OPINION EVIDENCE READINGS

1. PROHIBITION OF THE USE OF OPINION EVIDENCE
The general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences
drawn from such facts.
 It is possible to distinguish fact from inference is arguably false
W [2022] EWCA Crim 1438 – a gynaecologist who had carried out an abortion on a 15½ year old had stated that she and her stepfather, who had accompanied
her, 'had a rather closer relationship than would be expected'. It was held that this was a statement of fact, not opinion, being a description of the interaction
between them that he had observed.
Meads [1996] Crim LR 519 – it was held that evidence of tests showing the speed at which the handwritten notes of disputed interviews had been made, and
whether they could have been written in the time claimed by officers, was no more opinion evidence than evidence of the timing of a given journey in order to
test an alibi. The inferences to be drawn from such evidence were for the jury.
Allad [2014] EWCA Crim 421 – it was held that a witness was entitled to explain how VAT carousel frauds operate but should not have expressed an opinion
on the issue before the jury, namely whether D would have known that they had participated in a fraud.
Sepulvida-Gomez [2019] EWCA Crim 2174 – provides an example of inadmissible non-expert opinion evidence. D was convicted of assault by penetration and
sexual assault. It was held that the jury had heard inadmissible opinion evidence that V would not have consented to the sexual activity with D.

2. There are two exceptions to the general rule:
(a) Non-experts. A statement of opinion on any matter not calling for expertise, if made by a witness as a way of conveying relevant facts personally
perceived by him or her, is admissible as evidence of what the witness perceived.
(b) Experts. Subject to compliance with CrimPR Part 19 (expert evidence), a statement of opinion on any relevant matter calling for expertise may be
made by a witness qualified to give such an expert opinion.
 the evidence may be accompanied, where appropriate, by animations to illustrate the opinion
Moore [2017] EWCA Crim 1304 – the Court of Appeal considered the admissibility of graphic 3D reconstructions to reproduce the scene of the crime and to
demonstrate a witness's line of sight in support of an expert's opinion that he could not have seen what he claimed. It was held that whether such reconstruction
evidence can assist can only be decided on a case-by-case basis, but will be inadmissible in the absence of sufficiently reliable and precise factual foundations.
In the case before the Court, the evidence could only have been of assistance if a large number of variables, relating to such matters as the location of the
witness, the accused and objects potentially obstructing the witness's line of sight, had been pinpointed accurately to the exclusion of all other
possibilities. This had not been done and the evidence was therefore of no probative value.
If objection to the admissibility of expert opinion evidence is made, it is for the party proffering the evidence to prove its admissibility that, unless the
admissibility is challenged, the judge will admit the evidence as sufficient safeguards are provided by the rules on pre-trial disclosure.
An objection to the admissibility of expert opinion evidence will necessarily fail if the witness is not an expert and expresses no expert opinion
 Foulger [2012] EWCA Crim 1516 – where the witness was not an expert communications data investigator but simply put otherwise relatively
complicated telephone data into a more user-friendly format, using charts, maps and summaries.

3. F11.2 – Non-Expert Opinion Evidence
A statement of opinion may be given by a witness, on a matter not calling for expertise, as a compendious means of conveying facts perceived by the
witness.
An identification witness is not required to give a description of the offender or some other person, leaving it to the tribunal of fact to decide whether that
description fits the accused or other person identified, but may express an opinion that the accused (or other person) is the person the witness saw on the
occasion in question.
A non-expert may give evidence of opinion to identify an object, handwriting with which he or she is familiar.
Other examples include:
 Evidence of a person's age (Cox [1898] 1 QB 179) or
 The general appearance of the person's state of health, mind or emotion; the speed of a vehicle (Road Traffic Regulation Act 1984, s. 89(2));
 The state of the weather; and the passage of time.
Beckett (1913) 8 Cr App R 204 – the value of a plate glass window was established by the evidence of a non-expert. It is submitted, however, that non-expert
opinion evidence should not be received on the value of less commonplace objects or objects such as antiques and works of art, the valuation of which calls for
expertise.
On a charge of driving when unfit through drink, the fitness of the accused to drive is a matter calling for expertise, though a non-expert may give evidence of
his or her impression as to whether the accused had taken drink, provided the facts on the basis of which that impression was formed are described.
Although scientific evidence is not always required to identify a prohibited drug, police officers' descriptions of a drug must be sufficient to justify the
inference that it was the drug alleged (Hill (1993) 96 Cr App R 456).

