High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"The ability to employ covert surveillance generally, and in particular in the context of legal consultations of those detained in prisons in Northern Ireland, is a very important tool available to the Northern Ireland Prison Service in achieving the aims as set out in … [preventing crime, etc.] and in particular by way of example in gathering information in relation to plans contrary to the good order and discipline of prison establishments and regarding the smuggling of contraband or unauthorised articles in and out of prison establishments."

The right of access to legal advice – the statutory context

"(1) Reasonable facilities shall be allowed for the legal adviser of a prisoner who is party to legal proceedings, civil or criminal, to interview the prisoner in connection with those proceedings in the sight but not in the hearing of an officer.

(2) A prisoner's legal adviser may, with the Secretary of State's permission, interview the prisoner in connection with any other legal business in the sight but not in the hearing of an officer."

The right of access to legal advice – the common law context

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

…

3. Everyone charged with a criminal offence has the following minimum rights:

…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"

"The Court considers that an accused's right to communicate with his advocate out of the hearing of a third person is one of the basic requirements of a fair trial in a democratic society and follows from Article 6(3)(c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective."

"For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official."

"All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing of law enforcement officials."

"9. Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is "adequate time" depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter." (Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984)

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."

"It is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged. Indeed, in its S v. Switzerland judgment of 28 November 1991 the Court stressed the importance of a prisoner's right to communicate with counsel out of earshot of the prison authorities. It was considered, in the context of Article 6, that if a lawyer were unable to confer with his client without such surveillance and receive confidential instructions from him his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. In the Court's view, similar considerations apply to a prisoner's correspondence with a lawyer concerning contemplated or pending proceedings where the need for confidentiality is equally pressing ... The reading of a prisoner's mail to and from a lawyer … should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as 'reasonable cause' will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused."

The right to a medical examination

"If a detained person requests a medical examination a Medical Officer must be obtained as soon as practicable and arrangements made to conduct the medical examination. A detained person may in addition be examined by a medical practitioner from the Practice with which he or she is registered, at his or her own expense. A Medical Officer shall be present at such an examination."

"11A It is important to bear in mind that although juveniles or persons who are mentally disordered are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information which is unreliable, misleading or self-incriminating. Special care should therefore always be exercised in questioning such a person, and the appropriate adult involved, if there is any doubt about a person's age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible."

"1.6 If an officer has any suspicion, or is told in good faith, that a person of any age, including a person called to a police office to act as an appropriate adult, may be mentally disordered or mentally incapable of understanding the significance of questions put to him or her or his or her replies then that person shall be treated as a mentally disordered person for the purposes of this Code."

"Where it is necessary to make a finding as to whether a defendant was "mentally handicapped", this should be based on medical evidence; and police officers, not having expertise in the matter, should not be allowed to state their opinion: R. v. Ham (1995) 36 B.M.L.R. 169, CA. Semble, the court was confining itself to a finding of "mental handicap" within the specific definition in section 77. The approach of Code C is not to require police officers to make judgments about whether or not a suspect is mentally disordered or vulnerable, but to require them to err on the side of caution. In the current Code C the expressions "mentally vulnerable" and "mental disorder" are defined in Note 1G. If an officer has any suspicion, or is told in good faith, that a person may be mentally disordered or mentally vulnerable, then he is to be treated as if he were mentally disordered or mentally vulnerable (Code C:1.4 (Appendix A-40)). To this extent, the opinion of a police officer may obviously be relevant."

The Regulation of Investigatory Powers Act 2000 (RIPA)

"(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

(a) for the purposes of a specific investigation or a specific operation;

(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and

(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance."

"(3) … surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that—

(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and

(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device."

"27. Lawful surveillance etc.

(1) Conduct to which this Part applies shall be lawful for all purposes if -

(a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

(b) his conduct is in accordance with the authorisation."

"(2) A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes –

(a) that the authorisation is necessary on grounds falling within subsection (3);

(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and

(c) that arrangements exist for the source's case that satisfy the requirements of subsection (5) and such other requirements as may be imposed by order made by the Secretary of State.

(3) An authorisation is necessary on grounds falling within this subsection if it is necessary –

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

(4) The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that –

(a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;

(b) consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and

(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described."

"(3) An order under this section may impose restrictions—

(a) on the authorisations under sections 28 and 29 that may be granted by any individual holding an office, rank or position with a specified public authority; and

(b) on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual."

"(2) Subject to subsection (3), the authorisation shall not take effect until such time (if any) as—

(a) the grant of the authorisation has been approved by an ordinary Surveillance Commissioner; and

(b) written notice of the Commissioner's decision to approve the grant of the authorisation has been given, in accordance with subsection (4), to the person who granted the authorisation."

