22. Privilege

2020 ◽  
pp. 711-756
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
European Convention ◽  
Legal Advice ◽  
Relevant Evidence ◽  
Legal Professional ◽  
Settlement Negotiations

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Article 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.

21. Privilege

2018 ◽  
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
European Convention ◽  
Legal Advice ◽  
Relevant Evidence ◽  
Legal Professional ◽  
Settlement Negotiations

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Article 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.

IX. Privilege

2018 ◽  
pp. 425-486
Author(s):  
Roderick Munday
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Relevant Evidence ◽  
Judicial Proceedings ◽  
Legal Professional ◽  
Supply Information

This chapter concerns privilege. A witness is ‘privileged’ when they may validly claim not to answer a question, or to supply information relevant to the determination of an issue in judicial proceedings. Because the effect is to deprive the tribunal of relevant evidence, powerful arguments are required for such rules. Modern law has reduced their number and scope, although this is arguably balanced by an increase in their status, which has been further enhanced by implementation of the European Convention on Human Rights (ECHR). This chapter discusses certain types of privilege: the privilege against self-incrimination, legal professional privilege, privilege for statements made without prejudice as part of an attempt to settle a dispute, and a privilege derived from the former for statements made to a conciliator.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

20. Private Privilege

2019 ◽  
pp. 382-388
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Case ◽  
Criminal Cases ◽  
Legal Professional

The term ‘private privilege’ relates to separate privileges that prevent evidence from being disclosed in litigation, or witnesses from being compelled to answer questions at trial. In a criminal case, privilege may be claimed in two situations: legal professional privilege and the privilege against self-incrimination. This chapter discusses legal professional privilege in criminal cases; legal professional privilege and the courts; waiving legal professional privilege; the privilege against self-incrimination; and the privilege against self-incrimination and the European Convention on Human Rights 1950.

20. Private Privilege

2018 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Case ◽  
Criminal Cases ◽  
Legal Professional

The term ‘private privilege’ relates to separate privileges that prevent evidence from being disclosed in litigation, or witnesses from being compelled to answer questions at trial. In a criminal case, privilege may be claimed in two situations: legal professional privilege and the privilege against self-incrimination. This chapter discusses legal professional privilege in criminal cases; legal professional privilege and the courts; waiving legal professional privilege; the privilege against self-incrimination; and the privilege against self-incrimination and the European Convention on Human Rights 1950.

18. Co-ownership and third parties:

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
European Convention ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter considers applications for sale of land held on trust, which are brought by third parties; typically creditors and trustees in bankruptcy of a beneficiary. The chapter explores the different legislation and rules that applies depending on whether the application is made by a creditor or a trustee in bankruptcy. In determining applications for the sale of a home, the court must have regard to the rights of those influenced by the sale under Art 8 European Convention on Human Rights (ECHR). Where the sale is discretionary, the courts have the opportunity to undertake a proportionality balance required to ensure compatibility of the sale with the ECHR. Where there is no discretion, however, questions of compatibility with the ECHR arise.

20. Private Privilege

2016 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Case ◽  
Criminal Cases ◽  
Legal Professional

The term ‘private privilege’ relates to separate privileges that prevent evidence from being disclosed in litigation, or witnesses from being compelled to answer questions at trial. In a criminal case, privilege may be claimed in two situations: legal professional privilege and the privilege against self-incrimination. This chapter discusses legal professional privilege in criminal cases; legal professional privilege and the courts; waiving legal professional privilege; the privilege against self-incrimination; and the privilege against self-incrimination and the European Convention on Human Rights 1950.

4. Detention in the police station

2021 ◽  
pp. 155-209
Author(s):  
Lucy Welsh ◽  
Layla Skinns ◽  
Andrew Sanders
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Police Custody ◽  
Police Station ◽  
Legal Advice ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Police Detention ◽  
The Right ◽  
Detention Officers

This chapter examines the effectiveness of the checks, controls, and safeguards provided for suspects in police detention, including for suspects considered to be vulnerable by the police. It also evaluates the effect of the European Convention on Human Rights and the Human Rights Act 1998. The discussions cover the powers and duties of custody officers and detention officers; length of detention without charge; suspects’ rights including the right to legal advice and the rights of vulnerable suspects; the purpose of and experiences of police detention; and deaths in police custody.

5. The Right to Silence and the Privilege against Self-Incrimination

Evidence ◽  
2018 ◽  
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Case Law ◽  
European Convention ◽  
Public Order ◽  
Substantial Body ◽  
Legal Advice ◽  
Right To Silence ◽  
The Right ◽  
Court Of Appeal

Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law. The manner in which the Court of Appeal has resolved the issue of silence on legal advice has been subjected to particular criticism. The operation of section 34 has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury. The precise extent to which the privilege against self-incrimination applies to real evidence also remains uncertain and is an issue requiring resolution.

III. THE NEGATIVE IMPLICATIONS OF EU PRIVILEGE LAW UNDER AKZO NOBEL AT HOME AND ABROAD

2011 ◽  
Vol 60 (2) ◽  
pp. 545-556
Author(s):  
Justine N Stefanelli
Keyword(s):  
European Union ◽  
Human Rights ◽  
The United States ◽  
European Convention ◽  
Legal Counsel ◽  
The European Union ◽  
Negative Consequences ◽  
Akzo Nobel ◽  
Legal Professional ◽  
The Eu

On 14 September 2010 the Court of Justice of the European Union (ECJ) delivered its judgment in Akzo Nobel.1 The judgment and its preceding opinion focused on the application of legal professional privilege to communications between a client and in-house legal counsel. The less-emphasized aspect of the case was the Court's decision to exclude all lawyers qualified outside of the European Union (EU) from the application of legal professional privilege.2 Because the application of legal professional privilege to lawyers from third States was not the focus of Akzo Nobel, the issue was lost in the extensive debate surrounding privilege and in-house legal counsel. The Court unfortunately missed an opportunity to reshape EU privilege law in acknowledgement of its negative consequences on the EU human rights framework and also on the EU's relationships with countries which do not apply a similar bright line rule. These implications will be discussed below with a particular emphasis on the EU's obligations under the European Convention on Human Rights (ECHR) and its relationship with the United States (US).

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