4. USE OF EXPERT OPINION EVIDENCE AT TRIAL
F11.8 – Matters Calling for Expertise
Expert opinion evidence may only be received on a subject calling for expertise, which a lay person, such as a magistrate or a juror, could not be expected
to possess to a degree sufficient to understand the evidence given in the case unaided.
If the tribunal of fact can form its own opinion without the assistance of an expert, the matter being within its own experience and knowledge, expert opinion
evidence is inadmissible because it is unnecessary
A psychologist or other medical expert will not be permitted to give an opinion on the likely deterioration of memory of an ordinary witness
 The unlikelihood of the coincidence that a number of complainants all suffered from false memory of sexual assault is a matter calling for
expert evidence, being outside the experience of the jury
H (JR) (Childhood Amnesia) [2005] EWCA Crim 1828 – it was held that, although a witness's ability to remember events will ordinarily be well within the
experience of jurors, in rare cases in which a witness gives evidence of an event, said to have occurred at an early age, and the evidence is very detailed and
contains a number of extraneous facts, an appropriately qualified expert may give evidence that it should be treated with caution and may well be unreliable,
because recall of events during 'the period of childhood amnesia', which extends to the age of about seven, will be fragmented, disjointed and idiosyncratic
rather than a detailed narrative account. In the absence of such expert evidence, which is likely to be outside the knowledge and experience of the jury, there is
a danger that the jury may find the detailed account more convincing than they safely should, because detail normally enhances credibility to the ear of the
listener.
S [2006] EWCA Crim 1404 – it was held that the ambit of the decision in H (JR) should not be widened, and in Anderson [2012] EWCA Crim 1785, the
correctness of the decision was doubted in light of criticisms of the methodology of the expert who had given evidence in the case (see also H [2011] EWCA
Crim 2344).

5. SJ [2019] EWCA Crim 1570 – establishes the limits to the evidence that may be given in respect of counselling a complainant in a sexual case. It will only be
in the rarest of cases that expert evidence about counselling techniques will be admissible, e.g., where they may have affected the value of the factual evidence
of the counsellor.
Counsellors may give non-expert evidence as to recent complaint, i.e. evidence of fact that a complaint was made at the time of the events or shortly
thereafter, provided that the judge makes plain to the jury that it is not evidence of the truth of the complaint.
If there were obvious signs of distress when the complaint was made, evidence of such demeanour may also be given.
A counsellor may not express any views as to the truth or otherwise of the allegations or the reliability of the complainant. Nor should a counsellor use
over-emotive language.
A counsellor should use objective language and avoid saying anything that can be construed as subjective comment or a statement of personal opinion.
Evidence relating to calls made or received by mobile phones and cell siting, i.e. the location of mobile phone masts through which calls have been routed,
will often be drawn from computerised records of the mobile phone service providers as to the date, time and duration of calls and as to the cell sites in
question.
 Expert evidence will usually be necessary as to whether, and if so to what extent, the fact that a call was routed through a particular cell site is
consistent with the phone and its user having been at a particular location.
Jurors may receive assistance on a matter within their own experience and knowledge if it is provided by someone who has had more time and better facilities
to consider that matter than it would be practicable to afford to them
Clare [1995] 2 Cr App R 333 – where an officer who did not know D but had viewed a video recording about 40 times, examining it in slow motion and
rewinding and replaying it as frequently as was necessary, was permitted to give evidence of identification based on a comparison between the video images
and contemporary photographs of D.

