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Covert Surveillance and Legal Professional Privilege: a view from the European Court of Human Rights

December 12, 2015

The case of Re: McE (Northern Ireland) [2009] UKHL 15 which led to the introduction of the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 and, in part, the revision of the Code of Practice on Covert Surveillance has been considered recently by the European Court of Human Rights in the case of RE v United Kingdom [2015] ECHR 947.

The facts giving rise to the domestic decisions were unusual.

A solicitor was arrested for and later charged with various offences arising out of his consultations with clients at a police station in Northern Ireland. The evidence in the case was derived from covert listening devices placed in the station interview room. Following this, solicitors attending police stations to advise clients, sought assurances from the police that their consultations would not be the subject of covert surveillance. The police refused and judicial review proceedings were issued seeking a declaration that the police were acting unlawfully. The High Court held that the Regulation of Investigatory Powers Act 2000 permitted the surveillance notwithstanding the statutory right for a lawyer to consult privately with a client. RIPA provided for two forms of authorised surveillance – intrusive surveillance and directed surveillance – of these, covert surveillance of legal consultations was being treated as directed surveillance. The court held that because of the fundamental nature of the right of a detained person to consult a legal adviser privately the safeguards applicable to authorisations for intrusive surveillance should apply. The House of Lords agreed and, following this, the 2010 Order was introduced.

The facts in RE were broadly similar to those in McE but occurred later. RE, who was a vulnerable detainee, had been interviewed a number of times by the police. On the last occasion, his solicitor sought assurances the consultation was not subject to covert surveillance. The police elected to neither confirm nor deny surveillance was being carried out. An application for judicial review was dismissed and permission to appeal refused. RE applied to the European Court of Human Rights.

The court in Strasbourg recited the legislative regime under RIPA and the Codes of Practice extensively. In relation to legal privilege, it is worth re-stating a number of key parts of the Code:

– The definition of legal consultation in the 2010 Order does not distinguish between consultations that are privileged in whole or in part. Those that may be in the furtherance of a criminal purpose are not protected by the privilege.

– The definition of legal privilege is found in s 98 of the Police Act 1997 (and s 10 of the Police and Criminal Evidence Act 1984)

– All applications for covert surveillance should expressly state whether it might result in the acquisition of material covered by the privilege and what the steps are to mitigate the risks of acquiring it (for the implications where this does not happen, see Chatwani, which I discuss here).

– Where it is likely or intended that the operation will acquire privileged material exceptional and compelling circumstances must exist before authorization is possible. These include a very restricted range of cases (such as threats to life and national security where it is likely to yield intelligence necessary to counter the threat)

– Material subject to legal privilege is not admissible evidence.

– Organisations carrying out surveillance where the acquisition of material subject to legal privilege is likely must have access to independent legal advice (not the CPS)

The Police Service of Northern Ireland has its own policy for dealing with the acquisition of privileged material. The European Court of Human Rights considered it was an important layer of protection in this area. It is a useful blueprint for other investigative organisations that may not yet have a similar policy.

The applicant argued that the quality of the law was deficient in this area and that the nature of the covert surveillance did not pass the test of necessity for the purposes of Article 8.2. It was argued that comparatively, the scheme in respect of interception of communications was a useful benchmark: if this was correct the current framework for covert surveillance was inadequate. The government’s position was, that even if the standards applicable to interceptions ought to be applied, which it resisted, the present regime still satisfied them.

It was not disputed that RIPA 2000 and the Code of Practice provided a legislative basis for the conduct of covert surveillance by the state. In Kennedy v United Kingdom [2010] ECHR 682 the court had examined in detail the Act and Code insofar as they related to the interception of communications and found no violation of the Convention.

On the question of whether covert surveillance of privileged consultations should be subject to a less strict regime, the European Court of Human Rights, held that the decisive factor was not the type of resource used but the level of interference. In cases of covert surveillance where privileged material is likely or intentionally to be acquired the level of interference was analogous with the interception of communications. Notwithstanding this, the court was of the view that the framework that existed under Part II of RIPA 2000 was sufficiently clear. However, the failure to have the policy in place during the period when the applicant was detained resulted in a breach of the Convention.

There was a secondary issue raised on the application relating to the covert surveillance of consultations between vulnerable detainees and appropriate adults. No special provision over and above that provided for in Part II of RIPA 2000 was required.

This is the latest decision on covert surveillance and the acquisition of legal professional privilege. The leading domestic decision remains R v Grant [2005] EWCA Crim 1089 (stay of indictment arising out of deliberate acquisition of privileged conversations at the police station) although the correctness of this has been questioned in Warren v Her Majesty’s Attorney General of the Bailiwick of Jersey [2011] UKPC 10. There remains a tension between the current decisions. However, whilst there is now the highest authority permitting, in principle, covert surveillance of legal consultations, to do so remains an enormous challenge operationally. Considerable caution needs to be exercised. Of particular interest is the question of retention and disclosure of privileged material for the purposes of any subsequent criminal proceedings (one of the difficulties arising in Grant). This may have irresolvable implications where surveillance has taken place in the belief that the consultation is in the furtherance of a criminal act but in fact on review is not.

There are a number of practical implications arising out of this judgment:

– The law has always recognized that covert surveillance may incidentally pick up material covered by privilege. There must be a proper assessment of the risk and evidence of reporting it to the Commissioner where it has been acquired.

– It is a mandatory requirement under the Code of Practice that public authorities have a policy and officers have access to legal advice (either an in-force resource or access to independent counsel). In RE v UK, the existence of the policy was an important safeguard.

– But see the cautionary case of R (on the application of S an others) v British Transport Police [2013] EWHC 2189 (Admin)

– Covert surveillance to deliberately acquire legal professional privileged material can only take place in limited circumstances – where there is a real and immediate threat to life or in cases involving national security and even then, only where it is reasonably believed it will counter the threat.

– The distinction is between the monitoring of privileged consultations, which is, in limited circumstances capable of being authorized and the use of the privileged material as evidence, which is not permissible.

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

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