17th September 2013; Nichola Harte of Harte Coyle Collins, Solicitors & Solicitor Advocates, addresses members of the Law Society and Bar Library at the High Court today on the development of the law regarding covert surveillance and the challenges taken by the firm to date in respect PSNI use of covert surveillance in police stations and prisons;
1.The debate about covert surveillance is not new, there have been numerous instances of conflict between individuals and the Government over privacy issues.
2.Today I want to look at the interaction between criminal defence work and human rights issues, and I propose to focus on the legal challenges which have been taken by our firm concerning the covert surveillance of consultations between solicitors and their clients in custody.
3.In 2006 as a result of the criminal proceedings initiated against a Solicitor it emerged that the PSNI, were subjecting, at least some, legal consultations to covert surveillance.
5.Consultations between a detained person and his solicitor are prima facie covered by legal professional privilege and the Courts have consistently recognised that legal privilege “is a fundamental human right long established in the common law [and] a necessary corollary of the right of any person to obtain skilled advice about the law.” Such advice cannot be effective unless the client is able to put all the facts before the adviser without fear that they may be disclosed afterwards to his prejudice.
6.The reality is that the knowledge of the risk of covert surveillance taking place has a “chilling effect on the openness which should govern communications between lawyer and client”.The Detained Person can never have confidence that his consultation is not being listened to and consequently he never has the opportunity to engage in the kind of frank disclosure envisaged under domestic law or under Article 6, with the potentially adverse consequences for his defence
7.Article 6 of the convention more particularly under art 6(3) c a person is entitled to legal representation in the event he is charged with a criminal offence. It has been established by the ECtHR that in order for this right to be properly enforced, any communications between a client and his legal advisers are privileged and carry a requirement of confidentiality. This has been reiterated in several decisions by the Strasbourg Court. If a lawyer was unable to consult with his client privately and without surveillance his assistance would lose its usefulness whereas “the convention is intended to guarantee rights that are practical and effective” 
8.There can be no doubt that Article 8 is engaged in respect of monitoring of private communications between solicitor and his client.
In re C & Others  NI 203
11.C and A had been arrested under the terrorism act and taken to Antrim SCS. Given our knowledge that solicitor client consultations had been subjected to Covert Surveillance at this venue, the solicitor on arrival and prior to consulting sought an assurances that his consultations with his client would not be subject to covert surveillance, and that his clients statutory right to a private consultation would be respected. The assurance was refused, the PSNI confirming it was not their policy to discuss confidential matters but no inference was to be drawn i.e. a ‘neither confirm nor deny’ approach.
12.As a consequence we initiated a judicial review challenge to the breach of the overriding statutory right to a private consultation. The applicants also contended that subjecting their consultations to covert surveillance amounted to a breach of their Article 8 right to privacy and their Article 6 right to a fair trial.
13.The focus of the applicants’ argument was on the principle of legality, the pre-incorporation wisdom that Parliament could legislate to infringe fundamental rights but could only do so explicitly.
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words.”
14.It was argued that because the Regulation of Investigatory Powers Act did not expressly permit the covert surveillance of legally privileged consultations then Parliament was taken not to have intended RIPA to permit such surveillance.
15.The majority of the Court, in a decision which was delivered by the then LCJ Lord Kerr, found that there had been no violation of Article 6 and that Parliament had intended to permit covert surveillance of legally privileged consultations. The majority then went on to conclude that there had been a violation of Article 8 of the Convention given the lack of independence of the authorising authority. Directed Surveillance as it was in this case could be authorised by a Deputy Chief Constable and he lacked the requisite degree of independence from the people seeking the covert surveillance, the police.
16.A minority judgment by LJ Girvan found that the right to a truly private legal consultation was a fundamental right and one which could not be abrogated by the general words of RIPA.
17.The finding of the majority was rather narrow inasmuch as it simply required a change in the level at which covert authorisation could be carried out. The PSNI did not consequently appeal the decision but rather sought to change the authorisation scheme.
In re McE 1 AC 908
18.Our clients were given leave to appeal, despite having been successful on the narrow issue and the matter was heard by the House of Lords in December 2008.
19.The House of Lords effectively affirmed the view of the majority of the Divisional Court, RIPA could be applied to consultations between legal advisers and their clients but concluding that there had been a breach of Article 8 and the right of a detained person in custody necessitated an enhanced authorisation regime. Of significance however a number of the members of the Court expressed concern over the fact that in the intervening period, and despite the judgment of the Divisional Court, the Secretary of State had not made any amendments to the Code of Practice to reflect the judgment of the Divisional Court. In fact at hearing she continued to assert, in the face of the judgment, that the existing Code was lawful. She nonetheless indicated that she proposed to amend the Code in order to “remedy the concern identified by the Divisional Court”.
20.Addressing this issue Lord Phillips stated:
“This stance was not satisfactory. The Divisional Court did not express concern. It made a finding of law against the Secretary of State. She chose not to appeal against that finding. In those circumstances it was not open to her to consider as a matter of policy whether to “take the steps necessary to remedy the concern identified by the Divisional Court”. The position was simply that unless and until she took the appropriate steps she could not lawfully continue to carry out surveillance on legal consultations in prisons or police stations.” (53)
21.Lord Phillips remarks were endorsed by Baroness Hale , by Lord Carswell  and in emphatic terms by Lord Neuberger at  wherein he stated that: “this strongly suggests that the Government has knowingly sanctioned illegal surveillance for more than a year.”