6. Although the assessment of age is within the normal experience and knowledge of juries, expert opinion of age is also admissible.
The subjects calling for expertise, which are so diverse as to defy comprehensive classification, include a variety of medical, psychiatric, scientific and
technological matters, and questions relating to standards of professional competence.
Specific examples include:
 accident investigation and driver behaviour (Dudley [2004] EWCA Crim 3336);
 age, in the absence of documentary or other reliable evidence (R (I) v Secretary of State for the Home Department [2005] EWHC 1025 (Admin); Re N (a
child) (residence order) [2006] EWHC 1189 (Fam));
 ballistics;
 blood tests;
 breath tests and blood/alcohol levels (sometimes including back-calculations thereof, i.e. calculation of the amount of alcohol eliminated in the period
between driving and providing a specimen, in order to show that the level was above the prescribed limit at the time of driving: see Gumbley v Cunningham
[1989] AC 281);
 firearms discharge residue (George (Barry) [2007] EWCA Crim 2722; Joseph [2010] EWCA Crim 2580; George (Dwaine) [2015] EWCA Crim 2507;
Olive [2022] EWCA Crim 1141 — evidence of the finding of such residue may be admissible as part of a body of circumstantial evidence notwithstanding
that there are only two particles, the lowest level on the scale used by expert analysts, and may have been present by reason of contamination by firearms
officers);
 forgeries;
 handwriting identification (including the analysis of indented impressions of handwriting, left on one document as a result of writing on another, and
revealed by Electrostatic Detection Apparatus (ESDA): see Wellington [1991] Crim LR 543);
 fingerprint identification;
 ear-print identification (Dallagher [2002] EWCA Crim 1903; Kempster (No. 2) [2008] EWCA Crim 975);
 voice identification;
 identification by facial mapping (Stockwell (1993) 97 Cr App R 260; Hookway [1999] Crim LR 750), expert evidence of which may form the basis of a
conviction (Mitchell [2005] EWCA Crim 731);
 facial identification by video superimposition (Clarke [1995] 2 Cr App R 425);
 'reverse projection', the technique of superimposing one CCTV recording upon another as a means of comparing, e.g., the height of the individuals shown
(Barnes [2012] EWCA Crim 1605);
 gangs, their way of operating, language and culture (Myers v The Queen [2015] UKPC 40; Dixon-Kenton [2021] EWCA Crim 673);

7.  genetic fingerprinting (the technique whereby a human cell taken from a sample of blood, saliva, semen or hair is analysed to reveal a person's DNA or
genetic 'fingerprint');
 the physical signs of child sexual abuse (S [2012] EWCA Crim 1433);
 'shaken baby syndrome' (Henderson [2010] EWCA Crim 1269);
 Sudden Infant Death Syndrome (SIDS) (Cannings [2004] EWCA Crim 1);
 insanity;
 automatism;
 diminished responsibility;
 the competence of a medical practitioner (Whitehead (1848) 3 Car & Kir 202: expert opinion evidence as to the state of knowledge and skill of a physician
as shown by his treatment of the case in question).
F11.35 – Opinions on Ultimate Issues
Old common-law rule – a witness should not express an opinion on an ultimate issue, i.e. one of the very issues to be determined by the court, probably no
longer existed.
 The rule is largely ignored, or treated as being of only semantic effect, so that an expert is allowed to express an opinion on an ultimate issue,
provided that the actual words the expert employs are not noticeably the same as those which will be used when the issue falls to be considered
by the court.
DPP v A and BC Chewing Gum Ltd [1968] 1 QB 159, Lord Parker CJ said (at p. 164):
I think it would be wrong to ask the direct question as to whether any particular cards tended to corrupt or deprave, because that final stage was a matter
which was entirely for the justices. No doubt, however, in such a case the defence might well put it to the witness that a particular card or cards could not
corrupt, and no doubt, whatever the strict position may be, that question coming from the defence would be allowed, if only to give the defence an
opportunity of getting an answer 'No' from the expert.
… I myself would go a little further in that I cannot help feeling that with the advance of science more and more inroads have been made into the old
common-law principles. Those who practise in the criminal courts see every day cases of experts being called on the question of diminished responsibility,
and although technically the final question 'Do you think he was suffering from diminished responsibility?' is strictly inadmissible, it is allowed time and time
again without any objection.

8. The rule has become 'a matter of form rather than substance'
 Mason (1911) 7 Cr App R 67 (whether wounds were self-inflicted),
 Holmes [1953] 2 All ER 324 (insanity),
 Brennan [2014] EWCA Crim 2387, at [51] (diminished responsibility, in cases where the expert has properly expressed a view on all four of the matters
set out in the Homicide Act 1957, s. 2, as amended),
 Silcott [1987] Crim LR 765 (the unreliability of a confession),
 Hookway [1999] Crim LR 750 (establishing identity by expert evidence of facial mapping) and
 Udenze [2001] EWCA Crim 1381 (in a rape case, the effects of alcohol on the ability to give informed consent).
Experts should not usurp the role of the fact-finder as the ultimate decision-maker on matters that are central to the outcome of the case.
A psychologist may give evidence of opinion as to why the accused might be disposed to make an unreliable confession but is not entitled to assert that
the confession made is in fact unreliable
Sellu [2016] EWCA Crim 1716 – a case in which a consultant surgeon was charged with manslaughter by gross negligence and experts had given evidence that
D had been 'grossly negligent' and had also used other descriptions such as 'very bad practice' and 'recklessness'. It was held that although the jury had been told
that they were not bound by the views of the experts on the ultimate issue, the experts had failed to give explanations for the terminology of many of their
opinions and therefore there was a danger that the jury may have merely accepted their conclusions.

