Hallinan, Blackburn-Gittings & Nott (a firm), R (on the application of) v Middlesex Guildhall & Anor

Legal professional privilege depends on the circumstances of the particular case. In an ordinary alibi case, privilege should not be defeated by analysing the issues likely to arise at trial. However, where there is freestanding and independent evidence of a specific agreement to pervert the course of justice, the court may assess whether the material falls outside privilege under section 10(2) of the Police and Criminal Evidence Act 1984. Material held by solicitors with the inferred intention of furthering a continuing criminal purpose is not privileged. The court may therefore make a production order where the statutory access conditions are satisfied.

The claimant solicitors sought judicial review of a decision by HHJ Fabyan-Evans at Middlesex Guildhall Crown Court on 17 June 2004. The judge had made a production order under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984 for material relating to a proposed witness statement.

The material had reached the solicitors from persons suspected of conspiring to pervert the course of justice. The central issue was whether the material was excluded from legal professional privilege because it was held with the intention of furthering a criminal purpose.

1. The application for judicial review failed. The production order was upheld.
2. Under section 10(2) of the Police and Criminal Evidence Act 1984, items held with the intention of furthering a criminal purpose are not subject to legal privilege. The relevant criminal purpose may be continuing, and may be furthered or improved by legal assistance.
3. Whether privilege applies is fact-sensitive. In a case involving an alibi, the court should not analyse the issues likely to arise in the criminal investigation or trial which gave rise to the initial privilege. That would improperly put analysis of the issues before the trial.
4. Where there is freestanding, independent evidence of a specific agreement to pervert the course of justice, the court may evaluate whether the material falls within or outside legal professional privilege. The evidence must not depend on deciding the issues to be tried at the criminal trial.
5. On the facts, the Crown Court judge was entitled to conclude that the material had reached the innocent claimant solicitors from persons whose inferred intention was to further a continuing purpose of perverting the course of justice. The material was therefore outside legal professional privilege, and the statutory access provisions could be engaged.
6. The court declined to certify the proposed question under section 1 of the Administration of Justice Act, because the point of law did not arise on the issue decided.

• Middlesex Guildhall Crown Court: HHJ Fabyan-Evans made a production order on 17 June 2004 under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984.
• High Court (Administrative Court): the judicial review claim failed and the production order was upheld.