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Legal Professional Privilege – relevant to an inquest concerning a death in a custodial setting?

05 September 2023
Legal Professional Privilege ("LPP") entitles a party to withhold evidence (written or oral) from production to a third party or the court. Once privilege has been established, an absolute right to withhold the document in question arises. There are two main types of privilege; Legal Advice Privilege ("LAP") and Litigation Privilege ("LP"). So how does this apply in the custodial setting? 

For LAP to apply, the communication may be in any form between the lawyer and client in confidential circumstances. The lawyer must be acting in course of professional relationship and the communication must enable the client to seek, and the lawyer to give legal advice and assistance. Thus legal advice given to an organisation regarding the preparation for an Inquest would fall under this provision.

LP is different in that it applies to confidential communications between lawyers and clients (or between either of them and third parties) where that communication is created for the dominant purpose of on-going or reasonably contemplated civil or criminal litigation. LP cannot be relied upon in the coronial courts as Inquests are inquisitorial and not adversarial. The rules of evidence do not apply as they would in the civil or criminal court setting and the findings in the coronial settings do not relate to specific parties. 

So where does that leave clients who hold confidential data which may contain sensitive information or impact on matters of national security? Noting the "function of an inquest is to seek out and record as many of the facts concerning the death as "public interest requires"(1), It is likely to be of increasing concern post  the case of Maughan in which the Supreme Court lowered the standard of proof for an unlawful killing conclusion to that of 'on the balance of probabilities'.

Para 1(4) (b) of Schedule 5 of the 2009 Act for England and Wales provides that a person can resist disclosure to the Coroner on the basis that it "is not reasonable in all circumstances to require him to comply with such a notice". For example, it may not be reasonable to disclose the requested document as it is not relevant to the coroner's investigation or the information contained within the evidence sought relates to a living individual and their permission to disclose the evidence sought has not been provided.

Of increasing prevalence in the coronial court is the objection to disclosure of evidence to the Coroner on the grounds of public interest immunity. The Chief Coroner has specifically advised on how public interest immunity applies in relation to Inquests in his Chief Coroner's Law Sheet No.3 following the judgment handed down in the Worcestershire case. Paragraph 9 of his Guidance confirms;

With any claim for non-disclosure on the basis of public interest immunity, it was necessary to balance the perceived public benefit it afforded against the public benefit of disclosure. In this case the public interest in pursuit of a full and appropriately detailed inquest firmly outweighed the claim for non-disclosure, bearing in mind that disclosure was to the coroner, rather than the public.

Reference was recently made to the use of a public interest immunity by the Northern Ireland Court of Appeal in 2019. In this case, the Court of Appeal   confirmed that LP did not attach to an expert report obtained by the family and the report should be disclosed to the Coroner. The Court of Appeal commented however that, had the public interest immunity argument been pleaded, they may have ruled in favour of non-disclosure of the expert report, not because it attracted LP but on the basis the interest of the family being able to properly prepare their case, outweighed the public interest in disclosure of it.

Assessing when an Interested Person may seek to rely on public interest immunity in response to a disclosure request is not straightforward. Each case is judged on its own merits, and it cannot be used as a foil to hide behind as disclosure of the sought after documents so as to avoid awkward or difficult questions being asked.

A review of case law suggests that information relating to matters of national security or to the formation of government policy at high level will be protected from disclosure. For example, immunity has been provided for the police public order manual(2) and for the investigating officer’s report commissioned by the Police Complaints Authority following the shooting by police of the deceased(3).

Conversely, public interest immunity was not given to the Home Office in relation to documents relating to the development of an experimental "control unit" in its prison service and neither were the police able to rely on public interest immunity in respect of witness statements obtained during an investigation into the death of a demonstrator alleged to have been struck by a police officer.

At DWP, we frequently have to grapple with thorny questions of disclosure in preparation for an Inquest (particularly in a custodial setting) and are experienced in identifying when it is appropriate to resist an order for disclosure of information that, for whatever reason, should not be entered into the public domain or making submisisons to the Coroner when refusal to disclose documents to other Interested Persons should be resisted on grounds of public interest immunity.  


  1. R v South London Coroner Ex p.Thompson (1982) 126 SJ.625
  2. Goodwill v Chief Constable of Lancashire, The Times, 3 November 1992, CA. 
  3. R v HM Coroner for Devon (Plymouth district) EX p Hay (1998) 162 J.P. 96: 

If you wish to discuss any aspect of this article please contact the Police, Care and Justice team

We would like to credit the author Julie Ford for writing this article.

Further Reading