Devani, R v

An asserted claim to legal professional privilege does not make a trial unfair where the accused can present the substance of the defence and suffers no material evidential prejudice. The court must assess the practical effect of the restriction, including whether it prevented harmful conflict between co-accused from emerging.

For section 67(9) of the Police and Criminal Evidence Act 1984, the relevant duty to investigate may arise by statute, common law or contract and depends on the facts. A caution is required under Code C only once there are grounds to suspect an offence, subject to the search-purpose exception. A breach of Code C does not require exclusion under section 78 where admission remains fair in the particular circumstances.

The appellant, a solicitor, was convicted at the Central Criminal Court of perverting the course of justice after taking from a remand prisoner a letter which the prosecution alleged proposed the fabrication of evidence in his attempted-murder case.

Her defence was that she did not know that the folded paper given to her contained letters or knew their contents. Her co-accused asserted legal professional privilege in respect of their prison conference. The appellant contended that this made the trial unfair. She also challenged the admission of answers she gave to prison staff before being cautioned.

The appeal concerned whether the privilege restrictions caused material unfairness and whether the prison staff were subject to Code C under section 67(9) of the Police and Criminal Evidence Act 1984, so that the evidence ought to have been excluded.

1. Appeal dismissed. The conviction was safe.

2. The assertion of legal professional privilege by Merchant did not materially disadvantage the appellant. She was able to give the essential evidence that she had not known of the letters or their contents, and to rely on her later attendance note. Merchant also confirmed an important part of her account. The restricted area concerning the morning conference was more likely to have concealed a conflict between their accounts than to have deprived her of helpful evidence. No further document was identified as capable of assisting her case.

3. Under section 67(9) of the Police and Criminal Evidence Act 1984, a duty to investigate may be statutory, contractual or imposed by common law. Whether it exists depends on the facts. The operational support grade officers had no duty to investigate offences and would report suspicions to prison officers; they were therefore outside section 67(9). Mr Labatt, as a prison officer with relevant arrest powers, was within it.

4. The first officer merely sought to evaluate what she had seen on CCTV and had not yet reached grounds to suspect an offence. No caution was then required, even by analogy with Code C. Once the file had been searched and the letters found, there were grounds to suspect an offence of conveying an item out of prison contrary to section 41 of the Prison Act 1952. A caution should therefore have preceded the later questioning, including Mr Labatt's question.

5. Nevertheless, the trial judge was entitled under section 78 of the Police and Criminal Evidence Act 1984 to admit the answers. The exchanges were short and non-oppressive. The appellant was an experienced solicitor and was accompanied by her experienced principal. Those circumstances made admission fair, whether the breach was of Code C itself or only its spirit.

• Court of Appeal (Criminal Division) Dismissed the appellant's appeal against conviction and held the conviction safe.

• Central Criminal Court On 22 June 2005, convicted the appellant of perverting the course of justice. On 29 September 2006, imposed 12 months' imprisonment.