Legal privilege – the slippery slope continues

From CrimeLine from Andrew Keogh

See also:

• Police powers on arrest A slippery slope
• Appropriate adults
• Legal professional privilege
• PACE codes of practice

Legal privilege – the slippery slope continues By Matthew Hickling

Many of you will have heard my concerns over recent years about legislative erosions to the principle of legal privilege. The new Note for Guidance 1E to Code C (‘C1E’) of the Police and Criminal Evidence Act 1984 (as amended) (‘PACE’) was brought into effect on 1 January 2006. This new guidance continues the process of erosion for the most vulnerable detainees at police stations i.e. those who must not be interviewed under caution other than in the presence of an appropriate adult. This article is about the situation where such a client’s private consultation with her/his lawyer is conducted in the presence of an appropriate adult. Must the appropriate adult respect the ‘privacy’ and privileged status of the consultation?

Contents 1 The law 2 The role of an Appropriate Adult 3 The January 2006 amendments to Code C of PACE 4 Why is it important? 5 The Practical Effect of the Changes to the Code 6 The Use of ‘Confidentiality Undertakings’ 7 Conclusion

The law

Section 58 of PACE creates an entitlement for any detainee, if he so requests, to consult privately with a lawyer at any time. The request may even be made by an appropriate adult (Code C 3.19). The entitlement to consult privately with a lawyer may be delayed in certain extreme circumstances but it may not be prevented. Such a consultation will be legally privileged to the extent that the ‘communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client’, as provided by section 10 of PACE.

Section 10(2) of PACE also attaches legal privilege to ‘communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings’.

The role of an Appropriate Adult

PACE codes of practice

Code C 11.17 of PACE states:

If an appropriate adult is present at an interview, they shall be informed:

• they are not expected to act simply as an observer; and

• the purpose of their presence is to:

- advise the person being interviewed;

- observe whether the interview is being conducted properly and fairly;

- facilitate communication with the person being interviewed.

There is a difference between an ‘interview’ (under caution) and a ‘private consultation’. Most defence lawyers will try to conduct private consultations in the absence of an appropriate adult or any third party. Sometimes however, the situation is difficult to avoid. There is the 11 year-old who wants his mum (or the 19 year old who wants the same). There is the mentally disordered client who, at times, makes little sense. There is the 15 year-old girl with whom the lawyer would feel safer and more comfortable with an appropriate adult present. Practitioners will know that the list is a very long one. It includes possible fears of client violence or sexual assault (whether or not an appropriate adult is needed). What obligations then arise for an appropriate adult who forms part of a private consultation?

Where an appropriate adult is present at a private consultation, their role must be in general terms, to have regard for the welfare of the detainee and to assist communication i.e. between the detainee and her/his lawyer. Where matters of law require explanation, the appropriate adult will be able to assist. Where the client uses unfamiliar language and terminology, the appropriate adult is again there to assist. The communication ‘loop’ is this: Client gives instructions – appropriate adult helps to explain instructions – lawyer gives advice – appropriate adult helps to explain advice and so on.

An interpreter or sign language interpreter performs a similar function. An interpreter also forms part of the ‘loop’ of legally privileged communications between client and lawyer. The communication ‘loop’ is this: Client gives instructions – interpreter explains instructions – lawyer gives advice – interpreter explains advice and so on. In this way the appropriate adult and the interpreter are both an integral part of a legally privileged process.

The January 2006 amendments to Code C of PACE

PACE codes of practice

The old C1E used to read as follows: “A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want.” The new amended C1E has the same wording save that an additional sentence has been added: “An appropriate adult is not subject to legal privilege.”

The newly drafted Note thus, in the same paragraph, combines and conflates firstly a principle of law that protects legal privilege and then, in the next sentence, a proposition that offends against it.

A new Note for Guidance C1K to PACE goes on to state:

“This Code does not affect the principle that all citizens have a duty to help police officers to prevent crime and discover offenders. This is a civic rather than a legal duty; but when a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person from whom he thinks useful information can be obtained, subject to the restrictions imposed by this Code. A person’s declaration that he is unwilling to reply does not alter this entitlement.”

Clients are routinely warned about any communication they might have with the police, co-defendants, other detainees, probation workers, family members or, independently, with an appropriate adult. Where a person, A, speaks to another person, B, then B can give evidence of what A has said. For many years this has been the case for confession evidence and certain other categories of evidence. Since the changes to the hearsay rules in 2005 it applies potentially to all evidence. Consequently where a detainee communicates with an appropriate adult or any third party otherwise than in the context of a private consultation such communication would not be legally privileged.

So, does C1E seek to extend this facility to include the situation where B has witnessed A’s private consultation with their lawyer? In order to clarify the intent behind the amendment to C1E and the addition of C1K, I contacted Tim Maile of the Police Leadership and Powers Unit (PLPU) at the Home Office who is responsible for it. He took the time to give me a detailed response, for which I am grateful. He confirmed his view as follows: ‘As appropriate adults are not protected by legal privilege they could be questioned by police or called to give evidence at court about these private consultations’. But, they cannot be ‘private consultations’ if they are not ‘private’. The statement also suggests what appears to be a fundamental misunderstanding of what legal privilege is. The person who has the ‘protection’ of legal privilege is the detainee: it is not the appropriate adult (nor is it the lawyer).

I should add that Mr. Maile says that the questioning of appropriate adults about what had taken place in the ‘private consultation’ would only happen in ‘extreme circumstances’. This is neither set out nor is it implicit in the Notes for Guidance. Even if it were, the arbiters of whether such an ‘extremity’ exists would invariably be the police.

