Loizou, R. v [2006] EWCA Crim 1719

“Q. So when you were at the police station on the first occasion had you prepared, or had prepared for you that short written statement you were taken to by my learned friend Mr Levett. Was there any reason why you didn't want to make a clean breast of it then and say what you've told the jury about today, how you'd been embroiled in somebody else's business, you didn't know anything was going on that was dishonest, you were acting as a translator and that you'd been wrongly arrested for something that you had no knowledge of an no involvement in anything criminal, or anything like that. A. No, because the Customs were talking about there'd been money involved. I'd never seen any money so why was I to be charged on a money laundering? Q. Well, just put the niceties of the offence that you were being alleged to be involved in first of all, I'm just more concerned with you just feeling as though you wanted to tell the Customs Officers exactly what your role was in the events that they had mistakenly arrested you for. Do you follow? Just making a complete clean breast of it and saying, "Officers, you've just got it wrong. I was there because I was helping someone I thought was a perfectly legitimate businessman carry out this business and I'm, you know, I'm just an innocent dupe in all of this. I've got nothing to do with anything to do with the sales of cigarettes or tobacco, or money laundering" and just put it out there. A. No, because my solicitor advised me not to say anything because there was no connection for me to be charged with money laundering. Q. Well that was on 21st June. A. Yeah. Q. You went in August, didn't you? A. Yeah. Q. You were bailed by the police and you went back on 16th August and on that occasion you followed the same advice. A. Yes. Q. And said nothing to the police, or rather Customs. A. Yes. Q. But do you accept that you were asked a number of questions about your involvement in events of that day? A. Yes. … Q. Yes. Now to all of those questions you exercised your right to remain silent. Yes? A. Yes. Q. On the advice of your solicitor. Did you tell your solicitor any of the account that you've given today? MR LEVETT: Isn't this privileged?”

“The defendant, Miss Loizou, was interviewed twice on 21 June and 16 August and on both occasions she, to summarise and use the vernacular, "went no comment". When she was giving her evidence in-chief she was asked why she "went no comment". In the first interview that no comment was by means of a short prepared statement, apparently written by her solicitor. She said: "I said no comment on the advice of my solicitor, Mr Christopher Casey. He told me that he didn't see any charge for money laundering." There was no attempt by her counsel to try and cut her short, because there she was clearly giving evidence of the advice or the reason for the advice, not just the advice to keep silent. And when she was asked about the interview on 16 August there was no attempt beforehand, counsel being aware of what she had said on the previous occasion, to invite her to limit her evidence to whether she had been advised to go "no comment" and she gave the same answer: "Christopher Casey advised me to go no comment because he couldn't see any charge." In those circumstances prosecuting counsel say there has been a clear waiver of privilege and he is entitled to ask her about that advise in accordance with the case of R v. Bowden – … The short statement in Archbold at paragraph 15-424 is: "A waiver of privilege will be involved if the defendant or his solicitor seeks to put forward in interview or in evidence the reason for such advice." The case of R v. Bowden (1999) 2 Cr. App.R., 176. Mr Fender was not aware this point would necessarily arise, but being a well prepared prosecutor has a transcript of that case with him and we have all had the opportunity to look at that transcript and the summary in Archbold is correct. It seems to me there has been a clear waiver on the authority of R. v. Bowden and the evidence by Miss Loizou did not appear to be given inadvertently or by accident and it was repeated in respect of the second interview without any attempt by her experienced counsel to limit her evidence merely to say that she had been advised to go no comment. Therefore, in the circumstances I shall allow this line of questioning, there having been a waiver of privilege.”

“Miss Loizou says that all that is true. If you conclude that it is, or may be, true, then that’s the end of it, she is not guilty.”

