Legal Professional Privilege

The Commission appreciates the importance of the special relationship between a qualified legal adviser and his or her client. However, there are occasions when it is of assistance in the review of a case for the Commission to obtain all information held by a solicitor and/or advocate in connection with their representation of the applicant in the proceedings relating to the conviction under review.

The type of information which the Commission may require varies from application to application. It can be simple factual information relating to evidence heard at trial or lines of enquiry made in connection with a possible defence, or it can relate to the basis for decisions which were made in connection with the leading of evidence or the calling of witnesses. Sometimes information which is of considerable importance to the Commission's review is contained within legal advisers' files.

However, normally such information is privileged and a legal adviser who has represented an accused person owes that person a duty of confidentiality. This principle is long established in Scots law. However, it is recognised, that clients can waive the right to complete confidentiality in relation to their communications with their solicitors.

In cases where the Commission considers that it would be beneficial to the review of a conviction to speak with the legal advisers who represented the applicant, the Commission will invite the applicant to sign a Waiver of Confidentiality Form. This form sets out that the applicant agrees to waive the legal professional privilege to which he or she is entitled, and gives consent for the legal adviser or advisers who represented him or her in the proceedings leading to their conviction to discuss the case with the Commission.

This Waiver of Confidentiality form has been carefully drafted to ensure that applicants are clear as to the significance of the rights which they are being invited to waive and they are advised to seek legal advice before reaching their decision. Should the applicant agree to sign the Waiver, a copy of this is then made available to the legal adviser with whom the Commission wishes to speak. The legal adviser is then free to inform the Commission of any information held in respect of the applicant, including details of conversations which occurred between the applicant and the solicitor.