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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gibbins, R v [2004] EWCA Crim 311 (20 February 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/311.html Cite as: [2004] EWCA Crim 311

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
(FIELD J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 February 2004

Lord Justice Potter:

1. This is an appeal from a ruling dated 12 January 2004 by Field J in the course of the trial in the Southwark Crown Court of the appellant Martin Tobias Gibbins and four co-defendants of whom one is Michael Wilson-Smith, the appellant's former solicitor.
2. Prior to trial, the appellant applied for a ruling under s.78 of the Police and Criminal Evidence Act 1984 (PACE) to the effect that Instructions to Counsel prepared by Mr Wilson-Smith and annotated by Mr Gibbins (which subsequently were never sent to counsel) should be excluded as evidence in the trial due to start on 19 April 2004.
3. The application was made at a preliminary hearing pursuant to s.7(1) and s.9(3) of the 1987 Act, the latter provision of which authorises the trial judge to determine:

"(b) any question as to the admissibility of evidence and

(c) any other question of law relating to the case."

4. This appeal is brought with the leave of the judge pursuant to s.9(11) of the 1987Act which provides:

"An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or the Court of Appeal."

5. The background can be shortly stated as follows.
6. The principal charge laid against Mr Gibbins and his co-defendants is that they conspired to defraud potential investors by carrying out what is sometimes called an "advance fee" fraud. The Crown alleges that various of the defendants at different times induced potential investors to enter into written "access to funds agreements" which the investors were given to understand gave them a realistic prospect of gaining access to large sums of money which could then be invested in so-called High Yield Investment Programmes. Under such agreements an off-shore company, usually connected to the appellant, contracted to procure the issue by a bank of a document stating that a specified sum of money was held in a particular account by a particular account holder. In some instances the agreement stated that a particular sum of money was available to the potential investor. The document issued by the bank (the issuing bank) was called a "Proof of Funds Letter" or a "Bank Advice".
7. Access to the specified sum depended on the potential investor procuring either the issue of a "Bank Instrument", usually a one-year guarantee issued by a bank, plus interest at 8% per annum in favour of the account holder, or an agreement between the issuing bank and the investor's bank (the receiving bank) that the receiving bank would sell to the issuing bank medium term notes, the purchase of which would be funded by the sum specified in the Bank Advice. Where medium term notes were to the purchased, the agreement called for the issue by the issuing bank both of a Bank Advice and a Pre-Advice, the latter being a document informing the receiving bank that it could look to the issuing bank for the specified sum if it signified to the issuing bank that it could serve on it a "Purchase Order" for the medium term notes in question.
8. Upon the agreement being executed, the investor paid a fee into an escrow account operated by a solicitor. The terms governing the operation of that account provided that the fee was liable to be paid out of the account to the order of the off-shore company once the Bank Advice and/or the Pre-Advice had been issued. The fee was thus payable out of the escrow account regardless of whether access to the specified sum had been obtained or not.
9. It is not in dispute that some 88 or so access to funds agreements were executed by investors and in no instance was access to the specified sum actually obtained. All the investors got for their money was the Bank Advice and/or the Pre-Advice, which documents were of no commercial value. It is the Crown case that the use of the agreements by the defendants was dishonest because they were well aware that the conditions to which access to the specified sum was subject were never going to be fulfilled. It is also alleged that they knew that there was not a single transaction in which completion had been achieved by the delivery of a confirming bank instrument or Purchase Order.
10. The annotated instructions the subject of the appellant's application had come into the possession of the police under a Production Order made against a Mr John Gould acting on behalf of the Law Society under s.9 of PACE. Mr Gould had previously taken possession of all of Mr Wilson-Smith's files when the Law Society intervened in his practice at the end of March 1999. The police had also obtained another copy of the annotated instructions when they searched Mr Wilson-Smith's home on 13 February 2002 pursuant to a search warrant issued under s.2(4) of the 1987 Act.
11. Upon the application before the judge, it was contended for the applicant that the annotated instructions were protected by legal professional privilege (LPP) and that, for that reason, the police should never have obtained possession of them in the manner in which they did. It was submitted that in consequence it would be unfair for the document to be used in evidence and that it should be excluded under s.78 of PACE. The argument was put in this way because it was acknowledged for the appellant that the right conferred by LPP is a right to resist the compulsory production of documents, whereas the prosecution were already in possession of the relevant documents and the nub of the complaint was objection to use being made of them against the appellant and his co-defendants.
12. The Crown resisted the application upon three broad grounds. (1) That although the annotated instructions were produced for the purpose of obtaining legal advice, they were prepared, and if not prepared were annotated, with the fraudulent purpose of obtaining advice from counsel on a false or incomplete basis for the purpose of using any favourable opinion obtained to assist in the continuing fraud upon potential investors; (2) that now the annotated instructions were in the possession of the prosecution they could be adduced at trial, whether or not they had been regularly obtained, LPP being grounds on which to resist the production of documents but not their admissibility; (3) the annotated instructions were in any event in the public domain because (a) they were exhibited to an affidavit sworn by Mr Gold on 16 August 1999 in proceedings brought in the Chancery Division by Mr Wilson-Smith challenging the intervention of the Law Society; and/or (b) they were included in a bundle of documents used in open court in civil proceedings, namely Halley v The Law Society [2002] EW8C 139(h) during which they were used as the basis for cross-examination of the appellant who was then a witness for the claimant. The instructions were also referred to in some detail in the judgment.
13. The (draft) annotated instructions consisted of a request to counsel to advise generally in connection with the business constituted by access to funds agreements entered into by the appellant and/or one of his companies which involved Mr Wilson-Smith acting as escrow agent. The draft instructions drawn by Mr Wilson-Smith opened with the words:

