Legal Professional Privilege is probably the most important rules defence lawyers need to know.
It is a rule a of evidence in that anything that it attaches to cannot be used in criminal proceeding against an accused.
Only the client can waiver it, not their lawyers.
It is not the same thing as a lawyer’s professional duty of confidentiality that arises under the Solicitors Code of Conduct or Bar Code of Conduct. While it is probable that the source of that duty comes form the common law, it is the SRA or the BSB who are the arbiters in the event that it is said to have been breached.
There has been a recent development in LPP in relation to the criminal courts. In R. (Bark &Co) v Worcester Crown Court [2026] EWHC 2026 (Admin), Bennathan J. held that a Crown Court could not order defence solicitors to disclose the means of communication they had with their client because it is subject to LPP.
The basic facts are that the defendant was facing a trial in which it was alleged he was part of a large conspiracy involving the supply of controlled drugs. He was on bail with a number of strict conditions which including residence, that he surrender his passport, and he is not to apply for travel international documents.
During the proceedings he absconded form the UK. It appears he ended up in Holland. The defendant notified his solicitors. They took advice from Counsel. Two days later they notified the Court and CPS. However, no one listed the matter and sought a warrant not backed for bail. It seems the matter was in limbo until a month before the expected trial in August 2026 HHJ Lockhart, KC conducted a series of hearings, the upshot of which he ordered defence solicitors to disclose:
1. The address where they understand him to be living.
2. The landline number/s at the address.
3. The mobile telephone number/s used by the accused
to contact them.
4. All email addresses used by the accused.
5. All IP addresses from where they have received communication from the accused this by way of emails or other electronic correspondence.
Defence solicitors challenged this order by means of a judicial review.
The key points of the judgment of Bennathan J. are these:
(1) Judicial review was available here. The restriction in section 29(3) of the Supreme Court Act, 1981 did not apply. This was because while it restricted matters relating to trial on indictment, this case involved an order not against the defendant but his solicitors, from which there was no appeal.
(2) LPP applied to the means of communication that the defendant had with his lawyers. He took the view that:
Obviously, a landline, IP address, mobile number and email address all have the potential to reveal the whereabouts of their user. If the Court learns of them, and (as was the Judge’s declared intention) passes them on to those who might seek to apprehend the Defendant, it would be highly likely to cause him to cease seeking legal advice.
(3) He considered a number of authorities including R v Derby Magistrates’ Court, Ex p. B [1996] AC 487, JSC BTA Bank v Solodchenko and Others [2011] EWHC 2163 (Ch), and JSC BTA Bank v Ablyazov and Addleshaw Goddard LLP [2012] EWHC 1252 (Comm). From these cases he derived the following principles:
(a) LPP is a fundamental condition upon which the administration of justice rests;
(b) it is in the public interest that all persons are able to have free and unfettered access to legal advice;
(a) ensuring that they have such right ought not to be regarded as bringing the administration of justice into disrepute.
(4) The Judge could not order the disclosure of the defendant’s contact details from his solicitors. Mr. Justice Bennathan held that:
…that the Defendant’s means of communicating with his solicitors during the currency of any litigation, and presumably in any period in which leave to appeal can be sought, are protected.
(5) Mr. Justice Bennathan also doubted that the Judge had power to make such an order. He felt that section 45 of the Senior Courts Act, 1981. Nor did he feel that the Criminal Procedure Rules gave him that power. He held that they do not change or abrogate the substantive law.
(6) Finally, Bennathan J. also disagreed with the criticism that the Judge made of defence solicitors. The Judge at Worcester Crown Court went so far as to assert that they were almost complicit in the defendant fleeing justice Mr. Justice Bennathan considered that that view was unjustified.