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|Session 2008 - 09|
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|Judgments - In re McE (Appellant) (Northern Ireland) In re M (Appellant) (Northern Ireland) In re C (AP) and another (AP) (Appellants) (Northern Ireland)
HOUSE OF LORDS
 UKHL 15
on appeal from: NIQB 101
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re McE (Appellant) (Northern Ireland)
In re M (Appellant) (Northern Ireland)
In re C (AP) and another (AP)(Appellants) (Northern Ireland)
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
Barry Macdonald QC
(Instructed by Kevin R Winters & Co)
(Instructed by Harte Coyle Collins)
Original Appellant (C):
Barry Macdonald QC
(Instructed by Harte Coyle Collins )
Respondent: (Prison Service of Northern Ireland):
Michael Fordham QC
David McMillen, Ben Cooper
(Instructed by Treasury Solicitors for the Crown Solicitors Office)
Respondent (Police Service of Northern Ireland):
(Instructed by Treasury Solicitors for the Crown Solicitors Office)
First Interveners: NI Human Rights Commission:
(Written submissions only)
John Larkin QC
(Instructed by Northern Ireland Human Rights Commission)
Second Interveners (British Irish Rights Watch) Third Interveners: General Council of the Bar
of NI and Law Society of NI
(Written submissions only)
(Written submissions only) Brendan Garland
(British Irish Rights Watch) (Instructed by General Council of the Bar of Northern
and Law Society of Northern Ireland)
8, 9 and 10 DECEMBER 2008
WEDNESDAY 11 MARCH 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re McE (Appellant) (Northern Ireland)
In re C (AP) and another (Appellants) (Northern Ireland)
In re M (Appellant) (Northern Ireland)
 UKHL 15
LORD PHILLIPS OF WORTH MATRAVERS
1. On 6 February 2006 a solicitor called Manmohan Sandhu appeared before the Antrim Magistrates Court charged with incitement to murder, and four counts of doing acts tending and intended to pervert the course of justice. The court was told that the case against Mr Sandhu was based on covert electronic surveillance carried out by the police of conversations between himself and clients who were purporting to consult him in the serious crime suite at Antrim Police Station. The fact that the case against Mr Sandhu was based upon such evidence received considerable media coverage and comment. It also led to requests being made of the police on behalf of each of the appellants for assurances that no such monitoring was taking place in respect of consultations that they were about to have with their lawyers or, in the case of M, his consultant psychiatrist. The police declined to give such assurances.
2. My noble and learned friend Lord Carswell has described in more detail the circumstances in which these assurances were sought, the applications that were then made to the Divisional Court in Northern Ireland, the decision of that court, the reasons for that decision, the questions certified and the unusual circumstances in which the appellants were given permission to appeal to this House notwithstanding that they had obtained orders in their favour. I happily adopt that description and endorse his comments in respect of the grant of permission to appeal. The appeal raises, none the less, two issues of general importance:
i) What impact, if any, does the Regulation of Investigatory Powers Act 2000 (RIPA) have on the common law right of legal professional privilege (LPP)?
ii) What impact, if any, does RIPA have on the right accorded by a number of statutory provisions of a person detained in a police station or in prison to consult a lawyer privately?
In order to answer these questions it is relevant to consider the law in relation to LPP prior to RIPA, the extent of the relevant statutory rights to private consultation with a lawyer prior to RIPA and the requirements of the European Convention on Human Rights in respect of covert surveillance and the protection of LPP.
Legal Professional Privilege
3. LPP describes special protection that the law gives to communications between a lawyer and his client. The protection is owed to the client. LPP is his privilege. It has its origin in the sixteenth century. Thus, for most of its history it has applied in circumstances where the only way a client could communicate with his lawyer was either orally face to face or by manuscript communications. The circumstances in which LPP was typically asserted were when an attempt was made by legal process to obtain disclosure of the privileged communication. This might be, for instance, by the process of discovery in civil litigation or by a witness summons in criminal proceedings or by seeking to require a witness to give evidence of matters subject to LPP.
