R v Peter Currie

A person claiming joint legal professional privilege with a company must establish that the solicitor was instructed to advise that person individually as well as the company. Advice to the company does not become personal advice merely because it may affect the individual’s position. Applying the distinction in [2011] EWHC 2583 (Admin), the court held that the actual retainer and available evidence are decisive.

Under Police and Criminal Evidence Act 1984, s.78, evidence with clear probative value need not be excluded where any potential prejudice can be adequately controlled by directions to the jury.

The applicant was convicted at Southwark Crown Court of fraud by false representation, fraud by abuse of position and converting criminal property. He received a total sentence of five years and six months’ imprisonment.

He renewed an application for leave to appeal against conviction after a single judge had refused leave. The proposed appeal concerned emails sent by a solicitor retained by the company involved in the offending. The applicant contended that the emails were protected by joint legal professional privilege or should have been excluded under s.78 of the Police and Criminal Evidence Act 1984.

The central issues were whether the solicitor had also been jointly instructed by the applicant personally, and whether the emails’ possible prejudice required their exclusion.

1. The renewed application for leave to appeal was refused. The court also refused the application for a three-day extension of time, since the proposed grounds lacked merit.

2. The trial judge correctly applied R (on the application of Ford) v Financial Services Authority (defendant) and Johnson and another (interested parties) [2011] EWHC 2583 (Admin). The material distinction was between advice given to an individual as the solicitor’s client and advice given to another client which may affect that individual’s personal position. The latter does not establish joint privilege.

3. The evidence supported a single retainer in favour of the company. The applicant had not shown that he sought or received advice in a personal capacity, or that the solicitor understood the instructions to be joint. There was no supporting evidence from the solicitor or the applicant, and the documentary material fell far short of establishing a joint instruction on the civil standard. That evaluative finding was quintessentially for the trial judge and disclosed no arguable error.

4. The absence of attendance notes did not assist the applicant. There was no evidential basis for finding that further relevant meetings or advice had occurred, that material was missing, or that an inference should be drawn from its absence.

5. The judge was entitled to decline exclusion under s.78 of the Police and Criminal Evidence Act 1984. The emails had clear probative value: they showed that the solicitor had not been told in advance about the alteration to the interim-permission register, and that the company had early advice about the seriousness of the regulatory issues before relevant transfers of money. Any possible prejudice was mitigated by directions limiting the jury’s use of the emails.

6. In any event, substantial other evidence supported the prosecution. The court did not doubt the safety of the convictions.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 543, the court refused the renewed application for leave to appeal against conviction and refused an extension of time.

• Southwark Crown Court: On 22 May 2023, the applicant was convicted of fraud by false representation, fraud by abuse of position and converting criminal property, and was sentenced to five years and six months’ imprisonment.