Types of Privilege Flashcards
(17 cards)
Legal advice privilege
can only be broken by client, not solicitor. E.g. inferences: silent because lawyer told me to.
Privilege against self – incrimination –
don’t have to answer questions in court if it’ll expose you to criminal penalty. Does it extend to spousal privilege? No, you can incriminate your spouse; no law protecting you against it. It only applies to you, you can’t protect a spouse/anyone else, unless under s80 or a specified offence or you voluntarily incriminate your spouse.
S80 PACE – competent and compellable – against a spouse in sexual offence cases.
Women can be compelled to give evidence in child sex offences but can’t for any other offence unless doing it voluntarily.
Any document that is obtained (even accidentally) can be used in criminal courts by the prosecution, even if the document is just left out. The only exception is filching aka stealing the document. Don’t need permission of the court, as you would in civil law.
True or false?
True
Condron 1997 –
simply stating that you had received legal advice to answer no comment does not amount to a waiver of privilege.
What are the two types of legal professional privilege?
Advice privilege & litigation privilege
What does PASI protect?
Privileged, Anonymous Source of Information (usually in journalistic context)
Can LPP be waived? By who?
Yes — only by the client
What’s the exception to LPP?
Crime-fraud exception (e.g. advice used to commit a crime)
What does litigation privilege apply to?
Documents/communications made for the dominant purpose of litigation
What’s the difference between advice and litigation privilege?
Advice: legal advice between lawyer & client;
Litigation: applies to third-party communications for litigation purposes.
What if a client tells their lawyer about a future crime?
Not protected — crime-fraud exception applies.
Who can waive LPP?
Only the client.
When would PASI not apply?
If disclosure is necessary in the public interest or required by law.
When is privilege lost?
Client voluntarily discloses the content
Client relies on the advice to justify actions
Can a client accidentally waive privilege?
✅ Yes.
If a client discloses privileged material (e.g. legal advice) or relies on it in court (e.g. says “my solicitor told me to do it”),
they are treated as having waived privilege — even if it was accidental.
🧠 Only the client (not the lawyer) can waive privilege.
Does privilege apply to conversations overheard by third parties?
❌ No.
Legal privilege only applies to confidential communications.
If a third party overhears or is copied in, it is no longer confidential, so privilege is lost.
🧠 Always keep legal advice private to retain protection.
