House of Lords
Published March 12, 2009
McE v Prison Service of Northern Ireland and Another
C and A v Chief Constable of the Police Service of Northern Ireland
M v Same
Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Baroness Hale
of Richmond, Lord Carswell and Lord Neuberger of Abbotsbury
Speeches March 11, 2009
Covert surveillance of communications between lawyers and their clients,
covered by legal professional privilege, was permitted under the Regulation
of Investigatory Powers Act 2000, notwithstanding any statutory rights of
persons in custody to consult their lawyers in private.
The House of Lords so held, Lord Phillips dissenting in part, in dismissing
appeals by four applicants, McE, C, A and M against the decision of the
Queen’s Bench Divisional Court in Northern Ireland that the 2000 Act applied
to lawyer/client consultations.
McE, a remand prisoner. had complained to the Prisoner Ombudsman that he
suspected visits by his solicitor were monitored. The prison service
declined to confirm or deny that surveillance had taken place.
C and A had each been arrested and taken to a police station in Northern
Ireland, where their solicitors had been refused assurances that
consultations with their clients would not be monitored.
M had been arrested and taken to the same police station where a consultant
psychiatrist, asked to examine him to ascertain his fitness for interview,
had been refused an assurance that no covert surveillance would take place.
On the applicants’ judicial review proceedings, the Divisional Court (Sir
Brian Kerr, Chief Justice, and Lord Justice Campbell, Lord Justice Girvan
dissenting in part) held that the 2000 Act extended to such consultations
but, unanimously, that such directed surveillance, in the absence of an
enhanced authorising regime such as that prescribed for intrusive
surveillance, could not be justified under article 8.2 of the European
Convention on Human Rights.
Part II of the 2000 Act made a distinction between directed surveillance under
section 26(2), which was covert but not intrusive, and intrusive
surveillance under section 26(3), which was carried out on private property.
By section 27(1) duly authorised surveillance under Part II was “lawful for
all purposes”.
In Northern Ireland, authorisation for directed surveillance could be made by
specified police officers of at least the rank of superintendent. Intrusive
surveillance required a higher level of authorisation.
Mr Barry Macdonald, QC and Ms Fiona Doherty, both of the
Northern Ireland Bar, for McE, C and A; Ms Karen Quinlivan and Mr
Stuart McTaggart, both of the Northern Ireland Bar, for M. Mr
Michael Fordham, QC and Mr David McMillen, of the Northern
Ireland Bar, for the Prison Service of Northern Ireland; Mr Michael
Fordham, QC and Mr Ben Hooper for the Secretary of State for
the Home Department. Mr Gerald Simpson, QC and Mr Peter Coll,
both of the Northern Ireland Bar, for the Chief Constable of the Police
Service of Northern Ireland. Mr John F. Larkin, QC and Ms
Sarah Walkingshaw, both of the Northern Ireland Bar, for the Northern
Ireland Human Rights Commission, intervening by written submissions; Ms Jane
Winter, in person, for British Irish Rights Watch, intervening by written
submissions; Mr Brendan Garland, in person, for the General Council of the
Bar of Northern Ireland, and Mr Alan Hunter, in person, for the Law Society
of Northern Ireland, jointly intervening by written submissions.
LORD CARSWELL said notwithstanding that they had succeeded in establishing
that covert directed surveillance of their consultations with their advisers
would be unlawful, the appellants had been given leave to appeal to the
House.
They had argued that the majority of the Divisional Court had been wrong to
hold that 2000 Act extended to consultations normally protected by legal
professional privilege or a like privilege in a doctor/patient consultation.
They had relied on two main principles of construction, which could operate
together, as indicia of a contrary intention.
The first was the presumption that a statute was not generally intended to
override fundamental human rights. The second was the maxim of statutory
interpretation: generalia specialibus non derogant; namely, general things
do not derogate from special things.
It was said that it could not have been intended that the general surveillance
provisions of the 2000 Act should override the specific provisions in
earlier enactments which conferred statutory rights upon persons detained to
be interviewed by lawyers in such a manner as to be able to speak in
confidence.
Section 58 of the Police and Criminal Evidence Act 1984 and its Northern
Ireland equivalent, and Schedule 8 to the Terrorism Act 2000, provided that
a person held in custody in a police station was entitled to consult a
solicitor privately.
His Lordship said that in its natural and ordinary sense the 2000 Act was
capable of applying to privileged consultations and there was nothing in its
wording which would operate to exclude them.
It seemed unlikely that the possibility of it applying to privileged
consultations could have passed unnoticed. On the contrary, it was an
obvious application of the Act, yet no provision had been put in to exclude
them.
Second, it was not a case for the application of the maxim: generalia
specialibus non derogant. When the earlier provisions had been enacted,
there was no equivalent of the 2000 Act relating to powers of surveillance.
Those provisions had been simply designed to ensure that the various
categories of detained persons could have professional consultations in
private, there being no question that covert surveillance might be carried
out.
They were not special exceptions to be preserved when a general rule was
passed into law.
Third, there was the need to incorporate exceptions to the inviolability of
privileged consultations, for example, where the privilege was being abused
by dishonest lawyers.
There might be other situations where it would be lawful to monitor privileged
consultations, for example, if it was necessary to obtain information of an
impending terrorist attack or to prevent the threatened killing of a child.
Such exceptions could not exist if the rule against surveillance of privileged
consultations were absolute.
Fourth, the Home Office “Covert Surveillance Code of Practice”, which made
detailed provision for obtaining authorisation for monitoring consultations
covered by legal professional privilege, had been approved by Parliament
under section 71 of the 2000 Act.
His Lordship concluded that Parliament had intended that the covert
surveillance provisions of that Act should extend to the type of
lawyer/client and doctor/patient consultations which were ordinarily
protected by professional privilege.
He agreed with the Divisional Court’s finding on article 8.2, against which
there had been no appeal.
Following that finding, the Home Secretary had stated that she was willing to
charac-terise surveillance of consultations between detainees and their
legal advisers as intrusive surveillance with the safeguards which went with
that level of surveillance.
It was regrettable that no step had yet been taken to make the necessary order
notwithstanding that the present practice was declared unlawful over a year
ago.
Lord Hope, Lady Hale and Lord Neuberger delivered concurring opinions.
LORD PHILLIPS agreed that the 2000 Act enabled authorisation of surveillance
of communications to which privilege attached at common law but dissented on
whether it enabled authorisation of invasion by covert surveillance of the
express rights given by statute to a detainee to consult a lawyer privately.
He added, on article 8.2, that unless and until the secretary of state took
the appropriate steps, she could not lawfully continue to carry out
surveillance on legal consultations in prisons or police stations.
Solicitors: Kevin R. Winters & Co, Belfast; Harte Coyle
Collins, Belfast. Crown Solicitor, Belfast; Treasury
Solicitor. Crown Solicitor, Belfast. Mr Ciarán Ó Maoláin,
Belfast, for the commission; Mr Alan Hunter, Belfast, for the
profession.
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