McE v Prison Service of Northern Ireland

Introduction

On 6 February 2006 a solicitor called Manmohan Sandhu appeared before the Antrim Magistrates' Court charged with incitement to murder, and four counts of doing acts tending and intended to pervert the course of justice. The court was told that the case against Mr Sandhu was based on covert electronic surveillance carried out by the police of conversations between himself and clients who were purporting to consult him in the serious crime suite at Antrim Police Station. The fact that the case against Mr Sandhu was based upon such evidence received considerable media coverage and comment. It also led to requests being made of the police on behalf of each of the appellants for assurances that no such monitoring was taking place in respect of consultations that they were about to have with their lawyers or, in the case of M, his consultant psychiatrist. The police declined to give such assurances.

My noble and learned friend Lord Carswell has described in more detail the circumstances in which these assurances were sought, the applications that were then made to the Divisional Court in Northern Ireland, the decision of that court, the reasons for that decision, the questions certified and the unusual circumstances in which the appellants were given permission to appeal to this House notwithstanding that they had obtained orders in their favour. I happily adopt that description and endorse his comments in respect of the grant of permission to appeal. The appeal raises, none the less, two issues of general importance:

In order to answer these questions it is relevant to consider the law in relation to LPP prior to RIPA, the extent of the relevant statutory rights to private consultation with a lawyer prior to RIPA and the requirements of the European Convention on Human Rights in respect of covert surveillance and the protection of LPP.

Legal Professional Privilege

LPP describes special protection that the law gives to communications between a lawyer and his client. The protection is owed to the client. LPP is his privilege. It has its origin in the sixteenth century. Thus, for most of its history it has applied in circumstances where the only way a client could communicate with his lawyer was either orally face to face or by manuscript communications. The circumstances in which LPP was typically asserted were when an attempt was made by legal process to obtain disclosure of the privileged communication. This might be, for instance, by the process of discovery in civil litigation or by a witness summons in criminal proceedings or by seeking to require a witness to give evidence of matters subject to LPP.

This led to a period when LPP was considered as a procedural right that formed part of the law of evidence. In Parry-Jones v Law Society[1969] 1 Ch 1 the Law Society had, for regulatory purposes, exercised a power under the Solicitors Act 1957 to call upon a solicitor, the plaintiff/appellant, to produce for inspection accounts and other information relating to the conduct of his clients' affairs. He sought an injunction restraining the Law Society from requiring him to produce documents that were subject to LPP without the consent of the clients to whom the privilege related. His claim was rejected at first instance and on appeal. Diplock LJ stated at p. 9:

"So far as Mr Parry-Jones' point as to privilege is concerned, privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence."

A similar view of the nature of LPP was taken by the Law Reform Committee that produced the Sixteenth Report, Privilege in Civil Proceedings, (1967) (Cmnd 3472).

Privilege provided immunity against disclosure. It did not render privileged material inadmissible if a party, or prosecuting authority, managed to obtain it, even if it was improperly obtained: Calcraft v Guest[1898] 1 QB 759; R v Tompkins(1977) 67 Cr App R 181; Butler v Board of Trade1971 Ch 680.

In recent times the courts have recognised LPP as not merely a procedural right but an important substantive right. Lord Hoffmann said this of the right in R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563 at paragraph 7:

"LLP is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of Lord Taylor of Gosforth CJ in R v Derby Magistrates' Court, Ex p B[1996] AC 487. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the Convention ( Campbell v United Kingdom (1992) 15 EHRR 137; Foxley v United Kingdom (2000) 31 EHRR 637) and held by the European Court of Justice to be a part of Community law: A M & S Europe Ltd v Commission of the European Communities ( Case 155/79) [1983] QB 878."

In Three Rivers District Council v Governor and Company of the Bank of England (No 6)[2005] 1 AC 610 Lord Scott of Foscote at paragraph 25 commented that the privilege was absolute and could not be overridden by "some supposedly greater public interest". It could only be overridden by legislation. He added at paragraph 26 that, while there was some debate as to whether the privilege was a procedural or substantive right, the debate was sterile as it was both.

Furthermore, the law today gives a considerable degree of protection against the admissibility of evidence subject to LPP where it has been improperly obtained, or even accidentally disclosed – see CPR 31.20 for civil proceedings and section 78 of the Police and Criminal Evidence Act 1984 for criminal proceedings.

In Morgan Grenfell at para 30 Lord Hoffmann criticised the reasoning of the Court of Appeal in Parry-Jones but expressed the view that they had none the less reached the right result. He said, at para 32:

"I think that the true justification for the decision was not that Mr Parry-Jones's clients had no LPP, or that their LPP had been overridden by the Law Society's rules, but that the clients' LPP was not being infringed. The Law Society were not entitled to use information disclosed by the solicitor for any purpose other than the investigation. Otherwise the confidentiality of the clients had to be maintained. In my opinion, this limited disclosure did not breach the clients' LPP or, to the extent that it technically did, was authorised by the Law Society's statutory powers. It does not seem to me to fall within the same principle as a case in which disclosure is sought for a use which involves the information being made public or used against the person entitled to the privilege."

The editors of Phipson on Evidence, 16th ed (2005) observe at 23-22-23-26 that this is a novel approach to privilege and express the hope that it will not be followed. For myself I find that Lord Hoffmann's approach illuminates the issues that arise in the present case. The rationale underlying LPP is the fundamental requirement that a man should not be inhibited in speaking freely and frankly to his lawyer by concern that what he says may subsequently be disclosed to his prejudice. This appeal involves the tension between the importance of covert surveillance in the fight against terrorism and serious crime and the importance of LPP. In this context it is necessary to consider not merely whether and in what circumstances surveillance of communications subject to LPP should be permitted but the use that should be permitted of communications subject to LPP that are disclosed by such surveillance. This is a topic to which I shall...