Jessica Sobey, Assistant at Stokoe Partnership Solicitors, examines the impact of the proposed Investigatory Powers Bill (IPB) on Legal Professional Privilege (LPP) for Criminal Law & Justice Weekly.

This article has been published in Criminal Law & Justice Weekly, June 25th 2016.

Download a PDF version of this article here.

Legal Professional Privilege Under Fire

Jessica Sobey on the concerns that privileges may be breached and undermining the criminal justice process.

Sometimes the most fundamental principles can be most vulnerable to attack and/or erosion. As the government strives to tackle the threat posed by those who seek to undermine our democratic values in the context of an increasingly digital age, legal professional privilege (LPP) is in danger of becoming just that kind of principle.

LPP is the common law convention which states that all communications between a client and their legal representatives are privileged and cannot be disclosed without the direct permission of the client. There are exceptions enshrined in law – when privilege is being abused for criminal purposes for example. However, these exceptions aside, the principle of privilege is accepted as being a vital component of the rule of law. Without it, clients would be constrained and unable to speak openly with their legal representatives who would thus, be unable to give proper and effective legal advice.

A cynical observer perhaps may question ‘what do they have to hide?’ and defence practitioners all too often face misconceived notions that conferences are held for the purpose of ‘creating a client’s defence’. Such ideas are of course completely flawed and fail to understand this vitally important exercise carried out by trained professionals. Even the fear that privilege may be breached is capable of undermining the criminal justice process, in turn having a hugely detrimental effect on all concerned.

An often misunderstood truth about the relationship between defence practitioners and their clients, is that when an individual admits guilt, their representatives are forbidden from running a positive defence on their behalf. Those of us working within the criminal justice system know that the process of establishing whether or not an individual has a defence in law can be a long and convoluted one, involving hours of privileged conferences and the taking of instructions. If no defence is made out, then the process of explaining that to any individual is in turn a difficult and sensitive one. If that protected process is undermined, defendants may feel unable to give their representatives a full and frank account; leading to an unnecessary, painful and costly criminal trial.

Conversely, many will have faced a situation in which a defendant admits guilt in the face of evidence that clearly suggests they are not. It is often only via a relationship of trust and confidentiality that defence representatives find out that the ‘admission’ was made simply through fear of the trial process, in defence of another, or perhaps to escape a damaging domestic situation.

Being accused of a crime, especially one that threatens your liberty, is likely to be one of the most terrifying experiences that any defendant and their family will face. In such circumstances it is essential that those who are accused feel able to trust their legal team and in turn, the criminal justice process. Only then can the correct advice be given and the right choices made.

Our increasingly digital world has in recent years threatened to intrude upon a number of fundamental rights that many of us take for granted. One such example being the sacred principle of doctor-patient confidentiality, arguably threatened over the years by a series of data security leaks effecting personal medical records held by the NHS. Of course, medical confidentiality affects society as a whole, whereas not all of us will in our lifetime face criminal charges. Perhaps this is therefore one of the reasons why LPP is often overlooked when we try to meet the demands and threats of our complicated digital age.

The legislation which enables surveillance of privileged material is contained within the Regulation of Investigatory Powers Act 2000 (RIPA), supplemented by the Data Retention and Investigatory Powers Act 2014 (DRIPA), and, following several fairly high profile challenges, the Investigatory Powers Bill. In line with earlier ‘knee-jerk’ legislation supposedly designed to fight the ‘war on terror’, the so called ‘Snooper’s Charter’ is currently being hurried through parliament with unseemly haste and a conspicuous lack of scrutiny.

It is often argued that RIPA does not represent a breach of privilege, as the evidence gathered by the surveillance in question is concerned only with the existence and not the contents of those communications. The difference between these two definitions is becoming increasingly arbitrary, however. A Home Office memo from July 2015, dealing with the human rights implications of the Data Retention and Investigatory Powers Bill, admitted to a blurring on the lines:

‘Communications data is the context not the content of a communication. It can be used to demonstrate who was communicating; when; from where; and with whom. It can include the time and duration of a communication, the number or email address of the originator and recipient, and sometimes the location of the device from which the communication was made.’

As far back as 2012, in evidence given to the Parliamentary Intelligence and Security Committee, the Home Office went even further, admitting that:

‘The distinction between data and content, you can argue, is muddied in the internet world.’

In simple terms, enough metadata – context not content – can render the need for any more detail superfluous. Knowing who a lawyer contacts, when the contact was made and even where the point of contact was in geographical terms at the time, can be enough to represent a material breach of privilege.

The other safety net often put forward in defence of bulk surveillance measures is that the material gathered would not be directly used to build a case against any individual. However, this distinction doesn’t matter in the slightest. Information, once gathered, has the possibility of informing the construction of a case or opening up new avenues of investigation. In many ways it might be less concerning if such material was directly introduced in court, as this would at least have the virtue of alerting the defence to its’ existence and allowing the means by which it is obtained to be challenged. Any assurances that privileged communications will not be directly used is simply an assurance that the information contained therein may well be indirectly utilised, therefore keeping the breach of privilege hidden.

The Investigatory Powers Bill represents an opportunity for the government to provide a statutory safeguard for legal privilege, but it is one that they seem determined to ignore. The only protection offered for legal privilege is contained within the codes of practice rather than within the bill itself (clauses 25, 100, 135 & 171), and amounts to the insistence that there must be ‘exceptional and compelling’ reasons to breach privilege. No definition of ‘exceptional and compelling’ in the context of the proposed legislation is forthcoming.

The Home Secretary herself offers little in the way of reassurance. When giving evidence to the Joint Committee on the Draft Investigatory Powers Bill in January of this year, Theresa May engaged in the following exchange with Lord Hart of Chilton:

Theresa May MP: You used the phrase “interfere with legal privilege”. We are not actively interfering with legal privilege, but I am sure everybody would agree that you could not accept a situation where you said, in regard to anybody who had any legal qualifications and who might be operating in a relationship relating to those legal qualifications with an individual, that these powers could never be used in those circumstances, because, I am sad to say, you may very well find that there are circumstances in which people who are legally qualified and operating in those are potentially providing support to some people who would perhaps be involved in, for example, criminal activities.

Lord Hart of Chilton: Of course, if they misuse privilege, they are not able to call upon it to be used as a defence. It is not a universal rule. If you are a naughty lawyer, you cannot claim legal privilege.

Theresa May MP: Yes, and sometimes it may be necessary to use some of these powers to identify that you are a naughty lawyer in the first place.

This is an answer which seems to suggest that legal privilege could be breached merely on the grounds of suspicion rather than anything more concrete. That LPP could be readily breached simply because members of the security service ‘may’ feel there is a ‘possibility’ of a lawyer working with a terror suspect aiding and abetting them.

Advances in technology inevitably present challenges that require the wider legal framework to be adjusted in order to balance powers with safeguards. However, that does not mean that we should ride roughshod over rights to privacy that have been in place for centuries. If we do so, we risk undermining our democratic values perhaps more effectively than even those who seek to openly challenge them.