Hall v R

Full disclosure of a solicitor’s attendance notes waives legal professional privilege over the whole content of those notes. It does not waive privilege over other solicitor-client communications.

An erroneous restriction on cross-examination concerning the disclosed notes will not render a conviction unsafe where the excluded material could only reveal minor additional inconsistencies, and could not properly be deployed as evidence of the truth of the account recorded.

The appellant was convicted of murder, grievous bodily harm with intent and perverting the course of justice following a trial at the Central Criminal Court before His Honour Judge Worsley QC.

Her co-accused, Tony O’Toole, called his solicitor after it was alleged that parts of his evidence were recent fabrications. He disclosed the solicitor’s police-station attendance notes in full. The trial judge confined cross-examination of the solicitor to the particular matters said to have been fabricated.

The appeal against conviction raised whether disclosure had waived privilege over all of the notes and, if so, whether the resulting restriction on cross-examination affected the safety of the appellant’s conviction.

1. Appeal dismissed. The judge erred in treating the waiver of legal professional privilege as confined to the discrete parts of O’Toole’s evidence challenged as late fabrication.

2. By disclosing the attendance notes in their entirety, O’Toole waived privilege over their whole content. Ordinary waiver principles, as summarised in R v Seaton [2010] EWCA Crim. 1980, led to that result. The waiver did not extend to other communications between O’Toole and his solicitor, including other instructions or legal advice.

3. The error did not undermine the safety of the appellant’s conviction. The appellant’s proposed use of selected passages had shifted from identifying inconsistencies in O’Toole’s accounts to relying on his statements to the solicitor as proof of their truth. That use was inconsistent with the position adopted at trial, where the evidence was confined to consistency and credibility.

4. No application was made to recall O’Toole or to admit the statements substantively under the hearsay provisions of the Criminal Justice Act 2003. The court held that no feasible basis for selective substantive admission had been identified. Such an approach would also have exposed the appellant to the damaging parts of the same accounts.

5. At most, wider cross-examination of the solicitor could have exposed minor further inconsistencies. The jury already had O’Toole’s interview accounts, and did not accept the core of his evidence, as shown by his own conviction for murder. The restriction therefore had no material bearing on the conviction.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 581, dismissed the appellant’s appeal against conviction.
• Central Criminal Court: His Honour Judge Worsley QC presided over the trial. The appellant was convicted of murder, grievous bodily harm with intent and perverting the course of justice. She received life imprisonment with a minimum term of 15 years, later increased to 17 years on an Attorney-General’s reference.