Judgments - In re McE (Appellant) (Northern Ireland) In re M (Appellant) (Northern Ireland) In re C (AP) and another (AP) (Appellants) (Northern Ireland)

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60.  The Secretary of State now accepts that directed surveillance of legal consultations in detention should be treated as intrusive surveillance for the purposes of prior authorisation under Part II of RIPA. Section 32 provides that an authorisation for intrusive surveillance may only be granted if the Secretary of State or the senior authorising officer believes that it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime or in the interests of the economic well-being of the United Kingdom. These concepts, which are similar to those on which the interference with the right to privacy guaranteed by article 8(1) of the European Convention on Human Rights may be justified under article 8(2), go beyond those which provide an exception to legal privilege which the common law would recognise. But section 27(1) provides that conduct to which Part II of the Act applies shall be lawful for all purposes if it is authorised under that Part and the conduct is in accordance with the authorisation.

61.  Section 27(1) is expressed in clear and simple language, and it must be taken to mean what it says. It does not refer to legal privilege or to any other kind of right or privilege or special relationship which would otherwise be infringed by the conduct that it refers to. But the generality of the phrase “for all purposes” is unqualified. The whole point of the system of authorisation that the statute lays down is to interfere with fundamental rights and to render this invasion of a person’s private life lawful. To achieve this result it must able to meet any objections that may be raised on the ground of privilege. I would hold therefore that, provided the conditions in section 27(1) which render it lawful for all purposes are satisfied, intrusive surveillance of a detainee’s consultation with his solicitor cannot be said to be unlawful because it interferes with common law legal privilege. It seems to me that the phrase “for all purposes” which section 27(1) uses is a clear indication that this was Parliament’s intention.

62.  It cannot be said that Parliament was unaware of the importance of preserving the protection of privilege in other circumstances arising from the provisions of RIPA: see sections 19(6) to (8) and 54 (6) to (8), which provide that it is a defence for a person who discloses information that he ought to have kept secret if it was made to or by a professional legal adviser, so long as this was not for the furtherance of a purpose which was criminal. During the debate at Third Reading on 19 July 2000 the Minister, Lord Bach, said that the House had enjoyed several short debates on Report on the protection due to legally privileged material: Hansard, HL debates, col 1046. None of those debates referred to the provisions of Part II of the Act, which deals with surveillance and covert human intelligence sources. But, as Mr Fordham QC for the Secretary of State pointed out, Parliament was clearly mindful throughout of core rights and interests and of the requirements of the European Convention on Human Rights against the background of which the statute was to be enacted. Neither article 6 nor article 8 imposes an absolute prohibition on covert surveillance of legal consultations, provided it is authorised by law and is proportionate. It was to address these requirements that Part II of RIPA has been enacted, and it does this in great detail. Of course, fundamental rights cannot be overridden by words that are general or ambiguous. Where words of that kind are used their implication may have passed unnoticed in the democratic process, as Lord Hoffmann famously said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, p 131. In my opinion that cannot be said to have been so in the case of RIPA. Far from being general and ambiguous, the very essence of its provisions was to enable fundamental privacy rights to be overridden to an extent that was no more than necessary under precise conditions that were sufficiently strict and carefully regulated.

63.  The more difficult question, perhaps, is whether the effect of RIPA, and of section 27(1) in particular, is to override the detainee’s right to a private consultation under the statutes. Mr Macdonald said that RIPA lacked any manifest intention to do this. It is true that none of its provisions refer to the statutes or any of them. It could have made the position clear by amending them, for example by introducing a further qualification to the right to a consultation that is private to that which is already provided by paras 8 and 9 of Schedule 8 to the Terrorism Act 2000 and, for Scotland, by para 17, and by qualifying the provisions of section 58 of PACE and section 17(2) of the 1995 Act in Scotland. It did not do this. Does the maxim generalia specialibus non derogant which the appellants invoke apply, with the consequence that these pre-existing statutory rights must be taken to remain unqualified? The appellants acknowledge that the Code of Practice on Covert Surveillance makes provision for dealing with information obtained that is subject to legal privilege. But the question whether the statutory rights remain unqualified must depend, they say, on the provisions of the Act itself, not the Code that was issued almost two years later under section 71 and, although laid before Parliament, was not scrutinised by it.

