Re McE, M, C and another (bugging)

 

In the matter of McE, M, C and another

 Appellants:    Barry McDonald QC, Fiona Doherty for McE, C and Another

                        Karen Quinlivan, Stuart McTaggart for M

Respondent:             Gerard Simpson QC for the Northern Ireland Prison Service (NIPS)

     Respondent:             Michael Fordham QC, David McMillan for the Police Service of Northern Ireland (PSNI)

Written Interventions from British Irish rights watch, General Council for the Bar of Northern Ireland, Law Society of Northern Ireland, Northern Ireland Human Rights Commission.

Judges:     Lord Phillips of Worth Matravers

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Neuberger of Abbotsbury

The case was heard in the House of Lords, Monday 8 – Wednesday 10 December 2008.

Morning Session, 8 December

Barry McDonald QC, for the Appellant (McE, C and another), opened by stating that the legal professional privilege of a client to brief his/her solicitor was the fundamental basis on which the criminal justice system rested.  Surveillance by the security services was always a tool of a democracy, but could also present a threat to democracy.  In this case, the PSNI and the Secretary of State were asserting their power by virtue of RIPA to override statutory rights under PACE, common law and international human rights law. 

Several cases were cited in support of legal professional privilege with rulings by successive Law Lords defending it as a fundamental condition on which the justice system rests.  Under international human rights law, it was a basic requirement of a fair trial, as it was under PACE and terrorist legislation.  Fundamental rights enshrined in law could not be overridden by the general wording of a subsequent Act, or indeed an interpretation of that general wording.

In response to a comment from Neuberger LJ that surely RIPA had been specifically designed to permit covert surveillance, McDonald said that the point had not been debated in either House and that there was no evidence of a conscious decision about the relative importance of legal professional privilege versus the right of the security services to conduct covert surveillance.  He pointed out that privileged consultation in a police station had less protection that a conversation between two drug dealers in a private yard or a bar. 

He said that there were six different types of surveillance, five established under RIPA and one under PACE.  The first two had very high levels of required authorisation and supervision; the interception of communications under RIPA had to be authorised by the Secretary of State on application by a Chief Constable on one of three tightly defined grounds ; national security, serious crime and economic well-being.  Intrusive surveillance and interference with or entry to property under RIPA had to be authorised by either the Chief Constable or Deputy Chief Constable and required prior approval.  The same three grounds applied here.  The remaining three types of surveillance, overt surveillance, directed surveillance and the acquisition of communications data, required no prior authorisation and could be sanctioned at a considerably lower level, with no effective control over the circumstances in which they were used.

McDonald pointed out that RIPA came into force on 25 September 2000.  The Code of Practice on which the PSNI and Secretary of State’s case were based only came into force two years later, in July 2002.  As a Code, it did not require nor receive the attention of both Houses; it was not preceded by a white or green paper; it was not legally binding.

McDonald pointed out that two different codes had been in operation.  The first, which provided fewer safeguards around surveillance, was possibly a draft and had been in existence for five years without this fact being noticed by the Surveillance Commissioner.  There had been no explanation for this discrepancy or the subsequent introduction of the second, different Code. 

There was a lengthy debate among the Law Lords as to whether it was more or less serious to have overt surveillance (i.e. someone sitting in on a conversation between client and solicitor) or the possibility of covert surveillance such as happened in Antrim PSNI station.  After much probing by the Law Lords, McDonald said that in both cases the same unacceptable end was achieved, in that the right to a private conversation between a solicitor and a client was extinguished and a lawyer could thus not obtain complete instructions from his/her client.  However, overt surveillance was easier to address as the fact that it had taken place was obvious to all involved.  Covert surveillance was very much more difficult to prove and consequently to challenge effectively.  Carswell LJ pointed out that he rather doubted that any solicitor of any merit, using Antrim police station, was unaware of the systematic bugging.

