The crime-fraud exception in Anglo-American jurisprudence: comparative dimensions and optimal reform proposals in the taxation context

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.