COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
His Honour Judge Holt
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE LEVESON
THE HONOURABLE MR JUSTICE BEATSON
|- and -
|LISA JOY LOIZOU
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
C. Fender (instructed by CPS) for the Respondent
Crown Copyright ©
LORD JUSTICE HOOPER :
Mr Justice Beatson made a substantial contribution to that part of this judgment which is concerned with legal professional privilege.
"Firstly, there must be criminal property and that means property obtained as a result of criminal conduct and I made a simple example is the proceeds of a bank robbery, another example would be proceeds of a fraud. You do not have to be sure what the criminal conduct was, you just have to be sure that there was some criminal conduct which led to the creation of the particular criminal property. And you may infer that it was criminal property from the evidence before you, if you think it is right to make an inference. That is the first ingredient. The second ingredient is that there must be a transfer; that simply means that the criminal property must pass from one person to another. Thirdly, the particular defendant whose case you are considering must know about the transfer and intend to play a part in it. If you don't know what is going on you can't really be guilty of anything, so they have got to know what is going on; and, secondly, that person must know or suspect that it was a transfer of criminal property. Those are the three ingredients which the prosecution have to prove." (Underlining added)
"Liza Loizou, John Mccarthy, James Quilligan and Anastasios Gourzoildis, together with Petros Arampatzis, on the 20th day of June 2004, transferred £87,010 in cash, which was criminal property, knowing or suspecting that the said cash constituted a person's benefit from criminal conduct."
"Now it is quite clear that the basis of plea does not expressly refer to the money as being criminal property, but it is quite clear that by the pleas of guilty each defendant was admitting that it was criminal property. In my judgment it would be absurd to reach any other conclusion."
"Q. Now you say that you relied on the advice of your solicitor to go "No comment" and you have explained that the reason for that was well, would you just like to repeat it so that I've got it firmly in my head because I'm going to ask you why it was that you said "No comment" at the next interview.
A. Because of Chris Casey advised me on the next interview to say "No comment" because of the charge for money laundering because - - - -
Q. And what do you mean "Because of the charge of money laundering"?
A. He didn't see a charge. He couldn't understand why I was being charged with money laundering.
Q. And did you take his advice?
Q. And why is it that you relied on his advice?
A. He's a solicitor and he was advising me.
Q. Now at any stage have you attempted to tailor in or fit any of your evidence so that you can make yourself sound better, you know, having heard what the prosecution's case - - - -
Q. - - - - is about?
Q. And have you told the jury the truth today?
Q. And at any stage did you know or suspect that this money that had been transferred was criminal property?
"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.
Q. You went in August, didn't you?
Q. You were bailed by the police and you went back on 16th August and on that occasion you followed the same advice.
Q. And said nothing to the police, or rather Customs.
Q. But do you accept that you were asked a number of questions about your involvement in events of that day?
Q. Yes. Now to all of those questions you exercised your right to remain silent. 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."
"Q. Now everything that you've told the jury about today, your association with Mr Arampatzis and all the other people that were involved in the events of that day, 20th June, and before that time, do I understand you correctly that you didn't tell Mr Casey, your legal adviser, anything about that on either of the two occasions that you met him at the police station?
A. I told him briefly what had happened.
Q. Well, perhaps if I can leave it on this note then: did you discuss, even briefly, all the story that you've told the jury this morning.
Q. Did you tell the solicitor anything of that?
A. No, we didn't have time. I just went straight into the interview with the officers.
Q. So he knew nothing about all the account that you gave this morning?
"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."
