A bugbear for police

Simon McKay, of McKay Law Solicitors & Advocates of Leeds, looks at police use of listening devices in covert surveillance.

Last week, the BBC’s website announced in almost sensational fashion that the High Court in Belfast had imposed a “ban on police bugging of legal consultations”. It related to an application by a suspect held in a Northern Ireland police station for a declaration that the police should be prevented from listening into his discussions with his lawyer.

But police officers interested in covert policing may be forgiven if they have a sense of déjà vu about the story. In 2009, the House of Lords was asked to decide the issue of the legality of police bugging of solicitor-client consultations in a case called Re: McE. Like the current case, it emanated from Northern Ireland following a refusal by the Police Service of Northern Ireland (PSNI) to confirm or deny that it had carried out surveillance operations involving the acquisition of legally privileged conversations.

The House of Lords in McE, to many practitioners’ surprise, ruled that the Regulation of Investigatory Powers Act (RIPA) 2000 covered surveillance operations aimed at solicitors who were suspected of acting unethically or unlawfully. In such circumstances, said their Lordships, using the provisions of Part II of the 2000 Act relating to directed and/or intrusive surveillance was permissible. If it was directed surveillance, any authorisation should be treated as if intrusive and be subject to the appropriate authorisation regime. This was a controversial decision. Four years earlier, the Court of Appeal in the case of R v Grant had approved the decisions of two judges in separate cases to stay proceedings against suspects whose conversations with their lawyers were captured by a listening device placed in the exercise yard in two police stations in Lincolnshire. One of these cases included counts of murder and conspiracy to murder. The Court of Appeal also reversed another judge’s decision to allow a prosecution to continue where privileged communications had been acquired via a listening device.

The reason for the decision in Grant and the other cases is easier to understand than the position in McE. Respect for privilege has historically been regarded as sacrosanct and forbidden territory in terms of policing activity, although it has always been accepted that from time to time privileged conversations or material may inadvertently be acquired. Deliberately listening in to the consultations that took place in Lincolnshire was such a fundamental breach of the rights of the suspect it was impossible to allow the case to continue. However, unconscionable conduct by a solicitor should equally not benefit from the cloak of protection that privilege provides. Indeed, in a case in 2002, R v Robinson, the Court of Appeal dismissed an appeal by a solicitor convicted of major legal fraud who argued that it was unlawful for the police to have used a source in his office for information. Privilege does not extend to acts done in the furtherance of a crime.          

The problem with McE, though, was that it raised more questions than it answered. How does an investigator determine a solicitor is acting unlawfully? And what happens if, having formed the view that he or she was, a surveillance operation took place that demonstrated otherwise? How is the product from the operation handled and managed? In a wider context, what are the implications for how police interviews are conducted and will it result in suspects electing to exercise their right to silence wholesale?      

The current case is the first to start to confront these difficult questions. A direction was issued by the High Court that the police cannot use covert surveillance against the suspect while he is in custody. His lawyers launched a judicial review to secure a declaration that no secret recordings were being carried out. Coun