Afternoon session, 8 December

McDonald continued to analyse the Respondent’s argument.  He noted the Cox & Railton scenario and explored the impact of the use of information gained through violating legal privilege in a trial process.  He looked then at the Prison Service submissions which indicated two kinds of legally privileged consultations, one which was genuine and one which fell under the Cox & Railton principle.  McDonald pointed out that the Appellants were not arguing that surveillance of such conversations could never be used in a court process but that any surveillance would have to be compliant with Article 6 and 8 of the ECHR.  The powers would have to be extremely limited and McDonald questioned if this could be achieved.  He argued that where a Cox & Railton situation arose, the obligation was on Parliament to legislate for this situation.  He said that just like in cases of torture, there should not be a balancing exercise.  Any legislation applied by Parliament in this area must be ECHR compliant.  The Secretary of State was ready to address the authorisation issue, following the decision in the Divisional Court, but the Appellant’s were arguing that the Law Lords should look at the existing legislation.  He also noted that this could be construed as a tacit understanding that there was a problem with the legislation.  He linked the principle of legal privilege with that of the right to a fair trial. 

McDonald then examined the relevant sections of the Terrorism Act (2000) and a detainee’s entitlement to a private consultation and the situations when this right could be delayed.  For instance, access to legal advice could be delayed for 48 hours but only when approved by a Superintendent in writing.  There was an allowance for a police officer to be present at a consultation but again only after permission had been received and if there was reasonable grounds to believe that the privilege may be abused.  He also noted that no information obtained in this manner should be used against the detainees.  He said that Cox & Railton was a very specific situation, where the surveillance was decided by a court and occurred after the consultation.  As such, to over-ride legal professional privilege would require specific wording in the legislation.  He said that there was no jurisprudence in this area, unlike Cox & Railton situations. 

McDonald referred back to the judgment in the Divisional Court and noted that it was not possible to test to see if the surveillance had violated the right to a fair trial as not all of those subject to the surveillance were charged with offences.  Girvan LJ said in his judgment that if the wide powers of RIPA were applied to consultations then this would have a serious impact.  He also noted the comment that it was illogical that RIPA did not allow for instructive surveillance in an office or a car, but did allow legal consultations to be recorded.  As such, it should be concluded that RIPA had limited powers and could not be applied to consultations.  Equally, a reading of Hansard revealed that it was not the intention of Parliament to extend the powers to legal privilege.  McDonald concluded his submission with a discussion with Hope LJ and Philips LJ on the relief sought by the Appellants.

Karen Quinlivan, for the Appellant (M), opened by saying that she would be addressing the ECHR points.  However, she noted firstly that her client, M, did not have a statutory right to a consultation but that the Respondents had conceded that his consultation with a psychiatrist was the subject of legal privilege.  She noted that this was the right to avoid self-incrimination.  She said that all the parties agreed with Malone v UK which dealt with a Home Office circular on interference with communications.  The Divisional Court found a breach of Article 6.  She noted that there was a need for the law to be clear to a citizen on the matter of privacy.

She then moved to discuss the safeguards provided for in RIPA.  She challenged the principle outlined in the Secretary of State’s written submission that intercepted communication received a different set of statutes as she viewed this as untenable.  The reasoning of their submission, which said that the case law in this area did not apply to legal consultations, fell short of offering protections to such a consultation.   The standards were wide-reaching where there was a need for heightened protections to prevent an infringement of legal consultations.  In principle and in the reading of the codes, the current RIPA structure was not compliant.  Safeguards were key in such a situation as the surveillance was secret and therefore there was already a lack of public scrutiny.  Hope LJ noted that such a power was arbitrary as scrutiny was so difficult.  Quinlivan noted that there was a need to be precise in the law where secret surveillance interfered with privacy; especially as the technology became more complex.  She moved on to say that it was not only a principle but that the secret and arbitrary nature of surveillance had been addressed in several prior ECHR judgments and thus Strasbourg had set out minimum standards for its use.  She directed attention to the recent findings in the case of S and Marper v UK and the retention of DNA and the need for safeguards against arbitrariness.  The same principles could be applied to surveillance. 

Quinlivan said that even though the Divisional Court had found for the Appellants on the Article 8 issues, there were still other aspects which fell short.  She said that there were consequences on this matter beyond this particular case as Article 9 had not been met in a number of respects.  Although they welcomed the decision by the Secretary of State, she said that further work needed to be done.  This led to Carswell LJ asking what more the Appellant’s wanted from the Courts.  He said that she should be aware of their function.  Quinlivan pointed out that the Secretary of State did not agree to the prior approval of client/medical consultations.  Carswell LJ continued to ask what the Appellants were expecting from the Court as they had already won in the lower courts.  He indicated that they could loose this lower decision in their favour.  Quinlivan said that it was important that these points were clarified to prevent the matter coming back before the court in another case.  It was also important to prevent further breaches of Article 8.  The Court should take the opportunity to make a finding in this area especially as the Divisional Court phrased the question in such broad terms.  Quinlivan also noted that if the situation remained un-resolved then there will be a broader effect felt.  She briefly noted case law such as the recent decision in Liberty and the issue of foreseeability and the need for safeguards. 

