Legal Services Agency v Attorney-General HC Christchurch CP71/01

[2001] NZHC 702

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH CP71/01

Under The Declaratory Judgments Act 1908

In the Matter of the Legal Services Act 2000

BETWEEN LEGAL SERVICES AGENCY
Plaintiff

AND HER MAJESTY’S ATTORNEY-GENERAL
First Defendant

AND JAMES ROBERT O’CONNOR, ROBBIE JAMES EDWARD MARINO, JACOB TAMATI RYLAND AND WILLIAM HENARE BROWN
Second Defendants

AND NEW ZEALAND LAW SOCIETY
Intervener

Hearing: 2 August 2001

Appearances: G D S Taylor for the Plaintiff
N M Crutchley for the Defendant
A J F Wilding for New Zealand Law Society
M I Sewell for Messrs Brown and Marino
S J Shamy for O’Connor
G R Lascelles for Mr Ryland

Judgment: 2 August 2001

ORAL JUDGMENT OF WILLIAM YOUNG J

Solicitors:
Bartlett Partners, Wellington for Plaintiff
Crown Law Office, Wellington for Defendant
Harkness Henry & Co, Hamilton for New Zealand Law Society
Glover Sewell, Christchurch for Brown and Marino
G R Lascelles, Christchurch for Ryland
S J Shamy, Christchurch for O’Connor

Introduction

[1] The Legal Services Agency has become concerned at what seems to be an increasing practice on the part of the police involving the obtaining of search warrants in respect of files or documents held by it. So it has issued these proceedings for the purpose of testing the extent to which the police may do so.

[2] One of the incidents which prompted the issue of these proceedings was the seizure, under warrant, of legal aid applications by four men who are charged with aggravated robbery. The four men in question are the above-named second defendants. I will refer to them as “the accused”. Their trial is to take place in Christchurch next week.

[3] At the time of seizure, there was debate between the police and the Legal Services Agency as to the appropriateness of the actions of the police. So by way of interim compromise, the legal aid applications were placed in a sealed envelope and an agreement was reached between the police and the Legal Services Agency that:-

“The information contained in the sealed envelope received could contain matters of client privilege and is not to be opened except upon instruction from the Court. The Legal Services Agency will be seeking an injunction.”

In context, it seems reasonable to regard this acknowledgement as being, in substance, an undertaking to the Court not to open the sealed envelope until further order of the Court.

[4] The police wish now to be released from this undertaking.

[5] One practical way of dealing with the problem would have been for the legal aid applications to be released to the police leaving any arguments as to their admissibility for the trial Judge next week. That Judge obviously will have jurisdiction to determine any issue as to the admissibility of the documents in the criminal proceedings. However, the envelope cannot be opened without me releasing the police from their undertaking. A District Court Judge would not have jurisdiction to do so. The Legal Services Agency maintains that the envelope should not be opened. So the issue must be determined in this Court.

[6] I note in passing that there is a possibility that the trial will be adjourned for reasons unrelated to the present case. Whether this will happen or not is unclear. So I think I have to proceed on the basis that the trial either will, or may, proceed. That leaves me with no practical choice but to deal with the issue today given other commitments tomorrow.

The parties

[7] I joined at the commencement of the hearing, the four accused as parties to the proceedings. I also granted an application by the New Zealand Law Society to intervene and be heard in relation to the proceedings.

The issue to be resolved today

[8] I should now define how I see the issue which must be resolved today.

[9] The Legal Services Agency has the benefit of an undertaking. It seems to me that I should treat the present case as if there were in place an interim injunction (obtained ex parte or only with a limited hearing) requiring the documents to be retained in the sealed envelope pending further order of the Court and to treat the situation before me as if it were a case of the Legal Services Agency applying for that injunction to be continued.

[10] The fundamental argument is that the documents which have been seized are necessarily privileged. It seems to be common ground that if this is the case I should not release the police from the undertaking and, if necessary, should replace that undertaking with an order of the Court.

[11] If it is the case that the documents may not be privileged then probably I should inspect them. This issue can be deferred until the end of my judgment.

[12] Issues as to confidentiality, public interest immunity and as to the admissibility of the legal aid applications at the trial of the accused are not on the table and I can leave them on one side.

