|Judgments - In re McE (Appellant) (Northern Ireland) In re M (Appellant) (Northern Ireland) In re C (AP) and another (AP) (Appellants) (Northern Ireland)
25. I do not share the judges reasoning, although I agree with the result that he reached. The rationale for granting a detained person the right to consult a lawyer privately is the same as that which underlies LPP. It does not follow from this that the former is subject to the qualifications on the latter. I have pointed out that the Police Act 1997 recognised that LPP did not confer an absolute privacy right in as much as communications between lawyer and client could lawfully be subjected to surveillance. No such qualification was, however, placed on the express statutory rights of detained persons to consult a lawyer privately that are under consideration, and I do not consider that any such qualification fell to be implied. Had Parliament wished to qualify the right to privacy of legal consultation in detention by permitting covert surveillance in the interest, say, of combating terrorism or serious crime it would have had to state this expressly.
26. An area of doubt remains, however, in relation to the iniquity exception. The Prisons and Young Offenders Centres Rules expressly restrict the purpose of the private consultation permitted to legal proceedings or business. It is at least arguable that the other statutory rights under consideration should be interpreted so as to confer a right to private consultation only where the consultation is for legal purposes and not where the object of conferring with the lawyer is the furtherance of crime. The problem with such an interpretation is a practical one. How is it to be determined that the conference has such an ulterior motive without listening to it? There are statutory provisions for deferring the right to consult a lawyer in specified circumstances which would appear to envisage the possibility that the lawyer might collude with the detainee in defeating the interests of justice. These would seem to recognise the fact that the statutory right to private consultation carries with it a risk of such behaviour. For these reasons I would interpret the statutory right to consult a lawyer privately as one that confers on the detainee an absolute right to privacy that precludes covert surveillance in any circumstances.
The requirements of the Convention
27. The relevant Strasbourg jurisprudence covers interception of communications, covert surveillance and the right to private consultation with a lawyer. The cases demonstrate that there is no absolute prohibition on surveillance in any of these situations. Both article 6 and article 8 of the Convention may be engaged. So far as article 6 is concerned, surveillance on communications between lawyer and client will not necessarily interfere with the absolute right to a fair trial. So far as article 8 is concerned, the issue is whether interference can be justified under article 8(2).
28. Klass v Germany (1978) 2 EHRR 214 established the right of applicants to complain of secret surveillance, notwithstanding that the nature of such surveillance was such that they were unable to establish that they individually had been subjected to it. The case involved laws permitting interception of communications, but Mr Fordham QC for the Secretary of State accepted that the approach of the Court was of general application to covert surveillance. The Court accepted that, in order to counter threats of espionage and terrorism, it was necessary to accept powers of secret surveillance. There had, however, to be adequate guarantees safeguarding individual rights which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure - para 55. In Malone at para 67 the Court made the following observation in relation to the requirement of foreseeability implicit in the phrase according to law in article 8(2):
Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.
29. In para 68 the Court observed that where a legal discretion was conferred on the executive the law had to indicate the scope of the discretion and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.
30. In Weber and Saravia v Germany (Application no 54934/00, Admissibility Decision 29 June 2006), para 95 the Court summarised the case law on the minimum safeguards that should be set out in statute law in order to avoid abuses of power involving interception of communications:
The nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed.
31. The Strasbourg Court has, on a number of occasions, emphasised the importance that attaches to confidentiality between lawyer and client. In two cases on telephone tapping brought against France, Huvig v France (1990) 12 EHRR 528 and Kruslin v France (1990) 12 EHRR 547 the Court recognised the importance of the principle that telephone tapping had to be carried out in such a way that the exercise of the rights of the defence could not be jeopardised, and that the confidentiality of the relations between the suspect or the person accused and his lawyer had to be respected, as did the lawyers duty of professional confidentiality. The importance of protecting this professional confidentiality was emphasised by the Court in Kopp v Switzerland (1998) 27 EHRR 91.
32. In another line of cases the Strasbourg Court has emphasised, in the context of article 6 of the Convention, the importance of an accused being able to confer with his advocate in private. In S v Switzerland (1991) 14 EHRR 670 the Court stated at para 48:
The Court considers that an accuseds right to communicate with his advocate out of the hearing of a third person is part of the basic requirements of a fair trail in a democratic society and follows from Article 6 (3) (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective.
33. In the light of this background, I turn to the issues raised by this appeal. First I shall consider whether the Act impacted on LPP at common law. Lord Carswell has drawn attention to the relevant provisions of the Act. They make no reference to LPP. The Code makes detailed provision, however, in relation to LPP on the premise that surveillance of communications covered by LPP can be authorised so as to be lawful for all purposes under section 27 of the Act. The issue is whether that premise is correct.
