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.

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.

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.

scholarly journals The Guarantees for Accused Persons Under the Article of the European Convention on Human Rights: An Analysis of the Application of the Convention and a Comparison with other Instruments

1996 ◽  
Vol 26 (3) ◽  
pp. 610
Author(s):  
Andrew S Butler
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
International Law ◽  
High Standard ◽  
Case Law ◽  
European Convention ◽  
Criminal Charges ◽  
The Subject

This article is a book review of Stephanos Stavros The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights: An Analysis of the Application of the Convention and a Comparison with Other Instruments (Martinus Nijhoff, Dordrecht, 1993) 388 pp (including 3 appendices), price (hbk) £87.00. This book is a detailed analysis of the case law of the organs of the European Convention on Human Rights on the interpretation and application of Article 6 of the Convention. That article guarantees fair trial rights in the determination of criminal charges and in the determination of civil rights and obligations. The scope of Dr Stavros' study is the rights of an accused under Article 6. Butler praises Dr Stavros for being thorough in his treatment of both case law and international law, providing a closely argued critique alongside the law presented, and for his general enthusiasm for the subject matter (reflected in the book's readability). Despite its limitations, Butler commends this book's high standard of scholarship overall.

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.

ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND THE CURATIVE POWERS OF JUDICIAL REVIEW

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Christopher Forsyth
Keyword(s):  
Civil Rights ◽  
Judicial Review ◽  
Public Law ◽  
European Convention ◽  
Public Hearing ◽  
Reasonable Time ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Administrative Proceedings

The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.

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.

scholarly journals Nadmierny formalizm procesowy jako naruszenie art. 6 ust. 1 Konwencji o ochronie praw człowieka i podstawowych wolności

2020 ◽  
Vol 82 (2) ◽  
pp. 123-136
Author(s):  
Marcin Szwed
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Certainty ◽  
European Court ◽  
Formal Requirement ◽  
Administration Of Justice ◽  
Judicial Proceedings ◽  
The Right ◽  
Formal Requirements ◽  
Right Of Access

All judicial proceedings are inevitably based on the formalized procedures. Procedural provisions pursue many important objectives, such ensuring the effectiveness of proceedings or protecting legal certainty by regulating the competences of procedural bodies and the rights and duties of parties. At the same time, excessive procedural formalism may disproportionately limit the right to court, making access to court illusory. Within the framework of the European Convention on Human Rights, the permissible limits of procedural formalism are set by Article 6(1). The European Court of Human Rights, assessing whether excessive formalism has occurred in a given case, examines whether relevant formal requirements served a legitimate purpose, in particular legal certainty and proper administration of justice, and did not lead to a disproportionate restriction of the right of access to court. This assessment is made on the basis of all relevant circumstances of the case, such as the stage at which the proceedings were terminated, the type of proceedings, the party’s due diligence, the existence of circumstances justifying failure to comply with a formal requirement or the fact that the party was represented by a professional representative. Therefore, not only the content of national provisions is important, but also the manner of their application by courts.

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