“The prosecution say this is a tissue of lies and one reason you can be sure of this is that if it had been true, she would have come out with it in interview. The prosecution say it would have been very easy to say at least: ‘I am an innocent interpreter, indeed I was to be paid £200. I’m fed up that it took longer than promised and I am furious that I ended up being arrested.’ The prosecution say this was not said because she hadn’t yet thought up this story in answer to the questions which were put to her in interview. Indeed, Mr Fender went through a lengthy list of questions which had been put to her in interview and Miss Loizou agreed that they were put to her and she had declined to comment. The prosecution say that since then she has used the time to concoct this story and tailor it to the prosecution evidence.”

“Now, if you agree with the prosecution and draw this conclusion, you must not convict wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution case and when deciding if her evidence about these facts is true. Having said that, you may draw such a conclusion only if you think it’s a fair and proper conclusion and that you are satisfied about three things: first, that when she was interviewed she could reasonably have been expected to mention these facts. Second, that the only sensible explanation for her failure to do so is that she had no answer at the time or none that would stand up to scrutiny, and, third, apart from her failure to mention those facts the prosecution case against her is so strong that it clearly calls for an answer. You will also consider this matter: Miss Loizou, when she gave evidence, said that she had been advised not to answer these questions by her solicitor. How do you approach that explanation? Well, firstly, you will have to decide if she has, or may have, told you the truth about that. Second, if you conclude that she may have been so advised by her solicitor, then clearly it’s an important consideration, but it doesn’t automatically prevent you from drawing any conclusion from her silence. You should bear two things in mind: firstly, what had her solicitor been told by her? Had her solicitor been told about the account which she gave you? She was asked questions by Mr Fender about that and her answers were unclear. If she hadn’t, and it’s a matter for your judgement to decide, why not? Was it because she had yet to make it up, or was there indeed an innocent reason that she had not told her solicitor why she was with Petros that day? That’s the first thing to bear in mind. The second thing to bear in mind is that a person given legal advice has the choice whether or not to accept it and indeed solicitors have a duty to tell their clients this. Moreover, she was clearly warned in the caution that failure to mention facts which she relied on at her trial might harm her defence. Now those are the things to bear in mind. If you conclude at the end of your considerations that she could have told the police what she told you, but she genuinely relied on legal advice to remain silent, then you shouldn’t hold that silence against her. On the other hand, if you are sure that she had no answer and merely latched on to the legal advice as a convenient shield behind which to hide, you would be able to hold the silence against her in the way the prosecution invites you to do so. So it’s quite a lengthy process and that’s the way to approach it.”

“You should bear two things in mind: firstly, what had her solicitor been told by her? Had her solicitor been told about the account which she gave you? … If she hadn’t … why not? Was it because she had yet to make it up, or was there indeed an innocent reason that she had not told her solicitor why she was with Petros that day?”

“In 1978 the applicant went for a walk with a 16-year-old girl, who was later found murdered. The applicant was arrested and made a statement to the police admitting being solely responsible for the murder. Shortly before his trial at the Crown Court for murder he retracted that statement and alleged that although he had been at the scene of the crime his stepfather had killed the girl. The applicant was acquitted. In 1992 the stepfather was charged with the girl's murder and committal proceedings were commended before the stipendiary magistrate. The applicant gave evidence for the prosecution and repeated his allegation that his stepfather had murdered the girl. Counsel for the stepfather, in cross-examining the applicant, asked about the instructions he had initially given to his solicitors when admitting to the murder. The applicant declined to answer on the grounds of legal professional privilege. An application was thereupon made on behalf of the stepfather, pursuant to section 97 of the Magistrates' Courts Act 1980, for a witness summons directed to the applicant's solicitor requiring production of the attendance notes and proofs of evidence disclosing the relevant instructions.”

"...under the principle stated in Reg. v. Ataou, if it be correct, the judge is required to approach an application for production of documents protected by legal privilege in two stages. First he must ask whether the client continues to have any recognisable interest in asserting the privilege and, secondly whether, if so, his interest outweighs the public interest that relevant and admissible documents should be made available to the defence in criminal proceedings."

"So stated, the principle seems to conflict with the long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged. It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court."

"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."

"Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), as to which we did not hear any argument. Mr. Goldberg's difficulty in other areas, legal professional privilege is a field which Parliament has so far left untouched."

"But the drawback to that approach is that once any exception to the general rule is allowed, the client's confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had "any recognisable interest" in asserting his privilege. One can see at once that the purpose of privilege would thereby be undermined."

"In the course of his submission to us, Mr. Boal told us that when he was pressing the defendant in cross-examination as to whether the account he had given was recently fabricated, he asked the defendant: ‘Did you tell your solicitor the truth?"

"I don't want to answer that question.’ Mr. Roberts submitted that that was an improper question, that it led the recorder perhaps to take the line he did, and in itself had a damaging impact. In our view – it is easy to be critical of counsel who asked questions in the heat of battle, so to speak - it is a question which should not have been asked. We hope that that question or anything approximating to it will not be asked again of defendants. We think it was unfair. It put the defendant in an impossible position. We also think that if it had been answered, the answer would have been inadmissible. So the question was not a proper question anyway. Mr. Boal himself when pressed by this court conceded that the question was not an appropriate one and suggested that what he really ought to have asked was: "

“13. … The appellant had gone no further than saying that he had made a no comment interview on legal advice. Such a statement did not waive privilege. The appellant was bound to answer the judge's question and in doing so he did not disclose the reasons or basis for the advice which he had been given and so he had not waived privilege in that way. In support of his submissions Mr Russell-Flint relied on the decisions of this court in R v Condron [1997] 1 Cr.App.R 185 and R v Bowden [1999] 2 Cr.App.R 176. ”

“1. Section 34 of the Criminal Justice and Public Order Act 1994 has recently been described by this court as a notorious minefield. As Lord Woolf said, the inter-relationship between this section and legal professional privilege is ‘singularly delicate’. Nevertheless on this appeal the Crown invite the court to take an adventurous step forward and say that a defendant will impliedly waive privilege in any case where he gives evidence that he made a no comment interview on legal advice and indicates that he will invite the jury not to make an adverse inference against him.”

“23. This conclusion does not deprive section 34 of all effect in a case such as this. It is well-established that it is not enough for a defendant simply to assert that he has made a no comment interview on legal advice in order to avoid a section 34 direction. The defendant's explanation is left to the jury to consider in accordance with the JSB standard direction. In a case such as this the judge would obviously remind the jury of the defendant's evidence that he had told his solicitor the facts which he failed to mention in interview and if the solicitor was not called to support the defendant's assertion it would be open to the Crown and the judge in his summing-up to comment upon this omission. This is what happened in R v Bui [2001] EWCA Crim. 1752 (see paragraph 36). ”

“24. We return finally to Mr Anelay's first submission. He conceded, rightly in our view, that a defendant's bare assertion that he made a no comment interview on legal advice did not of itself waive privilege. However, he submitted that if the jury were to be invited to consider whether a defendant "had or might have had an answer to give but genuinely and reasonably relied on legal advice to remain silent" (see paragraph 5 of the JSB direction) the defendant must impliedly waive privilege to enable the jury to see or hear the reasons or basis for the advice so as to give proper consideration to whether they should or should not draw adverse inferences. If this submission is correct then of course the appellant waived privilege in this case and examination of the circumstances which we have considered above would be unnecessary. 25. This submission, if correct, would make substantial inroads into legal professional privilege. This privilege is of paramount importance and Parliament has so far left it untouched -- see R v Derby Magistrates Court ex parte B [1986] AC 487. Section 34 says nothing about privilege. The decisions of this court, which are binding on us, do not give any support for Mr Anelay's submission. A claim for privilege will often deny a court the best evidence available to determine a particular issue, but that has never been a reason for saying that privilege has impliedly been waived. We therefore reject Mr Anelay's first submission.”

“Case law since Condron and Condron has not explored the application of the principles of privilege and its waiver in criminal cases. Nor has there been any exploration of the principles of disclosure ancillary to privilege which has been deliberately or unintentionally waived.”

“since [the sections] restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege.”