34. RIPA was, as its name indicated, designed to regulate the use of investigatory powers. These included interception of communications and covert surveillance. The Act needed to satisfy the requirements of the Convention, which were about to become part of our domestic law under the Human Rights Act 1998. Had LPP conferred at common law an unqualified right to privacy of lawyer/client communications so that surveillance of such communications was unlawful and the product of unlawful surveillance inadmissible in legal proceedings, articles 6 and 8 of the Convention would have been satisfied. There would have been nothing in this respect that required regulation by RIPA. In such circumstances there would have been strong grounds for contending that RIPA should not be construed as implicitly authorising a diminution of LPP. That was not, however, the position.
35. As I have explained, the Police Act 1997 implicitly recognised that surveillance which disclosed communications protected by LPP was not contrary to domestic law. The Strasbourg jurisprudence demonstrated, however, the importance of the professional confidence between lawyer and client and the need for the law to regulate any interference with this in a manner that complied with article 8(2). It was essential that RIPA should do this. It is reasonable to conclude that Parliament intended that this matter should be dealt with in the Code. For this reason I have concluded that regulation of the way in which surveillance interacts with LPP fell within the ambit of RIPA and could properly be addressed by the Code. Thus far I am in agreement with the conclusions reached by all members of the Committee. This is not the case, however, in respect of the next question to which I turn.
36. That question is whether RIPA impacted on the express statutory rights given to a person detained to consult a lawyer privately. Very different considerations apply to this question. This was one area where English law had fully addressed the requirements of article 8 and also the requirements of article 6. The statutory right of a detainee to consult a lawyer privately was an important one. Just how important it was in the eyes of the courts is evident from the reaction of the Court of Appeal in R v Grant  QB 60. Listening devices placed in the exercise yard resulted in the recording of conversations between Grant and his lawyers. The court held that this called for a stay of the proceedings on the ground of abuse of process even without proof of any prejudice to the defendant.
37. I have drawn attention to the importance that the Strasbourg Court has attached to the right of a client to consult a lawyer in private.
38. RIPA draws a distinction between directed surveillance and intrusive surveillance. Lord Carswell has outlined the differences between the two. As he points out, intrusive surveillance is governed by a regime that imposes stricter controls and requires a higher level of authorisation. If Parliament had intended RIPA to override the express statutory rights of those in custody to consult lawyers in private I find it hard to conceive that the surveillance in question would not have been placed within the category of intrusive surveillance.
39. The appellants have understandably invoked the principle of legality in urging that RIPA did not detract from their statutory rights to consult lawyers privately. Lord Carswell has cited the well known statement of this principle by Lord Hoffmann in R v Secretary of State for the Home Department, Ex Simms  2 AC 115. Even more pertinent, having regard to its context, was the following statement of that principle made by Lord Hoffmann in Morgan Grenfell at para 8, to which Lord Carswell has already referred:
The courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication.
40. The application of that principle leads to the conclusion that RIPA should only be interpreted as qualifying the statutory rights of detainees to consult their lawyers privately if such an interpretation must necessarily be implied from the terms of the Act. There is no necessity for such an interpretation.
41. There is no difficulty in reading the general provisions of RIPA, and in particular section 27, as subject to the express statutory rights of private consultation with a lawyer of those in custody. For the reasons that I have given I have concluded that this is the correct approach. Contrary to the majority view, I consider that this is a case for the application of the maxim generalia specialibus non derogant. While RIPA enables authorisation of surveillance of communications to which LPP attaches at common law it does not, in my view, enable authorisation of invasion by covert surveillance of the express rights given by statute to a detainee to consult a lawyer privately. 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. It seems likely that the Strasbourg Court would expect such persons to have judicial status.
42. For these reasons I would answer the first question certified by the Divisional Court as follows:
Question 1(i): yes.
Question 1(ii): no'.
43. M relied, not on any statutory right, but on an analogy with the common law right to LPP. Accordingly I would answer the second question certified by the Divisional Court yes.
44. The third question certified was answered affirmatively by the Divisional Court in the appellants favour, and there is no appeal against that decision. The majority of the Divisional Court held that the provisions made by the Code for authorisation of the surveillance in issue were inadequate. Miss Quinlivan, who appeared for M, sought to persuade the House to carry out a general audit in respect of other alleged shortcomings of the Code. I do not consider that that would be appropriate. It may, however, be helpful to draw attention to one problem that the Code does not appear to meet.
