Seaton v R

Legal professional privilege is paramount and is not balanced against competing public interests. Unless the client has waived it, a party must not ask whether a defendant told a solicitor the account advanced at trial, or invite the defendant to waive privilege.

A defendant may voluntarily rely on communications with a lawyer, including to answer an allegation of recent fabrication. That is a waiver, but only to the fair extent needed to prevent a misleading impression. Evidence merely that legal advice to remain silent was received does not waive privilege. Evidence of the content or reasons for that advice, or of the account given to the lawyer, may do so.

After such a waiver, fair comment may be made on the absence of an available solicitor who could readily confirm the account.

The appellant was convicted of murder at Luton Crown Court. At trial he said that a prepared statement given in police interview incorrectly located an injury to his hand at Stansted Airport, rather than at Lubeck Airport.

He gave evidence that his solicitor had prepared the statement, that he had noticed the error when it was read out, and that he had discussed correcting it with her. The prosecution contended that this was a recent fabrication and, with the judge’s permission, commented on the solicitor’s absence from the witness box.

The appeal challenged that comment as an infringement of legal professional privilege. The central issue was whether the appellant’s own evidence had waived privilege sufficiently to permit the comment.

1. Appeal dismissed. The conviction was safe. The appellant had waived legal professional privilege by his evidence in chief, and the prosecution’s comment on the solicitor’s absence was permissible.

2. Legal professional privilege is of paramount importance. In the absence of waiver, a witness must not be asked whether he told a lawyer the account now given at trial, since that would force a choice between waiving privilege and suffering adverse criticism. The judge must stop such questioning, tell the witness that no answer is required, and explain the confidentiality of lawyer-client communications to the jury. This followed the proper reading of R v Wilmot (1989) 89 Cr App R 341.

3. A defendant may choose to disclose communications with a lawyer. This is not a breach of the defendant’s own privilege, but a waiver of it. Waiver is not automatically general. Its scope is governed by fairness and by the need to avoid a misleading impression. It ordinarily permits questioning about precisely what the defendant said to the solicitor on the disclosed topic, but not unrelated communications.

4. The appellant did more than state that he had received advice not to answer police questions. He deliberately conveyed that he had given his solicitor the same Lubeck account later advanced at trial, and had discussed correcting the alleged error. That evidence necessarily waived privilege on that subject. The prosecution was therefore entitled to comment that the solicitor, if the account were true, could readily have confirmed it.

5. Comment on an absent witness is fact-sensitive. Although it will often be unsafe to invite an adverse conclusion from a witness’s absence, it was fair here because the solicitor was available and could have conclusively addressed the specific account which the appellant had chosen to disclose. The court added that, had the comment been impermissible, its significance would have rendered the conviction unsafe.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed and the conviction held safe: [2010] EWCA Crim 1980.
• Luton Crown Court: The appellant was convicted of murder following trial before His Honour Judge Bevan QC. No reported or neutral citation was stated.