Covert surveillance

Simon McKay, of McKay Law Solicitors and Advocates, examines the issues surrounding the Regulation of Investigatory Powers Act 2000 and covert surveillance.

The House of Lords last week grappled with the particularly sensitive and controversial subject of legal professional privilege and covert surveillance in Re McE and Others [2009] UKHL 15. The cases emanated from Northern Ireland and the facts were sensational, one of the appeals involving the arrest and prosecution of a solicitor for conspiracy to murder and perverting the course of justice.
There were a number of questions on the appeal perhaps summarised for the purposes of this short analysis as whether the Regulation of Investigatory Powers Act 2000 permitted consultations between a lawyer and client to be the subject of covert surveillance.
Earlier articles in Police Professional have considered this issue more broadly where surveillance has taken place in fact. These appeals were concerned with the refusal on the part of the police to “neither confirm nor deny” that such consultations would not be listened into.

Questions
The opinion of the House of Lords raises more questions than it answers. The starting point was the position prior to the 2000 Act coming into force, which was based in both common and statutory law. The law was summarised in the well known case of R v Derby Magistrates’ Court, ex parte B [1996] AC 487: “a man must be able to consult his lawyer in confidence, since otherwise he might hold back the truth… legal professional privilege is thus much more than an ordinary rule of evidence… it is a fundamental condition on which the administration of justice as a whole rests”.
However, this case and the other authorities considered by their Lordships concerned the use and admissibility of privileged material. The position in respect of this remains unchanged. The only “exceptions” (a term the House of Lords was not particularly comfortable with) were when the privilege was spent or when the conversation or communication related to the furtherance of the commission of a crime, “advice sought or given for the purpose of effecting iniquity is not privileged”.
Lord Carswell was of the view that the protection applied only to the product of legal consultations but did not feel the need to resolve the issue since its use (if it met the definition) was inviolable. His Lordship considered the authorities from Strasbourg and concluded that the European Court of Human Rights contemplated that there may be some exceptions to the general prohibition, and in the case of Klass v Germany (1978) 2 EHRR 214 the court extended this to circumstances where privilege may be abused for the purposes of furthering acts contrary to national security or the commission of crime. In McE, Lord Carswell was of the view that the European authorities supported the view that the covert surveillance of legal consultations should not be regarded as prohibited and unlawful in all possible circumstances.
The provisions of Part II of the Act were considered in detail. These are silent on the subject of privilege but the Code of Practice on Covert Surveillance makes detailed provision for dealing with legal professional privilege and confidential material. The Code makes clear that applications should only be made in exceptional circumstances.
Thus it was clearly within the contemplation and intention of Parliament that covert policing resources may acquire, even expressly in certain rare circumstances, privileged material.

Consequences
The majority of the House of Lords concluded that covert surveillance could monitor conversations between lawyers and their clients. There are a number of practical consequences that flow from this:
1.The Secretary of State accepted that such applications for surveillance, though “directed surveillance” for the purposes of the 2000 Act should be treated as intrusive surveillance applications (although no order to this effect is yet in place);