Following below is an addendum to our materials on Child Trafficking and County Lines – this information should be read carefully when considering what if any action to take when representing or prosecuting children who are at risk of ongoing harm if information relating to the circumstances of their arrest or offending is not disclosed. The guidance asks you to consider both confidential information and information obtained under legal professional privilege.
Cases such as these are becoming more common. More than 1,000 county lines are believed to exist across Britain and British people are now the largest group of modern slaves identified by the authorities. A total of 5,145 child victims were referred into the system last year, an increase of 35 per cent on the year before. Numbers are not expected to fall. The largest group was British citizens followed by Albanian and Vietnamese nationals.
In Paragraph 3.3 of the ICCA’s guide on Child Trafficking, we looked at the problem where a child,who is the victim of trafficking or a victim of ongoing child sexual exploitation (CSE), refuses to allow a practitioner to disclose such information, leading not only to a possibly harsher disposal but which also leaves that child or young person at ongoing risk of harm.
We asked the Bar Council to look at this issue and we asked the Ethics Committee to consider this question:
“Are there circumstances which would allow a barrister to override the express wishes of a client and provide confidential information to others? For example, if a child indicates continuing sexual or physical abuse, and there is a sufficiently serious threat to the child’s health?”
The Bar Council Ethics Committee has issued a reply, which we have set out in full below.
NB: It is not “guidance” for the purposes of the BSB Handbook I6.4, and neither the BSB nor a disciplinary tribunal nor the Legal Ombudsman is bound by any views or advice expressed in it. It does not comprise – and cannot be relied on as giving – legal advice. It has been prepared in good faith, but neither the Bar Council nor any of the individuals responsible for or involved in its preparation accept any responsibility or liability for anything done in reliance on it.
A barrister may be faced with circumstances in which a client discloses information which the barrister feels ought to be disclosed to a third party. This information is likely to be confidential and may also be subject to legal professional privilege.
The barrister should bear in mind the difference between confidentiality and legal professional privilege (“LPP”). In brief terms, confidential information which is not covered by LPP may be disclosed where there exists a greater public interest justifying its disclosure notwithstanding the duty of confidence; but LPP is absolute and confidential information which is covered by LPP cannot therefore be disclosed unless the privilege is waived by the client or is overridden by statute. Confidential communications between lawyers and clients for the purposes of obtaining and giving legal advice are privileged, and such purposes are to be construed broadly, see Balabel v Air India  Ch 317. But communications where there exists no relevant legal context are not privileged, see Three Rivers DC v BoE (No.6) 1 AC 610. In considering whether to disclose information, the first question may be whether the information is privileged or simply confidential.
LPP rests upon the principle that a client must be free to consult his legal advisers without fear of his communications being revealed. In this way, the interests of the administration of justice are maintained. LPP is absolute and this remains the case even where the client no longer has any recognisable interest in upholding that privilege: see R v Derby Magistrates Court ex parte B  AC 487. At page 507, Lord Taylor of Gosforth CJ said:
“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer 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 rests.”
It is not the case that LPP does no more than entitle the client to require his lawyer to withhold privileged documents in judicial or quasi-judicial proceedings, leaving the question of whether he may disclose them on other occasions to the implied duty of confidence. The policy of LPP requires that the client should be secure in the knowledge that protected documents and information will not be disclosed at all (per Lord Hoffman in R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax 1 AC 563 at para. 30).
The absolute nature of privilege means that it is wrong to conduct a balancing exercise in respect of information covered by LPP in order to assess whether there exists some supposedly greater public interest whereby LPP may be overridden. In Three Rivers DC v BoE (No.6) 1 AC 610, Lord Scott said (at paras.24-25):
“First, legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement. Second, if a communication or document qualifies for legal professional privilege,the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute (c/f R(Morgan Grenfell Ltd) v Special Commissioner of Income Tax 1 AC 563), but it is otherwise absolute. There is no balancing exercise that has to be carried out (see B v Auckland District Law Society 2 AC 736 paras.46 to 54).”
In Three Rivers, Lord Scott went on to disapprove the decision of the Canadian Supreme Court in Smith v Jones  1 SCR 455 where it was held that a sufficiently compelling public interest, such as public safety, could justify overriding LPP.
By contrast, where information is confidential but not covered by LPP, then the duty of confidence may be overridden where there exists a greater public interest. A balancing exercise may be required.
Guidance as to what may justify a breach of confidence in a non-lawyer/client relationship where LPP does not exist can be found in W v Edgell  Ch 359. In this case,the patient was a prisoner in a secure hospital following convictions for killing five people and wounding several others. He made an application to a mental health tribunal to be transferred to a regional unit. An independent psychiatrist, Dr Edgell, was asked by W’s legal advisors to provide a confidential expert opinion that they hoped would show that W was no longer a danger to the public. However, Dr Edgell was of the opinion that in fact W was still dangerous. W’s application was withdrawn. Dr Edgell, knowing that his opinion would not be included in the patient’s notes, sent a copy to the medical director of the hospital and to the Home Office. The patient brought an action for breach of confidence. The Court of Appeal held that the disclosure was justified in the public interest, on grounds of protection of the public from dangerous criminal acts. However, the Court said the risk must be ‘real, immediate and serious.’
The decision in W v Edgell may be contrasted with the decision in Distillers v The Times  QB 631 (the Thalidomide case) where the confidentiality of Distillers’ documents disclosed on discovery was upheld notwithstanding that, as acknowledged by the judge, the newspaper was seeking to publish the confidential material in order to prevent birth defects caused by Thalidomide from happening again. It was held that the need for “the proper administration of justice” and “the protection of the confidentiality of discovery documents” came first.