"Now, the second point is a matter where I have been assisted by further information, if you like. Can I go to Miss Loizou and her "No comment" interview and just remind you about that. She gave evidence that she was advised not to answer the questions by her solicitor, who indeed said that he didn't think they amounted to a criminal charge, or the prosecution evidence at that stage amounted to a criminal charge. And it's quite rightly pointed out, I didn't add that second part when I reminded you of it and I apologise. But it goes further than that because apparently, and we haven't heard the tapes quite properly, you'd be deluged with information if you had, but the tapes do make it clear that he gave that advice and so when I said there are two stages that you have to consider: firstly, whether she has or may have told you the truth that she was given that advice, she was indeed given that advice. What I then went on to say about, if you reach that conclusion, how you approach it still stands, but that first stage is clearly she was so advised and don't be misled by my labouring, if I did, the first stage, that's passed.
"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."
"If the client had to be told that his communications were only confidential so long as he had 'a recognisable interest' in preserving the confidentiality, and that some court on some future occasion might decide that he no longer had any such recognisable interest, the basis of the confidence would be destroyed or at least 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?" The defendant paused and said: "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: "When did you first tell anybody the story you have told the jury?" That would have been a perfectly proper question and there could have been no possible objection to that."
"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  1 CrAppR 185 and R v Bowden  2 CrAppR 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."
"15. It is first necessary to identify what was privileged and how and to what extent, if any, it was waived. Section 10(1) of the Police and Criminal Evidence Act 1984 defines legal professional privilege as 'communications between a professional legal adviser and his client made in connection with the giving of legal advice to the client'. A waiver will ordinarily occur where a client chooses, for whatever reason, to reveal the effect of a communication protected by privilege. In this case everything which was said at the pre-interview conference between the appellant and his solicitor was privileged. It is well-settled that merely by saying he gave a no comment interview on legal advice a defendant does not waive privilege. The waiver in the present case is said to have occurred during the appellant's cross-examination when it was being suggested to him that his alibi defence was a recent fabrication. The questions were perfectly proper. The Crown were entitled to ask whether he had told anyone about his alibi before trial. But what is the position if a defendant says in answer to such questions, as the appellant did here, that he did tell someone else earlier? The answer to this question is apparently given by Lord Bingham, CJ, in Bowden at page 182 where he says:
'When a defendant at trial deposes to facts which he has not mentioned at an earlier stage, and it is suggested to him that these facts are an invention or fabrication after the event, the defendant may rebut that accusation by asserting and calling evidence to show that he mentioned the facts to another person at that earlier stage, and no waiver of privilege is involved even if evidence is given (by him or his legal adviser) that this disclosure was made to the legal adviser.'
In support of this statement of the law, Lord Bingham relied on the earlier decisions of this court in Wilmott (1989) Cr.App.R 351, at page 351 and 352 and Condron at page 197D to E. In the latter case this court said:
'However, it should be borne in mind that the inference which the prosecution seek to draw from failure to mention facts in interview is that they have been subsequently fabricated. It is always open to a party to attempt to rebut this inference by showing that the relevant facts were communicated to a third person, usually the solicitor, at about the time of the interview (see Wilmott). This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated; the solicitor is, for this purpose, in the same position as anyone else.'
16. It could be argued that in such circumstances what a defendant says to his solicitor is a privileged communication and that he waives privilege in that communication by volunteering that he has made it. But that is not what this court has said in the three cases to which we have referred which have not been doubted in any more recent cases where the earlier decisions have been followed. Even if we thought there was some reason to doubt this well-established line of authority, we are bound to follow it.
17. It is worth underlining that what this court has said about waiver of privilege is confined to the situation where a defendant is trying to rebut an allegation of recent fabrication. If a rationale for the rule is required it must be that a defendant against whom a potentially very damaging allegation of recent fabrication is made should be entitled to defend himself without running the risk that in doing so he will lose the protection of privilege.
18. This court's decisions assume that there has been some communication to the solicitor or someone else of facts not mentioned in interview. Here there was no such communication. The appellant had said nothing about an alibi to the solicitor. Does this make a difference? Has the appellant waived privilege so that the Crown may call the solicitor to say that no such communication has been made to him? And, if so, can he also be asked what the appellant did in fact tell him?