The Code of Practice

"3.1 The 2000 Act does not provide any special protection for 'confidential information'. Nevertheless, particular care should be taken in cases where the subject of the investigation or operation might reasonably expect a high degree of privacy, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic material. So, for example, extra care should be given where, through the use of surveillance, it would be possible to acquire knowledge of discussions between a minister of religion and an individual relating to the latter's spiritual welfare, or where matters of medical or journalistic confidentiality or legal privilege may be involved."

"Meaning of 'items subject to legal privilege'

12. — (1)   Subject to paragraph (2), in this Order "items subject to legal privilege" means—

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and

(c) items enclosed with or referred to in such communications and made—

(i) in connection with the giving of legal advice; or

(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

when they are in the possession of a person who is entitled to possession of them.

(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege."

"3.5 The 2000 Act does not provide any special protection for legally privileged information. Nevertheless, such information is particularly sensitive and surveillance which acquires such material may engage Article 6 of the ECHR (right to a fair trial) as well as Article 8. Legally privileged information obtained by surveillance is extremely unlikely ever to be admissible as evidence in criminal proceedings. Moreover, the mere fact that such surveillance has taken place may lead to any related criminal proceedings being stayed as an abuse of process. Accordingly, action which may lead to such information being acquired is subject to additional safeguards under this code.

3.6 In general, an application for surveillance which is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstances. Full regard should be had to the particular proportionality issues such surveillance raises. The application should include, in addition to the reasons why it is considered necessary for the surveillance to take place, an assessment of how likely it is that information subject to legal privilege will be acquired. In addition, the application should clearly state whether the purpose (or one of the purposes) of the surveillance is to obtain legally privileged information.

3.7 This assessment will be taken into account by the authorising officer in deciding whether the proposed surveillance is necessary and proportionate under section 28 of the 2000 Act for directed surveillance and under section 32 for intrusive surveillance. The authorising officer may require regular reporting so as to be able to decide whether the authorisation should continue. In those cases where legally privileged information has been acquired and retained, the matter should be reported to the relevant Commissioner or Inspector during his next inspection and the material be made available to him if requested.

3.8 A substantial proportion of the communications between a lawyer and his client(s) may be subject to legal privilege. Therefore, any case where a lawyer is the subject of an investigation or operation should be notified to the relevant Commissioner during his next inspection and any material which has been retained should be made available to him if requested.

3.9 Where there is any doubt as to the handling and dissemination of information which may be subject to legal privilege, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place. Similar advice should also be sought where there is doubt over whether information is not subject to legal privilege due to the "in furtherance of a criminal purpose" exception. The retention of legally privileged information, or its dissemination to an outside body, should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings related to the information. Any dissemination of legally privileged material to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection."

"4.16 A written application for authorisation for directed surveillance should describe any conduct to be authorised and the purpose of the investigation or operation. The application should also include:

• the reasons why the authorisation is necessary in the particular case and on the grounds (e.g. for the purpose of preventing or detecting crime) listed in Section 28(3) of the 2000 Act;

• the reasons why the surveillance is considered proportionate to what it seeks to achieve;

• the nature of the surveillance;

• the identities, where known, of those to be the subject of the surveillance;

• an explanation of the information which it is desired to obtain as a result of the surveillance;

• the details of any potential collateral intrusion and why the intrusion is justified;

• the details of any confidential information that is likely to be obtained as a consequence of the surveillance.

• the level of authority required (or recommended where that is different) for the surveillance; and

• a subsequent record of whether authority was given or refused, by whom and the time and date."

Submissions from intervening parties

Have the statutory rights to a private consultation with a legal adviser been affected by RIPA?

"The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they should not be restrained by any apprehension of such communications being afterwards divulged and made use of to his prejudice. To give full effect to this principle it is obvious that they ought to be privileged, not merely in the cause then contemplated or depending, but that the privilege ought to extend to any subsequent litigation with the same or any other party or parties. . . . The necessary confidence will be destroyed if it be known that the communication can be revealed at any time."

"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."

"1300. Implied repeal of particular enactment by general enactment.

It is difficult to imply a repeal where the earlier enactment is particular, and the later general. In such a case the maxim generalia specialibus non derogant (general things do not derogate from special things) applies. If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general."

The circumstances in which the assurances were refused

"It is not our policy to discuss confidential matters and no inference is to be drawn from this."

"5. The purpose of this [pro forma] document is to ensure a uniform response by police officers in receipt of requests for such assurances. It is deemed by the PSNI to be of vital importance that in response to requests for assurances regarding covert surveillance that a standard and non-indicative position is put forward. This applies not only in the specifics of this case, but also on general application.

