Legal Professional Privilege (LPP) is a doctrine enshrined in English common law that protects all communications between a professional legal adviser (a solicitor or barrister) and his client from being disclosed without the client’s consent. There are two forms of LPP:
LPP is viewed as a bedrock of our English legal system and was called “a fundamental human right long established in the common law” by Lord Hoffman in R v Special Commissioners of Income Tax. It is also an absolute right and cannot be compromised for the benefit of the great public interest or national security reasons. It is also a principle which extends beyond England and Wales to the remit of the European Court of Justice in the EU. It is underpinned by Article 6 (Right to a fair trial) and Article 8 (Right to respect for private and family life) guaranteed by the European Convention of Human Rights.
The UK Law Society notes that potential surveillance of lawyer-client communications can have an extraordinarily chilling effect. Suspecting that you cannot speak to your lawyer candidly or advise your client confidentially is corrosive of the entire legal process.
The introduction of the Regulatory and Investigatory Powers Act in 2000, together with secondary legislation and codes of practice, created most of the regime governing covert investigation. Although the statute makes no specific reference to intercepting LPP, a 2009 case in the House of Lords (Re McE) held that Part 2 of RIPA permits the specific targeting of LPP information for the purpose of gathering intelligence. This enables covert surveillance of meetings between defendants and their lawyers, consultations in police stations or prisons, and even legal conferences in chambers or solicitors’ firms.
Following this case, codes of practice were introduced to attempt to “safeguard” the situations in which LPP can be targeted. They state that LPP should be violated only in “exceptional and compelling circumstances”. However, this test is identical to the statutory test for surveillance of an individual in his car or home and contains no special protection for privilege material. In addition, the code stipulates that authorisation should be granted only where there is a threat to national security or to “life or limb”. But this phrase lacks clarity and the main statute itself contains no protection for LPP material. There are also no sanctions, criminal or civil, against officials or Ministers for flouting the codes.
1. LPP communications are the most protected form of communication protected under the rule of law.
The principle of confidentiality relating to LLP communications has been enshrined in the common law from as early as the late 18th century, when judges became to develop safeguards to ensure its protection. As stated by Lord Chief Justice Taylor in R v Derby Magistrates Court [1995], LPP has become a ‘fundamental condition on which the administration of justice as a whole rests’. The relationship been a legal professional and his client in so connected with principles of justice a complete prohibition on interception of LPP communication is necessary. It is a fundamental principle that needs explicit protection from infringements grounded in the concept of public interest. This principle is particularly important following the Investigatory Powers Tribunal’s (IPT) recent decision that the mass storage and sharing of information by the Government Communications Headquarters (GCHQ) was unlawful.
2. Intercepting LPP undermines the right to a fair trial
The pending case of the two Libyans, Al Saadi and Belhadj, has forced the Government to disclose secret policies highlighting the GCHQ’s targeting of LLP communications. These policies raise a strong prima facie case of abuse of process and real injustices. It is evident that they do not adequately provide for proper information barriers between those handling litigation and those who receive the intercepted legally privileged material. Interception of these LPP communications could potentially infringe upon an individual’s right to a fair trial, particularly when an action, as in the current case before the IPT, is brought against the state. Permitting the interception of LPP communications under any circumstances creates a real risk that confidence in the results of our justice system could be undermined.
3. Intercepting LPP corrodes legal representation
If clients were aware that discussions with their legal representation could be the target of surveillance, there would be a reluctance to share information and thus increase the risk of an unfair trial. To be full and frank with lawyers, many clients have to mention secret, embarrassing or compromising things that are incidental to their main stories. However, more good is served by those things remaining confidential, than if clients were deterred from telling the big truths to lawyers for fear of the incidental compromising facts being open to be made public. As Lord Chancellor Brougham said in Greenough v Gaskell [1883], if the rule did not exist, people would be mistrustful of consulting legal experts, and so ‘every one would be thrown upon his own legal resources’.
In conclusion, the nature of the relationship between clients and their legal representation, means than more harm than good is caused by intercepting LPP communications. In modern society, there are alternate mechanisms by which to collect intelligence on suspects without having to resort to compromising LPP. To do so would contravene the fundamental principle enshrined in law, create potential risks of unfair trials and injustices, and damage the ability of a client to receive full and necessary legal representation. More therefore needs to be done to ensure that the principle of legal professional privilege holds a more privileged position in modern society.
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