19. The cases to which we have referred make it clear that the answer to each of these questions is 'no'. The logic of the authorities to which we have referred is that a defendant's assertion in defence of an allegation of recent fabrication that he has told his solicitor something he omitted to mention in interview does not waive privilege. This must be so whether the assertion is true or false. If true there is at least a communication. If false there is none. Still less do we think it is open to the Crown in such a case to discover what information a defendant did in fact provide.
20. The position in the present case is even more striking and emphasises the practical difficulties associated with the Crown's case and the potential for unfairness. The appellant was asked by counsel whether he had told any of his legal advisers about the alibi. His initial response was that he had told his barrister, as was no doubt the case. But the Crown were compelled to concede in argument that this answer also constituted a waiver of privilege in respect of these instructions, upon which the Crown, if so advised, could take a statement from counsel as to the scope of the instructions (regarding the alibi, if not more) and treat counsel thereafter as a potential witness. It is also striking that the answer which is said to constitute the waiver as regards the instructions to the former solicitor was provoked by a question from the judge himself. This of itself, if the Crown is correct, presented difficult case management problems. But in any event if this is a permissible route to the Crown eliciting otherwise privileged material, questions of this kind will become commonplace and in their train there will be frequent arguments as to the legitimacy of the question, the appropriateness of warnings to the witness and the scope of waiver that results.
21. The circumstances in which privilege will be waived were considered in Condron and Bowden. If a defendant states the basis or reason for the advice to go no comment (Condron page 197C) and if a suspect goes beyond saying that he declines to answer on legal advice and explains the basis on which he has been so advised, or if his solicitor acting as his authorised representative gives such an explanation, a waiver of legal professional privilege is involved (Bowden page 183F).
22. Subject to Mr Anelay's first point this analysis is sufficient to dispose of the appeal. The appellant did not waive privilege, the judge should not therefore have ordered production of Mr Dongworth's notes and allowed the appellant to be cross-examined on them, or admitted the evidence of Mr Dongworth in rebuttal. The notes and Mr Dongworth's evidence about them were near fatal to the appellant's defence and so his conviction cannot stand.
"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  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  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."
"If, at trial, the defendant or his solicitor gives evidence not merely of the defendant's refusal to answer pre-trial questions on legal advice but also of the grounds on which such advice was given, or if (as here) the defence elicit evidence at trial of a statement made by a defendant or his solicitor pre-trial of the grounds on which legal advice had been given to answer no questions, the defendant voluntarily withdraws the veil of privilege which would otherwise protect confidential communications between his legal adviser and himself, and having done so he cannot resist questioning directed to the nature of that advice and the factual premises on which it had been based." (Underlining added)
"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."
5. 'Fairness' underpins the question of what disclosure there should be by a party who has partially waived privilege in relation to a document or communication. In General Accident Corporation Ltd v Tanter  1 WLR 100, Hobhouse J reviewed the relevant authorities and summarised eight principles in relation to privileged communications deployed at trial. The fourth and sixth principles are significant here:
'Fourth, the waiver of a part of the document or conversation is a waiver of the whole of that document or conversation as was stated in Lyell's case, and as the subject of decision in Burnell v. British Transport Commission  1 QB 187 and Great Atlantic Insurance Co. v. Home Insurance Co.  1 WLR 529
Sixth, by adducing evidence at a trial one does get involved in potential further waiver. The underlying principle is one of fairness in the conduct of the trial and does not go further than that. The fact that this principle does not arise unless you adduce the evidence at the trial is clearly stated in the judgment of Mustill J. and it was clearly raised by the facts in the Doland case and it was likewise raised by the facts in the Great Atlantic and Burnell cases. Further, if the evidence is adduced then the extent of the waiver relates to the transaction to which the evidence goes. The extent of the transaction has to be examined and where it is what somebody said on a particular occasion, then that is the transaction. It is not the subject matter of those conversations. It does not extend to all the matters relating to the subject matter of those conversations.'
