Legal Professional Privilege: The influence of Jeremy Bentham and John Henry Wigmore on the judicial pronouncement of Lord Taylor of Gosforth in R v Derby Magistrates’ Court; ex parte B.

Abstract

R v Derby Magistrates’ Court, ex parte B represents a pivotal point of 20th-century cases on legal professional privilege. This thesis argues that in that case, Lord Taylor misapplied the principles with respect to the absoluteness of the privilege. This decision, made at the highest level of the English judicial system, contradicted Benthamic and Wigmorean teachings by placing the nature of legal professional privilege beyond doubt. Through an exploration of the works of Jeremy Bentham and John Henry Wigmore, this thesis analyses the extent to which legal professional privilege evolved as a result of their perspectives and argues that Derby’s sweeping pronouncement ultimately diverged from their philosophies. In attempting to limit the breadth of the privilege, or, in the alternative, abolish it altogether, Bentham and Wigmore sought to promote justice over concealment and instituted a dialogue about the parameters in which the privilege does, or should, operate. Both scholars shared similar sentiments about the privilege and assigned the highest priority to reaching the correct decision in court proceedings. This common thread winds its way through the commentaries of Bentham and Wigmore. The continuing significance of these scholars lies in the fact that they, unlike their predecessors, adopted a broad view of the subject of evidence. Their incisive arguments, in which each advanced rationalist utilitarian theories, culminated in agreement that ‘the man [was] more important than the rule’. Espousing a polished wisdom in their individual intellectual enterprises, Bentham’s Rationale of Judicial Evidence: Specially Applied to English Practice and Wigmore’s A Treatise on the Systems of Evidence in Trials at Common Law, came to be linked, with the pair belonging to the mainstream rationalist tradition of evidentiary scholarship. Bentham’s successor, Wigmore, went so far as to label his predecessor the greatest opponent of all the privileges. While sympathetic to Bentham’s premise that the main objective in adjudication was rectitude of decision, with the Benthamic philosophy seemeingly irresistible, Wigmore defended legal professional privilege against the Benthamic attack by pointing out that if it were abolished, the incidence of criminal defendants having recourse to legal advice would not reduce. He stated that no one aside from Bentham had ‘taken such an uncompromising stance against all types of rigid formality and regulation in adjudications’. Wigmore recognised the validity of Bentham’s argument and conceded that legal professional privilege was misused and abused, leading to intolerable obstruction of truth finding. In challenging the immutability of legal professional privilege, this thesis argues that the measures applied by Lord Taylor in Derby have unnecessarily enlarged the application of the doctrine. In critiquing the factors that influenced his reasoning, this thesis examines relevant earlier judgments over which Lord Taylor presided. These rulings are contrasted against his dicta in Derby to reveal that Lord Taylor swung from advocating a narrow scope for the rule to enlarging its application beyond what was necessary to facilitate the administration of justice. According to traditional doctrine, the rationale for this standard is that it promotes the representation of clients by legal advisers and ensures that all relevant material is available to courts when deciding cases. Through utilising Bentham and Wigmore as a vehicle to critique Lord Taylor’s decision in Derby, this thesis concludes that the Derby ruling amounts to a legal fiction.