[13] Because the argument on behalf of the Legal Services Agency essentially involves solely a question of law, that is whether legal aid applications made in respect of criminal proceedings under the Legal Services Act 1991 are necessarily subject to legal professional privilege, and given the imminence of the trial of the accused, it is appropriate to resolve the issue as to the status of these documents (ie as to whether they are subject to legal professional privilege) on what is, in effect, a final basis.

The relevant provisions of the Legal Services Act

[14] The applications in question were made under the Legal Services Act 1991. That Act has been replaced by the Legal Services Act 2000. It is, however, appropriate to deal with the issues which arise by reference to the provisions of the 1991 Act.

[15] Under that legislation the applications were required to be made in the prescribed manner to the appropriate court, see s 6 (1). In this case, the applications were made to the District Court at Christchurch.

[16] Section 7 of the Legal Services Act 1991 provided:-

“(1) Where any Court receives an application for criminal legal aid, a Registrar of that Court may, after assessing the application in accordance with the prescribed procedure, direct that criminal legal aid be granted to the applicant if,-

(a) Subject to section 15 (1) of this Act, in that Registrar’s opinion it is desirable in the interests of justice that the applicant be granted criminal legal aid; and

(b) It appears to that Registrar that the applicant does not have sufficient means to enable him or her to obtain legal assistance.

(2) In considering whether or not to direct the grant of criminal legal aid, the Registrar shall have regard to-

(a) The gravity of the offence;

In respect of any appeal, the grounds of the appeal:

Any other circumstances that in the opinion of the Registrar are relevant . . .”

[17] There was a right of review under s 16 (1), Legal Services Act 1991 which was expressed in these terms:-

“Any person who is aggrieved by any decision of a Registrar under section 7 or section 8 or section 14 of this Act may apply for a review of that decision to,-

(a) Where the decision was made by a Registrar of the Court of Appeal, a Judge of that Court or a Judge of the High Court:

(b) Where the decision was made by a Registrar of the High Court, a Judge of that Court:

(c) In any other case, a District Court Judge.”

[18] I will attach as an appendix to this judgment the form of the legal aid application which was employed by the four accused in this case. To be noted is that the legal aid form calls for information as to proposed pleas and provides a space for general comments. With those exceptions, the information required to be provided on the form is unrelated to the merits of the case.

[19] Section 89 of the 1991 Act provided:-

“Except as expressly provided in this Act or in any regulations made under this Act -

(a) The fact that the services of a counsel or a solicitor are given by way of civil legal aid or criminal legal aid does not affect the relationship between, or the rights of, counsel, solicitor, and client, or any privilege arising out of that relationship; and

(b) The rights conferred by this Act on a person receiving civil legal aid or criminal legal aid do not affect the rights or liabilities of other parties to the proceedings, or the principles on which the discretion of any Court or Tribunal is normally exercised.”

There is, however, no provision in the Act indicating that the relationship between an applicant for legal aid or a legally aided defendant is, vis-a-vis either the Registrar of the Court or the Legal Services Agency, to be regarded as if it were a client/solicitor relationship. As I will indicate later in this judgment there is at least one Canadian jurisdiction in which legislation broadly similar to the Legal Services Act 1991 does contain a provision to the effect that the relationship between the legally aided person and the relevant legal aid body is subject to solicitor/client privilege.

[20] There is no express provision in the Legal Services Act 1991 imposing express provisions as to secrecy in relation to legal aid applications or otherwise in relation to the administration of the Act. In this respect it is of interest to note that s 10(2), Legal Aid Act 1969 provided:-

“Every investigation by any Committee of any application for legal aid shall be conducted in private; and (subject to the provisions of this Act) the members of the Committee and the secretary thereto shall maintain and aid in maintaining the secrecy of all matters coming to their knowledge in connection with any application or investigation.”

[21] Finally, in this review of the legislative scheme, I note that the Legal Services Agency is subject, via the combined effect of the Ombudsmen Act 1975 (in the First Schedule to which the Legal Services Agency appears) and the Official Information Act 1982 (see the definition of “organisation” in s 2) to the provisions of the latter Act, under s 9, Official Information Act, the maintenance of legal professional privilege is not a conclusive reason for withholding official information, see ss 6 and 9 (2)(h).

