Belhaj & Anor v Director of Public Prosecutions & Ors

Legal professional privilege may be waived for a limited purpose without being waived generally. The scope of waiver is determined objectively by analysing the conduct and the circumstances of disclosure.

An implied extension of a limited waiver requires more than a general connection between the original disclosure and later proceedings. The processes must be so closely and necessarily connected that they form part of a single composite process. A prosecutorial decision, its internal review and subsequent judicial review are ordinarily distinct processes. The public authority’s duty of candour remains the principal safeguard against reliance on materially misleading privileged advice.

The claim concerned the Director of Public Prosecutions’ decision not to prosecute alleged involvement in the unlawful rendition of the claimants to Libya. Privileged government material had been supplied to the police and prosecuting authorities under an express limited waiver, confined to assisting the investigation and related prosecutorial consideration.

The claimants sought a declaration under section 6 of the Justice and Security Act 2013 and argued that the waiver necessarily extended to the judicial review proceedings. The court considered whether the prosecutorial process, internal review and judicial review formed one composite process, and whether privilege had therefore been waived for the court proceedings.

1. Jurisdiction. The court had jurisdiction under section 11(4)(a) of the Justice and Security Act 2013 to hold a closed hearing in relation to the application for a declaration under section 6.
2. Objective scope of waiver. Waiver is judged objectively by reference to the conduct of the person asserting privilege. Privilege may be waived for a specific purpose and context without being waived generally. The express terms of the government’s waiver were clear and confined disclosure to assisting the investigation and prosecutorial decision-making.
3. Inferred waiver. An implied extension may arise where the relevant conduct is inconsistent with retaining confidentiality in a particular context. Scottish Lion Insurance Co Ltd v Goodrich Corp [2013] BCC 124 illustrated the outer limits of that principle. There, the stages of a scheme-of-arrangement process formed a single process, and disclosure at one stage could extend to later court proceedings where necessary.
4. The present case was materially different. The advice supplied to the DPP, the prosecutorial decision, the internal review and the later judicial review were discrete processes. Judicial review was a generic supervisory remedy and was not a composite part of the prosecutorial process. No further waiver could therefore be inferred.
5. Duty of candour. The conclusion preserved the government’s duty to provide the court with a full and accurate account of relevant facts and decision-making. Where privileged advice was based on inadequate or misleading information, the duty of candour would ordinarily require the resulting misapprehension to be corrected unless immaterial. The application for the declaration accordingly failed on the waiver issue.

First-instance judgment. The judgment refers to an earlier judgment in the same proceedings, [2017] EWHC 3056 (Admin), but no appellate decision is stated.