64.  As Lord Donovan pointed out in the Privy Council in Woodend (K V Ceylon) Rubber and Tea Co Ltd v Inland Revenue Comr [1971] AC 321, 333, the maxim is more easy to state than it is, on occasions, to apply: in almost all cases the later statute will contain general words inconsistent with the words of the special statute, otherwise there would be no conflict. In the end the question is what Parliament intended, as he said at p 334. In Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538, 553-554, Lord Wilberforce too acknowledged for the Board that cases are seldom as simple as the maxim suggests, and that whether the earlier statute which deals with a particular and more limited subject matter which is included within the general subject matter with which the subsequent statute is concerned has been left intact or is superseded is one of legislative intention which the courts endeavour to extract from all available indications. So I do not think that the problem can be solved simply by deciding whether the right to privacy under the earlier statutes is the general right, as the Secretary of State submits, or - as I am inclined to think - the generality is to be found in RIPA.

65.  For an example of the kind of legislative technique that the appellants suggest should have been adopted, reference may be made to para 5(6) of Schedule 15 to the Terrorism Act 2000, which substitutes for subsections (12) to (18) of section 58 of PACE (access to legal advice) a provision that states that nothing in that section applies to a person arrested or detained under the terrorism provisions. But the very fact that RIPA was intended to be so general in its application did not lend itself to this technique. Nor was it the intention to alter the basic rule that consultations that are private in terms of the statute must take place in private. The choice lay between attempting to deal specifically with every right to privacy that previous legislation had provided for and listing all the other the circumstances with which RIPA’s provisions might come into conflict, or resting on the declaration in section 27(1) that conduct of the kind that it refers to shall be lawful for all purposes. This was a matter for Parliament. It was inevitable that covert surveillance of the kind that RIPA was intended to provide for would intrude on conversations that were intended to be private. Privacy under a right given by statute is no exception. To conclude that consultations that were being conducted in private under a statutory right are immune from covert surveillance under RIPA would be wholly at variance with the obvious intention that RIPA should be general in its application, subject to the strict conditions that it lays down.

66.  The answer to the question must depend on the Parliamentary intention that is to be derived from the terms of the statute, and I do not think that it is capable of further elaboration. I would hold that, as in the case of conversations that are ordinarily protected by legal professional privilege, conversations between a detainee and his solicitor that are taking place in private in the exercise of a statutory right may be subjected to intrusive surveillance that has been duly authorised under section 32 of RIPA so long as it is conducted strictly in accordance with the conditions which the authorisation lays down. In all other respects the statutory right to privacy must be respected. Your Lordships have not been asked to decide in this case whether information disclosed in private by the detainee to the solicitor that has been obtained by the use of covert intelligence may be used against the detainee in evidence at his trial. All that needs to be said about this is that basic rules of fairness strongly indicate the contrary

BARONESS HALE OF RICHMOND

My Lords,

67.  I agree, for the reasons given by my noble and learned friends Lord Hope of Craighead and Lord Carswell, that RIPA does permit the covert surveillance of communications between lawyers and their clients, even though these may be covered by legal professional privilege and notwithstanding the various statutory rights of people in custody to consult privately with their lawyers. This is an unpalatable conclusion, but one to which I am driven both by the plain words of the Act and by the history of legislation on this subject.

