Tuesday, 12 May 2009

Re McE, the end of LPP?

In March 2009, the House of Lords handed down judgment in Re McE.

The case concerned whether or not the appellants had a right to know whether their confidential conversations with their solicitors were being monitored or were under surveillance. The Police declined to tell them whether or not they were under surveillance and the appellants sought judicial review of the Police's refusal. The divisional court held that RIPA (Regulation of Investigatory Powers Act) applied to consultations between legal advisers and their clients. However they agreed that in the absence of an authorising regime such as that needed for intrusive surveillance the monitoring of the lawyer/client conversations could not be justified under Art 8(2) of the European Convention on Human Rights. The divisional court certified questions to the House of Lords, asking whether or not RIPA covers surveillance of legal professional privlege and other questions.

The House of Lords held unanimously by 4:1 that s 27(1) RIPA 2000, meant that RIPA applied to legal professional privilege, however in order for LPP situations to be covered it does need a higher level of authorisation (as mentioned by the divisional court) and will need to be classified as intrusive surveillance.

What does this mean?
Whilst previous authorities have made LPP almost sacra santé it appears that RIPA will now be able to pierce and undermine LPP.

This seems in conflict with the recent Court of Appeal authority R v Grant, where the Court quashed a conviction as an abuse of process, where Grant's exercise yard was bugged, and there was no evidence of any prejudicial effect (as noted by the trial judge who conducted a three week voire dire in relation to the bugging)

So now it appears that Grant no longer bites, and that there will be little argument for Abuse of Process where the conduct of the police has been to bug prisoner's confidential conversations with their solicitors. The only Abuse of Process argument that I can see could be made is whether the manner in which the surveillance was conducted was so (out of order?) then abuse of process might be preferred.

If Police can bug these conversations what effect will it have on LPP? Especially as one of the appeals involved a vulnerable adult with mental health problems, with the psychiatrist assessing whether he was fit for being interviewed requested to know whether it would be conducted without surveillance. The impact of this decision is likely to completely undermine LPP, with nothing to ensure that these conversations are private, should lawyers now advise their clients not to say too much?

However their Lordships seemed all to be agreed that even though the conduct may be permissible under RIPA (however unpalatable that is according to Baroness Hale), the evidence obtained from such conduct is very likely to be inadmissible and the trial judge remains the power to exclude it under s 78 PACE.

In addition the restrictions on admitting surveillance evidence under RIPA should also be remembered, for the Intelligence Services are not allowed to put in evidence that has been intercepted directly between A and B, but it is ok to admit evidence that is listened to from a recording device in a phone as this is not a "direct intercept"

What is most interesting is that according to Lord Neuberger, the Home Secretary had in fact been allowing surveillance of LPP despite the divisional court's ruling that whilst RIPA was lawful, the kind of surveillance of LPP needed a higher level of authorisation such as intrusive surveillance, so therefore unless it was reclassified as intrusive surveillance it was illegal and contrary to Art 8! Bad naughty cock up Jacqui-Smith has done it again!

This case is likely to go to the European Court of Human Rights, and as the government lost in AL-Khawaja and Tahery v UK (sole evidence of Hearsay is not adequate on which to base a criminal conviction) it may be likely that they would lose again on this one!

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