Lord Advocate can claim legal advice privilege, judge rules

As a matter of principle the Lord Advocate can assert legal advice privilege (LAP) in relation to communications between an advocate depute and officials of the Crown Office & Procurator Fiscal Service who are admitted solicitors and deployed in roles which require an application of their legal expertise, a Court of Session judge has ruled.

Lord Brodie gave this decision in an action by David Whitehouse and his wife against the Lord Advocate, seeking damages on the basis that a restraint order against the pursuers, made under s 120 of the Proceeds of Crime Act 2002, was obtained on the basis of averments that were false and (Lord Brodie inferred from the pursuers' pleadings) at the very least made recklessly. The pursuers offered to prove that those averments were “entirely unsupported by evidence”, and in material respects the defender (in fact his predecessor in office) had evidence that “actively undermined the factual position set out in the petition”.

“Remarkable as these averments may be thought to be,” the judge observed, “equally remarkable is the fact that the defender effectively admits them.” The restraint order was recalled 13 days later, the judge at the time describing the defender's conduct as “a clear and very serious breach of the duty of disclosure and candour” in relation to the statutory criteria of reasonable cause to believe in benefit from criminal conduct and fear of dissipation of assets.

Mr Whitehouse, who had at one time been a joint administrator of Rangers FC until liquidators were appointed, had subsequently been charged with offences related to the acquisition of the club prior to its administration, and further offences relating to the administration period. A few weeks after the recall of the restraint order several of the charges were conceded to be irrelevant and the remainder were held irrelevant by the court.

Proof in the present action had been allowed, but in addition to quantum there remained a live issue as to whether the pursuers had suffered loss, injury and damage as a result of the defender’s infringement of their rights under article 8 of the European Convention on Human Rights. As a result the pursuers sought recovery of certain documents, in relation to which the defender lodged a printout of the communications referred to above, in an envelope marked confidential. Lord Brodie had to rule on the pursuers' motion for the envelope to be opened up and its contents disclosed.

The defender founded on LAP. The pursuers argued that the principle could not apply, because the three essential elements did not exist: there was no one in the position of a client; it could not be said that advice had been given by a lawyer in the capacity of a lawyer; and privilege had been waived.

Recipient of advice

Lord Brodie disagreed. In terms of the Lord Advocate's warrant and an advocate depute's commission, an advocate depute could be taken to be one and the same person as the Lord Advocate. The judge accepted that from some perspectives “the Lord Advocate is an unlikely candidate for client status with the protection of LAP”, as he was more readily seen as the giver than as the recipient of legal advice – the pursuers raised the picture of the Lord Advocate advising himself – and did not fit the paradigm of the private citizen requiring the assurance that they could candidly disclose their affairs to their legal adviser without either of them being compelled to reveal what passed between them.

However, he continued, “given the variety of legal and natural persons who have been held to be 'clients' for the purpose of LAP [which included HM Customs & Excise, the Bank of England and the DPP], I do not consider that the defender can be denied an equivalent status, at least in the circumstances of the present case.” A lawyer might be a client for legal advice and have the protection of privilege. In using his powers under the 2002 Act the Lord Advocate was acting as “prosecutor” in terms of the Act and might be said to fill a client-like role, not that of government adviser, and there was no reason why he or his depute should not be the recipient of legal advice or, if the other conditions were satisfied, to be able to assert LAP.

While the EU Court of Justice had not accepted in-house counsel as sufficiently independent for LAP to attach to their communications – the position was not settled as respects government lawyers – in Scotland they could be expected to be admitted solicitors and subject to solicitors' professional duties, and could be lawyers acting in the capacity of lawyers for LAP purposes.

On waiver, the fact that the defender had previously provided extensive material without taking any point on LAP was neither here nor there. “Where it is suggested that there had been waiver of an entitlement to object to further recovery, something specific is required in support. Here there was nothing.”

Nor was it relevant that the material sought to be recovered was at the very heart of the dispute. When applicable, the protection was absolute; “it is not subject to qualification or the making of an exception in the public interest. There is no balancing exercise to be carried out”.

Lord Brodie concluded on this point: “In my opinion there is no reason in principle why the defender cannot assert LAP in relation to communications between an advocate depute and full time salaried COPFS officials who are admitted solicitors and deployed in roles which require an application of their legal expertise.”

Confidential

Having also considered the contents of the envelope, which consisted of eight emails over a 21 hour period ahead of the hearing for recall of the restraint order, including “summaries of facts, statements relating to the law as it relates to restraint orders and evaluations of the facts in the light of the law”, he continued: “what is revealed by the emails is what one would expect in an exchange between an advocate depute and COPFS officials. However, that this does not conform to the basic paradigm of a private client disclosing his confidential affairs to his legal adviser, does not seem to me to matter. What appears from the emails is an obviously private discussion of the application of the law to the available facts in an instant case, among four persons on whom the defender’s predecessor in office relied for legal advice. That, in my opinion, gives the discussion and therefore the emails by which the discussion was carried out, a confidential character”.

The defender was therefore entitled to assert LAP in respect of the contents of the sealed envelope.

Click here to view Lord Brodie's opinion.