68.  In a nutshell, section 27(1) of RIPA states that covert surveillance which is carried out in accordance with the Act “shall be lawful for all purposes". The statutory history, as explained by my noble and learned friend Lord Phillips of Worth Matravers, makes plain the “mischief” at which this was aimed. The story goes back to the decision of Sir Robert Megarry VC in Malone v Commissioner of Police of the Metropolis [1979] Ch 344. Mr Malone could not complain that the police had tapped his telephone because no private right, whether of privacy or property, was infringed. At that stage, of course, the European Convention on Human Rights conferred no rights in the domestic law of the United Kingdom. Mr Malone took his case to the European Court of Human Rights which held that the legal basis for authorising such interference with his right to respect for his private life was not sufficiently clear and predictable to fulfil the Convention requirement of legality. It was not “in accordance with the law” and thus could not be justified under article 8(2) of the Convention: see Malone v United Kingdom (1984) 7 EHRR 14. Parliament therefore enacted the Interception of Communications Act 1985, to put the authorisation of telephone tapping on a statutory basis.

69.  Attention then turned to official “bugging” of private conversations. Unless done by or with the consent of the occupier of the premises involved, this would involve a trespass, which was an interference with private rights in domestic law, as well as an unregulated interference with the Convention right to privacy: see Khan v United Kingdom (2000) 31 EHRR 1016. Hence Part III of the Police Act 1997 provided a regime for authorising such acts and section 92 provided that “No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised by an authorisation having effect under this Part.” The scheme expressly contemplated that authorised bugging might result in the obtaining of privileged or other confidential information and provided extra safeguards where this was likely.

70.  Other kinds of covert surveillance, including bugging police stations with police consent, did not involve any infringement of private rights under domestic law and remained unregulated until RIPA was passed in 2000. But the Human Rights Act had been passed in 1998, turning the rights protected under the European Convention into rights protected in UK domestic law. It was due to come into force in October 2000. Legislation was clearly required to authorise and regulate all forms of official “snooping” which might otherwise fall foul of the Convention rights, in particular the right to respect for private life and correspondence which is protected by article 8. I accept the submission of Mr Fordham QC, for the Secretaries of State, that Part II of RIPA has to be seen alongside Part III of the 1997 Act. The scheme is intended to be comprehensive. Both Acts contemplate that privileged or confidential information may be obtained as a result. Both must be taken to qualify, though not to override, the statutory rights of private consultation with a lawyer. Section 27(1) is intended to mean that the covert surveillance which is authorised under the scheme is “in accordance with the law” for the purpose of the Convention principle of legality. What may be done with the information thus obtained is a separate question.

71.  It does not follow, however, that because an act of covert surveillance is “lawful” it can never result in a contravention of the Convention rights. The case of M, which is not an all fours with the others before us, supplies an example. M was arrested on 30 May 2006 under the Terrorism Act 2000 and taken to Antrim police station for interview. His father and solicitor were both there. The father believed that his son was suffering from mental health problems, had been behaving erratically over the past few days, and might not be fit for interview. A consultation with an independent psychiatrist was arranged, with a view to assessing whether M was fit for interview and any risks to his well being from further detention or interview. The psychiatrist was only willing to perform the examination if he could be assured that there would be no electronic surveillance. This assurance was refused. An application for leave to apply for judicial review was heard in the evening of 31 May 2006 in the course of which M was released without charge.

72.  Interviews with medical advisers are not covered by legal professional privilege in quite the same way as are interviews with legal advisers, nor do the statutory rights of detainees to private consultation with their lawyers apply. But they have been treated as being in pari materia with legal consultation. This is partly because they will usually be covered by litigation privilege, and so raise the same legality issue, and partly because they are undoubtedly an aspect of the right to respect for private life, and thus raise the same article 8 issues. But this case also raises a discrete issue under article 6.

73.  An important purpose of a medical examination in these circumstances is to ascertain whether the detainee is a vulnerable person for the purpose of the Codes of Practice governing police questioning. Experience has shown that people with mental health problems require extra protection, because they may be more susceptible to suggestion or to pressure which would not be oppression of a person in normal mental health, and their answers may therefore be unreliable. As the current English Code under PACE explains, “although people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wanting to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s mental state or capacity” (2008, Code C, Annex E, para E2).