"Counsel has herewith copies of:

1. A bundle of typical draft agreements.

2. A bundle of typical so-called exhibits to the agreements.

3. …

4. …

5. Law Society correspondence."

14. It was clear that Mr Wilson-Smith intended to include in the documents at item 5 a letter dated 4 October 1996 which he had received from the Law Society following an inspection of his books of account. The letter warned him that transactions of the type in which he had been involved (i.e. access to funds agreements) were invariably fraudulent. The draft instructions contained an explanation of the business constituted by the access to funds agreements in the course of which explanation appeared the words:

"Counsel will no doubt be aware that there has been or reported to have been a great deal of fraud involved with Bank Instruments and "front-end fees" of "advanced fee scams and so forth."

15. Following the explanation of the business, the following appeared:

"The Law Society has carried out an inspection of the files of instructing solicitors in relation to some of the transactions carried out in which they, instructing solicitors, were involved and has not found there to be any difficulty or wrongdoing with those transactions. The Law Society indeed investigated a number of firms of solicitors involved in this business and clearly is concerned about that business. Indeed instructing solicitors together with many other firms received what has been called a "warning letter" a copy of which together with instructing solicitors response thereto is included in counsel's papers (item 4) [sic]. The Law Society is aware that instructing solicitors continue to act in this business of Stakeholders."

16. The draft instructions then set out Mr Wilson-Smith's reasons for considering that the appellant and his company were not perpetrating any fraud. That part of the instructions contains the following paragraph:

"Also it is not as if the contracting party is in an impossible position since he/they will have made his/their arrangements for delivery of the Bank Instruments and approving the terms of the Bank Advice prior to entering into the agreement and putting at risk the Arrangement Fee, and also the market in Bank Instruments is a market that does exist. However, instructing solicitors are concerned as to the possibility of it being said that taken as a whole the business is fraudulent by reason of none of the Contracting Parties in any of the agreements having in practice been able to perform by delivery of the Bank Instruments."

17. The hand written annotations of Mr Gibbins upon the draft instructions include the following:

"Michael, the opinion needs to cover:

1. Front end fees. I am paid after the issue of the Advice and after authentication.

2. My function is to arrange for the issue of the Advice, what if any other responsibilities do I have?

3. The fact that I am approached by clients to arrange funds on transactions that the clients cannot themselves perform, is this a problem? Is there any further liability?