[22] In summary, the Legal Services Act 1991, does not provide that communications with the Legal Services Agency are covered by the legal professional privilege rules (in contra-distinction to the position which obtains in at least one Canadian jurisdiction). Further there are no provisions as to secrecy (in contra-distinction to the position which obtained by reason of s 10, Legal Aid Act 1969). Further, the Legal Services Agency is subject to the Official Information Act and, under that Act, the maintenance of legal professional privilege is not a conclusive ground for refusing to disclose official information.

Legal professional privilege/general

[23] Legal professional privilege is usually expressed as encompassing two distinct rules.

[24] The first is that communications between lawyer and client are privileged. This is so irrespective of whether there is a litigation context. I will refer to this as the “solicitor/client communication rule”.

[25] The second is that communications between the client or lawyer and third parties for the purposes of a particular proceeding may also be privileged. I will refer to this as the “third party communication rule”. An orthodox expression of the rule appears in Halsbury, Laws of England, 4th Ed, Vol 13, Title “Discovery” at para 78:-

“Communications between a party and a non-professional agent or employee or third party are only privileged if they are made both (I) in answer to inquiries made by the party as the agent for or at the request or suggestion of his solicitor, or without any such request, but for the purpose of being laid before a solicitor or counsel for the purpose of obtaining his advice or of enabling him to prosecute or defend an action, or prepare a brief; and (2) for the purposes of litigation existing or in contemplation at the time. Both these conditions must be fulfilled in order that privilege may exist.”

[26] I have no doubt that if the four accused in this case had approached solicitors in terms of arranging representation in relation to the charge or charges they face and had discussed with those solicitors financial arrangements associated with the funding of their defence, such discussions, including the information as to their financial circumstances, would have been privileged within the solicitor/client communication rule. The difficulty, however, with respect to the application of that rule in this context is that the communications in issue were not between the accused and solicitors but rather between the accused and the Registrar of the District Court. The solicitor/client communication rule can only apply, therefore, if the Registrar of the District Court is treated as if he were a solicitor or the agent of a solicitor.

The arguments for the Legal Service Agency

[27] The Legal Services Agency argument is two-fold:-

1. Communications between the accused and the Legal Services Agency and/or the Registrar should be treated as if they were communications between the accused and a solicitor and thus privileged under the solicitor/client communication rule; and

2. Communications between the accused and the Legal Services Agency and/or the Registrar should be regarded as subject to the third party communication rule.

[28] There is authority which supports both contentions.

The authorities as to whether communications with the Legal Aid Authority are covered by the solicitor/client communication rule

[29] Three Canadian cases have been decided on the basis that communications between an applicant for legal aid, or a legally aided person, and the legal aid body or, perhaps, between the legal advisers for a legally aided person and the relevant legal aid body, are privileged essentially on the basis that the legal aid body should be treated, for these purposes, as if it were a lawyer or the agent of a lawyer. The cases are Littlechild (1979) 108 DLR (3d) 340, Descoteaux v Mierzwinski (1982) 141 DLR (3d) 590 and Legal Services Society v British Columbia Information and Privacy Commissioner (1996) 140 DLR (4th) 372.

[30] Descoteaux v Mierzwinski is a decision of the Supreme Court of Canada. In that case, a Mr Ledoux had attended the Montreal Community Legal Centre where he spoke to a lawyer and applied for legal aid. The forms were filled in, in part, by Mr Ledoux and, in part, by the lawyer. One of the forms completed contained space for the lawyer to write what were described as “professional notes” which would be likely to record an applicant’s account of the underlying facts and, perhaps, the lawyer’s assessment of the probable existence of the claim. Where legal aid was granted, an applicant such as Mr Ledoux might be represented either by a lawyer in private practice or by a lawyer employed by the Montreal Community Legal Centre. Police officers wished to obtain the legal application form because it believed Mr Ledoux had falsely under-stated his income for the purposes of obtaining legal aid. A search warrant was obtained for this purpose. The search warrant was challenged and this challenge was taken to the Supreme Court of Canada. In the end, that Court held that, in the context of the allegation which the police were investigating, the challenge to the search warrant based on legal professional privilege could not be sustained. The Court, however, was unanimously of the view that the legal aid application was, prima facie, subject to legal professional privilege. Lamer J observed, at page 600:-

“I am of the opinion . . . that in principle information concerning one’s financial means, the basis of the claim, and any other information required by the corporation or the regulations (Legal Aid Act, s. 64) which a person applying for legal aid must provide in order to obtain the services of a lawyer is, except in the exceptional cases I shall deal with later, privileged.”

