This is a word most often used in our daily lives, it is mentioned in our everyday conversations, used in our arguments and employed in our demands. However, the true import in its application in law, is a subject only a hand full has adequate knowledge of. This article seeks to share an in-depth understanding on what privileges are, the various categories of privileges and when these privileges are applicable within our jurisdiction.
Privilege as defined by S.A Brobbey in his book, Essentials of the Ghana Law of Evidence “is an exceptional or special right, immunity or exemption by which a person may refuse to give evidence or disclose a fact or prevent others from doing so in court proceedings or administrative enquiries”. the rationale here is based on the need to protect public policy, the sustain the inviolability of a person’s human right, ensure justice and to protect socially valued confidential information, hence its application in law is imperative and its importance cannot be undermined or neglected.
Understanding privileges in law is of a great importance if not crucial because it ensures a fair and just legal system by protecting confidentiality, preserving legal rights such as the right against self-incrimination, balancing interests, ensuring ethical practice, preventing the abuse of power, promoting effective communication and building trust. In essence, a comprehensive understanding of privileges not only safeguards individual rights but also contributes to the overall integrity and fairness of the legal system. It is worthy to note that there are disadvantages to its application as the principle tend to hinder the search for the truth by preventing the use or admissibility of competent and reliable evidence and negate the obligation enshrined on the citizenry to give evidence in judicial proceedings.
Privileges can be grouped into two categories, namely Public interest immunity claims to privilege, which involves confidentiality aimed at protecting candor or truth. Example of these category of privileges includes lawyer-client privileges, medical privileges and privileges on compromise and the second category of privileges is the Public policy immunity claims to privileges, which involves the protection of national security, state secrets, trade secrets, Defence, foreign policy and identity of police informers. Examples of these category of privileges include but not limited to privileges not to be compelled to testify, privilege against self-incrimination, privilege against disclosing informants and privilege on state secrets.
The objective of the Lawyer-client privilege is to protect communications between a client and his lawyer. The rationale behind this principle was enunciated in the English cased of Derby Magistrates court, Ex-parte B [1996] AC 487. The court stated “The principle which runs through all these cases and many others cited is that a man must be able to consult his lawyers in confidence, since otherwise he might hold back half the truth. A client must ensure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rest.” Considering the assertion made by the English court, the principle seeks to establish lawyers as a safe haven where they can entrust their confidential information without a doubt that such information would be revealed to a third party. Again, it establishes a level of assurance not only for the applicant but for all others who might be deterred from disclosing the entire truth to their lawyers. In ensuring such confidence in our legal system, the Evidence Act, NRCD 323 per section 100(2) establishes the principle of lawyer-client privilege.
Section 100(2) of the Evidence decree,1975 NRCD 323 provides that:
“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication, reasonably related to professional legal services sought by the client and made between the client or a representative of the lawyer”
What then qualifies as a communication between a person and a lawyer which ought to be protected? Are there any exceptions to these privileges? Must the communication be between a person and lawyer specifically for such a conversation to be protected?
For the communication between a lawyer and a client to qualify to be protected under the privilege, three elements must be satisfied; the first element requires the communication must be made between the lawyer or his representative and the client. Section 100(1)(c) defined who a legal representative as a person having the authority to from a lawyer to assist him in rendering the legal services sought by the client.
The second element required to be satisfied is that the communication must be confidential. Section 100 (1)(d) of NRCD 323 provides that it must be made in a manner reasonably calculated not to disclose its contents to third parties and the communication is question should be for the furtherance of professional legal service or with the object of seeking professional services.
The third element is with regards to the intention of the parties. It is to the effect that the communication should have been deliberately offered by or to the lawyer following a conscious effort of the client to seek professional legal advice or service.
To put this into a better perspective the communication must have happened as a result of the client going to the lawyer to seek legal service and anything outside the scope professional legal services does not satisfy the qualifying factor. The information or communication should be given by way of an accident or by chance, else such would not be privileged. The satisfaction of all three elements entitles a person to claim privilege.
However, this principle is not absolute as the law provides certain instances where a claim to lawyer-client privilege is limited. These exceptions are provided for under section 101 of NRCD 323 to include the following situations; if there is evidence that the consultation with the lawyer was facilitate the planning or commission of a crime, where two or more parties claim interest in the property through the same deceased client of lawyer, where there is allegation of breach of duty by a lawyer to his client or the client to the lawyer, where the lawyer is a witness to the execution of a document and an issue has arisen in respect of the formalities on the execution of the document and where the communication in question is relevant to a matter of common interest between two or more clients if the communication was alleged to have been made by any of the clients and there is a dispute in court between the two clients.
It is important to note that this right can be waived either intentionally, thus where a person consents to the disclosure or unintentionally, thus where a witness voluntarily discloses information which would have been prevented from being disclosed. Section 89 of NRCD 323 provides that a person would be deemed to have waived his right, if the he/she discloses voluntarily or consents to the disclosure of significant part of a matter which he has privilege to refuse to disclose or prevent any other person from disclosing the matter. There are however two exceptions to the waiver, thus where the privilege is jointly held by two or more people
In as much as privileges have immersed benefits which when harnessed may aid in the development of our legal system, there are without a doubt a number of notable challenges and criticisms that surround this principle. The principle has been criticized to have the potential for abuse, thus it can be exploited to shield wrongdoing or obstruct justice. Again, the critics argue that the principle erodes transparency in legal proceedings. They argue that excessive confidentiality hinders the public right to know and understand the legal process. Another critic worth considering is based on the assertion that privileges conflict with the pursuit of justice as the protection of confidential communications could impede investigations and prevent the discovery of critical evidence. Also, in the digital age where new forms of communication have emerged, raises questions on the applicability and scope of traditional privileges. The law is bound to struggle in order to keep pace with technological advancements.
An attempt to address these challenges would require a delicate balance between protecting the rights of individuals and ensuring a fair administration of Justice. Hence there is a need to set in motion legal and ethical discussions aimed to refine the application of privileges to maintain their intended benefits while minimizing all potential drawbacks.
