In re McE (Appellant) (Northern Ireland) & Ors [2009] UKHL15

13th May 2009

• UK House of Lords
• Finalised
• Article 6, Surveillance
• Intervenor

The facts of the case

Theapplications for judicial review concerned, in C and As case, the refusal of the Police Service of Northern Ireland PSNI) to give assurancesto solicitors acting for the Applicants that their consultations with their client would be private and would not be monitored. In Ms case, it wasa similar refusal in relation to a medical consultation with a doctor,and inMcEscase, it wasa refusal by the Northern Ireland Prison Service NIPS) to guarantee confidential legal consultations with aprisoner on remand.TheApplicantsallsought declaratory relief to the effect that they were entitled to the guarantee of freedom from covert surveillancewhile in custody. They had reason to believe their legalconsultationswere subject to surveillance, a practice the Prisoner Ombudsmanindicated was acceptable.

TheApplicantsargued that failure to provide assurance of the confidentiality of their legal visits,as they had all sought,was incompatiblewithArticles6 and 8 of the European Convention of Human Rightsthe Convention), andbythataccount, was alsoin breach of the Human RightsAct of 1998.They furtherclaimedthat 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.

RSIu2014then British Irish Rights Watchu2014intervened in the High Court and in the House of Lords on behalf of the Applicants.

RSIs intervention in the High Court

RSIs interventiondealt with the professional duty of solicitors, referring to the obligations of the members of the Law Society of Northern Ireland under the Declaration of Perugiaandthe 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 fromgivingtheir solicitors instructions andansweringquestions 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 ofInvestigatory Powers Act 2000 RIPA) and in accordance with the Home Department Code of Practice could only be allowed u201cprovided sufficient safeguards are in place and the need for surveillance is meticulouslyestablishedu2026and u201cthat it was Parliaments intention that section 28 of RIPA could be applied to consultations between legal advisers and clients.

However, because in these cases theauthorisationfor surveillance had been given by the PSNI,itselfthe party seekingauthorisationfor the surveillance, the safeguards were insufficient,and a greater degree of independence was required in theauthorisationprocess. The Applicants appealedin order to challenge the finding of the majority of the Divisional Court that RIPA was intended to extend to legal or medical consultations. Thisraisedtwo 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 toa number ofstatutoryprovisions of a person detained in a police station of in prisonto consult with a lawyer privately.

RSIs intervention in the House of Lords

RSIssubmissionreiterated the argumentit put forward in its previous third-party intervention, arguingthat it was imperative that the House of Lords vindicatethe confidentiality of the lawyer/client, and by implication the doctor/patient, relationship. To fail to do so would be:

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  to interfere with the lawyer/clientrelationship;

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  to diminish the ability of the state to protect thatrelationship;

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  to undermine the role of solicitors as Officers of theCourt;

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  to contravene domestic and international human rightsstandards;

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  disproportionate, and potentially arbitrary, unfair and unreasonable, and

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  not in the public interest.

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The judgment in the House of Lords

The appeal was dismissed, stating that RIPA did permit covert surveillance of communicationsbetweenlawyersand their clients, even thoughu201cthese communicationsmay be covered by legal professionalprivilegeand 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 prisonsrequired enhanced authorizationu2014additionalprocedures were necessaryin order forsuch surveillance to be lawful.

What does this mean for ourwork?

This case fits into RSIswork onthe right to privacy and communications surveillance, as well as its work onupholding the protections provided by the Convention and the Human Rights Act.