She turned her attention to RIPA and said that the legislation empowered public authorities to breach Article 8, despite the fact the legislation was designed to meet Convention Rights.  The issue of proportionality was raised in the Code of Practice; although authorising officers applied a test to discern proportionality, the ECHR had a more exacting test.  Within the PSNI, there was a broad range of officers who can decide the test.  Quinlivan noted the test did not go far enough nor was the accompanying guidance of a suitable quality.  Similar issues were raised in the Divisional Court judgment by Girvan LJ, who noted the drawbacks of a Surveillance Commissioner without enough information or guidance with which to make his decisions.

Morning session, 9 December

Quinlivan opened by examining the functions of the Surveillance Commissioner.  She indicated that there was no real guidance available to the Commissioner nor was there any sense that Article 6 and 8 of the ECHR should be protected.  This led Neuberger LJ to ask why the Law Lords should be concerned with the matter.  Quinlivan responded that Respondents in the case had said that there was oversight – the Appellants believed that this was not enough protection for Articles 6 and 8.  The power was un-trammeled where the Code of Practice said it could only be used in “exceptional circumstances” but did not provide further guidance on what was meant by that.   The authorising officer and the Surveillance Commissioner were both operating in an environment in which bugging was allowed.  The context of the assessment and the broadness of the grounds negated the necessity and proportionality test as well as providing too few safeguards. 

Quinlivan then noted a number of authorities which outlined the minimum safeguards and the offences which could be covered under surveillance, see Liberty; Webber; Klass.  She concluded that in all of the aforementioned cases the nature of the offences was specified.  She also noted the delay in the publication of the RIPA Code of Practice, two years from when the statue came into force.  She noted that in Liberty it was stated that there should be a definition of those who could have their phones tapped.  In Webber, strategic monitoring was outlined as was those who could have their phones tapped.  This had the effect of narrowing the offences and qualifying those in which directed surveillance could be used.  A brief discussion around the grounds for surveillance occurred followed by a request from Hale LJ as to what the Appellants required from the Law Lords.  Quinlivan stated that they were not seeking to re-write the legislation but rather to address the discrete Article 8 issues.  This led Carswell LJ to note that the Law Lords could find against the Appellants in this court.  Quinlivan noted that this was a risk but that it had been fully considered by the Appellants.   She moved on to discuss the two discreet aspects of the safeguards, beginning firstly with the procedure element which is concerned with the retention provisions.  This led Hale LJ to point out that even though the Law Lords could say that suitable safeguards did not exist, they were not going to prescribe additions to the legislation. 

Quinlivan drew attention to the Code of Practice where it addressed the issue of the dissemination of the information gained through the bugging.  Facing further confusion from the Law Lords about what the Appellants sought to gain through the process, Quinlivan made the point that the lower courts were waiting for a decision from the Law Lords on the issue of the dissemination and retention of the information.  She also noted that the transference of the information gave rise to further, free-standing issues.  She noted that there was a measure of protection for intrusive surveillance but not for covert, directed surveillance which could contribute to a breach of the ECHR.  She noted that neither the Tribunal nor the Information Commissioner were able to provide suitable safeguards.  The European Court recognised that when the issue of legal consultation was addressed, there was a need to have greater safeguards.  There had not been compliance with a proportionality test.  She indicated the faults with the Respondent’s argument: the breach of Article 8, the untrammelled power given to low level individuals within public authorities and insufficient oversight.