6. Where covert surveillance is in operation its efficacy is essentially dependent upon its subject being unaware of its existence.

7. If the PSNI was to enter into a process of providing assurances of this nature on one or more occasions in which covert surveillance was not being employed, the inevitable knock on affect (sic) would be to remove the effective ability to employ covert surveillance in these circumstances in respect of and gathering of evidence in regard to serious crime. Once assurances are given in any particular case the result of a failure/refusal to provide a similar assurance in any subsequent case would be tantamount to warning a suspect of covert surveillance that it is fact to take place. This would have a serious detrimental impact upon the PSNI's ability to investigate serious crime, protect the public and safeguard national security."

Article 6

"49. The risk of 'collusion' relied on by the Government does, however, merit consideration. According to the Swiss courts there were 'indications pointing to' such a risk 'in the person of defence counsel'; there was reason to fear that Mr. Garbade would collaborate with W.'s counsel, Mr. Rambert, who had informed the Winterthur District Attorney's Office that all the lawyers proposed to co-ordinate their defence strategy. Such a possibility, however, notwithstanding the seriousness of the charges against the applicant, cannot in the Court's opinion justify the restriction in issue and no other reason has been adduced cogent enough to do so."

"… the Court's case law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary for the applicant to prove, assuming such were possible, that the restriction had a prejudicial effect on the course of the trial, the applicant must be able to claim to have been directly affected by the restriction in the exercise of the rights of the defence."

Article 8

"7. - (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act."

"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. 

"Article 25, which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court's view, the effectiveness (l'effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention's enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious. The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures."

[72] The court then proceeded to consider whether the applicants in that case met the necessary requirement of victimhood and concluded in paragraph 37 as follows: -

"As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court's judgment (see para. 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8."

[73] Employing the same reasoning, it appears to me that the applicants in the present case can claim that, if directed surveillance of consultations with a legal adviser or medical consultant (under the regime by which such surveillance is currently authorised) constitutes a breach of article 8, they could suffer a violation of those rights without ever becoming aware of it if they were unable to assert their entitlement to a declaration that the withholding of the assurances that they sought was unlawful.

CAMPBELL LJ

[2] The Lord Chief Justice in his judgment has described the factual background and has referred to the legislation that is relevant to the applications. It is therefore unnecessary for me to repeat them and allows me to proceed to the main issues that have been raised.

"It will be a rare case in which it could be held that such a fundamental right was by necessary implication abolished or limited by statute. It will, we suggest, be an even rarer case in which it could be held that a statute authorised by necessary implication the abolition or limitation of so fundamental a right by subordinate legislation."

When considering if RIPA provides one of these rare cases it has to be accepted that Part II of the Act is comprehensive in its terms. Conduct to which that Part applies is declared in the Act to be lawful for all purposes if an authorisation under it confers on that person an entitlement to engage in that conduct and his conduct is in accordance with the authorisation. The implication of this is that the authorisation will comply with the Convention and it is through the code that this is achieved. This is in favour of implying that situations subject to legal professional privilege are not excluded. The privilege is essential to the administration of justice and no provision is made in the Statute to protect it by requiring authority from an independent person before the exercise of the right may be impeded by covert surveillance. Having weighed up the competing arguments I consider that it is necessarily and properly to be implied that it was the intention of the legislature that this fundamental right should come within the scope of Part II of RIPA.

" in order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain safeguards established by law which apply to the supervision of the relevant services' activities. Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual's rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure"

The only independent element of supervision of 'directed' surveillance is described in the code where it is stated that in any case where a lawyer is the subject of an investigation or operation this should be notified to the relevant Commissioner (a person who holds or has held high judicial office appointed under section 91 of the Police Act 1997) during his next inspection and any material which has been retained should be made available to him if requested. In Klass the Court held that the exclusion of judicial control was not necessarily fatal provided that the person given the task was of sufficient independence to give an objective ruling. However, in Kopp (1998) 27 EHRR 91 (at para 58) it was critical of the absence of judicial supervision where a lawyer's telephone had been tapped.

"The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge".

Lord Denning continued at pp 489-490;

"Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered."

GIRVAN LJ

Introduction

Strasbourg Jurisprudence

"The Court notes that, unlike some national laws and Article 8(2)(d) of the American Convention on Human Rights, the European Convention does not expressly guarantee the right of a person charged with a criminal offence to communicate with defence counsel without hindrance. That right is set forth, however, within the Council of Europe, in Article 93 of the Standard Minimum Rules for the Treatment of Prisoners (annexed to Resolution (73)5 of the Committee of Ministers). The Court considers that an accused's right to communicate with his advocate out of the hearing of a third person is one of the basic requirements of a fair trial in a democratic society and follows from Article 6(3)(c) of the Convention. If a lawyer were unable to confer with his client and received confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective".

