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Private and Confidential?
ANDREW WATT discusses legal professional privilege and how recent law has developed.
Legal professional privilege is, in the words of Lord Taylor in R v Derby Magistrates' Court, ex parte B [1996] AC 487:
Private and Confidential?
ANDREW WATT discusses legal professional privilege and how recent law has developed.
Legal professional privilege is, in the words of Lord Taylor in R v Derby Magistrates' Court, ex parte B [1996] AC 487:
'a fundamental condition on which the administration of justice as a whole rests'.
Any discussion of legal professional privilege in the context of section 20, Taxes Management Act 1970 would be incomplete without firstly at least some reference to the investigation process in the course of which the concept sometimes becomes an issue. Consideration of privilege is equally highly relevant not only in relation to section 20 but also section 20BA (the newly enacted production order power), section 20C (entry and search under warrant), section 739, Taxes Act 1988 (transfer of assets abroad) and section 778, Taxes Act 1988 (transactions in respect of land). The latter two sections are outwith the scope of this article.
Fraught with difficulty
It is fair to say that, given the effect of recent legislative changes and cases either before the High Court in judicial review proceedings or in appeal hearings before the Special Commissioners, the state of affairs in relation to legal privilege in Revenue investigations has never been more fraught with difficulty and confusion both for professional advisers and their clients. Such problems are exacerbated by the fact that in the course of a 'dawn raid', judgments and decisions have to be made, by both investigators and those who are their targets, in the heat of the moment, and errors by either can be both dangerous and expensive.
The common law definition of legal privilege in England and Wales is neatly encapsulated in section 10, Police and Criminal Evidence Act 1984:
'(1)