Quinlivan moved on to discuss the specific circumstances of M, who was suffering from a mentally disorder at the time of his arrest and thus required enhanced protection.  A reference to the Code of Practice of the Terrorism Act indicated that an appropriate adult was required to protect the right to avoid self-incrimination.  This right was recognised in Allen v UK.  The psychiatrist in this case, Dr McDonald, wrote a letter to the Divisional Court declining to consult without an assurance that the consultation was not being listened to.  He argued that a suspicion or knowledge of the surveillance would impact upon the examination, for both the patient and the medical practitioner.  Quinlivan concluded that confidentiality was a key component in the protection of the rights of suspects.

Michael Fordham QC, opened his argument for the respondent, by making two points.  Firstly, that RIPA was designed to be comprehensive in relation to surveillance.  Secondly, that Parliament intended to design Convention compliant legislation.  However, Hale LJ pointed out that the legislation was published in July 2000, prior to the Human Rights Act coming into force.  He noted, for ease of reference, that the Appellants and the PSNI were agreed on the use of surveillance in a Cox & Railton situation.

Fordham moved to discuss Foxley, which noted the need for exceptional circumstances before surveillance could be used.  Where legal privilege was being abused, he noted that surveillance was acceptable and had been deemed as such by the Strasbourg.  Article 6 could not be used as a strait jacket.  The role of RIPA was to provide an authorising framework.  He agreed with the decision by the Divisional Court that the legislation was Convention compliant.  He noted that the question put by the Appellants related to authorisation.  He then asked if the Appellants could dislodge the Divisional Court’s finding on compatibility and if they were seeking to improve the finding in their favour.  The Divisional Court accepted that the right of a suspect could be abrogated subject to compatibility with the Convention.  This was confirmed in the decision of Derby Magistrates which stated that legal privilege could be abrogated.  Section 71 of RIPA created an obligation on the Secretary of State to devise a Code of Practice which subsequently addressed this issue.  The Code was published in draft form for consultation and then went to Parliament for approval.  Thus public authorities were in possession of the draft Code before it came into force.  He noted that they were only concerned with the final Code of Practice.  He briefly explored the relevant aspects of the Code of Practice.  This led Hale LJ to ask how far the Secretary of State had progressed in making the relevant changes to the Code of Practice.  Fordham responded that they were at the drafting stage and that changes would be made to the differences between intrusive and directed surveillance.  He made it clear that the Secretary of State was not challenging this aspect of the Divisional Court decision.  Fordham drew attention to the judgment in the lower court which looked at the discrepancy between the different levels of surveillance and different levels of authorisation.  He was cautious about the need for judicial authority but noted that the police would not be able to self-authorise under Section 41 of RIPA.  He noted that the Secretary of State had included M within the consideration for this aspect of the case and accepted that legal professional privilege extended to a consultation between a doctor and patient.  Following a question from Hope LJ, Fordham clarified that they had not sought to create a hierarchy of medical/legal privileges.  It was clarified, for instance, that such a consultation did not have to take place within a police station.  Fordham noted that intrusive surveillance was based on geography.  The Divisional Court noted that the PSNI knew where lawyers and clients met and so this should fall under the principles used when bugging a car, for instance.  With regard to the geographical location issues, it was hard to distinguish between a person detained and a person out on bail.  He also touched briefly on the application of privacy rights and the protected privilege of spiritual advisors and journalists and how this was regulated and protected by the ECHR. 

Hale LJ asked if s.26 of RIPA enabled all police cells in a police station to be bugged.  Fordham noted that routine bugging was not lawful under RIPA.  However, he did note that if the act of bugging could be justified as necessary and proportionate, then the powers existed within RIPA to make this a reality.   Hale LJ queried this statement.  Fordham responded that one of the conditions outlined in RIPA was that bugging could be allowed in a specific operation. 