74.  If a mentally disordered person were interviewed without the extra protection which the Code requires, it is possible, even likely, that any incriminating evidence obtained would be excluded at trial. But this would depend upon the evidence available as to his mental state at the time. The possibility certainly cannot be excluded that there would be a breach of his right to a fair trial, including the presumption of innocence, which is guaranteed by article 6 of the Convention. The fact that any surveillance would have been lawful under RIPA does not mean that there could be no breach of article 6 as a result.

75.  However, the question does not arise in this case, as M was released without charge, let alone trial. I agree entirely with the observations of Lord Carswell on the granting of leave in this case; but I agree also with the observations of Lord Phillips about the failure of the Secretary of State to take steps to classify such surveillance as “intrusive". The aim of the Act was clearly to ensure that authorisations were only given in circumstances where the surveillance would be both necessary and proportionate to one of the legitimate aims permitted by article 8(2). The Divisional Court held that the directed surveillance regime was not sufficient for this purpose and there has been no appeal against that finding.

LORD CARSWELL

My Lords,

76.  These appeals came before the House in a very unusual fashion. The appellants each sought in applications for judicial review declarations that the covert directed surveillance of consultations with solicitors and a medical adviser respectively in a police station or in prison would be unlawful. The Divisional Court (Kerr LCJ, Campbell and Girvan LJJ) held that that would be unlawful, though not for all the reasons advanced by the appellants, who sought declarations that such surveillance of interviews protected by professional privilege could not be carried out at all under the provisions of the Regulation of Investigatory Powers Act 2000 (“RIPA”). Notwithstanding the fact that they had succeeded in their object of establishing that covert directed surveillance of the consultations which they had wished to have with their advisers would be unlawful, the appellants applied for leave to appeal to your Lordships’ House.

77.  The Divisional Court certified several questions and gave leave to appeal, citing in support the decision in Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749, [2007] 1 WLR 3033. The members of the Appellate Committee entertained doubts about jurisdiction and the usefulness of the appeal, but since leave had been given, and bearing in mind the public importance of the issue, they decided to proceed with the hearing and to decide the issue of the wider declarations sought. I would myself wish, however, to reserve my opinion on whether a successful party in the court below can properly appeal against a “decision” of that court in a criminal matter and, if so, in what circumstances. I would strongly recommend that courts faced with a similar application for leave to appeal should, if they consider it right to certify that points of law of general importance arose, refuse leave, so that the Appeal Committee of the House can consider it on petition. The Committee will then be in a position to take full account of the importance of the issues, other possible appeals or applications in the same sphere and whether the petitioners retain any interest in the legal sense in pursuing the relief sought. The last-mentioned point is relevant in the present case, because McE pleaded guilty to a number of charges before the judicial review proceedings were commenced, C and A pleaded guilty to explosives offences very soon after leave to appeal to the House of Lords was given, and M was released from police custody before the application for judicial review was decided.

78.  The appellants C and A were arrested under section 41 of the Terrorism Act 2000 on 19 April 2006 and taken to Antrim Police Station, where each nominated a solicitor to represent him. The solicitors when they attended each asked for an assurance that the consultations with their clients would not be monitored. The police, in accordance with their regular practice, would neither confirm nor deny that any monitoring would take place and declined to give the assurances sought.

79.  M was also arrested under section 41 and taken to Antrim Police Station. Because of concerns which had been expressed about his medical condition, arrangements were made for him to be medically examined in order to ascertain his fitness for police interview. A consultant psychiatrist was asked by M’s solicitor to examine him for this purpose and agreed to do so. He asked the solicitor to obtain a similar assurance that no covert surveillance of his consultation would take place, and again the police declined to give such an assurance. The psychiatrist refused to proceed with the consultation without the assurance and M was in the event examined by a medical officer retained by the police, who on two occasions found him fit for interview. It was not in dispute that once the Prison Service had agreed to allow an examination by the psychiatrist engaged on behalf of M, the same issues relating to the discussion of confidential information between M and the psychiatrist might arise as in legal consultations. It was accordingly agreed by the parties that his case could be regarded as being in pari materia with those concerned with legal professional privilege.

