Legal Professional Privilege: A Human Right or a barrier to Justice?

The Northumbria Centre for Evidence and Criminal Justice Studies (NCECJS)

Northumbria Law School, University of Northumbria, Newcastle-upon-Tyne

This seminar, funded by the Modern Law Review, explores the theoretical underpinning of legal professional privilege (LPP) and its place in and impact on the modern world, engaging various stakeholders, both academics and practitioners, in analysis and discussion of key aspects of LPP.

The rule of law rationale underpins the assertion of LPP by individuals, corporations (from small to large multi-nationals) and Governments. There is clearly a conflict between this rule of law rationale and the effective administration of justice. The assertion of LPP means that legal cases may be heard and decided without the disclosure of relevant probative material. Choosing to resolve this conflict in favour of the rule of law rationale is weakened by argument that it does not accurately reflect client behaviour; that many legal adviser/client communications would take place in full candour regardless of whether the privilege exists. This argument is particularly cogent where corporations are concerned, due their need to comply with myriad legal rules, and in the Government context.

LPP must also be analysed in its human/constitutional rights context. Legal professional privilege is now recognized as a fundamental human right, long established in common law. It has also been held to be part of the right of privacy guaranteed by Article 8 of The Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights. As well as Article 8 (the right to respect for a private and family life, home and correspondence), Article 6 (the right to a fair and public hearing) may also be engaged in the context of LPP.  

In each of the four sessions taking place during the seminar, key themes arising from the attributes of and rationale for LPP will be discussed.

Programme

Session 1, 9.30 – 10.45am: The parameters of and rationale for LPP.

Origin and development of the rule of law rationale; interrogating the rationale through empirical evidence; consideration of an alternative, humanistic rationale for privilege; consideration of optimal means to assess the efficacy of the rationale through new research.

Chair: Professor Ray Arthur.

Speakers: Professor Tony Ward, Professor Ed Imwinkelried.

Session 2, 11.00am – 12.15pm: LPP as a fundamental human and/or constitutional right.

Consideration of the rationale for LPP and its status as a fundamental human or constitutional right; consideration of LPP in the civil and criminal contexts and the relationship with human rights.

Chair: Professor Michael Stockdale.

Speakers: Dr Jorg Sladic, Klentiana Mahmutaj.

Lunch

Session 3, 1.30 – 2.45pm: The effect of LPP on the administration of justice.

The financial costs of LPP; a cost/benefit analysis of both legal advice privilege and litigation privilege in relation to the effective administration of justice; the use of modern technology in disclosure and new approaches to disclosure in mitigating these costs.

Chair: Associate Professor Rebecca Mitchell.

Speakers: Robert Smith QC, Ann Ferguson, William Ralston, Stephen Donnelly.

Session 4, 3.00 – 4.15pm: LPP in the corporate and Government context.

Exploration of the particular impact of the parameters of LPP in the corporate context and consideration of its rationale in the corporate context. The operation of LPP between Legislature and Executive and consideration of the rationale for LPP in the Government context.

Chair: Professor Chris Newman.

Speakers: Professor Joan Loughrey, Professor Michael Stockdale, Associate Professor Rebecca Mitchell.

Close

The event is free to attend and will be both in person and virtual via Teams. In-person places are limited, please select your attendance method when booking