4. This led to a period when LPP was considered as a procedural right that formed part of the law of evidence. In Parry-Jones v Law Society  1 Ch 1 the Law Society had, for regulatory purposes, exercised a power under the Solicitors Act 1957 to call upon a solicitor, the plaintiff/appellant, to produce for inspection accounts and other information relating to the conduct of his clients affairs. He sought an injunction restraining the Law Society from requiring him to produce documents that were subject to LPP without the consent of the clients to whom the privilege related. His claim was rejected at first instance and on appeal. Diplock LJ stated at p. 9:
So far as Mr Parry-Jones point as to privilege is concerned, privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence.
A similar view of the nature of LPP was taken by the Law Reform Committee that produced the Sixteenth Report, Privilege in Civil Proceedings, (1967) (Cmnd 3472).
5. Privilege provided immunity against disclosure. It did not render privileged material inadmissible if a party, or prosecuting authority, managed to obtain it, even if it was improperly obtained: Calcraft v Guest  1 QB 759; R v Tompkins (1977) 67 Cr App R 181; Butler v Board of Trade 1971 Ch 680.
6. In recent times the courts have recognised LPP as not merely a procedural right but an important substantive right. Lord Hoffmann said this of the right in R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax  1 AC 563 at paragraph 7:
LLP is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of Lord Taylor of Gosforth CJ in R v Derby Magistrates Court, Ex p B  AC 487. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the Convention (Campbell v United Kingdom (1992) 15 EHRR 137; Foxley v United Kingdom (2000) 31 EHRR 637) and held by the European Court of Justice to be a part of Community law: A M & S Europe Ltd v Commission of the European Communities (Case 155/79)  QB 878.
7. In Three Rivers District Council v Governor and Company of the Bank of England (No 6)  1 AC 610 Lord Scott of Foscote at paragraph 25 commented that the privilege was absolute and could not be overridden by some supposedly greater public interest". It could only be overridden by legislation. He added at paragraph 26 that, while there was some debate as to whether the privilege was a procedural or substantive right, the debate was sterile as it was both.
8. Furthermore, the law today gives a considerable degree of protection against the admissibility of evidence subject to LPP where it has been improperly obtained, or even accidentally disclosed - see CPR 31.20 for civil proceedings and section 78 of the Police and Criminal Evidence Act 1984 for criminal proceedings.
9. In Morgan Grenfell at para 30 Lord Hoffmann criticised the reasoning of the Court of Appeal in Parry-Jones but expressed the view that they had none the less reached the right result. He said, at para 32:
I think that the true justification for the decision was not that Mr Parry-Joness clients had no LPP, or that their LPP had been overridden by the Law Societys rules, but that the clients LPP was not being infringed. The Law Society were not entitled to use information disclosed by the solicitor for any purpose other than the investigation. Otherwise the confidentiality of the clients had to be maintained. In my opinion, this limited disclosure did not breach the clients LPP or, to the extent that it technically did, was authorised by the Law Societys statutory powers. It does not seem to me to fall within the same principle as a case in which disclosure is sought for a use which involves the information being made public or used against the person entitled to the privilege.
10. The editors of Phipson on Evidence, 16th ed (2005) observe at 23-22-23-26 that this is a novel approach to privilege and express the hope that it will not be followed. For myself I find that Lord Hoffmanns approach illuminates the issues that arise in the present case. The rationale underlying LPP is the fundamental requirement that a man should not be inhibited in speaking freely and frankly to his lawyer by concern that what he says may subsequently be disclosed to his prejudice. This appeal involves the tension between the importance of covert surveillance in the fight against terrorism and serious crime and the importance of LPP. In this context it is necessary to consider not merely whether and in what circumstances surveillance of communications subject to LPP should be permitted but the use that should be permitted of communications subject to LPP that are disclosed by such surveillance. This is a topic to which I shall return at the end of this opinion.
The Iniquity Exception
11. I have adopted the expression the iniquity exception to describe the principle that consultations or communications between a lawyer and his client that are in furtherance of crime or fraud are not protected by LPP. It is questionable whether this is properly to be described as an exception to LPP. The fact remains that disclosure of such communications will normally be based on a provisional conclusion that the communications were in furtherance of crime or fraud. If, after the documents have been disclosed this proves not to be the case, the protection of LPP will have been lost. R v Cox and Railton (1884) 14 QBD 153 is the case usually cited as establishing this principle. In that case Stephen J explained why communications in furtherance of crime were not covered by the rule of LPP at p 167:
The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not come into the ordinary scope of professional employment".