Fordham then moved to explore the relevant clauses of the legislation further.   He pointed out that s.26 (10) indicated a desire by Parliament to regulate the conduct of bugging.  The tests of proportionality and necessity were mirrored in s. 28 of RIPA and emerged from Article 8, indicated by the fact the types of information which are protected are clearly regulated under the act.  He noted the “lawful for all purposes” clauses which contemplated that conduct may not be lawful.  He noted that the matter of trespassing had been addressed in the Police Act of 1997 which dealt with the unlawfulness of interfering with property.  He went on to explore the aspects of RIPA which enabled a complaint to be brought to the Tribunal.  He noted that the purpose of the Police Act was to address the placing of a bug in a home, where to do so would be to trespass on the property and thus would be unlawful.  He said that the act of using the bug fell under auspices of RIPA.  Fordham explored a variety of scenarios where the legislation would be used and the safeguards available within the legislation, for instance, if a bug was to be placed under a solicitor’s desk.  He noted that under the Police Act, legal professional privilege was protected.  He pointed out that Parliament chose not to include legal professional privilege in RIPA.  If the Appellant’s assertion was correct, then an authority could place a device into an office but not use it as the act of surveillance fell outside the statutory scheme.  He noted that Parliament dealt with legal professional privilege in the Police Act alongside journalistic material.  Following a question from Neuberger LJ, Fordham indicated that with RIPA, covert surveillance could not be used in cases of low-level criminality as any use needed to be Article 8 compliant and to pass both the proportionality test and the test found in Strasbourg jurisprudence.  The Code of Practice re-enforced the principle the fact that it should only be used in very serious cases.  Neuberger LJ noted the discrepancy between RIPA and the Police Act as the former required serious crime while RIPA only required the detection of crime.

Fordham explored the issue of bugging in prison.  Firstly, he said that a bug could only be placed in a prison with the appropriate authorisation.  Secondly, it could be put in a common area in a prison to protect a prisoner and this did not raise an issue for legal professional privilege.  He noted the differences in language between the two statutes and their relationship with the Cox & Railton principle.  He indicated that Parliament made a decision with the design of RIPA to include legal professional privilege as a subject for surveillance as long as such surveillance was compliant with Article 8.  He pointed out that the key was the nature of the activity under consideration.  Safeguards were substantive in the form of tests that had to be met.  This indicated, together with a proper reading of the statutory scheme, a full square of the principles of Morgan Grenfell and Derby Magistrates, obviously subject to Convention compliance.  There was a statutory entitlement to a private consultation; these were important rights and contained limited controls with reference to privacy. 

Fordham challenged McDonald’s assertion that Article 6 did not contemplate any covert surveillance but rather Strasbourg allowed Article 6 to be interfered with under the proportional test.  In Lans the Strasbourg Court made a statement of principle which said a “weighty reason” had to be given before interference.  He made it clear that it was not the same as the right to be free from torture, a right which could not be interfered with but rather a “greater good scenario” emerged where the question became if the action would violate Article 6.  The Law Lords noted the impact of the “chilling effect”.  Fordham accepted this was a factor but that each situation had to be evaluated; one had to consider whether it was worse to have a police officer sitting in a lawyer/client interview or to not have the interview at all.  He noted that an interference with Article 6 did not constitute a violation of the right.  He said that there was a difference between what you knew to be happening and what you thought was happening.  Neuberger LJ said that surely a solicitor would just tell their client they were being listened to so every interview would be “chilled”.  The PSNI refused to confirm or deny if bugging had taken place; as a result, a solicitor could tell the client that they might be listened to.  The purpose was not to prosecute based on evidence gathered in such a situation.  Hope LJ indicated that there were serious implications for the client.  Fordham noted the Divisional Court judgment which examined the “untrammelled power” upon which the Law Lords were now expected to comment.  There were safeguards which indicated the compatibility with the Convention including the nature of the statutory power of the surveillance, the guarantee against abuse and the supervision. 

Firstly, the power only applied in specific investigations and operations, it needed to be necessary and proportionate and only be used on necessary grounds.  This was not the use of unfettered state power but rather a clear indication of the circumstances and conditions in which the power could be used.  A more detailed analysis was set out in the Code of Practice.  This was not an unfettered power, there was no such thing in public law, and rather it was a delineated power with clear parallels with Strasbourg.  He cited Malone, which discussed a clear need for the discretion of power, where the requirements of the Convention were clear.  Strasbourg used the language of wholly exceptional circumstances and this was mimicked in the Code of Practice.  Secondly, the guarantee against abuse included a need to specify the duration of the tapping, the nature and need of the surveillance, as well as the identities of those who fell under the respective categories.  Under the statutory regime, these were all catered for and thus the Commissioner’s view was not restricted and could look with the greatest anxiety at the use and experience of the powers.  Thirdly, there was both compensation and the fact that the court must be satisfied that whatever kind of oversight was adopted was suitable.  There were three choices available: no surveillance, justified surveillance and unlawful surveillance.  He drew attention to the fact that McE took it to the relevant Tribunal who rejected his complaint.  The Code of Practice outlined the use of surveillance and the levels of authorisation needed; he noted that if the Law Lords were trying to improve on the judgment of the Divisional Court they should be aware that there were further safeguards, in particular, the case of Mapper which looked at the retention of DNA but the Grand Chamber drew back on making a statutory regime.  The Code of Practice drew attention to the principles of data protection.

