Haq, R v

Legal professional privilege concerning a document does not itself determine whether the document is admissible in criminal proceedings. The court must separately exercise its discretion under Police and Criminal Evidence Act 1984, section 78, by considering how the evidence was obtained and whether admission would adversely affect the fairness of the proceedings.

Admission of a relevant and probative statement was fair where it was fortuitously obtained without impropriety, disclosed before trial, and capable of challenge by the defendant. In any event, a conviction remains safe where independent and unchallenged evidence supports it notwithstanding the disputed evidence.

The appellant was tried for kidnap and blackmail after three others had been convicted in 2010. He relied on an alibi that he was in Morocco. Following service of his defence statement, the disclosure officer found a statement apparently signed by him in papers from the earlier proceedings. The statement placed him at the relevant location and undermined his alibi.

At trial, the appellant challenged the statement’s validity and sought its exclusion under section 78 of the Police and Criminal Evidence Act 1984. The trial judge admitted it. On appeal, the appellant no longer disputed that the statement had been made at his direction, but contended that its privileged origin and the circumstances in which it reached the prosecution required exclusion. The central issues were whether its admission was unfair and whether the conviction was unsafe.

1. Appeal dismissed. The court admitted fresh evidence from the legal assistant under section 23(2) of the Criminal Appeal Act 1968. Her account was capable of belief, was unavailable at trial, and established that the file containing the statement had been left at court and subsequently collected with CPS material.

2. There was no basis for finding that the police or CPS had deliberately targeted or improperly obtained the file. The statement came into the prosecution’s possession fortuitously. It became relevant only after the appellant advanced his Morocco alibi.

3. Following R v Tompkins (1978) 67 Cr App R 181, privilege protecting solicitor-client communications did not determine admissibility. It did not, however, remove the need to consider exclusion under section 78 of the Police and Criminal Evidence Act 1984.

4. The trial judge’s discretionary ruling was not perverse. The statement was relevant and probative of the credibility of the alibi. It had been disclosed before trial, so there was no ambush. The appellant could challenge its substance and gave evidence about it. In those circumstances, fairness required that the jury should be permitted to consider it.

5. Independently, the conviction was safe. The complainant identified the appellant by name, other witnesses identified his voice in telephone threats, and his failure in interview to mention the eventual Morocco alibi was properly left to the jury. None of that evidence or the relevant directions was criticised.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2014] EWCA Crim 2216.

• Trial court: The appellant was convicted after the challenged statement was admitted. The court and citation are not stated in the judgment.