9. F11.37 – Duty of Experts
An expert can apply to become a certified expert witness through the Expert Witness Institute.
Certification assesses all the core competencies required of an expert witness and recognises those who can demonstrate excellence in report writing,
discussions between experts and giving oral evidence in court.
Certified experts commit to undertake continuing professional development and are required to be re-assessed every five years.
CrimPR 19.2 – an expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his or her area
or areas of expertise and by actively assisting the court in fulfilling its duty of case management under r. 3.2, in particular by complying with court
directions and at once informing the court of any significant failure to take any step required by such a direction.
This duty overrides any obligation to the person instructing the expert or by whom the expert is paid; and this duty includes an obligation
(a) to define his or her area or areas of expertise in the report and when giving evidence,
(b) when giving evidence, to draw the court's attention to any question to which the answer would be outside the expert's area or areas of expertise,
and
(c) to inform all parties and the court if his or her opinion changes from that contained in a report served as evidence or given in a statement.
Harris [2005] EWCA Crim 1980 – it was held that the description of the obligations of an expert witness set out by Creswell J in National Justice Cia Naviera
SA v Prudential Assurance Co Ltd (Ikarian Reefer) [1993] 2 Lloyd's Rep 68 at p. 81 and the guidance for experts giving evidence involving children provided
by Wall J in Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181 were both very relevant in criminal proceedings and should be kept well in mind by
both prosecution and defence.

10. F11.42 – Function and Weight of Expert Evidence
The duty of the expert witness is 'to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to
enable the judge or jury to form an independent judgement by the application of those criteria to the facts proved in evidence'; and it is a misdirection
to tell the jury that expert evidence should be accepted if uncontradicted
Lanfear [1968] 2 QB 77 and Rivett (1950) 34 Cr App R 87 – the Court of Appeal refused to interfere with a conviction despite medical evidence of insanity.
It is incumbent on magistrates to approach the evidence of an expert critically, even if no expert is called on the other side, and to be willing to reject the
evidence if it leaves questions unanswered (DPP v Wynne [2001] EWHC 21 (Admin)).
When expert evidence is given on an ultimate issue, it should be made clear to the jury that they are not bound by the opinion, and that the issue is for
them to decide, but there is no requirement that such a warning be conveyed in any particular way
Brennan [2014] EWCA Crim 2387 – it was held that: 'Where there is simply no rational or proper basis for departing from uncontradicted and unchallenged
expert evidence then juries may not do so.' The Court of Appeal approved (at [45]) the standard direction in the Crown Court Bench Book, which suggested
(after the usual directions and appropriate stress on the need for a jury to consider all the evidence) a direction of the following kind: 'Where, as here, there is no
dispute about findings made by an expert you would no doubt wish to give effect to them, although you are not bound to do so if you see good reason to reject
them.' The Court held that such an approach acknowledges that, if unchallenged expert evidence on a particular point calling for such expertise is to be rejected
by a jury, it must be rejected for a reason.
It is wrong to direct a jury that they may disregard scientific evidence when the only such evidence adduced on a particular question dictates one
answer and only a scientist is qualified to answer that question
Matheson [1958] 2 All ER 87 – it was held that where the medical evidence of diminished responsibility is uncontradicted and the jury return a verdict of guilty
of murder, if there are facts entitling the jury to reject or differ from the expert opinion, the Court of Appeal will not interfere with the verdict; but if there are
no facts or circumstances to displace or throw a doubt on the unchallenged medical evidence, such a verdict would not be a true verdict in accordance with the
evidence.

11. Walton v The Queen [1978] AC 788 – a conviction for murder was upheld despite uncontradicted medical evidence of diminished responsibility. Matheson and
Bailey were distinguished on the basis of the greater weight and quality of the medical evidence in those cases.
Sanders (1991) 93 Cr App R 245, the Court of Appeal held that two clear principles emerged from the cases, on the issue of diminished responsibility:
(a) if there were no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to an accused should be accepted by a jury
and they should be so directed; and
(b) where there were other circumstances to consider, the medical evidence, though it be unequivocal and uncontradicted, must be assessed in the light of
the other circumstances.

