Lawyers are allowed to withhold the details of communication with their clients from the police, prosecutors or courts. This long-established right is designed to allow a client to receive full and proper legal advice. Under legal professional privilege they can tell their lawyer the full facts of a situation without fear of the communications ending up as evidence against them.
RIPA is the law which governs secret surveillance, outlining what the state can and cannot do to obtain information.
Solicitor Manmohan Sandhu was charged at Antrim Magistrates' Court with incitement to murder and intending to pervert the course of justice. The evidence against Sandhu consisted of recordings of conversations he had with clients in a room in Antrim police station.
Sandhu claimed that it was against the law for police to record his discussions with his clients because of legal professional privilege. A Divisional Court backed his claim, but the case was appealed to the House of Lords.
Lord Carswell in the House of Lords said that RIPA does allow for the surveillance of privileged communications.
"In its natural and ordinary sense [RIPA] is capable of applying to privileged consultations and there is nothing in its wording which would operate to exclude them," he wrote in his ruling. "It seems to me unlikely that the possibility of RIPA applying to privileged consultations could have passed unnoticed [in Parliament]. On the contrary, it is an obvious application of the Act, yet no provision was put in to exclude them."
Lord Carswell said that legal professional privilege cannot be absolute, that it has to have exceptions. "If it were not possible to exercise covert surveillance of legal consultations where it is suspected on sufficiently strong grounds that the privilege was being abused, the law would confer an unjustified immunity on dishonest lawyers," he wrote.
"There may be other situations where it would be lawful to monitor privileged consultations, for example, if it is necessary to obtain information of an impending terrorist attack or to prevent the threatened killing of a child," said Lord Carswell. "The limits of such possible exceptions have not been defined and I shall not attempt to do so, but they could not exist if the rule against surveillance of privileged consultations were absolute."
Lord Carswell also said that the Code explaining RIPA suggests that the law does cover privileged communication.
"The Code makes detailed provision for obtaining authorisation for monitoring consultations covered by legal professional privilege," he said. "It was laid before and approved by Parliament, but no point appears to have been taken that RIPA did not cover such consultations. It would be surprising at least that no objection was made to the inclusion of those provisions in the Code if it was thought that Parliament had not intended that the consultations be covered by RIPA."
"Parliament intended that the covert surveillance provisions of RIPA should extend to the type of lawyer/client and doctor/patient consultations which are ordinarily protected by legal professional privilege," he said.
Because of the Divisional Court's initial finding that RIPA could not justify such surveillance, though, two of the Lords expressed concern that the Government had carried on regardless.
Lord Phillips of Worth Matravers said that the court "made a finding of law against the Secretary of State. She chose not to appeal against that finding. In those circumstances it was not open to her to consider as a matter of policy whether to "take the steps necessary to remedy the concern identified by the Divisional Court". The position was simply that unless and until she took the appropriate steps she could not lawfully continue to carry out surveillance on legal consultations in prisons or police stations".
Lord Neuberger of Abbostbury also said that he was concerned at the apparently illegal survillance.
"Having decided not to appeal the Divisional Court's decision that surveillance of privileged and private consultations under the present regime is unlawful, the Secretary of State should have ensured that such surveillance did not take place or she should have promptly changed the regime so as to comply with the Divisional Court's decision," he said. "Unless no surveillance of privileged and private consultations has been going on for the past year in the United Kingdom (which appears most unlikely), this strongly suggests that the Government has been knowingly sanctioning illegal surveillance for more than a year. If that is indeed so, to describe such a state of affairs as "regrettable" strikes me as an understatement."