4. If we sign off-shore does this take away liability?"

18. There also appears next to the words "5.Law Society correspondence" the observation in the appellant's hand:

"This may weaken the opinion."

19. The type or category of LPP asserted on behalf of the appellant is that which is called "legal advice privilege"; that privilege which attaches to all communications made between a lawyer and his client for the purpose of seeking and giving legal advice. Its rationale was classically described by Lord Taylor CJ in R v Derby Magistrates' Courts, Ex p.B [1996] 1 AC 487 at 507c-d:

"The principle which runs through … [the] cases … 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 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 rests. "

20. There is however an exception to this principle authoritatively laid down by the full court of Queen's Bench in R v Cox and Railton (1884) 14 Q.B.D. 153, namely that LPP does not attach to communications between lawyer and client if the purpose of the client in seeking legal advice is to further or facilitate crime or fraud ("the fraud exception").
21. In that case the defendants were charged with conspiracy to defraud a judgment creditor of Railton out of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton to Cox in respect of his assets. The trial judge permitted the prosecution to call a solicitor to testify that the defendants had sought his advice as to whether anything could be done to prevent property being seized in execution by the judgment creditor and that, when he had told them that Railton would not give a bill of sale to Cox because of the partnership between them, neither Cox nor Railton had made any mention of the partnership having been dissolved; on the contrary, Railton asked whether anyone knew of the partnership, to which the solicitor replied that the only people who knew of it were Cox and Railton and himself and his clerks. Following conviction, the full court held that the defendants' communication with their solicitor was a step preparatory to the commission of the offence of conspiracy to defraud and that, that being so, no privilege attached to such communication.
22. Giving the judgment of the court, Stephen J stated that LPP was founded upon the interests of justice and applied where a lawyer was acting in the ordinary scope of his professional employment. Protection of communications intended to further a criminal purpose was not necessary to uphold the interests of justice; indeed it could be positively injurious to such interests. Accordingly the defendants' communications with the solicitor were not privileged, the evidence from the solicitor was properly admitted and the convictions were affirmed.
23. In making his ruling in this case, the judge held, (indeed it was not in dispute), that the burden of establishing that the annotated instructions came within the fraud exception lay upon the prosecution. The instructions were plainly prima facie privileged and it was the prosecution which contended that that fraud exception applied. Moreover the prosecution were subject to the general requirement to establish that all evidence which it wished to adduce was admissible. He then turned to the applicable standard of proof.
24. In this respect, there was a dispute between the prosecution and the defence. The Crown contended that what had to be established was a "strong prima facie case" that the appellant intended to seek legal advice for a fraudulent purpose. The defence, on the other hand, argued for a two-stage approach. First, was there a fraud? Second, were the instructions to counsel intended to facilitate that fraud? In relation to both, the judge had to be satisfied to the criminal standard and not merely upon the balance of probabilities that such was the case. It was submitted that, as stated in R v Ewing 77 Cr App R 47, the standard of proof wherever the judge has to decide an issue of fact in a criminal trial where the burden of proof is on the prosecution, is proof beyond reasonable doubt.
25. The judge rejected that submission. He held that the observations in Ewing relied on by the defence related to the interpretation of s.8 of the Criminal Procedure Act 1865 which dealt with "Comparison of a disputed Writing with any Writing proved to the satisfaction of the Judge to be genuine" (emphasis added) in respect of which O'Conner LJ (giving the judgment of the court) stated that:

"When [s.8 of the 1865 Act] is applied in civil cases, the civil standard of proof is used, and when it is applied in criminal cases the criminal standard should be used."

26. The judge held that Ewing was not authoritative in this context because the burden of proof in relation to the fraud exception depended not upon statutory interpretation but upon the common law principles enunciated in Cox and Railton and the subsequent line of authority in that respect. Such authority showed that the standard to be applied was that of the balance of probabilities or a "strong prima facie case".
27. Applying that test, the judge held that the fraud exception was established.
28. It is appropriate at this point to record that, for the purposes of the argument before the judge, in relation to the first question "Is there a fraud?" the defence stated its position as follows:

"Solely for the purpose of this argument it is accepted that in relation to the first issue the Prosecution have proved beyond reasonable doubt that on their case there is sufficient evidence on which a reasonable jury properly directed could convict" (emphasis added), while adding this rider in respect of the second question:

"However, there is no sufficient and indeed wholly speculative evidence that in pursuance of that fraudulent enterprise the Instructions to Counsel were produced to facilitate the fraud."

