remove the risk of it becoming available, or its contents becoming
known, to any person whose possession of it might prejudice any
criminal or civil proceedings to which the information relates,
including law enforcement authorities. In this regard civil proceedings
includes all legal proceedings before courts and tribunals that are not
criminal in nature. Neither the Crown Prosecution Service lawyer nor
any other prosecuting authority lawyer with conduct of a prosecution
should have sight of any communications subject to legal privilege,
held by the relevant public authority, with any possible connection to
the proceedings. In respect of civil proceedings, there can be no
circumstances under which it is proper for any public authority to
have sight of or seek to rely on communications subject to legal
privilege in order to gain a litigation advantage over another party in
legal proceedings.
4.23. In order to safeguard against any risk of prejudice or accusation
of abuse of process, public authorities must also take all reasonable
steps to ensure that (so far as practicable) lawyers or policy officials
with conduct of legal proceedings should not see legally privileged
communications relating to those proceedings (whether the privilege
is that of the other party to those proceedings or that of a third
party). If such circumstances do arise, the public authority must seek
independent advice from Counsel and, if there is assessed to be a risk
that sight of such material could yield a litigation advantage, the
direction of the Court must be sought.
Reporting to the Commissioner
4.24. In those cases where communications which include legally
privileged communications have been intercepted and retained, the
matter should be reported to the Interception of Communications
Commissioner as soon as reasonably practicable, as agreed with the
Commissioner. Any material that is still being retained should be
made available to him or her if requested, including detail of whether
that material has been disseminated.
4.25. For the avoidance of doubt, the guidance in paragraphs 4.1 to
4.24 takes precedence over any contrary content of an agency’s
internal advice or guidance.
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