45. The rationale for LPP is not that it is in the interests of justice in the individual case that what has passed between a lawyer and his client should not be made public and, where appropriate, admitted in evidence. Often it would be in the interests of justice in the individual case that this should occur - see, for instance, the facts of R v Derby Magistrates Court, Ex p B  AC 487. The rationale for LPP is that it is necessary if clients are not to be inhibited from being frank with their lawyers. As Lord Hoffmann pointed out in Morgan Grenfell, the concern that may inhibit frank communication by a client to his lawyer is not so much that the matter communicated may be disclosed but that the matter may then be used to the detriment of the client. If regulations are to be made that authorise surveillance that may disclose communications which are subject to LPP, those regulations must address not merely the circumstances in which such surveillance is to be authorised, and by whom, but also the use that may be made of such communications if disclosed.
46. To a degree the Code attempts to do this, but it does so in a manner that lacks coherence. Thus, paragraph 1.8 provides:
Material obtained through covert surveillance may be used as evidence in criminal proceedings. The proper authorisation of surveillance should ensure the admissibility of such evidence under the common law, section 78 of the Police and Criminal Evidence Act 1984 and the Human Rights Act 1998.
47. Paragraph 3.5 provides:
Legally privileged information obtained by surveillance is extremely unlikely to be admissible as evidence in criminal proceedings
48. Paragraph 3.9 provides:
The retention of legally privileged information, or its dissemination to an outside body, should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings related to the information".
49. The draughtsman of the Code appears to have proceeded on the premise that:
(i) It is undesirable that communications subject to LPP which are disclosed in consequence of authorised surveillance should be used in criminal or civil proceedings;
(ii) Such communications would not be admissible in criminal proceedings;
(iii) Knowledge of such communications could prejudice criminal or civil proceedings.
50. None of these premises is axiomatic. I would expect the Strasbourg Court to require English law to state clearly what use, if any, is permitted to be made of material covered by LPP that is disclosed by surveillance.
51. The majority have held that RIPA permits the Code to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. The Code does not at present do so in a manner that is compliant with the Convention. I would make this observation. Covert surveillance is of no value if those subject to it suspect that it may be taking place. If it is to take place in respect of consultations between solicitors and their clients in prison or the police station, it will be of no value unless this is such a rare occurrence that its possibility will not inhibit the frankness with which those in custody speak with their lawyers. It would seem desirable, if not essential, that the provisions of the Code should be such as to reassure those in custody that, save in exceptional circumstances, their consultations with their lawyers will take place in private. The chilling factor that LLP is intended to prevent will not then occur.
52. On 30 November 2007 the Divisional Court held that monitoring of legal consultations in police stations or prison cannot lawfully be authorised under the Code in its present form. The reaction of the Secretary of State to that finding was made clear by Mr Fordham in his written case on her behalf. This was that, contrary to the decision of the Divisional Court, the Code covered consultations between legal advisers and their clients. I quote from paragraph 7(4)(5) that case:
(4) The safeguards contained within RIPA and the Code are sufficient to ensure, in the case of directed surveillance in both of the relevant factual scenarios, the requisite quality of law to satisfy the Art. 8 requirement in accordance with the law".
(5) The Secretary of State nevertheless recognises the sensitivities that surround the possible use of directed surveillance in the two factual contexts at issue, and has carefully considered the Divisional Courts concern regarding the adequacy of the safeguards that would apply at the point when any such directed surveillance was authorised. The Secretary of State would wish to make clear at the outset that, as a matter of policy, she considers it desirable to take the steps necessary to remedy the concern identified by the Divisional Court. In effect, directed surveillance of legal consultations in detention would fall to be assimilated to intrusive surveillance for the purpose of prior authorisation. That could readily and properly be achieved by an order under RIPA s. 47(1)(b) characterising as intrusive", surveillance in locations where it is known that consultations are taking place between detainees and their legal advisers.
53. This stance was not satisfactory. The Divisional Court did not express concern. It made a finding of law against the Secretary of State. She chose not to appeal against that finding. In those circumstances it was not open to her to consider as a matter of policy whether to take the steps necessary to remedy the concern identified by the Divisional Court". The position was simply that unless and until she took the appropriate steps she could not lawfully continue to carry out surveillance on legal consultations in prisons or police stations.
54. There is no reason to depart from the affirmative answer given by the Divisional Court to the third question certified.
LORD HOPE OF CRAIGHEAD
55. I have had the advantage of reading in draft the opinion of my noble and learned friends Baroness Hale of Richmond and Lord Carswell. I agree with them, and for the reasons they give I would answer the certified questions in the way Lord Carswell proposes and dismiss the appeals. I wish to add only a few brief comments.