29. In relation to the second question "Were the Instructions to Counsel intended to facilitate that fraud?" the prosecution relied (a) on the defence concession as to the first question (b) on the appellant's notations upon the instructions and (c) on the admitted fact that, following receipt by Mr Wilson-Smith of the appellant's notations, the instructions were never sent to counsel.
30. On that basis, the prosecution submitted that it was clear that the appellant wished to suppress the concerns of the Law Society and thereby obtain an opinion on a false basis which, if it were favourable, would be dishonestly used to carry out the alleged conspiracy.
31. The defence on the other hand submitted that the evidence before the court showed that the draft instructions were aimed solely at seeking advice in respect of already concluded agreements and were not designed to obtain advice on how to commit a fraud. It was argued that the words "This may weaken the opinion" were equivocal. It was conceded that, on one reading, the instructions might signify a wish to suppress the Law Society correspondence so as to increase the chances of obtaining a favourable opinion which could be dishonestly used in carrying out the conspiracy. However, it was submitted that, on another reading, they might equally signify that the appellant honestly wanted to know what his legal position was and was merely concerned that counsel might be over-influenced by the view of the Law Society and thus be inhibited from giving an independent opinion on the merits.
32. Having set out the rival arguments, the judge ruled as follows.

"36. Mr Mitchell maintains in his closing argument that the draft instructions were prepared in response to the concerns of the Law Society. This accords with Mr Gibbins's evidence given in the Halley trial (20 November 2001, page 16). Proceeding on this basis, in my judgment, if Mr Gibbins had wanted advice because of concern expressed by the Law Society, the only sensible, reasonable and straightforward thing to have done was to draw the terms of the Law Society's concern to the attention of counsel and to have counsel deal specifically with that concern. I also think that the words "This may weaken the opinion", particularly the word 'weaken', are quite inapt to signal apprehension on the part of Mr Gibbins that counsel might be induced by the Law Society correspondence not to give his own independent view on whether the transactions were fraudulent but instead would be unduly influenced by the fact that the Law Society had expressed concerns.

37. In my judgment, having regard to all of the evidence before me and adopting the approach set out in paragraph 33 ["strong prima facie case"], the prosecution has established a prima facie case that: (1) Mr Gibbins appreciated the relevance of the Law Society correspondence to the questions on which Counsel was being asked to advise and thought that if Counsel were sent this correspondence, he was more likely to give an unfavourable than a favourable opinion; (2) in writing the words that he did next to item 5, Mr Gibbins was telling Mr Wilson-Smith not to send the Law Society warning letter and the related correspondence and to remove from the body of the instructions the reference to those documents and any suggestion that the Law Society had advised that agreements of the sort in which Mr Wilson-Smith was involved were invariably fraudulent; (3) in acting in this manner, Mr Gibbins was intent on obtaining an opinion on an incomplete and therefore false basis which opinion he hoped would be favourable so that it could be used to give a false impression about the transactions he had already been involved in and about those he wanted to be involved in the future; and (4) in acting in this manner, Mr Gibbins was acting dishonestly and in furtherance of the conspiracy to defraud charged against him in count 1 of the Indictment.

38. Accordingly, I find that the annotated instructions come within the fraud exception and are therefore not protected by LPP.

39. Mr Mitchell submitted that, even if the fraud exception applies, the annotated instructions should be excluded under s.78 of PACE on the ground that it was pure speculation that Mr Gibbins intended to seek advice for a fraudulent purpose and it would be unfair for Mr Gibbins to have to defend himself in relation to a document that was produced so long ago, has few of his scribblings on it and was never used for any purpose. In my view this argument is part and parcel of that advanced by Mr Mitchell on the fraud exception issue and I reject for the reasons I have given for finding that the annotated instructions are not protected by LPP. In my judgment, it would not be unfair for the prosecution to adduce that document at trial in support of the allegation that Mr Gibbins sought legal advice for a fraudulent purpose in the course of carrying out the conspiracy with which he is charged."