Powers of search and LPP
12. Before considering surveillance it is instructive to look at LPP in the context of another type of invasion of privacy - the powers given to the police to search private premises. These powers are necessarily statutory, for absent statutory powers the search of private premises will constitute the tort of trespass. In general, when granting powers of search and seizure Parliament has been careful expressly to exclude from their ambit communications that are protected by LPP. Thus section 8 of PACE gives a justice of the peace the power to issue a search warrant for material likely to be of substantial value to the investigation of a serious arrestable offence provided that there are reasonable grounds for believing that the material in question does not consist of or include items subject to legal privilege". Section 19, which makes provision for powers of seizure provides that no power of seizure conferred on a constable under any enactment is to be taken to authorise the seizure of an item which he has reasonable grounds for believing to be subject to legal privilege. Section 2(9) of the Criminal Justice Act 1987 gives protection to documents covered by LPP against the issue of a search warrant to the Serious Fraud Office. The powers to obtain search warrants under the Prevention of Terrorism (Temporary Provisions) Act 1989 were similar to those in PACE and contained similar protection in respect of documents covered by LPP. The same is true of the Terrorism Act 2000. The power of a circuit judge to make an access order under section 55 of the Drugs Trafficking Act 1994 does not apply to material subject to legal privilege.
13. Section 10 of PACE defines items subject to legal privilege to include communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client. The definition is expressly subject to the iniquity exception, for section 10(2) provides items held with the intention of furthering a criminal purpose are not items subject to legal privilege".
Interception of communications and surveillance
14. Article 8 of the Convention, to which the United Kingdom was one of the original subscribers, provides that everyone has the right to respect for his private life and his correspondence. This right is qualified by Article 8(2) which permits interference with it in accordance with the law in so far as necessary for the purposes there specified. Prior to 1985 this country failed to comply with Article 8 in as much as the police and the security services intercepted mail and telecommunications and carried out electronic surveillance in accordance with executive discretion that was not subject to statutory regulation. Interception had to be authorised by a warrant issued by the Secretary of State. The intelligence acquired was used for detecting and preventing serious crime and not for gathering evidence for use in prosecutions. For this reason no issue of LPP arose in relation to it. Surveillance must, on occasion, have disclosed to the authorities communications between lawyer and their clients, but no attempt appears to have been made to use such material as evidence, so once again no issue in relation to LPP appears to have arisen.
15. The United Kingdom practice in relation to the interception of telecommunications was successfully challenged before the Strasbourg Court in Malone v United Kingdom (1984) 7 EHRR 14. The Court found that there was obscurity and uncertainty as to the extent to which interception was subject to rules of law rather than executive discretion so that the interference with Mr Malones private life did not satisfy the requirement of being in accordance with the law". This led to the enactment of the Interception of Communications Act 1985. No mention is made in that Act of LPP, but problems in relation to this were unlikely to arise as the Act continued the policy of precluding the use as evidence of the product of interception.
16. The United Kingdom remained in breach of the requirements of Article 8(2) in relation to covert surveillance of private property in as much as this was not subject to any statutory regulation. Adverse decisions at Strasbourg led to the Security Services Act 1989 and the Intelligence Services Act 1994, which regulated surveillance by the Security Services. These statutes made no reference to LPP. Nor did they cover surveillance by the police. This was carried out, in accordance with Home Office Guidelines on a very substantial scale. In 1995 there were approximately 2,100 authorisations by chief officers of intrusive surveillance operations in the United Kingdom carried on by the police and the customs service (HC Debs, written answer, col 512, 21 January 1997).
17. In contrast to material obtained by interception, the fruits of covert surveillance were admissible in evidence. Mr Sultan Khan unsuccessfully challenged, up to the House of Lords, the admission of such evidence in circumstances where a listening device had been placed in his home by trespass, and then took his case to Strasbourg - Khan v United Kingdom (2000) 31 EHRR 1016. The Court held that the admission of the evidence had not violated Mr Khans right to a fair trial under Article 6 of the Convention. There had, however, been infringement of his rights under Article 8 in that the requirements of Article 8(2) had not been satisfied. There had at the material time been no statutory regulation of the use of listening devices.
