Hall -Chung, R. v

Legal professional privilege is waived where a solicitor, in the client’s presence and acting within authority, states both that the client will remain silent and the grounds for that advice. It makes no difference whether the Crown or the defence first adduces the statement.

Waiver does not automatically entitle the Crown to exploit the material. The judge must independently decide whether cross-examination is fair under PACE, section 78.

Evidence relevant to a witness’s reliability is not necessarily evidence of bad character under the Criminal Justice Act 2003. Conduct which is not reprehensible falls outside that statutory regime.

The appellant was convicted at Snaresbrook Crown Court of robbery, possessing a firearm while committing an offence, attempted robbery, and attempting to cause grievous bodily harm with intent. The offences arose from a planned armed robbery of a jeweller’s and an attempted escape involving shots fired at two cable workers. He received imprisonment for public protection with a minimum term of ten years.

He appealed against conviction on grounds concerning cross-examination about his silence and alibi, cross-examination of his alibi witness, the jury’s verdicts after a Watson direction, and the admission of previous firearms convictions. He also challenged the minimum term as manifestly excessive.

1. The appeal against conviction was dismissed. A solicitor’s statement, made in the client’s presence, that the client would remain silent and stating the grounds for that advice waived privilege on the client’s behalf. The timing and source of the evidence did not alter that conclusion. The court approved the relevant observation in R v Bowden [1999] 2 Cr App R 176 and its application in R v Loizou [2006] EWCA Crim 1719.
2. Waiver did not itself resolve fairness. Under section 78 of PACE, the judge had to exercise an independent judgment on whether the Crown could deploy it. The cross-examination was fair because the appellant’s asserted inability to recall his whereabouts, and the explanation for his silence, were central to the credibility of his subsequently advanced alibi.
3. The alibi witness’s conduct shortly before giving evidence was not evidence of reprehensible behaviour and therefore did not engage sections 98, 100 or 112 of the Criminal Justice Act 2003. It was nevertheless relevant to the reliability of her evidence and could be explored in cross-examination. The court approved the analogous reasoning in R v Gary Osbourne [2007] EWCA Crim 481. Although the issue should preferably have been raised with the judge before the witness was cross-examined, no unjust harm resulted.
4. The judge was entitled, on the undisclosed contents of the jury’s note, to give a Watson direction. The resulting combination of unanimous and majority verdicts did not make the convictions unsafe. The court tentatively suggested that a judge may avoid such difficulty by withholding acceptance of a verdict on one count until the jury has completed deliberations on all counts.
5. The previous firearms convictions were plainly relevant propensity evidence. They showed a propensity to handle and use firearms, and the judge was correct to admit them. The application to revive that ground was refused.
6. The application relating to sentence was rejected. The planned robbery, vulnerable premises and gratuitous shooting at innocent bystanders justified the minimum term. The absence of injury was attributable to good fortune and did not reduce the gravity of the offending. A minimum term of ten years was not manifestly excessive.

• Court of Appeal (Criminal Division)—The court dismissed the conviction appeal, refused to revive the bad-character ground, and rejected the sentence challenge: [2007] EWCA Crim 3429.
• Snaresbrook Crown Court—The appellant was convicted on 21 and 22 June 2006 of robbery and related firearms and violence offences, and was sentenced to imprisonment for public protection with a minimum term of ten years.