(i) When drafting grounds make a sensible decision on whether waiver is required. Any ground that goes to the conduct of the trial is likely to require waiver. If so, advise the applicant about the waiver of privilege procedure. Either obtain a signed waiver of privilege from the applicant or note that the applicant declines having advised them of the consequences of doing so.
(ii) Send draft grounds to former representatives inviting their comments, particularly on the facts.
(iii) On receiving comments reconsider the draft grounds and include confirmation that trial counsel has seen the grounds or, in cases where there has been no response, that that is the position. Should the grounds still be arguable, finalise the same.
(iv) Lodge the grounds. In cases where waiver is judged
to be necessary lodge the formal waiver document with the Grounds or (having confirmed that the applicant does not wish to waive privilege) inform the
Court that the applicant is unwilling do so and has been advised as to the consequences of that decision.
(i) Respond on the facts, it need not be lengthy. If put on notice of criticism confine yourself to the facts and explain that you cannot expand without waiver.
(ii) If there is no criticism but you do not feel able to respond fully without waiver of privilege, say so.
(iii) Whilst responding is a matter of courtesy, bear in mind that a failure to respond will be notified to the Court on consideration of the application.
In practice there is likely to be an unexpected benefit to applicants in applying this procedure. The practice of “keeping the trial lawyers out of the loop” often meant that they would be asked very late in the day and that response was often extremely defensive. This author has seen responses to the waiver procedure which would pass muster as a Respondent’s Notice. All professionals are sensitive, lawyers no less than any other. A courteous inquiry early in the proceedings is much less likely to produce such a reaction.
Master Michael Egan QC Registrar of Criminal Appeals