Comments on Bowman versus Fels - Case Study Example

Bowman v Fels [2005] EWCA Civ 226, [2005 WLR 3083 Bowman v Fels [2005] EWCA Civ 226, [2005 WLR 3083 Case Comment The scope of legal professional privilege (LPP) is a contested issue in England and Wales as well as other European countries. The European Court Justice (ECJ) in a decision based on a delimited understanding of LPP found the obligation to disclose details concerning money laundering consistent with LPP (Carson 2007, pp. 47). Moreover, ECJ determined the protection offered by LPP to be incomplete by reference to the rights to fair trial assured by Article six (6) of the European Convention on Human Rights (ECHR). The paper comments on Bowman v Fels case by focusing on four separate sections of the case. First, it summarizes the pertinent facts of the case. Second, it identifies the relevant legal issues raised in the case. Third, it analyzes the relevant legal issues raised in the case. Fourth, it critically makes considerations on the legal issues raised in the case. The English courts distinguished the two separate types of LPP. Legal advice is the first type of LPP, which protects the communication between lawyers and their clients. Second, litigation privilege that protects the information and documents created with the intention of litigation (Hostettler 2009, pp. 82). Furthermore, litigation privilege covers documents and advices given to by third parties. Historically, litigation privilege is the first form of LPP that the English courts recognized. The first time ECJ dealt with LPP was in a case involving AM & S v Commission. Ability of the commission to have access to communication between an undertaking, which it suspected of anti-competitive behavior and its lawyers, was the main concern of the case (Jones & Newburn 2007, pp. 102). The case maintained that written communications exchanged between an independent lawyer and his customer, made for the purpose and interest of the client’s rights of defense had privilege. Order Bars A directive in 1991 significantly influenced the LPP of the community because it placed a wide-range of limits on the protection accorded to the lawyers and their clients. Consequently, controversy arose during Directive’s drafting process and its last amendments. In Order bar, the ECJ reviewed the legality of Article 2 a (5) of the 1991 Directive. Based on the review of the directive’s legality, some group of legal professionals have the obligation to inform competent authorities of any act likely to indicate attempts of money laundering. In addition, the directive compels legal professional to avail to the relevant authorities all required information upon their request. Article 6(3) of the 1991 directive also allows Member States to make an exception to these disclosure obligations. More than a few advocate bars challenged the disclosure obligation brought before the Belgian Constitutional Court. The grounds for challenging the disclosure obligation were that it impeded the principles of professional secrecy and the independence of lawyers, which are part of the most important right to a fair and respect of rights of defense. The fundamental difficulty that emerged from the judgment in Order bar emanated from the challenging nature of the introductory reference’s wording as framed by the Belgian Court. It limits the question as to justification for LPP and for that reason its scope to the customer’s rights to have a fair trial and defense. However, it raised no other possible justification in the preliminary reference (Carson 2007, pp. 96). Subsequently, it had an imperative role for justifying and defining the scope of LPP. Utilitarian and right-based reasoning are the two major categories of justification existing for LPP. Utilitarian reasoning emphasizes on the importance of LPP regarding the ability of a client to consult a lawyer. The basis of this validation stresses much on the consequences that flow from the client’s ability to consult freely with their representatives without fear that the content of their consultation may have subject to the disclosure obligation. Customer confidence from disclosure have diverse complications on the society, ranging from better observance of the law to properly becoming aware of any applicable legal rule (Hirschel et al. 2007, pp. 75). Rights-based justifications require no rights to a fair trial or defense as maintained by the European Court of Human Rights. The scope of LPP determines the possible exceptions to the justifications. For example, if privileges rely on the right to defense, then any irrelevant communication between a lawyer and client is excluded from the scope of the privilege, hence is a subject to a disclosure obligation. Therefore, this is the case in respect to LPP as explained by ECJ in AM & S v Commission, which is opposite in English law as legal advice privilege. Similarly, using utilitarian point of view, opposes that LPP increases better with compliance to the law. Analyzing the ECJ’s case law provides no room for the possibility of changing the meaning of preliminary references. The ECJ position on the case establishes the importance of protecting rights that are fundamental and have significance of the European Commission of Human Rights. With respect to this, however, ECJ failed to make the right judgment, in which LPP was directly an issue. In the judgment, the European Commission of Human Rights based the privilege on two different reasoning, which are the right of defense and that of privacy (Jones & Newburn 2007, pp. 28). Instead, the cases raised by the ECJ presented more concerns on the rights of prisoners to have a consultation with lawyers while in the prison. The cases, therefore, cited problems that are of diverse nature regarding the matter at hand. The decision by the ECJ initiated a controversial debate questioning UK’s implementation of the 1991 Directive. Furthermore, the exemptions highlighted in the obligations, originate in proceeds of crime Act 2002, Section 330, which covers circumstances that are not in any way linked to the judicial proceedings. The ECJ found such situations critical for permitting the exemption. Similarly, it applies to the implementation of the legislation of other member states. The member states interpreted the scope of LPP in light principles that ECJ exclude the review on questionable grounds. The decision by ECJ to exclude the essential principles for judgment predetermined its decision and difference, which presently exists between the approaches taken and by European Commission of Justice and the various member states to the scope of LPP. Bibliography Carson, D 2007, Applying Psychology to Criminal Justice, John Wiley & Sons, Chichester, England. Hostettler, J 2009, A History of Criminal Justice in England and Wales, Waterside Press, Hook, Hampshire. Hirschel, J. D., Wakefield, W. O., & Sasse, S 2007, Criminal Justice in England and the United State, Jones and Bartlett Publishers, Sudbury, MA. Jones, T., & Newburn, T 2007, Policy Transfer and Criminal Justice: Exploring US Influence Over British Crime Control Policy, Open University Press, Maidenhead. Read More