March 2019
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Regina v Central Criminal Court ex parte Francis and Francis; HL 1989

References: [1989] 1 AC 347
Coram: Lord Griffiths, Lord Goff of Chieveley
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an alleged drug trafficker. The solicitors relied on the exemption in section 27(4)(ii) that the material to which the order related included ‘items subject to legal privilege’. The definition of ‘items subject to legal privilege’ was to be found in section 10(1) of the 1984 Act.
Held: On a purposive construction of section 10(2), the relevant ‘intention’ did not have to belong to the particular person holding the items; rather, if the intention of furthering a criminal purpose were held by anyone, the items would lose their privilege. A drug trafficker with criminal intent could not protect himself by placing his documents in the hands of a solicitor. Privilege belonged to the client, not the solicitor, and a criminal intent disentitled the client to privilege.’ A solicitor ought to consult his client before relying upon a claim for legal professional privilege for that client’s documents. (Lord Griffiths) ‘I have no doubt that . . if an order to give access to documentation is made under section 27, the solicitor-client relationship provides a reasonable excuse within the meaning of the section for the solicitor to take his client’s instructions as to whether the order should be contested.’ Lord Goff: Section 10 expresses, but does not amend or vary, the common law position with regard to legal professional privilege.
The House approved the first part of Glidewell LJ’s reasoning in Snaresbrook:- ‘I have to recognise that . . . my conclusion in the present case undermines part of the reasoning of Glidewell LJ [in the Snaresbrook case]. But it does not necessarily undermine the conclusion of the Divisional Court in that case. This is because I am inclined to agree with Glidewell LJ that the common law principle of legal professional privilege cannot be excluded, by the exception established in R v Cox and Railton 14 QBD 153 in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings’ (emphasis supplied).
Statutes: Drug Trafficking Offences Act 1986 27(4)(ii), Police and Criminal Evidence Act 1984 10(1) 27(4(1)
This case cites:

  • Overruled in part – Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions ([1988] QB 532)
    The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing . .
  • Cited – Regina v Cox and Railton ((1884) 14 QBD 153)
    (Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .

This case is cited by:

  • Cited – Abbey National Plc v Clive Travers and Co (a Firm) CA (Bailii, [1999] EWCA Civ 1426)
    The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the . .
  • Cited – P v P (Ancillary Relief: Proceeds of Crime) FD (Bailii, [2003] EWHC 2260 (Fam), Times 14-Oct-03, Gazette 16-Oct-03, [2004] Fam 1)
    The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
  • Cited – Miller Gardner Solicitors, Regina (on the Application of) v Minshull Street Crown Court Admn (Bailii, [2002] EWHC 3077 (Admin))
    Police investigating crime obtained a warrant to search a solicitor’s offices for details of their clients. The solicitors appealed.
    Held: The details required, namely dates of contacts with a certain telephone number were not legally . .
  • Cited – Hallinan, Blackburn-Gittings & Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn (Bailii, [2004] EWHC 2726 (Admin), Times 29-Nov-04, [2005] 1 WLR 766)
    In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
  • Cited – Bowman v Fels (Bar Council and Others intervening) CA ([2005] 4 All ER 609, Bailii, [2005] EWCA Civ 226, Times 14-Mar-05, [2006] 1 WLR 3083)
    The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
  • Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA (Bailii, [2005] EWCA Civ 286, Times 25-Apr-05, [2005] 1 WLR 2734)
    The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
    Held: . .

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