Multiple-Choice Questions Chapter 14
Criminal and Civil Evidence 12th ed. (2011-2012)
(a) Henry, who works in John’s factory, was injured whilst at work. Henry wrote to Anne, his solicitor, for legal advice, stating in the course of the letter that the accident was probably his own fault. The letter was dictated by Henry but was typed and posted by Ian, Henry’s secretary. Henry’s claim has now been allocated to the multi-track, and Henry wishes to withhold inspection of the letter.
Which one of the following four propositions is true?
[a] The letter is not privileged because it does not contain legal advice.
[b] The letter is not privileged because it was not written by Anne.
[c] The letter is not privileged because it was typed and posted by Ian.
[d] The letter appears to be privileged.
The correct answer is [d]. See textbook 14.1 and 14.1.2. The letter was a confidential communication from Henry (the client) to Anne (the legal adviser) for the purpose of obtaining legal advice and, thus, appears to be privileged. The fact that it was not written by Anne and does not contain legal advice does not prevent it from being privileged. Equally, the fact that the letter was typed and posted by Ian, Henry’s agent, does not affect its privileged status, as Ian was merely acting as a medium via which the privileged communication was communicated from Henry to Anne.
(b) Colin, being suspected of the rape of Gloria, sees Chi Wai, his solicitor, in private at the police station. In the course of the interview, he admits that he had intercourse with Gloria without her consent.
Which one of the following four propositions is true?
[a] Colin’s conversation with Chi Wai at the police station cannot be privileged because legal advice privilege only attaches to written statements.
[b] Colin’s conversation with Chi Wai cannot be privileged because legal advice privilege may only be claimed in civil proceedings.
[c] Colin cannot be required to answer questions at this trial concerning the content of his conversation with Chi Wai but Chi Wai may be required to answer such questions.
[d] None of the above propositions are true.
The correct answer is [d]. See textbook 14.1.1.1 and 14.1.2. Colin made the confession in the course of a confidential conversation with his solicitor for the purpose of obtaining legal advice, the confession being information given to Chi Wai for that purpose. Thus, the conversation appears to have been subject to legal professional privilege. At Colin’s trial, Colin cannot be required to answer questions concerning what he said to Chi Wai during the interview and, if Chai Wai is called as a witness, she must object to answering such questions unless Colin waives privilege. Legal professional privilege applies to both written and oral communications, and may be claimed in civil and criminal proceedings.
(c) Wasim met Sue, his solicitor, in order to obtain legal advice concerning contemplated litigation against Eric. In the course of their conversation, Wasim made some slanderous remarks concerning Fred, a friend of Sue’s, the remarks being totally gratuitous and unconnected with the subject-matter of the legal advice. Fred is bringing a claim in slander against Wasim. Wasim objects to Sue being called by Fred to repeat the remarks which Wasim made in her office.
Consider the following three propositions.
(i) The slanderous remarks must be privileged because they were made in the course of a conversation between Wasim and his legal adviser.
(ii) The slanderous remarks do not appear to be privileged because they were not made for the purpose of obtaining or giving legal advice
(iii) The part of the conversation between Wasim and Sue that relates to the contemplated litigation appears to be privileged.
Which of the above three propositions is/are true?
[a] (i) and (iii) only.[b] (ii) and (iii) only.[c] (i) only.[d] (ii) only.
The correct answer is [b]. See textbook 14.1.2.1. Whilst the conversation between Wasim and Sue appears to be privileged to the extent to which it relates to the contemplated proceedings against Eric, it appears that the slanderous remarks are not privileged because they were not made for the purpose of obtaining or giving legal advice.
(d) Henry, who works in John’s factory, was injured whilst at work. Anne, Henry’s solicitor, in anticipation of litigation against John, instructed Dr Potter, a medical expert, to produce a report on Henry’s medical condition. Henry also obtained a witness statement from Cindy, a witness of fact who witnessed the accident. Henry’s claim has now been allocated to the multi-track. Both Dr Potter’s report and Cindy’s witness statement are adverse to Henry’s interests and, consequently, Henry wishes to withhold inspection of it. He also objects to John calling Dr Potter and Cindy as witnesses.
Consider the following four propositions.
(i) The report appears to be subject to legal professional privilege.
(ii) Because the report is privileged, Dr Potter will not be a competent and compellable witness for John.
(iii) The witness statement appears to be subject to legal professional privilege.
(ii) Because the witness statement is privileged, Cindy will not be a competent and compellable witness for John.
Which of the above four propositions is/are true?
[a]They are all true.[b] (i) and (iii) only.[c] (i), (ii) and (iii) only.[d] (i), (ii) and (iv), only.