12. PRIVILEGE AGAINST SELF-INCRIMINATION
F10.1 – Privileged Relationships
Relevant and otherwise admissible evidence may be excluded on the grounds of either the privilege against self-incrimination or legal professional
privilege
The following principles are of general application:
(a) A person entitled to claim privilege may refuse to answer the question put or disclose the document sought. The judge should not balance the claim
to privilege against the importance of the evidence in relation to the trial.
(b) If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness, and
neither party can take advantage from it.
Thus, if a judge improperly rejects a claim to privilege made by a witness who is not a party to the proceedings, no appeal will lie, for there has
been no infringement of the rights of the parties.
Kinglake (1870) 11 Cox CC 499 – where a claim to privilege made by a prosecution witness on the basis that his evidence would tend to incriminate
himself was overruled by the judge, it was not open to D to object that the witness's evidence had been improperly admitted.
(c) A party seeking to prove a particular matter in relation to which his or her opponent or a witness claims privilege, is entitled to prove the matter
by other evidence.
(d) No adverse inferences may be drawn against a party or witness claiming privilege (Wentworth v Lloyd (1864) 10 HL Cas 589).
(e) A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed simply on the basis that it would
succeed in some other jurisdiction.

13. F10.2 – Privilege Against Self-Incrimination
Criminal Evidence Act 1898, s. 1(2) – 'a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question
in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings'.
 no witness is bound to answer questions in court (or to produce documents or things at trial) if to do so would, in the opinion of the judge, have a
tendency to expose the witness to any criminal charge, penalty or forfeiture (of property) which the judge regards as reasonably likely to be
preferred or sued for
The courts may substitute a different protection in place of the privilege when requiring a person to comply with a disclosure order, provided
adequate protection is available, as when the prosecuting authorities unequivocally agree not to make use of the information
An affidavit sworn by a person in compliance with such an order may then be inadmissible against the person in any subsequent criminal trial, but the
Crown will not necessarily be prevented from using it to demonstrate inconsistency and thus to impugn the person's credit.
There will be no tendency to expose to a criminal charge if this is, in effect, denied by the witness.
Ferati [2020] EWCA Crim 1313 – a case of fraudulent evasion of tax, D refused to hand over records of his takings, asserting that they contained accurate
records. It was held that evidence of the refusal, admitted for its relevance to his credibility, had not deprived him of his right against self-incrimination.
Penalties arise mainly under statutes relating to the revenue, and under EC regulations.
 'Additional damages', which may be awarded under statutes for breach of copyright, are not penalties
A witness may not claim privilege on the basis that his or her answer to the question put would expose him or her to civil liability (Witnesses Act 1806).
Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law

14. Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes [2019] UKPC 29 – the question arose whether the privilege against self-
incrimination under Article 6 can apply in relation to pre-trial investigations in one jurisdiction where any trial would take place in another. It was unnecessary
to answer the question, but the Privy Council doubted whether it could be answered in categorical terms, because it may depend on whether the applicant risks
suffering a flagrant denial of justice in the requesting country. However, it noted that this would not be the case in jurisdictions adhering to the Convention.
Subject to any statutory exceptions, an agent, trustee or other fiduciary of a party may claim the privilege in an action brought against him or her by that party
for breach of that duty.
F10.5 – Incrimination Must be of Person Claiming Privilege
In criminal cases, the privilege against self-incrimination is restricted to the person claiming it, and does not extend to questions the answers to which
would tend to incriminate a spouse
Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, and Pitt [1983] QB 25 – where the Court of Appeal, in holding that an
accused's spouse, if she elects to testify, should be treated like any other witness, surely must have assumed that she cannot then claim privilege against the
incrimination of her husband
No privilege against incriminating strangers
A company may claim privilege in the same way as an individual
 the privilege is that of the company and therefore does not extend to incrimination of its office holders