Hale LJ said that either surveillance was done properly or not at all but one could have a policy of “neither confirm or deny”.  Fordham noted that if Article 6 was violated then there was a need to look at the whole process.  Hale LJ pointed out that it had to be accepted that if a psychiatric consultation was denied, then questioning by the police was improper; if he had made admissions, they would have been a breach of Article 6.   Fordham said that if the individual was released without charge then they were no longer under the criminal process, so there could not be a violation of Article 6.  He said it was hard to see what the self-incrimination point would add to the legal professional privilege point where the concern was that the interview could not take place.  The consequences of assurances depended on the circumstances of the case.  The need for judicial authorisation was not a standard from Strasbourg.

Morning session, 10 December

Fordham outlined the relevant aspects of the legislation which explained where there were exceptions to the surveillance of legal professional privilege, the principle of proportionality.  He cited Stephanov, which stated that there could either be judicial oversight or judicial authorisation.  The case of Copp v Switzerland made reference to the need for a test for the gathering of information gleaned from legal professional privilege without supervision.  In RIPA there was supervision by the Commissioner.  Redgrave and Liberty examined information on warrant by the Secretary of State.  Rotaru described adequate and effective safeguards.  The case authorities were clear: they did not impose a condition of pre-judicial-authorisation prior to the bugging. 

In Malone, the point was made that a legal consultation could be the subject of surveillance but that this could also happen in an office.  The Code of Practice made it clear that that the surveillance would not be routine nor that information would be submitted to court as evidence. He noted that there were a variety of safeguards available, such as, the Secretary of State would make an order to get prior consent from a judicial commissioner if surveillance was to be used by the PSNI or NIPS.  The public authorities confirmed that they will neither confirm nor deny if bugging takes place.  Carswell LJ queried if there was a cross-appeal.  Fordham said that he was not appealing against the Divisional Court on the issue of the differential of surveillance in scenarios i.e. directed versus intrusive.  The Secretary of State accepted the relevant aspects of the judgment but noted that the Appellants wanted the Committee to go further.  He said that the relevant public authorities who declined to say there can “never” be surveillance are acting improperly as there are real concerns on the matter. 

Gerry Simpson, appearing for the PSNI said that they had an issue with the fact that Cox& Railton exceptions were going to be swept aside.  The ruling in R v Sandu, gave rise to a request for assurances in Antrim PSNI station.  He then outlined the background to the case including the fact that Sandu, a lawyer, was charged with various offences such as providing false accounts and conspiracy to pervert the course of justice.  He agreed with Fordham that they were happy to equate directed and intrusive surveillance and was not seeking to cross appeal.   The primary concern of his client was whether surveillance was permitted by the Terrorism Act rather than any conflict between the two statues.  On the issue of safeguards, he adopted the submissions of Fordham.

McDonald made it clear that he did not represent Mr. Sandu.  With regard to Cox & Railton situations, he said that they recognised this was an exception but this was a class of legal consultation that did not attract the privilege and protection of legal professional privilege.  The object of privilege and statutory regulations was to decide in advance that monitoring would take place to see if the privilege was going to be abused.  If that happened, it would have to be done in Parliament with the design of a relevant test.  In the original judgment, Girvan J noted that the appropriate threshold test was in RIPA and Parliament left it to the Code of Practice to provide the protections.  However, this had failed. 