The correct answer is [b]. See textbook 14.1.1.3 and 14.1.3. Since the report and the witness statement appear to have been produced for the purpose of preparing for litigation that was contemplated at the time when the report was produced they both appear to be privileged. Thus, Henry is entitled to withhold inspection of the report and the witness statement. Henry cannot prevent John calling Dr Potter or Cindy, and cannot prevent Cindy testifying in relation to facts that she perceived or Dr Potter testifying in relation to facts that he perceived or opinions that he formed. Dr Potter may not, however, reveal either the contents of his instructions from Anne or the contents of his report, and Cindy may not reveal either the contents of communications between her and Anne or the contents of the witness statement.
(e) Henry, who works in John’s factory, was injured whilst at work. John, who wished to prevent such an accident occurring again, engaged Erica, an expert on accident prevention, asking how best to prevent such accidents occurring again. Erica produced a report, which outlined the likely causes of the accident and suggested possible future safety measures. John subsequently sent a copy of the report to Maude, his solicitor. Henry’s claim has now been allocated to the fast track and John wishes to withhold disclosure of the report.
Which one of the following propositions is false?
[a] The report must be privileged because it was made on behalf of a party to the proceedings.
[b] The report will not be privileged if, as appears to be the case, the purpose for which it was produced was accident prevention.
[c]The report would have been privileged if the dominant purpose for which it had been produced was that of obtaining legal advice, evidence or information in preparation for litigation that had commenced, was pending or at least was contemplated at the time when the report was produced.
[d] The report would not have been privileged if it had been produced equally for the purpose of accident prevention and for the purpose of obtaining legal advice, evidence or information in preparation for litigation that had commenced, was pending or at least was contemplated at the time when the report was produced.
The correct answer is [a]. See textbook 14.1.3. The dominant purpose of the report appears to be accident prevention. If this is the case then the report is not privileged. The report would only be privileged if preparation for litigation that had commenced, was pending or at least was contemplated at the time when the report was produced was the dominant purpose for which it was produced, and would not be privileged if it was produced equally for this purpose and for the purpose of accident prevention. The mere fact that the report was produced for a party does not mean that it must be privileged.
(f) Consider the following three propositions.
(i)Instructions sent by a solicitor to an expert witness can never be subject to legal professional privilege.
(ii)A letter sent by a client to his solicitor can never be subject to legal professional privilege.
(iii)An expert’s report can never be subject to legal professional privilege.
Which of the above propositions are true?
[a] (i),(ii) and (iii).[b] (i) and (ii) only.[c] (ii) and (iii) only.[d] None of them are true.
The correct answer is [d]. See textbook 14.1.2 and 14.1.3. Instructions sent to an expert witness and the expert’s report may both be subject to legal professional privilege in the form of litigation privilege. A letter from solicitor to client may be subject to legal professional privilege in the form of legal advice privilege.
(g) Horace is charged with murder. Horace, in the course of a confidential interview with Imran, a psychiatrist, instructed by Horace’s solicitor, tells Imran that he killed Violet, the victim, by smashing her head several times against a large rock near the village pond. Next day, when Imran is walking past the pond, remembering what Horace had told him, he looks at the rock out of curiosity and sees bloodstains on it. The defence decide not to rely upon Imran’s report at the trial and not to call Imran as a witness. At Horace’s trial, Imran is called as a witness for the prosecution. During examination in chief, Imran is asked whether he saw bloodstains on the rock.
Which one of the following propositions is true?
[a] The defence are entitled to object to this question being put to Imran due to the operation of litigation privilege.
[b] The defence are entitled to object to this question being put to Imran due to the operation of legal advice privilege.
[c] Imran may be required to answer this question but the defence would be required to object to questions that required Imran to reveal the content of his confidential conversation with Horace.
[d] None of the above propositions are true.
The correct answer is [c]. See textbook 14.1.4.1. Imran personally perceived the bloodstains on the rock, his knowledge of their presence not being derived from a privileged communication. Thus, it is submitted that Horace could not, by claiming legal professional privilege, have prevented Imran from answering this question. The statement by means of which Horace told Imran that the bloodstains were on the rock was, however, a privileged communication. Consequently, if Imran had been asked, during examination in chief, why he went to look at the rock, the defence would have been entitled to object to the question. The fact that Imran had prepared a report for the defence did not preclude the prosecution from calling him as there is “no property in a witness” (see textbook 14.1.1.3).
(h) Stephen visits James, his solicitor, in order to obtain legal advice concerning a conveyancing transaction. In the course of their meeting, James notices that Stephen is wearing a gun under his jacket.
Consider the following three propositions.
(i) The fact that Stephen was wearing a gun is not subject to legal professional privilege.