The Court was not prepared to distinguish between information provided in reference to the merits of the claim as opposed to information associated with an applicant’s eligibility for legal aid. Such information was seen by the Court as being confidential.

[31] Although there can be no doubt that the Descoteaux decision does assist the Legal Services Agency, the context in which that case fell to be determined was very different from the present. The forms in question were filled in by Mr Ledoux in the presence of, and with the assistance of, a lawyer who worked for the Montreal Community Legal Centre. It seems clear from the judgment that it was quite likely (although not inevitable) that Mr Ledoux would, if granted legal aid, have been represented by a solicitor employed by the Centre. The documents in question represented communications between Mr Ledoux and the lawyer. So the conclusion that the documents were, prima facie, covered by legal professional privilege is not surprising.

[32] In respect of the third of the decisions to which I have referred, Legal Services Society v British Columbia Information and Privacy Commissioner, the case, on my appreciation of it, was controlled by a section of the relevant statute which provided:-

“Information disclosed by a client or an applicant for legal services to a director, employee or agent of the society or funded agency is privileged and shall be kept confidential in the same manner and to the same extent as if it had been disclosed to a solicitor pursuant to a solicitor and client relationship.”

I regard that case, therefore, as being of little assistance in the present context.

[33] The other Canadian case Littlechild, is not so easily distinguished. Indeed, it provides firm support for the argument advanced by the Legal Services Agency to me. In that case, the recipient of the information was a court official who acted as agent for the Legal Aid Society of Alberta. He was not a solicitor. The information in respect of which the claim for privilege was made and upheld was purely financial, at least as I read the report, and related to, I assume, the financial eligibility of Littlechild for legal aid. So the general context in which that case had to be determined is very similar to the context in which I must determine the present case.

[34] The central reasoning of the Court, set out in the judgment of Laycraft JA at 344-45 is as follows:-

“The test for the establishment of a privilege against being required to disclose communications between persons in a given relationship is that set forth in Wigmore on Evidence, 3rd ed., vol. 8 (McNaughton Revision 1961), para 2285. . . . The four conditions are:-

1. The communication must originate in a confidence that it will not be disclosed.

2. The element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.

3. The relation must be one which, in the opinion of the community, should be sedulously fostered.

4. The injury that would inure to the relation by the disclosures of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. It has long been established by authority that, prima facie, in a communication between solicitor and client, all four requisites are present.

In my view, this communication meets each of these conditions.

An applicant for legal aid seeking assistance needed for his defence approaches the official assigned to interview him in confidence that his communication will not be disclosed. The element of confidentiality is, moreover, essential to the operation of a scheme for legal aid. When the State decides to assist its citizens who are not able to pay for their own defence in a criminal case, it is essential that the approach to the official assigned to that duty not be hampered by fear of exposure to some other action. To obtain counsel, an accused person must deal with the person assigned. If he is hampered in this approach by fear of the result of disclosure the legal aid system cannot function or will do so only imperfectly. As to the third condition it is clearly in the interest of the community that the conditions essential to the functioning of the system should be fostered. As to the fourth condition, the injury to the functioning of the system for legal aid is on its face far greater than any benefit to be derived from the admission in evidence of disclosures to legal aid officers in those rare instances in which disclosure would serve any purpose.”

The Judge went on to note:-

“A number of cases establish the principle that solicitor-client privilege extends both to communications between the agents of a client and his solicitor and to communications between a client and agents of the solicitor.”