33. In the grounds of appeal, Mr Mitchell QC on behalf of the appellant has re-framed the two-stage test which he submits the judge should have applied as follows:

"a. Was there a strong prima facie case of fraud made out on the papers? If yes,

b. Was the disputed document beyond reasonable doubt produced to facilitate or further the fraudulent purpose?" (emphasis added)

34. He submits that the judge erred by following, rather than distinguishing, the decision in Cox and Railton, in which the point in issue was not subject to argument before the court, and that he wrongly distinguished the decisions in Ewing (supra) and Yacoob (1981) 72 Cr App R 313. Mr Mitchell submits that those decisions establish the principle that, in all criminal cases, the standard for the prosecution to prove a pre-condition to the admissibility of evidence is beyond reasonable doubt. He also submits that the judge wrongly failed to recognise that the impact of the fraud exception in a criminal case is entirely different from that in a civil case because the liberty and reputation of the defendant lie at the heart of a criminal case and not a civil case. He further submits that the finding of the judge that the instructions sought an opinion on a false basis which, once obtained, the appellant then intended to use and show to potential victims of fraud, was based on pure speculation. Alternatively, the evidence supporting such finding was at best ambiguous. That being so, the judge was wrong to find as he did whichever standard of proof was applicable.
35. We do not accept that the judge erred in applying the standard of proof set out in the line of authority to which he was referred.
36. In Cox and Railton, at 175-6 Stephen J said:

"We have one other matter to notice. We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisors as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorised to say upon this matter is, that in each particular case, the court must determine upon the facts actually taken in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal advisor, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question whether the advise was taken before or after the offence will always be decisive as the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death." (emphasis added)

37. This passage clearly anticipates that the existence of the fraud exception should be decided upon the test of 'probabilities'. However, it also seems clear that in subsequent decisions the question "whether it seems probable" has been interpreted as meaning whether the judge is satisfied that there is a prima facie case.
38. The fraud exception was the subject of lengthy examination in the context of civil litigation in O'Rourke v Derbyshire [1920] AC 581 in which Viscount Finlay said as follows at 604:

"… the proposition that no privilege comes into existence with regard to communications made in order to get advice for the purpose of carrying out a fraud … is clear law, and, if such guilty purpose was in the client's mind when he sought the solicitor's advice, professional privilege is out of the question. But it is not enough to allege fraud. If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purposes of getting advice for the commission of a fraud, but there must be something to give colour to the charge. The statement must be made in clear and definite terms and there must further be some prima facie evidence that it has some foundation in fact. … It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud. The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications. In the present case it seems to be clear that the appellant has not shown such a prima facie case as would make it right to treat the claim of professional privilege as unfounded." (emphasis added)

39. Lord Sumner, having referred to the opinion of Lord Halsbury in Bullivant v AG for Victoria [1901] AC 196 at 200-203 stated as follows at 614:

" … he clearly holds that a prima facie case must be "made out", without purporting to define in what "mode" this is to be done, and without sanctioning a mere pleaded allegation as sufficient … It is therefore the business of the party claiming production to meet a properly framed claim of professional privilege by showing that the privilege does not attach because it is being asserted for documents which were brought into existence in furtherance of a fraud, and he can only do this by establishing a prima facie case of fraud in fact. " (emphasis added)

Having also referred to the judgment of Lord Halsbury, Lord Parmoor stated at 623:

"Whether the circumstances brought to the notice of the Court in a particular case are sufficiently explicit to establish a prima facie case of definite fraud, either by allegation, affidavit, or in some other way, will depend on the special facts in each case … " (emphasis added)

40. To similar effect, Lord Wrenbury stated at 633:

"If I may venture to express this in my own words I should say that to obtain discovery on the ground of fraud the plaintiff must show to the satisfaction of the court good ground for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud." (emphasis added)

