How absolute is the right to confidential communications with a lawyer?

Colin Passmore considers this and whether human rights law can infringe upon the absolute right to privilege questions.

I haven’t posted a privilege blog for some time now, and one of the reasons is that I have had a blitz on writing parts of the 4th edition of Privilege (which is still some way off completion). One subject that I have spent a lot of time on is the growing impact of human rights law on privilege and that has caused me to re-examine a Court of Appeal decision from last year, R v Edward Brown (formerly Latham).

Here, the appellant, who was already serving life sentences in a secure hospital, was convicted of the attempted murder of a fellow patient. During the course of his trial, the appellant was refused the right to meet with his defence counsel without being accompanied by at least two nurses to whom he was handcuffed in order to protect him from self-harm, as well as to protect others. The Crown Court where his trial was conducted had no facilities in the cells to protect defence counsel from the appellant, for instance by separating the appellant from counsel by means of a secure transparent screen. Following conviction, the central ground of the appeal was that the conviction was unsafe because the requirement that the conferences at court had to take place in the presence of the nurses breached the appellant’s right at common law to consult privately with his lawyers, as well as his rights under Article 6(3)(c) ECHR to “defend himself through legal assistance of his own choosing”. In particular, the appellant contended that the trial judge erred when he decided that the right to confidential communication between him and his legal representatives was “not absolute” but instead was qualified, and that in any event it did not trump the defendant's right to life.

Examining the position first by reference to the common law , the Court of Appeal (Criminal Division) was driven to the conclusion that when privilege exists, “it is inviolate”. Needing a route around this, the Court fashioned a small extension to the “crime-fraud” (or “iniquity”) exception to privilege and linked this to its duty as a public authority (within the meaning of s.6(1) HRA) to protect human life in circumstances where this positive obligation is applicable.

Fulford L.J. said:

“Article 2 of the Convention undoubtedly applied in this case (“Everyone's life right to life shall be protected by law”) and it is desirable that the common law is interpreted (and, if necessary, developed) in a way that is compatible with an individual's Convention rights. Indeed it may be that this is required of a court, since the obligation created by section 6 of the Human Rights Act is a statutory one and legislation normally overrides the common law. In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step.”

Fulford L.J. concluded that in this context, the duty to protect life was clearly enforceable if there were a risk an individual might abuse legal professional privilege in this particular “iniquitous” manner: the risk identified by the judge would have constituted an occurrence that amounted to a clear and sufficient abuse of the privilege such as to justify this particular interference in order to preserve the defendant's Art. 2 rights.

What is really interesting about this part of the decision is both the impact on privilege considerations of human rights law and the fact that at common law privilege continues to be absolute as per Derby Magistrates. But two further important considerations arise. First, the Courts are increasingly testing whether their decisions at common law yield the same result under human rights law. Thus, having next held that, even if there had been an infringement of the defendant's right to confidential communications with his lawyer under the common law, and that interference was not justified under section 6 HRA, the proceedings were not, as a result, rendered unfair nor the conviction unsafe, Fulford L.J. then tested whether Convention jurisprudence yielded a different result.

By reference to Art. 6.3(c) (see above), the defendant argued that the necessary corollary of that right is the right to confidential communications with his lawyers, which the presence of the nurses had undermined. This was to ignore consistent Convention jurisprudence which recognises that the right of access to a lawyer may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. That brought into play the second important point this case raises, which is that privilege is not absolute under human rights law. As Fulford L.J. put it:

“ … under the jurisprudence of the European Court of Human Rights, the right to confidential communications with lawyers … can be restricted for good reason and one of those reasons is if the individual's life is at risk.”

That good reason was provided by Art. 2 which imposes a positive obligation on public authorities, including the Court, to take reasonable measures to avert a real and immediate risk to life, and in the circumstances of this case the restrictions imposed on the defendant’s ability to have confidential communications with his counsels were held to be a proportionate and appropriate response to the growing threat he posed to himself. Accordingly, the Court did not accept that they rendered the proceedings unfair and that therefore there had been no breach of Art. 6.

Interesting stuff - the same result but by two different routes. And this leaves me to wonder whether, ultimately, Convention jurisprudence will lead to a weakening of the Derby Magistrates absolutist approach to privilege.

I will explore that in detail in edition 4. Watch this space.

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