After discussing cases which establish that (non-controversial) aspect of the solicitor-client communication rule, the Judge went on:-

“It follows from the authorities referred to above that conversations with a solicitor’s agents held for the purpose of retaining him would also be privileged, even though the solicitor was not, then, or ever, retained. In my view, the principle protects from disclosure a conversation between an applicant for legal aid and the non-lawyer official of the Legal Aid Society who interviews him to see if he is qualified.”

[35] What I have some difficulty following is why the Court concluded that the official who took the legal aid application was to be regarded as if he were a lawyer or the agent of a lawyer. And, with respect, the judgment does not really explain why the Court reached this conclusion.

[36] I note that a different view was expressed by the English Court of Appeal in Umoh (1986) 84 Cr App R 138. This case concerned admissions made by a remand prisoner while in prison. Within the prison system there was a prison officer who held the designation “legal aid officer” who was intended to be something of a conduit between those who were detained in prison and the legal aid system as a whole. The appellant had attempted to discuss his case with the legal aid officer but without success. He then had a discussion with a senior prison officer in the course of which his legal aid application was discussed and he made admissions.

[37] At trial the appellant sought to have the admissions excluded. The trial judge rejected this attempt and said this:

“In no sense is a prison officer, whether he is a legal aid officer or not - and in passing, Mr. Tucker was not - a professional adviser. He does not give legal advice and is not, as Mr. Fulford submitted, filling precisely the same functions as a solicitor. He may and no doubt often does, help a prisoner fill in a legal aid form and tell him from whence legal advice can be obtained, but that is a far cry from giving legal advice. The filling in of a legal aid form in criminal matters is a very simple matter indeed and does not require the legal aid officer to go into the facts of the case at all.”

[38] In the Court of Appeal, the Court concluded that the mention of legal aid in the discussion in question was confined to an administrative problem in relation to the appellant’s dealing with the legal aid officer. The Court then went on:-

“The confession here was not made in the course of a discussion about an application for legal aid or as a result of the appellant asking advice or assistance on the substance of a legal aid application. That being so, no question of privilege, either by analogy with lawyer and client or in the public interest, could arise. Nor was there anything in the circumstances which made the admission in evidence of the confession unfair. There was no suggestion that the appellant had been oppressed, induced or threatened into saying what he did.

That is sufficient to dispose of this case. However we appreciate that problems could arise in cases where a legal aid officer is in fact exercising his functions. It is clearly desirable that all parties should know what, if any, confidentiality attaches to discussions between a prisoner and such an officer. The prisoner should know when, if at all, he can speak confidentially to the officer. Likewise the officer and his superiors should know whether any, and if so what, use may be made of any information gleaned from a prisoner.

In our view no privilege analogous to that between lawyer and client can arise. Such privilege should be strictly confined to communications with lawyers or their agents. A legal aid officer is neither.

There is force however in the submission that discussions about the substance of a legal aid application should attract public interest immunity. The prison rules provide the facility of assistance from a legal aid officer. The prisoner does not have the freedom to go into a solicitor’s office. If he avails himself of the facility offered, he is likely to disclose and discuss matters connected with his alleged offence. It would seem desirable in the public interest that those discussions, save in exceptional circumstances, should be confidential. [Emphasis added]”

[39] It may be the words which I have emphasised were in the nature of a throwaway line. Further, when the judgment is read as a whole (and particularly the last paragraph which I have cited) it does provide support for some of the other aspects of the Legal Services Agency’s broader concerns about the police practice of seizing files and documents by search warrant. But on the narrow position argued before me - whether a legal aid application made to the Registrar of the District Court is covered by legal professional privilege - the remarks are on point and are against the position of the Legal Services Agency. Moreover, the remarks in question accord with my own views.

The authorities as to whether communications with a legal aid authority are covered by the third party communication rule

[40] There is one case (decided in England) which deals with the third party rule in the context of legal professional privilege in respect of communications with a legal aid authority. This is R v Snaresbrook Crown Court ex parte Director of Public Prosecutions [1988] QB 532. In that case, an issue arose whether an application for legal aid was subject to legal professional privilege. For the purposes of that case, the third party communication rule had been expressed in statutory form and the relevant statutory provisions provided that privilege extended to:-

“[C]ommunications between a professional legal adviser . . . or his client . . . and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings . . . [my emphasis]”

[41] Obviously, a legal aid application would fall, at least literally, within that formulation of the third party communication rule (and I have emphasized the relevant words). This is the way that the matter was seen by Glidewell LJ:-

“Mr Akhoonjee is the client of a professional legal adviser. The application for legal aid, on the face of it, is a communication between him and another person, namely, the area officer of The Law Society. Clearly it was made in contemplation of and for the purpose of legal proceedings. On the face of it the material does come within the definition of items subject to legal privilege . . .”

