doubt that the document had been produced to facilitate fraud.

1. Appeal dismissed. Field J made no error in admitting the annotated instructions. The Court upheld the conclusion that the fraud exception to legal professional privilege applied and that admission would not be unfair under section 78 of the Police and Criminal Evidence Act 1984.
2. Legal advice privilege ordinarily protects confidential lawyer-client communications made for legal advice. However, under R v Cox and Railton (1884) 14 QBD 153, the privilege does not attach where the client seeks advice to further or facilitate crime or fraud. The exception serves the same public-interest basis as the privilege itself: privilege cannot operate as a cloak for fraud.
3. The required threshold at the interlocutory stage is a prima facie case, expressed in Cox and Railton as probability. The judge must be satisfied both that there is a prima facie case of fraud and that there is a prima facie case that the particular document was created as part of, or for the purposes of, that fraud. A description of the case as “strong” may emphasise the need for a clear view, but creates no separate evidential standard.
4. The criminal standard is inapplicable because the ruling decides admissibility only. The judge may examine the disputed document and the wider alleged fraud together. Those inquiries may overlap. The jury remains free to decide, beyond reasonable doubt, whether the alleged fraud existed and whether the document is probative of it. Requiring certainty from the judge would improperly usurp that function.
5. The appellant’s challenge to Field J’s factual inference from the annotations was not a point of law from which an appeal lay. The Court therefore did not need to decide the Crown’s alternative arguments concerning prior possession of the document or its alleged entry into the public domain.

1. Court of Appeal (Criminal Division). The appellant’s appeal against the preliminary admissibility ruling was dismissed: [2004] EWCA Crim 311.
2. Southwark Crown Court (Field J). On 12 January 2004, Field J held that the fraud exception displaced legal professional privilege over the annotated draft instructions and refused to exclude them under section 78 of the Police and Criminal Evidence Act 1984.