18. The passage of Khan through the courts stimulated adverse judicial and media comment on the absence of satisfactory regulation of surveillance and led to amendments to the Police Bill that was passing through Parliament. In consequence sections 92 and 93 of Part III of the Police Act 1997 required authorisation by a chief constable or officer of similar seniority of entry on or interference with property or with wireless telegraphy. Section 97 required such authorisation to be approved by a Commissioner, who had to hold or have held high judicial office, where the person giving the authorisation believed:
(a) that any of the property specified in the authorisation
(i) is used wholly or mainly as a dwelling or as a bedroom in a hotel, or
(ii) constitutes office premises, or
(b) that the action authorised by it is likely to result in any person acquiring knowledge of
(i) matters subject to legal privilege,
(ii) confidential personal information, or
(iii) confidential journalistic material.
Section 98 defined matters subject to legal privilege.
19. These provisions were directed at making lawful actions that would otherwise have constituted trespass. They did not extend to require authorisation of covert surveillance that could be carried out without infringement of civil law. Furthermore the express provisions made in relation to LPP implicitly recognised that LPP did not confer an absolute right to privacy in respect of communications between a lawyer and his client. It is inevitable that the interception of communications or covert surveillance will from time to time disclose to the authorities conducting it the content of communications between lawyer and client. I do not consider that, at the time that the 1997 Act was enacted it was considered that such an occurrence constituted an infringement of the common law right to LPP. Because no attempt had ever been made to adduce such communications in evidence the issue had not, so far as I am aware, arisen for judicial determination. What was quite clear by the time of RIPA was that this was an area that required statutory regulation.
The right of a detained person to have access to a lawyer in private
20. This appeal is concerned with the effect of RIPA on statutory rights of a person detained to consult a lawyer privately. These statutory rights were preceded by similar rights at common law - see Cullen v Chief Constable of the Royal Ulster Constabulary  1 WLR 1763 at para 5. The earliest of the statutes is PACE. Section 58 of PACE provides:
(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.
This was reproduced in identical terms as article 59 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)). In the context of terrorism it was repeated, in very similar terms, in relation to detention in a police station, in section 15 of the Northern Ireland (Emergency Provisions) Act 1987 and in Schedule 8 to the Terrorism Act 2000.
21. Rule 71 of the Prisons and Young Offenders Centres Rules (Northern Ireland) 1995 provides:
71. -(1) Reasonable facilities shall be allowed for the legal adviser of a prisoner who is party to legal proceedings, civil or criminal, to interview the prisoner in connection with those proceedings in the sight but not in the hearing of an officer.
(2) A prisoners legal adviser may, with the Secretary of States permission, interview the prisoner in connection with any other legal business in the sight but not in the hearing of an officer.
22. The right to private consultation given by these statutes is a public law right: Cullen v Chief Constable of the Royal Ulster Constabulary  1 WLR 1763.
23. What is the ambit of the right to consult a lawyer privately in these legislative provisions? Its natural meaning is that no one should be permitted to listen to the consultation, and this precludes both overt and covert monitoring of the consultation. Covert surveillance of such consultation for the general purpose of gleaning information that will assist prevention of terrorism or crime is clearly an invasion of that privacy. Is the right to private consultation implicitly subject to the right of the police to carry out surveillance for such purposes? More specifically is the statutory right to privacy subject to the iniquity exception, so that it will not preclude covert surveillance where the consultation is not for the purpose of protecting the interests of the detained person but for the purpose of furthering crime or terrorism?
24. Mr Sandhu made a pre-trial application to the Crown Court at Belfast to have the proceedings against him stayed on the grounds of abuse of process because the police subjected the private consultations between the defendant and his clients to intrusive surveillance. The House was provided with the judgment dismissing this application on 5 September 2008. The point was not made that the right to privacy was that of the clients, not of Mr Sandhu as their solicitor. The judge proceeded on the basis that the right to private consultation could be equated with LPP. He ruled that the product of the surveillance was capable of being submitted in evidence because it fell within the exception laid down in R v Cox and Railton and thus was not covered by legal professional privilege.