Legal professional privilege: extent of waiver

The scope of the waiver of legal professional privilege in criminal proceedings was the subject matter in an appeal in Regina v Emma Jayne Hall [2015] EWCA 581. Hall had been convicted of murder together with others. All pleaded not guilty and sought to blame co-defendants to some extent. A co-defendant was cross-examined and subsequently sought to rebut accusations of recent fabrication by disclosing privileged notes of his conversation at the police station with his solicitor. The solicitor was called in his defence but the judge ruled that the waiver was only limited to the matters subject of rebuttal and limited cross-examination accordingly. The Court of Appeal disagreed with the judge's ruling: "in accordance with ordinary principles of waiver of legal professional privilege...privilege was undoubtedly waived in respect of the whole content of the attendance notes". However, although the judge was in error, this did not undermine the safety of the appellant's conviction and the appeal was dismissed.