May 13, 2009UK House of Lords Finalised Surveillance Article 6 Intervenor
The facts of the case
The applications for judicial review concerned, in C and A’s case, the refusal of the Police Service of Northern Ireland (“PSNI”) to give assurances to solicitors acting for the Applicants that their consultations with their client would be private and would not be monitored. In M’s case, it was a similar refusal in relation to a medical consultation with a doctor, and in McE’s case, it was a refusal by the Northern Ireland Prison Service (“NIPS”) to guarantee confidential legal consultations with a prisoner on remand. The Applicants all sought declaratory relief to the effect that they were entitled to the guarantee of freedom from covert surveillance while in custody. They had reason to believe their legal consultations were subject to surveillance, a practice the Prisoner Ombudsman indicated was acceptable.
The Applicants argued that failure to provide assurance of the confidentiality of their legal visits, as they had all sought, was incompatible with Articles 6 and 8 of the European Convention of Human Rights (“the Convention”), and by that account, was also in breach of the Human Rights Act of 1998. They further claimed that the refusal of the Police or the Prison Service to confirm that the consultations will not be monitored is a breach of their common law rights, and contrary to certain provisions under PACE, the Terrorism Act 2000, and the Prison and Young Offenders Centre Rules (Northern Ireland) 1995.
RSI—then British Irish Right’s Watch—intervened in the High Court and in the House of Lords on behalf of the Applicants.
RSI’s intervention in the High Court
RSI’s intervention dealt with the professional duty of solicitors, referring to the obligations of the members of the Law Society of Northern Ireland under the Declaration of Perugia and the International Code of Ethics of the International Bar Association. It asserted that a solicitor faced with a covert surveillance policy, having a professional obligation to clients, had no option but to assume that there was a possibility that interviews with clients would be intercepted. That assumption limited the actions available to solicitors to recommending that clients refrain from giving their solicitors instructions and answering questions from the police until such time as the solicitor could offer confidential advice.
The judgment in the High Court
In 2007, the High Court of Justice in Northern Ireland ruled by a majority that directed surveillance of interviews between lawyers and their clients in police custody under the Regulation of Investigatory Powers Act 2000 (“RIPA”) and in accordance with the Home Department Code of Practice could only be allowed “provided sufficient safeguards are in place and the need for surveillance is meticulously established…”and “that it was Parliament’s intention that section 28 of RIPA could be applied to consultations between legal advisers and clients.”
However, because in these cases the authorisation for surveillance had been given by the PSNI, itself the party seeking authorisation for the surveillance, the safeguards were insufficient, and a greater degree of independence was required in the authorisation process. The Applicants appealed in order to challenge the finding of the majority of the Divisional Court that RIPA was intended to extend to legal or medical consultations. This raised two key issues:
A) The impact of RIPA on the common law right of legal professional privilege; and
B) The impact of RIPA on this right according to a number of statutory provisions of a person detained in a police station of in prison to consult with a lawyer privately.
RSI’s intervention in the House of Lords
RSI’s submission reiterated the argument it put forward in its previous third-party intervention, arguing that it was imperative that the House of Lords vindicate the confidentiality of the lawyer/client, and by implication the doctor/patient, relationship. To fail to do so would be:
to interfere with the lawyer/client relationship;
to diminish the ability of the state to protect that relationship;
to undermine the role of solicitors as Officers of the Court;
to contravene domestic and international human rights standards;
disproportionate, and potentially arbitrary, unfair and unreasonable, and
not in the public interest.
The judgment in the House of Lords
The appeal was dismissed, stating that RIPA did permit covert surveillance of communications between lawyers and their clients, even though “these communications may be covered by legal professional privilege and notwithstanding the various statutory rights of people in custody to consult privately with their lawyers.” However, the Court also confirmed that covert surveillance of legally privileged consultations in prisons required enhanced authorization—additional procedures were necessary in order for such surveillance to be lawful.
What does this mean for our work?
This case fits into RSI’s work on the right to privacy and communications surveillance, as well as its work on upholding the protections provided by the Convention and the Human Rights Act.
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