41. It has been further made clear in subsequent authority that the strength of the evidence required to establish a prima facie case in this context may vary with the circumstances and the nature of the proceedings: see Derby & Co Ltd v Weldon (No 7) [1990] 3 All ER 161, in which Vinelott J, after a broad review of the authorities since Bullivant's case stated at 177c-d:

"There is a continuous spectrum and it is impossible to, as it were, calibrate or express in any simple formula the strength of the case that the plaintiff must show in each of these categories. An order to disclose documents for which legal professional privilege is claimed lies at the extreme end of the spectrum. Such an order will only be made in very exceptional circumstances but it is, I think, too restrictive to say that the plaintiff's case must always be founded on an admission or supported by affidavit evidence or that the court must carry out the preliminary exercise of deciding on the material before it whether the plaintiff's case will probably succeed, a task which may well present insurmountable difficulties in a case where fraud is alleged and the court has no more than affidavit evidence."

42. Finally, it seems clear that, in deciding whether a prima facie case of fraud has been established in relation to the document concerned, the court is not limited to considering the position dehors the document or documents of which disclosure is sought. In R v Governor of Pentonville Prison, Ex parte Osman (1990) 90 Cr App R 281 Lloyd LJ sitting in the Queen's Bench Divisional Court was faced with a submission that the court was so limited. While deciding the case upon another ground, he stated at 311:

"… as at present advised we can see no objection to the magistrate looking at the documents, if necessary, in order to determine whether they came into existence in furtherance of a criminal purpose. Indeed, Steven J in Cox and Railton (1884) 14 QB D 153, 175, appears expressly to contemplate the court looking at matters "proposed to be given in evidence"."

43. Thus, while the questions which the court must ask itself are conveniently split into two as submitted by the appellant in this case, for the purpose of determining the answers, the court may look at the position in the round including the contents of the document(s) of which disclosure is sought.
44. Mr Mitchell has sought to argue that the analysis in respect of the authorities in respect of civil proceedings to which we have been referred should not determine the position in criminal proceedings. The judge dismissed that argument upon the basis that the question whether apparently privileged documents are admissible on the back of the fraud exception does not arise out of concern about the reliability of the evidence constituted by the documents; rather the court is concerned with the question whether the circumstances are such that LPP, recognition of which secures the public interest of unrestrained communication between clients and their legal advisers and thereby confers an individual entitlement to resist production, should attach to the documents. Whether or not that view is correct, and we think that it is, it remains clear that the test originally postulated in Cox v Railton was that of probability rather than proof to the criminal standard, which test the courts have since refined as the need to demonstrate a prima facie case. Such was clearly the view of Goff J in Butler v Board of Trade [1971] 1 Chancery 680, a case concerned with criminal proceedings against the plaintiff under s.332(3) of the Companies Act 1948. Having reviewed the authorities and dealt with the submissions before him, Goff J stated at 689C:

"If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a prima facie case that the communications in question were made in preparation for or in furtherance or as part of it."

