Court moves to protect privilege

A court does not have the power to order the defence to serve details identifying defence witnesses under the guise of the Criminal Procedure Rules 2005 (CrimPR), the High Court has ruled.

In R (on the application of Kelly) v Warley Magistrates’ Court and another the court said that any such requirement would require statutory authority.
The case, a judicial review of a decision by Deputy District Judge Stott at Warley Magistrate’s Court, looked at the scope of legal professional privilege and litigation privilege, the nature of the legal authority required if these privileges are to be lawfully overridden, and the proper construction of provisions contained in the CrimPR.

In the original case, the judge had directed that the defence should disclose to the Crown Prosecution Service the names, addresses and dates of birth of all potential defence witnesses in connection with the claimant’s forthcoming trial. Lord Justice Laws and Mr Justice Mitting, however, said an unconditional order for the disclosure such material infringes privilege rules and should be quashed.

Andrew Keogh, a partner at Tuckers Solicitors, says: “Regrettably some judges have treated the criminal procedure rules as a ‘ways and means Act’ and have used them to try and cure perceived deficiencies in the disclosure regime. This important judgment makes clear the somewhat limited scope of the rules in this regard.”