56. The central question is whether, in enacting the Regulation of Investigatory Powers Act 2000 (RIPA), Parliament intended to override or qualify a detainees right to a private consultation with a solicitor (a) at common law under legal professional privilege and (b) under statute. The right of a person who is detained in a police station in England, Wales or Northern Ireland to a private consultation with a solicitor under para 7(1) of Schedule 8 to the Terrorism Act 2000 Act, unless a direction is given under para 9 that this is to be in the sight and hearing of a qualified officer, is matched in Scotland by an equivalent provision in para 16(8) of that Schedule which also declares that the consultation with the solicitor shall be private unless a direction is given under para 17 that it is to take place in the presence of a uniformed officer: see also section 17(2) of the Criminal Procedure (Scotland) Act 1995 which matches section 58 of the Police and Criminal Evidence Act 1984 and its Northern Irish analogue. Furthermore, although section 46 of RIPA imposes some restrictions on authorisations extending to Scotland which have been granted or renewed under the United Kingdom legislation, legislation corresponding to RIPA to enable surveillance operations to be conducted in Scotland was enacted in the same year by the Scottish Parliament: the Regulation of Investigatory Powers (Scotland) Act 2000, asp 11.
57. The Scottish legislation shares with RIPA the absence of any express provision indicating that it was the intention of the legislature to detract in any way from the detainees common law or statutory right to a consultation with a solicitor that is private. Like section 27(1) of RIPA, however, it provides in section 5(1) that the conduct to which the Act applies shall be lawful for all purposes", and the systems which it provides for the authorisation of surveillance are the same as those in Part II of RIPA. A further cross-border element is to be found in section 76 of RIPA which enables an activity that commences in Scotland under an authorisation that has been obtained under the Scottish legislation to continue outside Scotland under the original authorisation for up to three weeks from the time the activity commenced outside Scotland. The problem which has been raised by this case is one which applies throughout the United Kingdom.
58. Mr Macdonald QC for the appellants A and C accepted that covert surveillance was a valuable tool for the gathering of intelligence. But he submitted that it was a threat to justice too. The exercise by a detainee of his right to a private consultation with a solicitor is inhibited if he does not know, and cannot insist on being told, whether or not his consultation is subject to surveillance. A full and frank disclosure of all he knows is essential if the solicitor is to give proper instructions. It is not just that his defence may be undermined if the conversation is overheard. What he knows may implicate others whose activities have not yet been detected or reveal their identities and whereabouts. Girvan LJ made the same point in para 23 of his opinion in the Divisional Court  NIQB 101, when he said that unquestionably the apparent privacy of a consultation intended to be truly private is undermined by covert surveillance. It frustrates its privacy just as much as the presence of police officers sitting within earshot of the consultation. The detainee can object if he sees that police officers are sitting within earshot. The provisions of section 58(1) of PACE and para 7 of Schedule 8 to the Terrorism Act 2000 that the consultation shall be in private gives him the right to do this. But he has no right to object to covert surveillance that has been authorised under RIPA. Nor, since this would be inconsistent with the covert nature of the conduct where it has been authorised, has he a right to be told whether or not it is being undertaken in his case.
59. The common law does not shut its eyes to the possibility that the communications between the detainee and the solicitor may be fraudulent or criminal. Solicitors are of course expected to, and with rare exceptions do, act with complete propriety. But it would be an abuse of the common law privilege for them to act as instruments or accomplices in the furtherance of the detainees criminal activity - for example, receiving information from the detainee with the intention of warning others whose criminal activities remain undetected by the police. In R v Central Criminal Court , Ex p Francis & Francis  AC 346, 394 Lord Goff of Chieveley said:
[It] is well established in the Scots law of confidentiality of communications, as in the English law of legal privilege, that the protection does not apply where the transaction as to which the communication passed is fraudulent or criminal, whether the solicitor in possession of the documents is an innocent instrument or an accomplice: see Dickson on the Law of Evidence in Scotland (1887 ed), para 1678, and the Encyclopaedia of the Laws of Scotland, vol 4 (1927), pp 350-351, para 795, and cases there cited. Thus it is stated in Dickson (a work of authority) that:
One who consults a legal adviser, with a view to committing a fraud or other crime, makes him either an innocent instrument of his guilt or an accomplice. In neither case will so important a part of the history of the crime be excluded on account of confidentiality; for the ground of policy on which the privilege is founded in ordinary cases must give way, where preserving it would prevent crime from being detected.
Those observations were made in the context of a case where an order was sought for the production of the solicitors files, which the solicitors claimed were subject to legal privilege. But in my opinion they apply generally. To the same effect is Stephen Js comment that the reason on which the common law rule rests cannot include the case of communications, criminal in themselves, or intended to further a criminal purpose: R v Cox and Railton (1884) 14 QBD 153, 167. That all having been said, however, the circumstances in which authorisation may be given for covert surveillance are not confined to situations where the common law privilege is actually being abused in this way. The assumption must be that there will be cases where the detainee is entitled to expect that his conversations will be privileged at common law. The question is whether covert surveillance which has been duly authorised under RIPA is nevertheless lawful.