45. It seems to us that there are good reasons both of policy and logic why, in a criminal case, both the first and second question should be decided upon the basis of probability in the sense of a prima facie case rather than the overall criminal standard of proof.
46. So far as policy is concerned, it is clear that the existence and application of the rule respecting LPP is one of policy which applies equally to civil and criminal proceedings and is applicable whether or not the party relying upon it is or is not a party to, or witness in, the proceedings. The recognition of the fraud exception is equally one based on policy and the view firmly expressed in the authorities that a plea of privilege should not be available as a cloak for fraud. The final policy question, namely what should be the threshold at which the exception should be applied at the expense of the general rule, depends as much upon practicality as principle, given that, in both civil and criminal proceedings, it arises and must be determined at an interlocutory stage i.e. before final determination of the issues according to the standard of proof applicable.
47. While the question for determination by the judge is whether a particular document ostensibly seeking advice was or was not created as part, or for the purposes, of a fraud, the answer is unlikely to be immediately apparent from the terms of the document alone and its admissibility will frequently (indeed usually) require consideration of its contents in the wider context of the fraud of which it is itself alleged to be evidence. When a judge, prior to the trial of the issue of whether that fraud has in fact been established (which in criminal proceedings will ultimately be a question for the jury on the basis of proof beyond reasonable doubt) is faced with the question whether or not to require production of the disputed document with a view to its being used in evidence, his decision is one which has to be reached upon the facts as they then appear i.e. prior to the trial at which the nature and existence of the fraud and the probative value of the document will finally be determined by the jury. Effectively, the judge is only in a position to reach a conclusion upon a provisional or ' prima facie' basis, rather than one of certainty.
48. Mr Mitchell has argued that, since the effect of the judge's decision upon the admissibility of the evidence under the fraud exception will be final for the purposes of the proceedings, the criminal burden should apply. This is superficially a strong point. However, on closer examination, it lacks substance. It is true that, once the judge has decided that the document appears to fall within the fraud exception and it is therefore admitted in evidence, the defendant may not submit to the jury that the document is in fact covered by legal professional privilege. Nonetheless, the defence is at liberty to submit to the jury, who may indeed decide, that the facts upon which the judge based his decision are not in fact probative and in particular that the document relied upon was not in fact created for the fraudulent purpose alleged in the indictment. In that respect the jury's decision will be reached according to the criminal standard of proof.
49. We return to the practicalities of the matter. In the context of a civil or criminal case, where the cause of action pleaded or the charge to be determined at trial is that of fraud, the existence of which is in issue and will only be finally determined at trial, the judge who is required at the interlocutory stage to determine the question whether or not a document is disclosable for the purpose of admission in evidence at trial under the fraud exception, is in no position finally to determine that question. Such final determination will only be possible at trial in the light of all the evidence, including the oral evidence of the parties and, in particular, that of the defendant if called. Meanwhile, the judge can only realistically cope with the matter on the basis of the prima facie position i.e. that which appears to be the position at the time of consideration in the absence of further explanation. Neither policy nor practicality require more than that the judge should be satisfied (i) that a prima facie case of fraud exists and (ii) that, considered in that context, a prima facie case also exists that the document concerned came into existence as part of the fraud.
50. In this respect, bearing in mind the nature of the proceedings, the importance of the doctrine of LPP, the room for ambiguity and the possibility of innocent explanation, it has been stated (in Cox and Railton) that the judge should consider it 'probable' that the document was part of the fraud and (in Derby v Weldon) that a 'strong' prima facie case is required (the standard adopted by the judge in this case). We consider that these observations rightly emphasise the need for the judge to be clear in his view that a prima facie case of fraudulent purpose exists. However, we do not think that any gloss upon the requirement of a prima facie case is desirable either in respect of the charge contained in the indictment or in respect of the purpose behind the document of which disclosure is sought.
51. We would only add that, as already observed, the matters to be considered in relation to question (i) and question (ii) are likely to overlap and it will be impossible to keep separate (a) the general evidence of fraud to be considered by the judge when answering question (i) (which evidence Mr Mitchell accepts is sufficient to show a prima facie case) and (b) the particular acts of the defendant relied on to make out the fraud exception. In this case, the appellant's acts of instructing Mr Wilson-Smith to prepare the draft instructions and then writing on them what he did, fell to be judged in the light of the wider evidence relied on by the prosecution in support of the allegation that the appellant was engaged at the relevant time in implementing an on-going conspiracy to defraud potential investors. We have already indicated our view that, for the judge to adopt a different burden of proof in relation to the overall case of fraud and the narrower question whether the fraud exception is established, seems to us undesirable in principle and impractical in application. For him to answer either question upon the basis of certainty would be to usurp the function of the jury c.f. the observations of Shaw J in R v Robson, R v Harris [1972] 2 All ER 699 at 701d-g in relation to the necessity for the prosecution to show that certain tape recordings relied upon were originals. In that case Shaw J distinguished between "the primary issue of admissibility to be resolved by the judge upon the balance of probabilities" and "the ultimate issue of cogency" to be decided by the jury on the basis of proof beyond reasonable doubt.
52. Shaw J stated (at 701e-f):

"My own view is that in considering that limited question [i.e. admissibility] the judge is required to do no more than to satisfy himself that a prima facie case of originality has been made out by evidence which defines and describes the provenance and history of the recordings up to the moment of production in court. If that evidence appears to remain intact after cross-examination it is not incumbent on him to hear and weigh other evidence which might controvert the prima facie case. To embark on such an enquiry seems to me to trespass on the ultimate function of the jury. It is true that in determining whether an alleged confession is admissible or not, the judge has the duty of deciding a contentious issue and he has to apply the same criteria as a jury would have to do; but this is an anomalous case deriving from its own special history and from considerations peculiar to confessions."

