Abuse of Process: Covert Surveillance and Legal Professional Privilege
| Date | 01 August 2006 |
| Published date | 01 August 2006 |
| DOI | 10.1350/jcla.70.4.282 |
| Author | Nick Taylor |
| Subject Matter | Court of Appeal |
Court of Appeal
Abuse of Process: Covert Surveillance and Legal
Professional Privilege
R vGrant [2005] EWCA Crim 1089
The defendant was charged with conspiring with others to murder his
wife’s lover, who had been shot dead after answering a knock at his
door. Before the trial began an application was made to stay the proceed-
ings as an abuse of the process of the court. At a voir dire the case put
forward by the defendant was that the police had deliberately eaves-
dropped upon and tape recorded privileged conversations between the
defendant and his solicitor which had taken place in the exercise yard of
the police station following the defendant’s arrest. The trial judge held
that there was no evidence that the defendant’s right to legal pro-
fessional privileged had been deliberately disregarded and, in any event,
since the interceptions had not given rise to evidence to be relied on by
the Crown at the trial the defendant had suffered no prejudice. He
therefore rejected that application. The defendant was convicted. He
appealed against conviction on the grounds, inter alia, that at two other
trials involving the same police force placing covert listening devices in
the police station exercise yard different trial judges had upheld similar
applications to stay the proceedings as an abuse of process.
H
ELD
,
ALLOWING THE APPEAL
, the Court of Appeal recognised that
this was one of three cases in which the Lincolnshire police placed covert
listening devices in the exercise yard of Sleaford police station. They did
so in the course of three major investigations between November 2000
and November 2001. The first in time was Operation Wheel (connected
with the criminal prosecution in the case of R vSutherland), then
Operation Mink (the present case) and finally Operation Galaxy (R v
Sentence). In each case privileged communications between the detained
suspects and their legal advisers were intercepted and recorded. In each
case there was an application to the trial judge to stay the proceedings as
abusive. In R vSutherland, Newman J at the Crown Court at Nottingham
acceded to the abuse application in a very detailed ruling in January
2002. That took place before the ruling of Astill J in the present case. In
R vSentence, Heath J at the Crown Court at Lincoln also acceded to the
abuse application and again gave a very detailed ruling in April 2004.
The Court of Appeal recognised that in Sutherland Newman J appeared
to have been of the view, that it was not necessary to prove any
prejudice as such to the defendant in order to conclude that the proceed-
ings were tainted by misconduct constituted by a deliberate eavesdrop-
ping upon privileged communications, and in consequence should be
stopped as abusive. Heath J was also of the same opinion in Sentence. In
the present case it was said there was no prejudice: nothing was re-
covered from the illicit intercepts of any value to the prosecution, and
nothing so recovered was used as, or led towards, any evidence to be
282
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