Lord Taylor CJ observed 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.” (R v Derby Magistrates’ Court, Ex p B  AC 487, 507).
The right of a person in custody to private consultation with a lawyer is expressly protected in statute, eg, by s 58, Police and Criminal Evidence Act 1984. The importance of an accused being able to confer with his lawyer in private has been emphasised in a number of cases from Strasbourg. Both arts 6 and 8 of the European Convention on Human Rights may be engaged.
There is a long-standing exception to legal professional privilege (LPP) – the iniquity exception – which is recognised in common law and statue and aims to prevent abuse of the privilege. Its effect is that privilege does not attach to information held, or communications made, in furtherance of a criminal purpose
So lawyers and their clients conduct their business on the assumption that legitimately privileged material will be protected.
RIPA operates together with secondary legislation and codes of practice to create most of the regime governing covert investigation.
It is worrying that the law presently allows the police and other public authorities specifically to target legally privileged information for the purpose of gathering intelligence. That power extends beyond consultations in police stations or prisons, to any situation in which privileged communications are exchanged or in which privileged material is held. As we have already noted, the present law even permits investigators to listen in to legal conferences in chambers or at a solicitors’ firm.
Powers under RIPA are being used to:
- undertake “covert surveillance” (secretly monitoring people’s activities, including with a surveillance device such as a bug)
- use “covert human intelligence sources” (CHIS – such as undercover police officers); and
- intercept communications (phone tapping).
Significantly, s 27 of RIPA provides that authorised covert surveillance and use of CHIS is “lawful for all purposes”.
In Re McE
The need for reform of RIPA became apparent in 2009 when the House of Lords held In Re McE  1 AC 908 (a Northern Ireland appeal) that Pt 2 of RIPA permits the covert surveillance of meetings between defendants and their lawyers, even though no express provision of the Act authorises it and despite the careful protection of LPP in other statutes, (eg, by s 58 of the Police and Criminal Evidence Act 1984). By extension, the In Re McE decision will apply equally to the other covert investigation techniques by RIPA.
Symptomatic of the lack of clarity inherent in the current regime, the House of Lords was not unanimous in its view that s 27 of RIPA “trumps” s 58 of PACE. Lord Phillips dissented. He accepted that RIPA enables authorisation of surveillance of communications to which LPP attaches at common law. However, he held that it does not enable authorisation of invasion, by covert surveillance, of the express rights given by statute to a detainee to consult a lawyer privately. He added (at para 41):
“It would not be incompatible with the Convention for power to be granted in exceptional circumstances to carry out such surveillance, but I consider that the power should be granted by a statute that adequately defined those circumstances and prescribed who was to ascertain that they existed.”
RIPA contains no reference whatsoever to legal privilege, so the issue was not debated when the legislation was considered in Parliament. Instead, a significant departure from fundamental principles came about by the retrospective application of rules of statutory construction in In Re McE.
Clients will feel inhibited from speaking frankly to their lawyers where they suspect that others may be listening into or reporting on what they say. There is an important consequent chilling effect on the proper administration of justice, which relies on the ability of individuals to consult fully and freely with their lawyers.
Undercover police officer PC Mark Kennedy infiltrated a protest group pursuant to an authorisation under RIPA and maintained his cover while fellow protestors were prosecuted and tried for offences.
PC Kennedy’s activities came to light when members of the group he had infiltrated were prosecuted for conspiracy to commit aggravated trespass at the Ratcliffe-on-Soar power station in Nottingham in 2009. The Crown dropped the case against six campaigners in January 2011 after information concerning Kennedy’s role was disclosed. It had not been provided to the defence, although it was helpful to them. The convictions of 20 further campaigners, found guilty at an earlier trial, were subsequently overturned by the Court of Appeal “because of significant non-disclosure”. The present Lord Chief Justice, Lord Judge, expressed disquiet at the possibility that privileged communications following the appellants’ arrest might have found their way to the officer’s handlers or the prosecution (R v Barkshire  EWCA Crim 1885 at ).