Every barrister should undertake research into the legal position regarding privilege and confidentiality: see, for example, Archbold Criminal Pleading Evidence and Practice (2018 ed.) at 12-5 to 12-11 and Blackstone’s Criminal Practice (2018 ed.) at F10. He or she should also consider their professional obligations and reach their own conclusions on the law and its application, in any particular case in which they are involved.
The BSB Handbook Core Duty [CD6] provides that: “You must keep the affairs of each client confidential.”
The following Core Duties within the Handbook may also be engaged in particular circumstances:
The Handbook also provides that “Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential.” [rC5]
The Guidance in the Handbook explains this at gC8:
“As set out in Rule rC5, your duty to the court does not permit or require you to disclose confidential information which you have obtained in the course of your instructions and which your client has not authorised you to disclose to the court. However, Rule rC6 requires you not knowingly to mislead the court. There may be situations where you have obligations under both these rules.”
It also gives further guidance at gC11:
“If there is a risk that the court will be misled unless you disclose confidential information which you have learned in the course of your instructions, you should ask the client for permission to disclose it to the court. If your client refuses to allow you to make the disclosure you must cease to act, and return your instructions: see Rules rC25 to rC27 below. In these circumstances you must not reveal the information to the court.”
The Handbook also provides at rC15, that:
“Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations:
Further Guidance in relation to the duty of confidentiality is provided at gC42:
“The duty of confidentiality (CD6) is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, this information will be privileged and not disclosed to a court. CD6, rC4 and Guidance gC8 and gC11 to gC13 provide further information.”
The Handbook provides the following Guidance in relation to the exception to confidentiality at gC43:
“Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required or permitted by law. For example, you may be obliged to disclose certain matters by the Proceeds of Crime Act 2002. Disclosure in those circumstances would not amount to a breach of CD6 or Rule rC15.5. In other circumstances, you may only make disclosure of confidential information where your client gives informed consent to the disclosure. See the Guidance to Rule rC21 at [gC69] for an example of circumstances where it may be appropriate for you to seek such consent.”
The Handbook also recognises that there may be conflicts between the duty of confidentiality and other Core Duties. Guidance gC44 and gC45 provides:
“There may be circumstances when your duty of confidentiality to your client conflicts with your duty to the court. Rule rC4 and Guidance gC8 and gC11 to gC13 providefurther information… Similarly, there may be circumstances when your duty of confidentiality to your client conflicts with your duty to your regulator. Rule rC64 and Guidance gC92 to gC93 in respect of that rule provide further information. In addition,Rule rC66 may also apply.”
There may be circumstances where the client’s refusal to authorise disclosure will also mean that the barrister will have to withdraw. Rule rC25 provides as follows:
“[…] you must cease to act and return your instructions if: […] .2 the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make.”
A: My client, a 13 year-old Vietnamese boy, has been charged with offences arising out of the production of cannabis on a large scale. He has told me he was trafficked into the UK by a criminal gang. He will not permit me to contact the authorities so that he might be considered a victim of trafficking pursuant to the National Referral Mechanism. He is aware that he has a defence to the charges if his actions were as a direct consequence of having been a victim of slavery/persecution. I want to help him. What should I do?
B: I am representing a 14-year-old girl for offences of dishonesty. She has confided in methat she is being seriously sexually abused by her step-father. She also told me she is concerned for her younger sister who is now the same age she was when the abuse started. She made me promise not to tell anyone (after she had told me). I am really worried about her welfare. What should I do?
In each scenario the information given to you is confidential and was disclosed to you in confidence. The law recognizes, however, that in the case of information that is not covered by LPP your duty of confidentiality may be overridden by the public interest in making a disclosure where there is a real, immediate and serious risk of harm. This exception is also recognized in rC15.5, paragraph 5.
LPP is absolute, however, and the law does not recognize that it may be overridden by a public interest in disclosure however pressing or immediate the risk of harm. The solution to the dilemma posed in each scenario may therefore depend on whether the information given to you attracts LPP or not.
You will have to consider,therefore, whether the information in each scenario was given to you for the purposes of obtaining and giving legal advice or for some other purpose. In Scenario A it seems difficult to argue that the information was given to you by the client for any other purpose. That does not mean that you are prevented from discussing with him the benefits of disclosure to a third party and obtaining consent from him for such disclosure as you see fit. But if LPP applies, you cannot pass the information on to a third party without his consent. The position in relation to Scenario B seems less clear cut, particularly the concerns relating to the client’s sister. But if, say, the client told you of her step-father’s sexual abuse in the hope that such abuse might assist her defence in some way against the charge of dishonesty, or amount to mitigation if convicted, then again it is difficult to see why the communication would not be covered by LPP. If it is confidential information, but not covered by LPP however, then the serious risk of sexual abuse would permit you to disclose (but no wider than is necessary) e.g. to the relevant local authority or the police.
The Inns of Court College of Advocacy agrees with the responseissued by the Bar Council on the question of the extent of legal professional privilege. It is considered that it properly digests and explains the current authorities on this topic.
The ICCA notes, however:
Accordingly, the ICCA considers that, faced with such a situation, a barrister would be well advised to seek professional advice in order to assess the capacity of the client to give instructions apparently inimical to that client’s welfare before taking any step in relation to those instructions.
The Bar Council’s separate guidance note on a client’s incapacity to understand advice, giveinstructions, or follow or take part in proceedings may alsobe useful. If you have any other related issues, please call the Ethics line.
In addition, at each stage, the barrister should discuss the case fully with their instructing solicitor and a partner if an employed barrister. Barristers in independent practice should also seek guidance from a senior member of chambers, but should be careful to maintain the confidentiality of information when doing so. It is essential to keep comprehensive, accurate and careful notes of all steps taken and the reason for those steps.