Grant v R

Deliberate police eavesdropping on privileged communications between a detained suspect and solicitor is categorically unlawful. It may render the ensuing prosecution an abuse of process even where no intercepted material is used, and no resulting prejudice to the defence can be proved.

Where such conduct seriously undermines legal professional privilege, the integrity of the criminal justice system and the rule of law, the court should stay the proceedings. Although abuse of process ordinarily requires a balance between public confidence in justice and the public interest in prosecuting crime, the gravity of a deliberate violation of privileged legal advice can require a stay despite the seriousness of the alleged offence.

The appellant was convicted at Lincoln Crown Court of conspiracy to murder and sentenced to 18 years’ imprisonment. Before trial, he had sought a stay for abuse of process because Lincolnshire Police had covertly recorded conversations between him and his solicitor in a police-station exercise yard during Operation Mink.

The trial judge found serious procedural shortcomings but no deliberate plan to intercept privileged communications, and refused a stay. On appeal, the court considered the wider pattern of comparable police operations, including findings in Operation Wheel and Operation Galaxy, and admitted the later Galaxy ruling. It had to decide whether the interception was deliberate and, if so, whether a stay was required despite the absence of evidential prejudice.

1. The appeal was allowed. The court held that the conviction was unsafe because the trial judge should have stayed the indictment for abuse of process.
2. The court was exceptionally entitled to reassess the trial judge’s factual conclusion despite not having heard the witnesses. The unexplained proposal to bug the exercise yard, the failures to disclose earlier collateral intrusion, the defective authorisation process, and the evidence concerning Bennett and Bourne led inexorably to the conclusion that Operation Mink had the same unlawful purpose as Operations Wheel and Galaxy. It was a deliberate attempt to capture privileged solicitor-client communications.
3. Deliberate eavesdropping on a detained suspect’s privileged communications is categorically unlawful. Legal professional privilege is a fundamental condition of justice. The court applied the approach reflected in R v Derby Magistrates Court ex p. B [1996] AC 487 and held that deliberate interference of this kind gravely undermines the rule of law.
4. Where a fair trial remains possible, an abuse application normally requires a balance between maintaining public confidence in justice and protecting the public from crime. However, the deliberate violation of confidential legal advice was sufficiently grave to require a stay. The prosecution did not need to have used intercepted material, nor did the appellant need to prove that the misconduct produced evidential prejudice. Requiring disclosure of the privileged conversations to prove prejudice would compound the violation.
5. The court would not have allowed the appeal on the fourth and fifth grounds alone. The late “team 2” theory advanced by co-defendants’ counsel had not materially deprived the appellant of a meaningful opportunity to answer it, although the judge might usefully have commented on the co-defendants’ possible motivations. Leave to appeal on those grounds was refused.

• Court of Appeal (Criminal Division) — allowed the appeal and held that the prosecution should have been stayed for abuse of process: [2005] EWCA Crim 1089.
• Lincoln Crown Court — convicted the appellant of conspiracy to murder on 25 June 2003 and sentenced him to 18 years’ imprisonment on 27 June 2003. The trial judge had refused a stay based on covert interception of privileged communications.