R (on the application of Kelly) v Warley Magistrates’ Court and another [2007] EWHC 1836 (Admin), [2007] All ER (D) 506 (Jul)
Queen’s Bench Division (Divisional Court)
Laws LJ and Mitting J
31 July 2007
A direction to a defendant charged with criminal damage that he serve on the prosecution the full names, dates of birth and addresses of all defence witnesses who were to be called at trial, before he indicated his defence, has been quashed by the court, as breaching both litigation privilege and legal professional privilege.
Rambi de Mello and Daniel Bazini (instructed by McGrath & Co) for the claimant.
Rex Tedd and Toby Watkin (instructed by the Treasury Solicitor) for the prosecution.
David Perry QC (instructed by the Law Society) for the Law Society, as intervener.
The claimant was charged with criminal damage. There were apparently a number of witnesses to his arrest. He pleaded not guilty. At the material times he had not indicated what his defence would be to the charge or what the issues were. In September 2006, a pre-trial review was held at Worley Magistrates’ Court. The legal adviser to the justices directed that the defence should serve on the prosecution the full names, dates of birth and addresses of all defence witnesses who were to be called at trial. The terms of the direction were: “The defence provide details within 14 days to the prosecution of their witnesses to enable the prosecution to consider any issues in relation to making applications to admit bad character information under the provisions of the Criminal Justice Act 2003.” The direction was subsequently reaffirmed in November 2006 by the deputy district judge, who indicated that it was in the interest of openness and fairness and good case management. The claimant applied for judicial review, contending that the justices did not have power to make the direction. It was assumed that the deputy district judge had purported to act pursuant to the Criminal Procedure Rules 2005 (SI 2005/38) (CrimPR), Pt 3.5(1) or Pt 3.5(1) read with Pt 3.10. Pt 3.5(1) provided that: “In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these rules.” According to the claimant, the order was inconsistent with his right to litigation privilege (LP) and/or legal professional privilege (LPP).
LORD JUSTICE LAWS:
It was clear that LP attached to the identity and other details of witnesses intended to be called in adversarial litigation, civil or criminal, whether or not their identity was the fruit of legal advice. The prosecution argued that a defendant had no legitimate interest in protecting the identity of witnesses he intended to call until a late stage in the litigation. His lordship disagreed. The slippage in the argument was in the word “legitimate”. The party might have a strong interest—legitimate from his point of view—in keeping his powder dry. The practical availability of the witness might in some circumstances depend upon his doing so.
In this case the role of the legal adviser was not critical: LP would attach to the identity of the witnesses the subject of the direction just as surely whether the claimant were represented or not. As it happened the case was also one of LPP: the claimant had been represented by a solicitor.
LP and LPP shared a common, or at least an overlapping, rationale—namely the need to protect the confidentiality which a litigant had to enjoy in the materials which he or his lawyers prepared for the presentation of his case.
His lordship held that a power to require disclosure of privileged material could only be characterised as doing no more than regulating practice and procedure, as the prosecution argued, if it formed part of a code having that purpose. If such a power was open-ended, not coloured and confined by moderate procedural sanctions for breach, it was likely to be regarded by the courts as an attempt to infringe privilege as such; and that would be unlawful unless strictly authorised by express provision or necessary implication in primary legislation.
His lordship referred to “moderate” procedural sanctions. “Proportionate” might be a better term. That was an important condition to be met if a rule was to be treated as no more than a procedural regulation. In principle, such a rule had to provide for no more than might reasonably be required for the proper working of such a regulation. If it went further, it would not be categorised as procedural only. It would be liable to be treated as purporting to change the general law of evidence. Unconditional orders for disclosure of privileged material exceeded that boundary. So would a rule which absolutely prohibited a party—with no discretion in the trial court—from calling a witness whose identity he had not disclosed in advance.
His lordship returned to the direction in this case. It was unconditional. It was true that CrimPR Pt 3.5(2) permitted the court to specify the consequences of failing to comply with a direction. But that was an open-ended provision, which was a problematic circumstance in the present context. Where an order apparently infringed LP or LPP, absent a justification in main legislation, it could be saved only by a case management code, and not a regime of judicial discretion.
That was an issue that might have to await another day, since no such consequences were specified in this case. The deputy district judge’s direction could not be seen as an exercise in case management, undertaken within a regulatory regime limited to that purpose. The direction would be quashed.
Mr Justice Mitting delivered a concurring judgment.