The Court appears to have accepted that if the risk of collusion were made out that might justify interference with the right to communicate freely with the lawyer. It concluded that the mere possibility could not justify the restriction. The professional ethic of the lawyer and the lawfulness of his conduct had not been called into question in that case. Judge Matsche in a separate opinion stressed that the principle of the right to free communication between lawyer and client without surveillance is not an absolute principle. There are exceptional situations where surveillance of the defendant's communications with his counsel may be necessary and compatible with the principle stated and he cited the not so infrequent cases of serious collusion between lawyers and persons in custody which have occurred in several countries in recent years. He criticised the main judgment of the court in not explicitly allowing for the possibility of exceptions. Judge de Meyer, on the other hand, in a judgment concurring with the main judgment considered it advisable to emphasise the freedom and inviolability of communications between a person charged with a criminal offence and his counsel, a principle to which he considered there was to be no exception. These two additional opinions demonstrate the clear difference of view which can be taken on the question whether the right to privacy of communication between a lawyer and an accused person is an absolute or a qualified right and, if qualified, how the qualification is to be determined.

"46. It is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer/client relationship is in principle privileged. Indeed, in its S v Switzerland judgment … the Court stressed the importance of a prisoner's right to communicate with counsel out of earshot of the prison authorities. It was considered, in the context of Article 6, that if a lawyer were unable to confer with his client without such surveillance and receive confidential instructions from him his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective.

47. In the Court's view similar considerations apply to a prisoner's correspondence with a lawyer concerning contemplated or pending proceedings where the need for confidentiality is equally pressing, particularly where such correspondence relates, as in the present case, to claims and complaints against the prison authorities. That such correspondence be susceptible to routine scrutiny, particularly by individuals or authorities there may have a direct interest in the subject matter contained therein is not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client."

Relevant domestic surveillance legislation

The Code

"3.1 The 2000 Act does not provide any special protection for "confidential information". Nevertheless, particular care should be taken in cases where the subject of the investigation or operation might reasonably expect a high degree of privacy, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic materialistic material. So, for example, extra care should be given where, through the use of surveillance, it would be possible to require a knowledge of discussions between a minister of religion and an individual relating to the latter spiritual welfare, or where matters of medical or journalistic confidentiality or legal privilege may be involved.

3.2 In cases where through the use of surveillance it is likely that knowledge of confidential information will be acquired the use of surveillance is subject to a higher level of authorisation. Annex A lists the authorising officer for each public authority permitted to authorise such surveillance."

Paragraph 3.6 provides that:

"In general, an application for surveillance which is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstances. Full regard should be had to the particular proportionality issues such surveillance raises. The application should include, in addition to the reasons it is considered necessary for the surveillance to take place, an assessment of how likely it is that information subject to legal privilege will be acquired. In addition, the application should clearly state whether the purpose (or one of the purposes) of the surveillance is to obtain legally privileged information."

Paragraph 3.8 goes on to point out that a substantial proportion of communications between a lawyer and his client may be subject to legal privilege. Therefore any case where a lawyer is the subject of an investigation or operation should be notified to the relevant Commissioner during his next inspection and any material which as been retained should be made available to him if requested. Where there is any doubt as to the handling and dissemination of information which may be the subject of legal privilege, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place. Similar advice should also be sought where there is doubt over whether information is not subject to legal privilege due to the in furtherance of a criminal purpose exception. The retention of legally privileged information or its dissemination to an outside body, should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available or its contents becoming known to any person whose possession of it might prejudice any criminal or civil proceedings relating to the information. Any dissemination of legally privileged material to an outside body should be notified to the relevant commissioner or inspector during his next inspection.

Legal Privilege

"We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose will greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorised to say upon this matter is that in each case the court must determine upon the facts actually given in evidence or proposed to be given in evidence whether it seems probable that the accused person may have consulted his legal adviser not after the commission of the crime for the legitimate purpose of being defended but before the commission of the crime for the purpose of being guided or helped in committing it … Courts in every instance must judge for themselves on the special facts of each case. The power ought to be used with the greatest care not to hamper prisoners in seeking to make their defence and not to enable unscrupulous persons to acquire knowledge to which they have no right and every precaution should be taken against compelling unnecessary disclosures."

"Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation you are not to hold that earlier and special legislation indirectly repealed, altered or derogated it from merely by a force of such general words without any indication of a particular intention to do so."

(per Lord Selborne LJ in The Vera Cruz 1884 10 Appeal Cas 59 at 68)."