Brown, R. v

Legal professional privilege and the linked right to consult a lawyer privately are ordinarily inviolable. They may, however, be subject to a very narrow common-law qualification where there is a real possibility that a legal consultation will be misused in a seriously improper way amounting to an abuse of the privilege.

The presence of protective staff may be justified where it is a proportionate and necessary response to a real risk to life. The staff must preserve confidentiality and disclose what they hear only in wholly exceptional circumstances. Under article 6(3)(c), confidentiality is not absolute: the decisive question is whether a justified restriction, assessed in the proceedings as a whole, deprived the accused of a fair hearing.

The appellant was convicted at Nottingham Crown Court of attempted murder following an attack on another patient at Rampton Hospital. He was sentenced to life imprisonment with a minimum term of four years and made subject to a hospital and limitation direction.

Before and during the trial, the judge required two Rampton nurses to be present during conferences between the appellant and his legal representatives. The appellant was assessed as presenting an exceptional risk of serious self-harm or suicide if left unaccompanied. A nurse briefly intervened during one conference.

On appeal, the appellant contended that the restriction breached common-law legal professional privilege and his right under article 6(3)(c) of the European Convention on Human Rights to communicate confidentially with his lawyers, rendering his conviction unsafe.

1. Appeal dismissed. The judge was entitled to find a real risk that the appellant would seriously harm or kill himself if he conferred with his lawyers in the proposed unaccompanied courtroom arrangement.

2. Legal professional privilege and private legal consultation are fundamental rights. Their usual inviolability does not prevent a strictly limited common-law qualification where there is a real possibility that a consultation will be misused in a manner amounting to a serious abuse of the privilege. The established iniquity principle in R v Cox and Railton (1884) 14 QBD 153 was capable of limited development to meet the exceptional risk to life in this case.

3. The nurses were not investigating officers seeking a forensic advantage. They were present solely to prevent self-harm or harm to others. In future, persons present for that purpose should be clearly instructed to keep anything overheard confidential, save in wholly exceptional circumstances such as an intended crime or other serious abuse of privilege.

4. The restriction was proportionate. No practicable alternative facility was available, no adjournment was sought to identify one, and the court had to act compatibly with its article 2 duty to take reasonable measures to protect life. The appellant’s history and the gravity of the charge supported the judge’s conclusion.

5. Article 6(3)(c) protects confidential lawyer-client communications, but the protection may be restricted for good cause. The ultimate question is whether the restriction, viewed in the proceedings as a whole, deprived the accused of a fair hearing. It did not. The court found no real possibility that a private conference would have materially altered the defence, the evidence, or the jury’s verdict. The trial was fair and the conviction was safe.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction: [2015] EWCA Crim 1328.
• Nottingham Crown Court: convicted the appellant of attempted murder on 21 November 2012 and sentenced him on 30 November 2012 to life imprisonment with a four-year minimum term.