6. The reference to the judgment of Mustill J. in the above passage is a reference to his judgment in Nea Karteria Maritime Co Ltd v. Atlantic and Great Lakes Steamship Corpn (an unreported case from 1978). In explaining his stance on waiver and consequential disclosure, Mustill J. relied on the decision of Burnell v British Transport Commission  1 QB 187. The facts can be stated shortly. In a personal injury action, a witness for the Plaintiff was cross-examined on a previous statement he had made. He agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on the ground of privilege. The trial judge ordered disclosure. His order was upheld on appeal.
'It seems to me that the judge was correct, because although this statement may well have been privileged from production and discovery in the hands of the Transport Commission at one stage, nevertheless when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in a case of this kind, if privilege is waived as to the part, it must, I think, be waived also as to the whole. It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or opposing counsel, a sight of the rest of the document, much of which might have been against him.'
7. In Nea Karteria, Mustill J. said
'I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.
8. Templeman LJ agreed with this passage in Great Atlantic Insurance Co v Home Insurance Co  2 All E R 485 at 492f-j. In short, it is submitted that a defendant who has revealed the nature of any advice not to answer questions under caution runs the risk of being cross-examined as to whole of those communications. Some of those communications may have been set down in attendance notes and be the subject of cross-examination, especially if the legal advisor is called to give evidence of behalf of the defendant. Given that privilege is a right of a party to litigation not to disclose certain communications, once part of a communication has been revealed the whole of the communications within the transaction should be. In civil cases, such a step would be commensurate with the duty of full and frank disclosure in litigation so that the court can satisfy itself that evidence is not being cherry-picked by the party relying on the waived communication.
9. A case from the High Court of Australia, A-G for the Northern Territory v Maurice  161 CLR 475 demonstrates 'fairness' operating in favour of the party unintentionally waiving privilege. This was a claim by aboriginals in relation to certain land. A document, called the Claim Book, was lodged with the Land Commissioner. It was prepared using other source material which had not been disclosed. The Court found that the use to which the Claim Book was put at trial did not create a misleading or unfair result. Consequently, documents which were source material for the preparation of the waived document were not ordered to be disclosed. In this case, the authorities were reviewed, including Burnell, Tanter, Nea Karteria and Great Atlantic."
"10. In the context of the silence provisions in a criminal trial, once a defendant in evidence has indicated his reliance on advice and the associated reasons for failing to answer questions under caution, the issues become ones of genuineness and reasonableness in the defendant's actions. In certain cases, a defendant may genuinely rely on advice and not answer questions. Nevertheless, a question remains as to whether that reliance was reasonable or not. In Regina v Hoare & Pierce  EWCA Crim 784 Auld LJ stated at [54 and 55]:
'It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. The section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused's reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is
The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because he had no or no satisfactory explanation to give'.
11. It is submitted that asking a defendant what the factual basis for the advice given is a permissible line of cross-examination. It goes to examine the issues of genuineness and reasonableness, and to explore whether the defendant's actions in making no comment at interview were tactical or not. The credibility of the defendant must also be an important factor here as well, where cross-examination beyond the waived communication must be permitted. If cross-examination beyond the reason given for advice was not permitted, such reliance could frustrate the operation of the legislation in the way described in Condron.
12. In summary, cross-examination of the Appellant ('Did you tell your solicitor ?') would have been permitted by the learned Judge's ruling. Cross-examination was consistent with Condron and Bowden, and civil cases which touch upon the court's powers to control fairness within proceedings, and the rules upon the degree of any waiver and its effects."
i) One should first identify the "transaction" in respect of which the disclosure has been made.
ii) That transaction may be identifiable simply from the nature of the disclosure made for example, advice given by counsel on a single occasion.
iii) However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed.
iv) When that has been done, further disclosure will be necessary if that is necessary in order to avoid unfairness or misunderstanding of what has been disclosed.
"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."