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Lord Renton: My Lords, I did not hear the beginning of the debate and I had not intended to intervene. However, having heard what the noble Lord, Lord Hutchinson, has said, I feel obliged just to remind him
that Amendment No. 27 refers to Section 10 of the Police and Criminal Evidence Act 1984. That is a statutory definition that we now have to accept of what was previously covered by the common law, but not so precisely.The noble Lord's argument was based on what we all grew up to understand was the common law. However, Section 10 of the 1984 Act refers to,
- "'items subject to legal privilege'"
- "communications between a professional legal adviser and his client".
- "items enclosed with or referred to in such communications and made
- (i) in connection with the giving of legal advice;
- or
- (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings".
- "Items held with the intention of furthering a criminal purpose are not items subject to legal privilege".
Baroness Blatch: My Lords, we accept that the Government should not be allowed to set out to listen in on, or otherwise interfere with, confidential conversations between a lawyer and his client on matters such as a client's defence with the intention of frustrating that defence. That would be wrong and, under the provisions of the Bill, would be unlawful. We could not introduce provisions exempting particular kinds of information or information held by certain categories of people without creating loopholes in the provisions which criminals would be sure to exploit.
We are dealing with highly professional criminals, and very successful ones, often with considerable resources at their disposal, who would be bound to exploit any exemptions or attempt to use them as a means of having evidence obtained from such surveillance ruled as inadmissible in court. I am sure that in practice the circumstances where the police or Customs would consider it necessary to intrude on the offices of lawyers would be extremely rare. The purpose of intrusive surveillance in these cases would not be to breach the confidentiality of a lawyer and his client but to collect intelligence on the commission or future commission of a serious crime where this information could not be obtained by other means. Authorisation for any other purpose or in any other circumstances would be unlawful.
In some circumstances, it would be impossible for the authorising officer to know beforehand whether or not there were likely to be matters normally subject to legal privilege on the premises. Before authorising interference with a lawyer's offices the authorising officer would need to think it necessary for the action to be taken because he suspected that serious criminal activity or conspiracy in serious criminal activity was taking place on the premises. There is already a specific
exemption under Section 10 of the Police and Criminal Evidence Act for items held for furthering a criminal purpose.Other material which properly fitted within the definition of legal privilege may not be given in evidence without the consent of the person enjoying the privilege save where this would help establish the innocence of the person accused. Therefore this amendment would not achieve anything which is not already covered in statute. In similar fashion, the purpose of the intrusive surveillance would not be to breach the confidentiality of the journalist and his source or the doctor and his patient but to collect intelligence on the commission or future commission of a serious crime. Again, authorisation for any other purpose would be unlawful.
An example of where intrusive surveillance might take place is if the police believed that a journalist was actively involved with an organised crime group or where a doctor was allowing his medical premises to be used for the production of synthetic drugs or drug trafficking. The amendments we have put forward will require authorising officers to notify the commissioners of all authorisations--and I was grateful for the intervention of the noble and learned Lord on this point--as soon as is reasonable practicable.
However, the commissioners will also be given a duty to scrutinise specified categories of authorisations within 48 hours of receipt. These categories, which will be set out in a separate order, will include matters usually subject to legal privilege: journalistic material and other medical records except in particular cases where it would be essential for the surveillance to take place immediately to catch a window of opportunity. This would effectively put the commissioner in a position to scrutinise the authorisation before the operation commenced and to quash it if he considered it improper.
One difficulty we have is that a number of authorisations are now being made where one would have to go to a circuit judge for an authorisation. There would also be need to go to a commissioner for an authorisation. However, the main arguments I am using in regard to the amendment hold true. Our proposals ensure that we do not create loopholes which would defeat the whole purpose of the legislation while at the same time ensuring close traditional oversight through the work of the commissioner. We believe this provides a sensible working approach which does not impede serious investigations but ensures the protection of lawyers and their clients and other confidential material from any unwarranted breach of confidentiality.
We are talking in this amendment not just about lawyers' premises. We are talking about wherever a lawyer may be: in a client's home, a club or another place. I do not know what mechanism can be used for knowing that an activity of intrusive surveillance would be unlawful in that circumstance or that legal privilege would apply in advance of actually knowing that it would be claimed that legal privilege applied because those involved happened to be in premises--a private house, a garage, outbuildings or wherever lawyers
would meet someone to discuss information they regarded as confidential. We are not just talking about legal privilege here, as the noble Lord, Lord McIntosh, reminded us. We are talking about doctors and others who would need to discuss confidential matters. I hope the amendment will not be pressed.
Lord Browne-Wilkinson: My Lords, before the Minister sits down may I ask for a little elucidation? One of the difficulties is that one is talking about chasing villains. To chase a villain you put a bug in the office of the villain's solicitor. You put a bug in the office of the villain's doctor. You put it in the confessional for a member of the mafiosi. The bug, when there, not only collects information about the villain and his dealings; it collects information about every client, every other patient or every other person going into the confessional. What worries me and others is that this information is inevitably communicated. An amendment was put in at Committee stage to try and ensure that the material was destroyed or not used. I am afraid we were told that this was valuable material for criminal intelligence. I find it deeply worrying that the Government will not contemplate safeguarding information which they are accumulating about people who are not concerned in serious crime, will not destroy it and will not protect the privilege of the office in the case of the lawyer or the privilege of the doctor's consulting room. I am deeply concerned that the Government will not reconsider the position of wholly innocent third parties caught up in a bug. I do hope that at some time this matter will be addressed.
Baroness Blatch: My Lords, this is the Report stage and I must ask the leave of the House to address the point which the noble and learned Lord has made. It is important to come back to it because I believe he misunderstands the situation. The amendments ask for blanket legal privilege. I know that if there is a specific belief that lawyers are involved in criminal activity there is an exemption there, so far as the noble and learned Lord is concerned. But for purposes where a lawyer or a doctor is discussing confidential matters with a client, then legal privilege applies.
I have mentioned already today and I am happy to do so again for the record, that information gathered in the course of a bugging operation which was unrelated to the matter for which authorisation was given will be destroyed. That will be addressed in the code of practice. We will continue to press the point that unrelated information will be destroyed.
The noble and learned Lord rightly reminded us that we had a discussion concerning the destruction of evidence. One difficulty is that one needs to make a distinction between evidence which is unrelated for the purposes of the authorisation and evidence which is only intelligence gathering at this stage in pursuit of serious crime but which may have a relevance, not in the short or medium term, but may in fact need to be kept for a long time. So it is rather complex as regards the point at which it should be destroyed. I am happy to say to the noble and learned Lord that we are giving some thought to how we can address the destruction of
evidence, and certainly the destruction of irrelevant evidence that can be deemed irrelevant at the time. We believe that there should be immediate destruction of that information. I take the point made by the noble and learned Lord and we will continue to seek ways and means of addressing it.
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