15. LEGAL PROFESSIONAL PRIVILEGE + WAIVER
F10.17 – Legal Professional Privilege
A client may, and his or her legal adviser must (subject to the client's waiver), refuse to give oral evidence or to produce documents relating to two types
of confidential communication:
(a) communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice
about any matter, whether or not litigation was contemplated at the time, the privilege for such communications being known as legal advice privilege;
and
(b) communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or
act in relation to litigation that was pending or in the contemplation of the client, the privilege for such communications being known as litigation
privilege.
The privilege also covers items enclosed with or referred to in such communications and brought into existence
(i) in connection with the giving of legal advice or
(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings
Litigation privilege can apply to communications between lawyer and client even if legal advice privilege also applies.
 Does not alter the compass of litigation privilege (which requires actual or contemplated litigation) or of legal advice privilege (which does not).
 Nor does it alter the requirement that communications with third parties will only be privileged if the test for litigation privilege is met

16. F10.18 – Proof of Privilege
The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege
The question of privilege is for the court; the mere assertion of privilege or statement of the purpose for which a document was created is not in itself
determinative.
The court must consider carefully the evidence supporting the claim, which should be specific enough to show something of the deponent's analysis of the
documents and the purposes for which they were created, preferably by reference to such contemporaneous material as can be referred to without disclosing the
privileged matters.
The evidence should come from the person whose motivation and state of mind is in issue, namely the client or, if the client is a company, the individuals
responsible for giving instructions to the lawyers on the company's behalf.
Evidence from the lawyers will be of secondary value.
If not satisfied on the basis of the evidence that a claim to privilege has been made out, as a last resort the court may inspect the documents, but should not
do so unless either there is credible evidence that those claiming privilege have misunderstood their duty or are not to be trusted with the decision-
making, or there is no reasonably practical alternative (West London Pipeline v Total UK Ltd [2008] EWHC 1729 (Comm)).

17. F10.21 – LEGAL ADVICE PRIVILEGE
Legal advice privilege covers communications between clients and
their legal advisers for the dominant purpose of obtaining or giving
legal advice.
It also covers documents evidencing such communications and
documents intended to be such communications, even if not in fact
communicated
R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 – the Court of
Appeal, after an extensive review of the authorities, held that in order to establish
legal advice privilege it needs to be shown that the purpose of obtaining or
giving legal advice was the dominant purpose.
The communications must have been made either in the course of the
relationship between client and legal adviser or with a view to its
establishment.
The privilege extends to instructions given by the client to the solicitor
or by the solicitor to the barrister and to counsel's opinion taken by a
solicitor
Documents emanating from, or prepared by, independent third parties
and passed to the lawyer for the purposes of advice are not privileged.
F10.28 – LITIGATION PRIVILEGE
WH Holdings Ltd v E20 Stadium LLP [2018] EWCA Civ 2652:
(a) The privilege is engaged when litigation is in reasonable
contemplation.
(b) Once engaged, it covers communications between parties or
their solicitors and third parties for the purpose of obtaining
information or advice in connection with the conduct of the
litigation, provided it is for the sole or dominant purpose of
the conduct of the litigation.
(c) Conducting the litigation includes deciding whether to litigate
and also whether to settle the dispute giving rise to the
litigation.
(d) Documents in which such information or advice cannot be
disentangled or which would otherwise reveal such information
or advice are covered by the privilege.
(e) There is no separate head of privilege covering internal
communications falling outside the ambit of the privilege as
described above.

18. F10.22 – Corporate Clients
Three Rivers District Council v Governor and Company of the Bank of
England (No. 5) [2003] EWCA Civ 474 –
It was held that legal advice privilege protects only direct
communications between the client and the lawyer and evidence of the
content of such communications, and that in the case of a corporate
client the privilege covers only
(a) communications with those officers or employees expressly
designated to act as 'the client' and not
(b) documents prepared by other employees or ex-employees, even if
they were prepared with the dominant purpose of obtaining legal
advice, prepared at the lawyer's request, or sent to the lawyer.
As to (a) above, the communications will remain privileged if sent or given
to the Board of Directors directly, instead of via the 'designated officers or
employees', because the Board is the manifestation of the corporate client
If a solicitor is retained by a company to carry out investigations to provide
the company with legal advice and that requires the solicitor to speak to
employees (or others) who are not 'designated officers or employees', the
communications will not be covered by legal advice privilege, even if the
employees have been authorised by the company to speak to the solicitor
There is an additional restriction: the privilege only applies in the case
of litigation that is adversarial, not investigative or inquisitorial
As to (c) above, no privilege attaches to a document created with the
purpose of showing it to the prospective adversary (such as a position
statement prepared for the purposes of a mediation).
In both the civil and the criminal contexts, legal advice given to head
off, avoid or settle reasonably contemplated proceedings is as much
protected by litigation privilege as advice given for the purpose of
resisting or defending such proceedings.
Litigation privilege extends to the identity and other details of
witnesses intended to be called in adversarial litigation, whether or
not their identity is the fruit of legal advice.
 A party has a legitimate interest in protecting the identity of witnesses
the party intends to call until a late stage in the litigation.
Litigation privilege may extend to the identity of the person giving the
instructions, provided that the communication itself is privileged and
the privilege will be undermined by disclosure of the identity because
such disclosure would give clues as to the content of the instructions
Litigation privilege, like legal professional privilege, is a basic or
fundamental right, and may only be intruded upon by force of subordinate
legislation if the statute providing the subordinate instrument's vires
makes it plain that such an authority was intended to be conveyed

