WHAT HAPPENED TO LEGAL PRIVILEGE?

Written 17th November 2014 by Olliers Solicitors

In the same week that the national press declared that MI5, MI6 and GCHQ consider it appropriate to intercept communications between lawyers and their clients, Chris Grayling has admitted that conversations between lawyers and their imprisoned clients have been ‘accidentally’ recorded on a handful of occasions between 2006 and 2012.

Legal Professional Privilege, in simple terms, is the phrase used to describe the rule of law by which communication between lawyers and their clients must remain confidential. Although its principles have been enshrined in the case law of this country since at least 1577, the recent revelations have led lawyers (and clients) to question to what extent the Police and Intelligence Agencies are able to monitor what was long thought to be confidential phone calls or correspondence.

RIPA

The simple answer is that, on the face of it, although the common law rules provide protection for both lawyer and client, conversely, the Regulation of Investigatory Powers Act 2000 (RIPA) provides that, with the appropriate warrant, the police and Intelligence Services (GCHQ, MI5 and MI6) may intercept the communications of any individual in order to prevent serious crime or protect either national security or the economic well being of the country. There is therefore no inherent legislative protection afforded to lawyer/client communications insofar as intercept authorised by a warrant is concerned.

In one sense, the two things ought not to be confused. The first is concerned with ensuring a defendant is able to receive a fair trial, the second with the gathering of intelligence, in normal circumstances, with a view to protecting the country from serious threat or serious criminal activity; such intelligence cannot subsequently be used as evidence in Court.

The difficulty arises in the types of cases referred to by Grayling, in which calls from prisoners to lawyers have been recorded ‘accidentally’ without a warrant, in the course of exercising the power contained within the Prison Rules 1999, to record and monitor all communications by a prisoner to others (excluding their legal representatives).

The PIN System

The PIN system (so called because prisoners are given a personal identification number to access it) automatically records all phone calls made by each prisoner. The prisoner is able to inform the authorities which telephone numbers are those of his lawyer (or MP) and the prison is then obliged to take the necessary action to ensure those numbers are not recorded. In the cases highlighted by the press we are told that either the prisoner did not inform the prison that the number pertained to a lawyer or, of more concern, that the prison, having been informed, failed to take the necessary action to prevent the recording. There is no evidence that any tangible use has been made of those recordings.

Whilst it may be concerning that communications with your client may well have been erroneously recorded, it really is not worth losing too much sleep over. If the police or Intelligence Agencies were really interested they would simply get a warrant and do it deliberately!

Written by Tim McArdle. Tim is a specialist criminal solicitor and his particular focus is on representing those for whom conviction would have life changing consequences.

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