Why is it important?

The linked questions of legal privilege and litigation privilege were recently analysed by the Court of Appeal in their judgment in the case of Bowman v Fels on 8 March 2005 As to legal privilege, the Court cited in paragraph 79 the judgment of Lord Scott in Three Rivers DC v Bank of England (No 6)(2004) 3 WLR 1274]:

"… [T]he dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busy-bodies or anyone else (see also paras. 15.8 to 15.10 of Adrian Zuckerman's Civil Procedure where the author refers to the rationale underlying legal advice privilege as "the rule of law rationale"). I, for my part, subscribe to this idea."

In paragraph 80 of Bowman v Fels, the Court cited Lord Hoffmann who, in the case of R (Morgan Grenfell & Co. Ltd.) v Special Commissioner for Income Tax [2003] 1 AC 563 ruled at paragraphs 7-9:

"7. Two of the principles relevant to construction are not in dispute. First, legal professional privilege ('LPP') is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of Lord Taylor of Gosforth CJ in R v Derby Magistrates' Court, ex p B [1996] AC 487. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the Convention ….and held by the European Court of Justice to be a part of Community law….”

The Court of Appeal went on to say ‘Privilege is much more than an ordinary rule of evidence. It is a fundamental condition upon which the administration of justice as a whole rests’. In C1E, is it not being treated as an ordinary rule of evidence?

The Court also made it clear that legal privilege cannot be overridden save by express statutory provisions. C1E is neither express, nor is it a statutory provision. Code C 1.3 states ‘The provisions of this Code include the Annexes [but] do not include the Notes for Guidance’. The practical difference between ‘provisions’ and ‘guidance’ is somewhat illusory. They are all included in the same document. Some of the ‘Notes for Guidance’ are even drafted in mandatory terms. But that does not give them the force of law. I would submit therefore that this addition to C1E is a nullity to the extent that it seeks to encroach upon the ‘fundamental condition’ of legal privilege.

The Practical Effect of the Changes to the Code

The summary of consultation responses to the Home Office, when these 2006 amendments were proposed, worryingly records the appropriate adult network (NAAN) and the Coalition of Children’s Charities as ‘welcoming that clarification that Appropriate Adult’s are not subject to legal privilege’. Such ‘clarification’ however is not, I would submit, a task for the Home Office; it is a job for the courts. Further, it is a very concerning indication that, placing reliance upon the new C1E, some appropriate adults may be prepared to answer questions about what the detainee has said in ‘private’ consultation with their lawyer. If this is the case, rather than supporting and protecting vulnerable detainees, appropriate adults will thus be made to become part of the investigative process against them. Instead of assisting a vulnerable detainee to communicate with her/his lawyer in private, the Guidance removes the very privacy that is the essence of a private consultation. Consequently, vulnerable detainees will surely be discouraged from seeking any form of support from an appropriate adult; so undermining their very role.

Interestingly, the privacy of a consultation remains for those who are non-vulnerable detainees. Their consultations can be conducted effectively and safely without the need or wish for any third party to be present.

The Use of ‘Confidentiality Undertakings’

Until this point is clarified in the courts, the safest approach for any lawyer will be to consult with the client in the absence of any third party. Where this is impossible, impracticable or, undesirable the lawyer may attempt to protect a client using the contractual principle of confidentiality in conjunction with the legal principle of legal privilege.

Such “protection”, insofar as it can realistically go, is achieved by having the third party present sign a simple form of ‘Confidentiality Undertaking’. It may be used for any third party including an appropriate adult or, an interpreter. It will be especially important to consider where the third party has no personal connection with the detainee. It can be easily drafted along the following lines: “I [name/identity details of appropriate adult/interpreter or other third party] understand that lawyer/client communications are confidential and are subject to legal privilege. I undertake not to breach these principles by discussing with any third parties including the police anything that is discussed in my presence in that context. I understand that I may be questioned by the police about what has been said to me. I shall not be answering any such questioning”. Signed:

The lawyer should explain to the third party both the purpose of the document and the arguments that underpin the reason for requesting it. A third party is of course free to sign or, refuse to sign. Refusal would give rise to the need for further and robust legal advice to the client together with an appropriate file note should the client choose to proceed without taking it. As with other provisions today, the law pre-supposes that all detainees are able to give informed, reasoned and considered instructions.

A client would also need to be warned that a signed ‘Confidentiality Undertaking’ offers limited protection. It will not prevent a vulnerable or determined individual from revealing information if questioned and/or pressurised by police. But at least the defence lawyer will have attempted to protect and advance the client’s legal rights. Even where a client has expressed little concern about the confidentiality of their instructions, such a lack of concern may itself be misguided. Also, it will be clear that the use of ‘Confidentiality Undertakings’ is not confined to consultations in police stations, nor is it confined to the discipline of the criminal law.

Conclusion

Whilst the government has empowered itself to change the Codes of Practice simply by laying them before parliament, the newly drafted C1E and C1K do not and, should not be allowed to reverse fundamental principles of law. Defence practitioners need to be active to uphold those principles. When applications are made in court for unfairly obtained evidence to be excluded, judges need to be presented with a case history that enables justice to be done, rather than the functions of political expedience. A crucial part of that case history is often what happened in the police station. Too many defence practitioners ask me, ‘Why bother? It won’t change anything’. But it might. Doing nothing certainly won’t change anything. Repressed and neutralised to the degree that defence lawyers are today, it is not a time to lose heart. Clients still need to be fearlessly represented in accordance with the law, and have their legal privilege protected.