80.  When the appellant McE was on remand in HM Prison, Maghaberry, he attempted to ascertain from the prison authorities whether his legal and other visits were the subject of covert surveillance. The Prison Service replied that as a matter of policy it was not prepared to inform him or any other prisoner about any such surveillance. He complained to the Prisoner Ombudsman, to whom the Prison Service would neither confirm nor deny that covert surveillance had taken place. The Ombudsman concluded in his report that the Prison Service was acting within the law and that it had in place the safeguards required in both the legislation and the associated Code of Practice.

81.  Before the enactment of RIPA, both the common law and some statutory provisions recognised the importance of legal professional privilege (to which I shall refer for convenience simply as “privilege”) and the confidentiality of all that is said in consultations between lawyers and their clients. The right of a person detained to private consultation with a lawyer was recognised in the Judges’ Rules and is now enshrined in section 58 of the Police and Criminal Evidence Act 1984 (and its analogue article 59 of the Police and Criminal Evidence (Northern Ireland) Order 1989), in Schedule 8 to the Terrorism Act 2000 and in rule 71 of the Prison and Young Offenders Centres Rules (Northern Ireland) 1995. Lord Taylor of Gosforth CJ summarised the principle in R v Derby Magistrates’ Court, ex parte B [1996] AC 487, 507:

“The principle which runs through all these cases, and the many other cases which were cited, is 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.”

Neither Lord Taylor nor Lord Nicholls of Birkenhead, who also discussed the principle, considered that any exceptions could be entertained, so long as the privilege lasted. Lord Hoffmann described it in similar terms in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563, 606-607, at para 7.

82.  It is to be noted that these and other authorities dealing with privilege were all concerned with the use of evidence consisting of what was said between legal advisers and clients. The rule preventing that remains absolute, even if that evidence would exculpate another person accused of a criminal offence (the position in R v Derby Magistrates’ Court, ex parte B). The only exceptions, which may not be true exceptions, are when the privilege is spent (per Lord Nicholls in Ex parte B at pages 512-513) or when the communication has been made to a solicitor by his client for the purpose of being guided or helped in the commission of a crime (R v Cox and Railton (1884) 14 QBD 153), since the privilege does not attach at all to communications made for such a purpose. As Schiemann LJ expressed it in Barclays Bank plc v Eustice [1995] 1 WLR 1238, 1249, “advice sought or given for the purpose of effecting iniquity is not privileged.”

83.  None of these decisions concerned covert surveillance of legal consultations. Although the privilege is described in terms of a legal right, it is not clear from the decisions whether such surveillance is to be regarded as unlawful per se or whether the principle extends only to the protection of the product of legal consultations. I incline to the latter view, which appears to be consonant with the Strasbourg decisions, but I do not find it necessary to reach a definite decision on the point. The inviolability of the rule against the admission in evidence of privileged communications remains whichever way it might be decided.

84.  A number of decisions of the European Court of Human Rights deal with surveillance of consultations with legal advisers. It was made clear in S v Switzerland (1991) 14 EHRR 670 and Brennan v United Kingdom (2001) 34 EHRR 507 that supervision of legal consultations, which would have the effect of preventing the client from giving his lawyer instructions and receiving advice in confidence, entailed a violation of article 6(3)(c) of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) in conjunction with article 6(1): cf also Ocalan v Turkey (2003) 37 EHRR 383. In other words, it was the effect of the supervision, not the supervision in itself, which brought about the breach of Convention rights. It was accepted in Brennan (para 58) and Ocalan (para 146) that the right of access to a solicitor might be subject to restrictions for good cause, the ultimate question in each case being whether the restriction deprived the accused of a fair hearing.

 
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