(ii) The conversation between Stephen and James concerning the conveyancing transaction is not subject to legal professional privilege.
Which of the above propositions are true.
[a] (i) and (ii).[b] (i) only.[c] (ii) only.[d] Neither of the above propositions are true.
Answer: [b]. See textbook 14.1.2 and 14.1.4.1. A confidential conversation between lawyer and client for the purpose of seeking or giving legal advice is privileged. It is submitted that the fact that James saw that Stephen was wearing a gun is not privileged, because disclosing that fact would not disclose the content of a confidential communication.
(i) Shama writes to Jenny, her solicitor, who is also a friend of Shama’s, asking for legal advice in relation to a loan which Shama is considering taking out.
Which one of the following propositions is true?
[a] Shama’s letter to Jenny cannot be privileged because Jenny is her friend.
[b] Shama’s letter to Jenny cannot be privileged because litigation has not commenced and is not contemplated.
[c] Shama’s letter to Jenny may be privileged.
[d] Shama’s letter to Jenny must be privileged because it is a confidential communication.
Answer [c]. See textbook 14.1.2 and 14.1.2.3. The facts that the solicitor and client are friends does not prevent legal professional privilege arising as long as there is a proper legal adviser/client relationship between them. Legal professional privilege may attach to legal adviser/client communications whether they concern litigious or non-litigious matters. Legal professional privilege does not, however, attach to all confidential communications.
(j) Adam, who has raped Janet, sends a letter, which he used to lure Janet to the location at which the rape took place and then took back from Janet, to Colin, his solicitor, in order that the police cannot obtain it.
Which one of the following propositions is true?
[a] The letter will be subject to legal advice privilege because it is in the possession of Colin
[b] The letter will be subject to litigation privilege because Adam sent it to Colin in contemplation of litigation .
[c] The letter does not appear to be privileged.
[d] None of the above propositions is true.
The correct answer is [c]. See textbook 14.1.5. The fact that Adam has sent an unprivileged document to his solicitor does not give rise to legal professional privilege. The document was not brought into existence for the purpose of obtaining or giving legal advice or for the purpose of preparing for litigation that had commenced, was pending or at least was contemplated at the time when the document was produced.
(k) Quentin, Eric’s solicitor, selects a number of unprivileged documents from a collection of documents in the possession of Eric, his client, and takes copies of the selected documents to be used in advising Eric in relation to litigation to which Eric is likely to become a party. Eric then shreds the original documents.
Which one of the following four propositions is true?
[a] The copies may be privileged if inspecting them might reveal the nature of Quentin’s legal advice to Eric.
[b] The copies are not privileged because they were copies of “own client documents”.
[c] The copies cannot be privileged because copies of unprivileged documents can never become privileged.
[d] The copies must be privileged because they were made for the purpose of preparing for litigation that had commenced, was pending or at least was contemplated at the time when the copies were made.
The correct answer is [b]. See textbook 14.1.5.1 and 14.1.5.2. Copies of unprivileged “third party documents” which were selected by a legal adviser may be privileged if inspecting them might reveal the nature of the legal adviser’s legal advice to the client, and it appears that copies of unprivileged “third party documents” may also be privileged if the copies were made for the purpose of preparing for litigation that had commenced, was pending or at least was contemplated at the time when the document was produced, but it seems that neither proposition is true of copies of unprivileged “own client documents”.
(l) Harold intends to take out a substantial loan secured on assets that he does not possess. Harold asks his solicitor, Mandy, which legal documents he will need to have forged in order to give the appearance of owning the assets. Mandy gives him a list and Harold has the documents forged. In the course of subsequent criminal proceedings against Harold and Mandy, Mandy pleads guilty and gives evidence for the prosecution against Harold concerning the advice that she gave him in relation to the documents he needed to forge.
Which one of the following propositions is true?
[a] Mandy should not have been permitted to give evidence in relation to this advice due to the operation of legal advice privilege.
[b] Mandy should not have been permitted to give evidence in relation to this advice due to the operation of litigation privilege.
[c] Mandy was properly permitted to give evidence in relation to this advice because, since its purpose was to assist Harold in preparing to commit a crime or fraud, the advice was not privileged.
[d] None of the above propositions is true.
The correct answer is [c]. See textbook 14.1.6. Mandy can be required to answer questions concerning the advice which was not subject to legal professional privilege because it was given to assist Harold in preparing to commit a crime or fraud.
(m) Which one of the following four propositions is false?
Legal professional privilege (whether legal advice privilege or litigation privilege):
[a] may be overridden by a judge, in the exercise of his common law powers, whenever the public interest so demands;
[b] may be overridden by a judge in the context of criminal proceedings, in the exercise of his common law powers, whenever the public interest so demands;