[Reader-list] Lawyer-client privilege can't stop surveillance, says House of Lords

[Taha Mehmood]

http://www.out-law.com/page-9897

Lawyer-client privilege can't stop surveillance, says House of Lords

OUT-LAW News, 23/03/2009

The state is allowed to bug communication between lawyers and their
clients, the House of Lords has said. The UK's highest court ruled
that spy law the Regulation of Investigatory Powers Act (RIPA) allows
lawyers' conversations to be bugged.

Lawyers are allowed to withhold the details of communication with
their clients from the police, prosecutors or courts. This
long-established right is designed to allow a client to receive full
and proper legal advice. Under legal professional privilege they can
tell their lawyer the full facts of a situation without fear of the
communications ending up as evidence against them.

RIPA is the law which governs secret surveillance, outlining what the
state can and cannot do to obtain information.

Solicitor Manmohan Sandhu was charged at Antrim Magistrates' Court
with incitement to murder and intending to pervert the course of
justice. The evidence against Sandhu consisted of recordings of
conversations he had with clients in a room in Antrim police station.

Sandhu claimed that it was against the law for police to record his
discussions with his clients because of legal professional privilege.
A Divisional Court backed his claim, but the case was appealed to the
House of Lords.

Lord Carswell in the House of Lords said that RIPA does allow for the
surveillance of privileged communications.

"In its natural and ordinary sense [RIPA] is capable of applying to
privileged consultations and there is nothing in its wording which
would operate to exclude them," he wrote in his ruling. "It seems to
me unlikely that the possibility of RIPA applying to privileged
consultations could have passed unnoticed [in Parliament]. On the
contrary, it is an obvious application of the Act, yet no provision
was put in to exclude them."

Lord Carswell said that legal professional privilege cannot be
absolute, that it has to have exceptions. "If it were not possible to
exercise covert surveillance of legal consultations where it is
suspected on sufficiently strong grounds that the privilege was being
abused, the law would confer an unjustified immunity on dishonest
lawyers," he wrote.

"There may be other situations where it would be lawful to monitor
privileged consultations, for example, if it is necessary to obtain
information of an impending terrorist attack or to prevent the
threatened killing of a child," said Lord Carswell. "The limits of
such possible exceptions have not been defined and I shall not attempt
to do so, but they could not exist if the rule against surveillance of
privileged consultations were absolute."

Lord Carswell also said that the Code explaining RIPA suggests that
the law does cover privileged communication.

"The Code makes detailed provision for obtaining authorisation for
monitoring consultations covered by legal professional privilege," he
said. "It was laid before and approved by Parliament, but no point
appears to have been taken that RIPA did not cover such consultations.
It would be surprising at least that no objection was made to the
inclusion of those provisions in the Code if it was thought that
Parliament had not intended that the consultations be covered by
RIPA."

"Parliament intended that the covert surveillance provisions of RIPA
should extend to the type of lawyer/client and doctor/patient
consultations which are ordinarily protected by legal professional
privilege," he said.

Because of the Divisional Court's initial finding that RIPA could not
justify such surveillance, though, two of the Lords expressed concern
that the Government had carried on regardless.

Lord Phillips of Worth Matravers said that the court "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".

Lord Neuberger of Abbostbury also said that he was concerned at the
apparently illegal survillance.

"Having decided not to appeal the Divisional Court's decision that
surveillance of privileged and private consultations under the present
regime is unlawful, the Secretary of State should have ensured that
such surveillance did not take place or she should have promptly
changed the regime so as to comply with the Divisional Court's
decision," he said. "Unless no surveillance of privileged and private
consultations has been going on for the past year in the United
Kingdom (which appears most unlikely), this strongly suggests that the
Government has been knowingly sanctioning illegal surveillance for
more than a year. If that is indeed so, to describe such a state of
affairs as "regrettable" strikes me as an understatement."