In re McE (Appellant) (Northern Ireland) In re M (Appellant) (Northern Ireland) In re C (AP) and another (AP) (Appellants) (Northern Ireland)

Part II of the Regulation of Investigatory Powers Act 2000 permits properly authorised covert surveillance of consultations between detainees and their lawyers. Section 27(1), by making compliant conduct lawful for all purposes, qualifies both common-law legal professional privilege and statutory rights to consult a solicitor privately.

The power remains subject to strict necessity, proportionality and Convention-compliant safeguards. The directed-surveillance regime and the existing code provided insufficient protection for legally or medically confidential consultations. Such monitoring therefore remained unlawful unless an enhanced regime equivalent to intrusive surveillance was introduced. Lawfulness of surveillance does not determine whether resulting privileged material may be used in evidence or whether its use would make a trial unfair.

After publicity revealed police monitoring of consultations between a solicitor and clients at Antrim Police Station, the appellants sought assurances that their consultations would not be monitored. Three wished to consult lawyers in police custody or prison. M wished to undergo a psychiatric assessment relevant to his fitness for police interview. The police and prison authorities would neither confirm nor deny that surveillance would occur.

The Northern Ireland Divisional Court, in [2007] NIQB 101, declared that monitoring under the existing directed-surveillance regime would be unlawful and would violate article 8. Its majority nevertheless held that the Regulation of Investigatory Powers Act 2000 was capable in principle of authorising surveillance of legally or medically confidential consultations.

The appellants, although successful below, appealed for broader declarations. The central questions were whether the Act qualified common-law legal professional privilege and statutory rights of private legal consultation, whether the code applied to such consultations, and whether directed surveillance under the existing regime complied with article 8.

1. Appeals dismissed by a majority of four to one. Lord Carswell delivered the principal opinion. Lord Hope, Baroness Hale and Lord Neuberger agreed that Part II of the Regulation of Investigatory Powers Act 2000 could authorise covert surveillance of lawyer-client and analogous doctor-patient consultations. Lord Phillips agreed as regards common-law legal professional privilege, but dissented on the statutory rights of detainees to consult lawyers privately.

2. Per Lord Carswell, Lord Hope, Baroness Hale and Lord Neuberger, section 27(1) provides that conduct properly authorised under Part II is lawful for all purposes. Its clear and comprehensive language was intended to govern interferences with privacy, including legal professional privilege and statutory privacy rights. The legislative history showed that Parliament was addressing covert surveillance comprehensively and against the requirements of articles 6 and 8 of the Convention.

3. The principle of legality and the maxim generalia specialibus non derogant did not compel a contrary construction. Parliament was unlikely to have overlooked privileged consultations. The Act required a code, and the code expressly addressed legally privileged information. Parliament therefore intended such consultations to fall within the statutory scheme, subject to its safeguards.

4. Per Lord Carswell, legal professional privilege protects confidential legal communications and ordinarily prevents their use in evidence. Communications made to further crime attract no privilege. The possibility of abuse, threats to national security or serious crime also showed why surveillance could not be absolutely prohibited. Lord Phillips considered, however, that an express statutory right to consult a lawyer privately was absolute unless Parliament expressly qualified it.

5. All members accepted the Divisional Court's unappealed conclusion that the existing directed-surveillance regime and code supplied insufficient safeguards. Monitoring legally or medically confidential consultations required protection equivalent to intrusive surveillance. The authorities therefore could not lawfully conduct such surveillance under the existing regime. McE's position was independently defective because the code designated no Prison Service officer to give the required enhanced authorisation.

6. Lawful authorisation does not resolve the use or admissibility of information obtained. Lord Hope considered that basic fairness strongly indicated against using a detainee's confidential disclosure at trial. Lord Phillips and Lord Neuberger stressed that rules must clearly govern retention, dissemination and use. The House did not finally decide that evidential issue.

7. The declarations made by the Divisional Court were left undisturbed. Lord Carswell also cautioned that, where a successful party seeks to appeal, the lower court should ordinarily certify any point of general importance but refuse leave so that the appellate committee can assess whether an appeal remains appropriate.

1. House of Lords: By a majority of four to one, dismissed the appellants' challenge to the ruling that the Regulation of Investigatory Powers Act 2000 was capable of authorising surveillance of privileged consultations. It left the declarations against surveillance under the existing directed-surveillance regime undisturbed.
2. Northern Ireland Divisional Court: In [2007] NIQB 101, allowed the judicial review applications and declared that monitoring the appellants' legal or medical consultations under the existing regime would be unlawful and that refusing assurances violated article 8. By a majority, it held that the Act nevertheless extended in principle to such consultations.