First ever guide to legal professional privilege in criminal law published

Written alongside Shearman Bowen partner Vivien Cochrane, ‘Legal Professional Privilege in Criminal Investigations and Proceedings’ is aimed at all types of criminal defence practitioner – from white collar crime barristers to duty solicitors – as well as prosecution lawyers, investigators and others involved in the criminal justice system.

Kingsley Napley says the detailed focus on the application of LPP to specialist areas of criminal law and internal investigations for the first time “will be welcomed” by those active in the sector.

The material is organised chronologically by stage of proceedings to be easily navigable. It covers the general principles of LPP, recent case law and practical guidance in areas such as search and seizure, police station interviews and internal investigations.

Mr Hayes explained: “Legal professional privilege may be a sacred and longstanding legal right, but it has increasingly been subject to challenge and scrutiny in criminal cases in the last ten years, most notably in ENRC v SFO, and hence has become much more of a live issue.

“Criminal defence lawyers are aware LPP is a changing and increasingly contested area. We hope this book is a useful reference tool for those needing to decide where the line is on client confidentiality and disclosure in the cases they are working on.”

In particular, the growth of corporate internal investigations in recent years and the introduction of DPAs (deferred prosecution agreements), effectively giving an incentive to waive privilege, have raised interesting questions on the extent to which privilege can and should apply. In that regard in-house counsel and prosecution lawyers may find the guide helpful.

In addition, with evidence increasingly digital and the challenges of volume and transparency of data to contend with in criminal cases, as well as the advent of artificial intelligence, the scope and definition of privilege will continue to be an important and pressing question to be considered across a full range of criminal cases.

Louise Hodges, head of criminal litigation at Kingsley Napley, comments: “Will and Vivien have done a great job here and should be proud of their achievement.

“The need for a book like this, tackling the thorny issues of legal professional privilege in a criminal law context, is greater now than ever before and it will prove a valuable resource for all those engaged in criminal justice, whether prosecution or defence lawyers, in-house legal teams, investigators or members of the judiciary.”

Published on Thursday (July 4) by Oxford University Press, copies of the book are available to order here and cost £95.