Fordham said that the Secretary of State would make an order under Section 47 of RIPA to enhance the authorisation regime.  The Law Lords had to deal with what is within the statute.  There was the implication within his submission that this would be compliant with Article 6 but this was not the case.  The Appellant’s fundamental objection to the availability of the power was that the client could not be free to speak and therefore could not be properly advised.  The client’s fear was not only that evidence would be used against him but also to get other people into trouble.  An individual would thus be vulnerable to police pressure on unrelated matters.  This position of fear may be unrelated to trial and not governed by trial rights and court processes.  Assuming that the PSNI had the correct Code of Practice then, according to Fordham, it was inconceivable that such evidence would be used against an individual.  However, the Code actually says that it is “unlikely” that the evidence will be used against them.  Thus a lawyer cannot definitely say that the evidence will not be used.  A lawyer can tell their client that prior approval has to be given for bugging but at the moment there is no need for approval.  It is an understatement to say that there was a chilling effect on legal consultations rather it was a case of “instant hypothermia”.  McDonald asked what the point of a lawyer was if you couldn’t speak to them.  Morgan/Grenfell was not authority for the second principle i.e. that that if the information is not made public, it is not protected by RIPA.  Hoffman LJ was talking in a very narrow framework.  It is not clear if RIPA can be extended to legal professional privilege; though it has to be extended for the PSNI and Secretary of State’s approach to work.

Breaches of Article 9 can occur as a result of the use of collateral intrusion.  Covert human intelligence sources have their own Code of Practice which says that they may infiltrate criminal gangs.  Fordham said that one cannot trespass under the Police Act 1997 and can only listen to the bug which you have planted under RIPA 2000.  However, this appears to be ridiculous and a non-sustainable argument.  The Police Act was being used by officers to enter property and to listen to the listening devices.  The related Code of Practice discussed the surveillance facilitated by entry into a property; there had not been a gap between the Police Act and RIPA.  McDonald refuted the argument put forward by Fordham regarding s.97 of the Police Act.  He said that there was no Strasbourg jurisprudence to indicate that it was compliant with Article 6.  There was no point from arrest to trial in which a detainee could be confident that he could have a confidential consultation with a lawyer. The fact that the Police Act was prior to the Human Rights Act is significant. Phillips LJ asked if there was any other legislation which could be read with the Police Act.  McDonald responded that the legislation was free-standing in relation to surveillance.  The 1997 Act put the informal guidance on surveillance onto a statutory footing.    Phillips LJ clarified that the bugging continued and it was only the issue of trespass that was addressed by the Act.  The Act made it implicit that the placing of a bug ensured bugging.

McDonald clarified a point made by Fordham and noted that a suspect did not have to wait until the end of a trail to see if there had been a breach of Article 6 rights.  He made it clear that Article 6 rights could be adjudicated on at anytime, and this was made clear in Murray.

Quinlivan noted the authorities Christy v UK, referred to in Liberty.  She made it clear the Appellants were not looking for an audit of the Act nor an advisory opinion; rather they were asking the Committee to rule that there had been a full extent violation of their client’s Article 8 rights.    She noted that the first three questions in their written submissions were seeking clarity on the issues; she noted that the Respondent supported question 4 and recognised that Article 8 was the most significant issue and that this had been confirmed by the Divisional Court.  She pointed out that within Strasbourg jurisprudence, more recent decisions carried more weight as rights had evolved; as such safeguards should be scrutinised within the Strasbourg judgments through to Liberty 2008.

She drew attention to the case of McE and the fact that the surveillance took place in prison.  The Responded had conceded that no-one in the NIPS was authorised to monitor the surveillance yet they did monitor legal consultations; only after the ruling in the Divisional Court.  This led to a short conversation between Phillips LJ and Quinlivan on the kind of remedy the Appellants were seeking and the protection of privacy in UK public law.  Quinlivan raised the issue of the problems with the Surveillance Commissioner where the actions of the PSNI slipped under the radar.  The officers at the Antrim PSNI station showed a different Code of Practice from that used by everyone else; their copy made no mention of Article 6.  Quinlivan raised concern that the Surveillance Commissioner may also have been looking at the draft copy of the Code of Practice as such, she argued, that the Committee could not have faith in the Commissioner as a safeguarding process.

She discussed the merits of the Tribunal system; you had to suspect you were a victim of bugging before you could utilise the tribunal.  The lower Court acknowledged that there could be a delay in notification, in other words, you were only notified after the event and as such the need for legal advice was more acute.  She continued that with regard to legal professional privilege, there was a requirement of prior judicial supervision or another legal and independent nature to the supervision, at the appropriate level of seniority.  She cited Stephanov, where it applied to legal professional privilege, that such a safeguard must be legal and independent. 

December 2008