Kingsley Napley

This Practice Note explains the issues relating to legal professional privilege which arise in cross-border criminal investigations and the practical steps which should be taken to protect legal professional privilege in multi-jurisdictional criminal investigations.

This Practice Note explains how the principles of legal professional privilege (LPP) apply in a criminal context. It explains the different categories of legal professional privilege, legal advice privilege and litigation privilege, and how these key concepts apply in criminal investigations and proceedings. This Practice Note also considers the impact of the decisions in SFO v ENRC, HSE v Jukes and R (on the application of Jet2.Com Ltd) v CAA on the dominant purpose test in litigation privilege and legal advice privilege and what constitutes ‘reasonable prospect of litigation’ in litigation privilege in criminal investigations. It also considers the difference in the protections afforded by legal advice privilege as opposed to litigation privilege in criminal proceedings.

This Practice Note explains the scope and impact of the crime-fraud exception (iniquity exception) to legal professional privilege (LPP) and explains where this might be relevant during corporate crime investigations. It explains what constitutes a ‘criminal purpose’ and ‘iniquity’ in these circumstances and the application of the crime-fraud exception to both legal advice privilege and litigation privilege. It also covers the 'dominant purpose test' and the iniquity exception, and explains how the exception could arise in a criminal investigation as well as covert powers and the iniquity exception.

This Practice Note explains how legal professional privilege (LPP) can be maintained for clients during the course of a criminal investigation including during dawn raids, during regulator searches and during interviews under caution and compelled interviews. The steps to be taken during internal investigations to preserve privilege (legal advice privilege and litigation privilege) are highlighted and privilege issues to consider when advising and preparing internal investigation reports into suspected criminal breaches are also included.

This Practice Note explains the scope of privilege against self-incrimination. It covers when privilege against self-incrimination may be raised in criminal proceedings and coroner inquests and the practical considerations when advising clients during criminal investigations, interviews and during criminal hearings.

This Checklist explains the steps which should be considered in order to maintain legal professional privilege (LPP) during a criminal investigation. It includes issues relating to legal advice privilege and litigation privilege to consider at the outset of an internal investigation into suspected criminal offences as well as issues of legal privilege which might arise during an internal investigation including issues relating to document management, correspondence with legal representatives and instructions to/from, and communications with, third parties.