The operation in which PC Kennedy participated pre-dates In re McE, but the case is a powerful reminder of the problems that can arise where police officers’ covert activities enable them to gain access to privileged communications. The episode further highlights the need for the explicit protection of LPP.
Following the revelations concerning PC Kennedy, Her Majesty’s Inspectorate of Constabulary conducted “a review of national police units which provide intelligence on criminality associated with protest”. The report, published in February, makes no reference to LPP.
Changes following In Re McE
The previous government gave a partial response to In Re McE, by making two orders under powers contained in RIPA (SIs 2010/123 and 2010/461). The orders create enhanced authorisation procedures where legally privileged communications are targeted. There were also revisions to the codes of practice.
The “safeguards” supposedly provided by these changes remain insufficient. The code of practice dealing with covert surveillance advises that LPP should be violated only in “exceptional and compelling circumstances”. However, the test set out in the code for the authorisation of surveillance that is likely but not intended to acquire privileged information is identical to the statutory test for any authorisation for “intrusive” (in one’s home/car) surveillance under RIPA; it contains no special protection for privileged material.
Where surveillance is intended to acquire privileged information, the code stipulates that authorisation should be granted only in a restricted range of cases, such as where there is a threat to national security or to “life or limb”. But that phrase signally lacks clarity: it may be aimed at serious intentional offences of violence, but it could catch more minor offences where physical injury results from negligence or even breach of a duty that gives rise to strict liability.
The real problem is that these changes fail to address the fundamental point that covert investigatory powers should not be used to target privileged communications unless the iniquity exception applies. The “status quo” should, in our view, be the protection of LPP.
The Bar Council believes that it is time to take action. The Protection of Freedoms Bill was introduced into the House of Commons in February 2011. At the bill’s second reading, the Home Secretary stated:
“The bill gives us a chance to roll back the creeping intrusion of the state into our everyday lives, and to return individual freedoms to the heart of our legislation. Under the last government, we saw a steady erosion of traditional British liberties and a slow march towards authoritarian government. They presented us with a false choice between our future security and our historic liberties, disregarding any notion of balance between the two.”
The Bar Council proposed a new clause to the bill, which would:
- prevent the authorities from deliberately using the RIPA powers of surveillance, CHIS, interception of communications and acquisition of communications data to target legally privileged information;
- continue to permit the authorities to seek access to privileged information where the lawyer-client relationship is being abused for a criminal purpose; and
- make provision, through the RIPA codes of practice, for minimising the risk of the authorities accidentally obtaining legally privileged material and setting out the steps to be taken when that happens.
Baroness Hamwee moved this new clause at committee and again at report stage in the House of Lords. The proposed amendment was ultimately withdrawn on each occasion in light of government opposition.
The Bar Council will continue to press its cause. In the first instance, it will propose a tightening of the codes of practice, to ensure that authorities permitting the violation of LPP are only granted in truly exceptional circumstances (such as the “extreme” examples given by the government during recent debate in the House of Lords). It will also continue to scrutinise forthcoming Home Office and Ministry of Justice bills. A white paper on the proposed Justice and Security Bill is expected shortly. That may well provide a further opportunity for amendment and for persuading the government of the need for substantive change to the law on covert investigation in order to safeguard LPP.
The Bar Council’s campaign has received support from organisations including the Law Society, Liberty and the Bar Council of Northern Ireland. The proposals for change have been aired in publications as diverse as the Guardian and the Law Society Gazette. As chairman of the Bar Michael Todd QC has recently observed:
“The government appears to want to continue to be able to erode this fundamental human right for investigatory purposes. In our view, this is unacceptable…The Bar Council will continue to pursue this matter forcefully, in the public interest”.
Nicholas Griffin QC of 5 Paper Buildings and Gordon Nardell QC of 39 Essex Street are members of the Bar Council’s Law Reform Committee (LRC). This article draws on papers and briefings they drafted in conjunction with Alexandra Ward and Robert O’Sullivan of the LRC and Harriet Deane, Bar Council communications officer. The LRC’s terms of reference are to develop and consider proposals for law reform and to submit views to the government and others where appropriate.
Nicholas Griffin QC of 5 Paper Buildings
Gordon Nardell QC of 39 Essex Street