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The ability to assert legal professional privilege is recognised in English law as a fundamental human right. In the United States, attorney– client privilege is one of the most sacrosanct privileges. The use of deferred prosecution agreements (DPAs) in the United States and England and part that corporate cooperation plays raise the concern that if cooperation requires waiver of privilege, privilege is effectively otiose in this context. In the United States, DPAs rekindle evidential and procedural issues of selective waiver and judicial oversight. We contrast the role of the English courts in providing judicial oversight of DPAs with the more limited degree of judicial involvement in the United States. We analyse the intersection of privilege and DPAs, evaluating the requirements for cooperation with the prosecutor and the impact on the entity’s ability to assert privilege. We consider whether waiver of privilege forms an essential constituent of cooperation and the possibility and consequences of limited/selective waiver. The optimum position is that waiver should not be perceived as a prerequisite to cooperation for the purpose of obtaining a DPA. The US approach to the relationship between cooperation and waiver of privilege comes closer to the optimum position than does the English approach. In contrast, active judicial oversight in England is preferable to the more limited exercise in the United States, and the availability of limited waiver in England provides a degree of protection to the corporation that corporations lack when waiving privilege or considering whether to do so.

The crime-fraud exception to legal professional privilege is both well established and widespread in common law jurisdictions. The exception generally arises in circumstances where the client consults a lawyer for legal advice in connection with the perpetration of a criminal or fraudulent act before or during the commission of that act. This article analyses the crime-fraud exception to claims of privilege by lawyers in England, and by lawyers and tax practitioners in the US. It considers the significance of the exception in the taxation context, contrasts its limited use in this context in England and Wales compared to the US and discusses the markedly different approach in the English and Welsh First-tier Tribunal (Tax) in relation to information notices when compared to appeals to the tribunal and other judicial proceedings. Following comparative analysis and consideration of the barriers to greater use of the exception in the taxation context in England, proposals are made for a revised approach in English law.

Evidence of Bad Character (BCE) is an important evidential category, and its admission can have a significant impact upon the criminal trial. The Criminal Justice Act 2003 (CJA 2003) provides a definition of bad character evidence (s98/112 CJA 2003) that where applicable requires BCE to surmount one of the gateways to admissibility in s101(1) CJA 2003. Regarding some Uniform Evidence Law jurisdictions in Australia, the Evidence Act 1995 (EA 1995) governs the admissibility of evidence to demonstrate ‘tendency’/’coincidence’ (or the improbability thereof) and the use of BCE to rebut defendant-led good character (see ss97, 98, 101 and 110 Evidence Act 1995). The definition of BCE provided in s98 CJA 2003 requires ‘evidence of, or of a disposition towards, misconduct’ and ‘misconduct’ is further defined within s112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’. A wealth of case law has developed around when evidence ‘has to do with the alleged facts of the offence charged’ in s.98(a) CJA (an exception to the definition of BCE) as well the scope of the overlap between s.98(a) and certain gateways to admissibility (for example, s101(1)(c), (d) CJA 2003), which has led to both a degree of flexibility and also to uncertainty within the law in this area. Similarly, in Australia, in many cases evidence incidentally disclosing other (mis)conduct by the accused have been held to fall outside the provisions regulating the admission of tendency (and coincidence) evidence. This article will explore some of the areas of uncertainty that have developed since the implementation of the 2003 reforms, informed by consideration of the approach to equivalent questions in the Australian jurisdictions.