53. We pause to observe that the admissibility of confessions is now the subject of statutory provision under s.76 of PACE.
54. Later, at 703c-d, Shaw J observed of the issue then before him:

" … the judge is called on to decide the narrow but vital issue whether or not the so-called original tapes are shown prima facie to be original. It is difficult, if not impossible, to draw the philosophical or theoretical boundary between matters going to admissibility and matters going properly to weight and cogency; but, as I have already said, it is simple enough to make a practical demarcation and set practical limits to an enquiry as to admissibility if the correct principle is that the prosecution are required to do no more than set up a prima facie case in favour of it. If they should do so, the questioned evidence remains subject to the more stringent test that the jury must apply in the context of the whole case, namely that they must be sure of the authenticity of that evidence before they take any account of its content."

It seems to us that, by analogy, those observations are applicable to question (ii) in this case.

55. Finally, we consider that the judge was right to distinguish the decisions in Ewing and Yacoob. In our view, Ewing is, at best, authority for the proposition that, wherever it is the function of the judge, as opposed to the jury, to decide an issue of fact in a criminal trial, where the burden of proof is on the prosecution, the standard of proof is proof beyond reasonable doubt. It applies to the situation where the determination of that issue is final for the purposes of the trial. As we have already made clear, in a case such as the instant case, the judge's finding relates to an issue of admissibility only. He makes his determination in respect of the underlying facts only for that purpose, and the ultimate issue whether the document concerned is proved to have been made as part of a fraudulent scheme or purpose, remains within the province of the jury. The case of Yacoob related to the competence and compellability of a prosecution witness, an issue in relation to which, again, the final determination lay with the judge and not the jury, and again for that reason the court stated that the burden of proof was proof beyond a reasonable doubt.
56. Accordingly, we find no error on the part of the judge in relation to the standard of proof which he applied in reaching his decision.
57. Since the judge put his decision as to admissibility upon the fraud exception, he did not proceed to consider the further submissions for the Crown that, because the annotated instructions were already in the possession of the prosecution they could be adduced at trial, whether or not they had been regularly obtained; alternatively that the instructions were in any event in the public domain because of the use made of them in Halley v The Law Society (see paragraph 12 above).
58. In relation to the first point, it is pertinent to observe that the documents were obtained by the police well before 1 April 2003, upon which date s.53-58 of the Criminal Justice and Police Act 2001 came into force. The authorities appear to make clear that a privileged document is admissible in evidence, if relevant, once it is in possession of the other side, admissibility being dependent upon the relevance of the document and not upon the method by which it has been obtained: see Kuruma v R [1955] AC 197 at 203, Butler v Board of Trade (supra) and the cases cited at Archbold 2004 at 12-16. Thus, the judge, subject to consideration of the question of fairness under s.78 of PACE could well have based his decision upon that ground. However, in the light of our view as to the correctness of the ground upon which the judge made his decision, it is unnecessary so to decide. Nor is it necessary further to consider the argument that the contents of the instructions were already in the public domain.
59. The second main ground of appeal is that, even accepting the judge's view as to the appropriate standard of proof, his decision that there was a strong prima facie case that the instructions as annotated were brought into existence to facilitate fraud was based on pure speculation which was insufficient to satisfy the judge to the relevant standard of proof.
60. It seems to us that the point taken is not in truth an appeal upon a point of law, as distinct from a decision of the judge on a question of fact on which no right of appeal lies. When we put this to Mr Mitchell, he so conceded.
61. For the above reasons, this appeal is dismissed.