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24 February 2017 / John Gould
Issue: 7735 / Categories: Features , Profession
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Privilege in peril?

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Is legal professional privilege at risk of losing its status as a certain & absolute right? John Gould reports

 
  • A statute can override legal professional privilege but Parliament’s intention to do so must be clear.

  • The distinction, illustrated in Avonwick , between the right to obtain privileged information and the right to use it is an important one.

  • The Investigatory Powers Act 2016 could mean that there is no certainty that privileged communications will not be intercepted or used.

The rule of law requires that individuals can obtain legal advice in private. The risk that a policeman is listening to a client’s discussions with his lawyer may stop an individual consulting a lawyer at all, or at least prevent him from giving a full and frank account to his lawyer. An individual, alone, without an effective lawyer in possession of the full facts, may not be able to obtain the justice the law provides.

Lord Taylor in R v Derby Magistrates’ Court, ex p B [1996] AC 487, [1995] 4 All ER 526, described

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The cab-rank rule remains a bulwark of the rule of law, yet lawyers are increasingly judged by their clients’ causes. Writing in NLJ this week, Ian McDougall, president of the LexisNexis Rule of Law Foundation, warns that conflating representation with endorsement is a ‘clear and present danger’
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Artificial intelligence (AI) is already embedded in the civil courts, but regulation lags behind practice. Writing in NLJ this week, Ben Roe of Baker McKenzie charts a landscape where AI assists with transcription, case management and document handling, yet raises acute concerns over evidence, advocacy and even judgment-writing
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