19. F10.29 – Types of Documents Covered
The privilege covers documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation, but
not documents obtained by a party or the party's adviser for the purpose of litigation that were not created for that purpose
A copy or translation of an unprivileged document in the control of a party does not become privileged merely because the copy or translation was
made for the purpose of the litigation
Privilege will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original is not, and has not at
any time been, in the control of the party claiming privilege
Privilege will also attach where a solicitor has copied or assembled a selection of third-party documents for the purposes of litigation, if its
production will betray the trend of the advice given to the client, but this principle does not extend to a selection of own client documents, or copies
or translations representing the fruits of such a selection, made for the purposes of litigation.
University of Dundee v Chakraborty [2022] EAT 150 – an unprivileged document was revised, following legal advice, for the purposes of litigation. It was
held that although privilege attached to both the terms of the advice given about the original document and the revised version, the original document could
not acquire privileged status retrospectively, even if comparing it with the revised version allowed inferences to be drawn about the terms of the legal advice
that had been given.

20. F10.38 – Communications in Furtherance of Crime or Fraud
Communications in furtherance of crime or fraud are a well-recognised exception to the principle of legal professional privilege
Cox (1884) 14 QBD 153 – a solicitor was compelled to disclose communications with D, in which D had sought his advice in drawing up a bill of sale alleged
to be fraudulent. Stephen J, delivering the judgment of the Court for Crown Cases Reserved, held that if a client applies to a legal adviser for advice intended to
facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which the advice is sought, the
communication between the two is not privileged.
F10.43 – Waiver of Privilege and the Criminal Justice and Public Order Act 1994, s. 34
Condron [1997] 1 WLR 827 – the Court of Appeal gave the following guidance relating to legal professional privilege where an accused refuses to answer
police questions on the advice of his or her solicitor.
Communications between accused and solicitor prior to interviews by the police are subject to the privilege.
If an accused gives as a reason for not answering that he or she has been advised by the solicitor not to do so, that advice does not amount to a waiver of
privilege.
If the accused wishes to invite the court not to draw an adverse inference under the CJPO 1994, s. 34, it is necessary to go further and state the basis or
reason for the advice.
 May well amount to a waiver of privilege so that the accused or, if the accused's solicitor is also called, the solicitor, can be asked whether there were
any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons.

21. The information which the prosecution seek to draw from failure to mention facts in interview is that they have been subsequently fabricated.
 It is open to an accused to attempt to rebut this inference by showing that the relevant facts were communicated to a third party, usually the solicitor,
at about the time of the interview.
 This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated.
It is probably desirable that the judge should warn counsel, or the accused, that the privilege may be taken to have been waived if the accused gives
evidence of the nature of the advice.
If the defence reveal the basis or reason for the solicitor's advice to the accused not to answer police questions, this will amount to a waiver of privilege
whether the revelation is made by the accused or by the solicitor acting within the scope of his or her authority as agent on behalf of the accused, and
whether the revelation is made in the course of pre-trial questioning, in evidence before the jury, or in evidence on the voir dire which is not repeated
before the jury
Loizou [2006] EWCA Crim 1719, where Hooper LJ said (at [84]):
There is a distinction between having to reveal what was said to a solicitor to rebut an allegation of recent fabrication and volunteering information about the
legal advice … In the former scenario the reason privilege has not been waived is that there is no way of dealing with the allegation other than by
revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of
the voluntary provision by or on behalf of the defendant of information which because of its partial nature is misleading.