[42] I think that that case must be regarded as turning on the way in which the third party communication rule was expressed in the statute which governed the issue before the Court. But the third party communication rule is, I think, more commonly expressed along the lines of the formulation set out in the passage from Halsbury to which I have referred (see paragraph [25] above). For instance, in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 at 602 Cooke J observed:-

“For these reasons I would propose as the New Zealand rule that, when litigation is in progress or reasonably apprehended, a report or other document obtained by a party or his legal adviser should be privileged from inspection or production in evidence if the dominant purpose of its preparation is to enable the legal adviser to conduct or advise regarding the litigation.”

In Dinsdale v Commissioner of Inland Revenue (1997) 11 PRNZ 325 what I have dubbed the “third party communication rule” was referred to by Blanchard J in these terms:-

“This appeal concerns the type of legal professional privilege often called ‘litigation privilege’: the privilege which applies to communications between a legal professional adviser and a third party and between a client and a third party, made with a view to obtaining information to be submitted to a legal professional adviser. It protects the process of gathering evidence for consideration by a lawyer acting for a party in civil or criminal litigation or threatened with such litigation.”

An application for legal aid does not fit easily within the third party communication rule formulated in traditional terms.

Other considerations

[43] It follows from what I have said that I am not really persuaded by the cases cited to me by Mr Taylor, for the Legal Services Agency, that the present situation is controlled by overseas authority. I must, however, in any event, deal with the case in the context of the New Zealand statutory scheme allowing for, as well, broader considerations of policy including the rights of the accused under the New Zealand Bill of Rights Act 1990.

[44] It is clear that a legally aided party should not be disadvantaged by his or her legal aid status in terms of being required to provide information which a privately funded litigant would not have to provide. I think that that is reasonably clear from London Docklands Development Corporation v Legal Aid Board (unreported, Court of Appeal for England and Wales, judgment delivered 22 March 1994). It might be thought that the converse of that is that a legally aided applicant should not be advantaged by that status either and that I should, therefore, be slow to regard as privileged, information which corresponds (or is broadly analogous) to communications which a privately funded litigant would have to disclose and in respect of which no claim to legal professional privilege could arise.

[45] In the course of argument, I raised with Mr Taylor an example which involves the possibility of a person seeking funding from a bank for litigation.

[46] If two of the present accused had, instead of seeking for legal aid, sought financial assistance from a bank to cover their defence costs, they may well have been required to make available to the bank details as to their financial circumstances. I think it is perfectly clear that letters referring to their financial circumstances would not have been protected by legal professional privilege, even though, in a broad sense, they could be said to relate to the litigation. Although such letters (and associated financial disclosure) would not be absolutely analogous to the applications for legal aid now in issue they are sufficiently analogous for it to be incongruous (to my mind) for applications for legal aid to be privileged while equivalent private sector applications for financial assistance would not be so privileged.

[47] The New Zealand Bill of Rights Act provides for a right to counsel for those who are charged with offences, s 24 (c) and (f). I do not, however, see how a finding that financial information provided to the Legal Services Agency or the Registrar of the Court is not subject to legal professional privilege cuts across that entitlement.

[48] I note that it was argued by Mr Taylor and, to some extent, by Mr Wilding, for the New Zealand Law Society, that a conclusion that financial information provided by legal aid applicants to either the Registrar or the Legal Services Agency is not covered by legal professional privilege would encourage a lack of candour in such applications. I have difficulty with this argument. I think the reality is that the more likely it is that such financial declarations may be checked, the more likely it is that those who make them will be candid.