22.While the decision was in many ways disappointing in that it did not prevent the PSNI from subjecting consultations to surveillance provided certain pre-conditions were met, it did raise the suggestion that surveillance since the decision of the Divisional Court and until such time as the Code of Practice was amended, was unlawful.
Impact on Criminal Proceedings – R v Murphy & Ano’r
23.Throughout this period our office had continued to ask the PSNI to provide assurances that consultations were not being subject to covert surveillance and throughout this period the PSNI refused to provide such assurances. This practice continued after the decision of the House of Lords.
24.This issue was eventually litigated in criminal proceedings following the decision of His Honour Judge Lockie to order the PPS to disclose to the defendants in R v Murphy whether or not they had been subject to covert surveillance. The reply to the request for an assurance in that case had been a pro-forma response stating that no covert surveillance of a legally privileged consultation would occur without prior authorisation by a Surveillance Commissioner.
25.While it was eventually disclosed that the defendants had not been subject to covert surveillance the PSNI had nonetheless refused to provide them with an assurance when requested.
26.Consequently they had refused to answer any questions when interviewed by police a course which, on the facts of that case, had the capacity to prejudice their defence.
27.It emerged during the proceedings that while the PSNI had, informally, sought to invite the Surveillance Commissioners, an independent body with oversight of the RIPA regime, to grant authorisations where they wished to subject detainees to covert surveillance, the Commissioners had concluded that they had no power to do so. Thus throughout this period the PSNI were aware that they could not lawfully subject detainees to covert surveillance, yet they persisted in refusing to provide assurances when requested.
In Re RA  The Final Chapter
29.As set out above, subsequent to the decision of the House of Lords no immediate steps were taken by the Government to remedy the situation. The PSNI continued to refuse to provide assurances. The practice was subject to a further challenge in March 2009 when following a leave application an assurance was granted. The same defendant, who was categorised as a particularly vulnerable detainee, was arrested on the 4th May 2010 and subsequently and took a further challenge on the refusal of the PSNI to provide an assurance. In April 2010 the Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 was adopted and a revised Code of Practice came into effect designed to meet the requirements of the decisions of the Divisional Court and the House of Lords.
30.That applicant’s challenge raised a number of issues concerning RIPA 2000 and the revised code. The applicant argued that the circumstances making an authorisation appropriate under the Revised Code were not sufficiently defined leading to uncertainty with a detained person that his consultation may be subject to surveillance. Secondly that the guidance concerning the securing storage use and destruction of legally privileged material was not sufficiently clear or precise. Ultimately the challenge was unsuccessful. In dismissing the claim, the court relied on Kennedy v UK, and found that reading RIPA together with 2010 order and the Revised Code of Practice satisfied the requirements of Article 8. The Supreme Court refused leave to appeal, seeming to end matters.
31.The applicant has however lodged an application with the European Court of Human Rights and that case has passed an initial hurdle inasmuch as it has been notified to the Respondent Government. The Court has asked the Respondent Government to address the following issues:
1. In the concrete circumstances of the applicant’s case, did the provisions of RIPA permitting the covert surveillance of the consultations of persons in detention interfere with the applicant’s rights under Article 8 of the Convention?
2. If so, was that interference justified in accordance with the requirements of the second paragraph of Article 8?
3. In particular, having regard to the status of the PSNI Service Procedure, was the applicable “law” governing covert surveillance of the legal consultations of persons in detention – in particular, as regards the regulation of the retention, storage, transmission, dissemination and destruction of material obtained by covert surveillance – sufficiently clear and precise to satisfy the requirement of foreseeability under Article 8 § 2 of the Convention?
4. In sum, did the applicable domestic “law” permitting the covert surveillance of the consultations of vulnerable persons in detention with their appropriate adult give rise to a violation of Article 8 of the Convention on relation to the applicant?
The UK Government has been given until the 13th October 2013 to respond
32.The view which has emerged from the courts concerning the cases we have taken is that whilst accepting covert Surveillance is ‘objectionable in principle’ it must be recognised that on occasion substantial benefit to society may be achieved from it.
33.The cases have identified examples of abuse of power by agents of the state with regard to authorising and conducting covert surveillance of legally privileged consultations.
34.With the continuing advancements in technology the state’s ability to monitor its citizens is increasing rapidly. It is therefore essential that the regulatory scheme in place is robust and responsive enough to meet current and future needs, to properly safeguard the human rights of the individuals affected and ensure adequate protection against abuse of powers.
Harte Coyle Collins, Solicitors
 R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax  1 AC 563 at paragraph 7
Provides that surveillance of legal consultations, in premises specified in article 3(2) is to be treated for the purposes of Part 11 of the act as intrusive surveillance.
Parg 4.12 expressly provides that legally privileged information can be subject to covert surveillance