[49] Finally, the context in which legal aid applications in the present case were made seems to me to support the view that there is no general professional privilege applicable. They were made to the Court to be considered by a Registrar whose decisions were subject to review by a Judge of the Court. Legal aid applications, at least in my experience, have sometimes been retained, at least in the short term, on Court files and thus could be seen by the Judge hearing the case. Once such applications are in the hands of the Legal Services Agency, they become subject to the Official Information Act. There is nothing in the scheme of the Act which expressly supports the view that secrecy is required to be maintained in relation to legal aid applications or that legal professional privilege applies. This is in contra-distinction to the position which obtains in other jurisdictions and, as to secrecy, obtained in New Zealand under the 1969 Act. All in all, this context seems to me to point away from the view that such applications are subject to legal professional privilege.

My conclusions

[50] So the result is that I am of the view that legal aid applications are not automatically to be regarded as subject to legal professional privilege.

[51] This leaves open, however, whether some material held by a legal aid body (including perhaps evaluative material included on legal aid applications themselves) may be covered by legal professional privilege. The scheme of the legal aid system is such that there are occasions when lawyers for legally aided persons (or applicants for legal aid) are required to disclose evaluative material to legal aid authorities. Once legal aid is granted, there is a sense in which the relevant legal aid authority can be regarded (very broadly) as being a client of the lawyer acting for the legally aided person. Communications between lawyers and legal aid authorities will often be analogous to communications between a lawyer and a privately funded client. I understood Miss Crutchley for the Attorney General to accept that information of the type which I have described would be subject to legal professional privilege and I agree that this is likely to be so. So I do not wish for it to be thought that my conclusions as to the status of financial information made available as part of legal aid applications to the Registrar of a Court means that legal professional privilege arguments are not available in relation to other information (particularly of an evaluative nature) made available to a legal aid authority.

[52] It follows from what I have said that I accept that it may be that the evaluative material provided on a legal aid application could be subject to legal professional privilege. This includes answers to the questions on the form as to likely plea and also what may be written in relation to the general comments section. This means that I must mention one other matter which was raised by Mr Taylor. He referred me to Great Atlantic Insurance Co v Home Insurance [1981] 2 All ER 485 and, in particular, what was said by Templeman LJ in that case at 490 (f):-

“The second question is whether, the whole of the memorandum being a privileged communication between legal adviser and client, the plaintiff may waive the privilege with regard to the first two paragraphs of the memorandum but assert privilege over the additional matter. In my judgment severance would be possible if the memorandum dealt with entirely different subject matters or different incidents and could in effect be divided into two separate memoranda each dealing with a separate subject matter.”

Because the memorandum did not deal with different subject matters, the party asserting privilege was required to disclose the entire memorandum.

[53] Mr Taylor argued that where there was some privileged material on a legal aid application, the remarks of Templeman LJ mean that the entire application should be regarded as being necessarily privileged. I do not think that this was what Templeman LJ meant. His remarks were addressed to a document which was plainly privileged (under the solicitor/client communication rule) but where the party entitled to assert privilege had voluntarily disclosed part of the document. That party was, in my view, rightly held to be required to disclose the balance of the document. Templeman LJ was not addressing what to do about a document which contains some material which is privileged and some material which is not privileged. The customary way which courts deal with such documents is to require measures to be put in place to protect the privileged material but otherwise to require the document to be produced or inspected.

Disposition

[54] For the reasons I have given, I propose to release the police from the undertaking which has been given, subject to my willingness, if that is appropriate, and subject to what counsel say, to review the documents in the envelope to see whether there is, in fact, any part of the legal aid application which, in accordance with this judgment, can be regarded as being privileged.

[DISCUSSION WITH COUNSEL]

[55] Having discussed the matter briefly with Mr Taylor and with Miss Crutchley, I am of the view that the appropriate course is for copies of the legal aid application to be made available to the police with the comments sections obliterated and also the sections relating to proposed pleas.

[56] The envelope which is presently held at the Crown Solicitor’s Office is to be returned to the Legal Services Agency so that the applications can remain part of that agency’s files and for the copying of the applications to be completed.

[57] I should add that nothing in this judgment should be taken as controlling the decision of the District Court Judge next week in relation to the admissibility of the documents because issues as to public interest immunity and confidentiality at least remain on the table.