11 December 2015
European Lawyers’ Day - Address By Mr Justice Colton
Thank you President for your introduction. I also express my gratitude to the Law Society of Northern Ireland for the invitation to give this address on what is the second annual European Lawyers’ Day – organised by lawyers’ associations throughout Europe to coincide with World Human Rights day. The Society is to be commended for contributing to this European wide event.
The theme chosen for this day, namely freedom of speech, could hardly be more topical and relevant. I have been asked to speak on two areas:
· the balance between the right to a freedom of speech and the right not to be insulted or discriminated against, for example as highlighted by the Charlie Hebdo murders and recent Facebook cases; and
· the freedom for a citizen to speak to their lawyer without fear or interference and the fear of surveillance of privileged lawyer/client communications when balanced against national security or prevention of crime with particular reference to the Re McE case.
These are huge topics and it is difficult to do them justice in a 40 minute address. I propose to examine how the courts have dealt with these issues both domestically and in Europe.
My basic theme is that when it comes to freedom of speech we have lofty ambitions. We may not go as far as Voltaire but as lawyers and judges we declare our support of the right but in practice we should be concerned about how this matter has been dealt with in the past and more importantly how it might be dealt with in the future. It is my contention that the principle has not been applied consistently and the European Court of Human Rights has been reluctant to interfere with domestic interpretation.
Historically in this jurisdiction the question of freedom of speech has been dealt with in the civil arena by the law of defamation and in the criminal area by various criminal provisions concerning incitement to hatred. Whilst both areas of law have developed over the years their limitations are obvious. Defamation was limited to freedom of speech which affected the reputation of individuals and the complexity of the law and the expense of going to law was such that it was perceived as being only available to the wealthy. On the other side the defenders of free speech and representatives of the media, in particular, frequently complained about the chilling effect of our defamation laws and the ability of powerful and wealthy people to inhibit their ability to communicate matters of public interest. It is right to say that the law of defamation has developed over the years to provide for a public interest defence based on responsible journalism. In addition to this the common law did develop a prototype law of privacy protecting individuals from unjustified and unwarranted intrusion into their private lives but the fact that leading cases related to a super model, Naomi Campbell, and the late Diana Princess of Wales perhaps demonstrates the point that this was another law only available to those of means. Criminal cases dealing with incitement to hatred have been fraught with difficulties over the years. Successful prosecutions have been few and I shall return to this issue later in my address.
Some lawyers hold the view that the common law principles in UK jurisprudence are not significantly different from the principles set out in the European Convention and in European case law, particularly when the Convention is viewed through UK judicial eyes. However, I do not think it can be gainsaid that the requirement of the UK courts to take into account the Strasbourg jurisprudence when interpreting rights and responsibilities as a result of the Human Rights Act has changed the way we approach matters such as freedom of speech. Thus any analysis of today’s topic and the application of the relevant principles in our legal system could not take place without a consideration of the principles enshrined in the Convention. Indeed, it is hard to imagine this event taking place without that historic development.
At the heart of the Convention lies the concept of balance. The qualified rights under the Convention of which freedom of expression is one, require a balance to be struck between the rights of different individuals and the interests of the public. It is for the courts to determine the proportionality of any decision being challenged and in so doing to determine what is necessary in a democratic society.
Thus the starting point of any legal consideration of this issue must be Article 10 of the Convention. Article 10 states:
“(1) Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licencing of broadcasting, television or cinema enterprises.”
The next paragraph of the Article reinforces the general point I made about balance. It states:
“(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.”
So one can immediately see the issues that might arise in relation to the balance that is to be struck. And of course Article 10 must also be seen in the context of the other rights in the Convention such as the right to life in Article 2, the right to private and family life in Article 8, the right to freedom of religion under Article 9, the right to non-discrimination under Article 14 and also perhaps something which is not looked at sufficiently Article 17 which prohibits the abuse of rights to undermine other rights.
The European Court has consistently held that freedom of expression protected by Article 10 ECHR protects:
“The information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.”
But what of the application of the principles in the case law? One example is the case of Wingrove v United Kingdom which was heard by the European Court in 1997. That case concerned a short film entitled ‘Visions of Ecstasy’. It contained no dialogue, only music and moving images. It depicted a young female character dressed as a nun in various scenes with erotic content. One scene involving her and the recumbent body of the crucified Christ engaged in a sexual act. Mr Wingrove who wrote and directed the film claimed it was inspired by the life and writings of St Teresa of Avila, a 16th century Carmelite nun who experienced powerful ecstatic visions of Jesus Christ, something I might add which was absent from any information provided in the film. The British Board of Film Classification refused to grant it a distribution certificate on the ground that it was blasphemous and therefore could not be legally sold, hired or otherwise supplied to the public. Mr Wingrove complained to the European Court of Human Rights that his freedom of expression was violated. The court agreed that the refusal to grant the distribution certificate was intended to provide protection against seriously offensive attacks on matters regarded as sacred by Christians and did not accept that there had been a violation of the freedom of expression. So whilst it appears that the court expresses support for the right to offend, shock or disturb, it did not interfere with the Board of Classification’s decision. Two other European Court decisions namely Otto-Preminger Institut v Austria and IA v Turkey both upheld state actions which prohibited similar types of productions, both of which dealt with offensive material concerning the majority or established religion in each country.
The awful murders of the journalists employed at Charlie Hebdo in Paris has brought the issue of freedom of expression to the forefront of debate throughout Europe. The murders have their genesis in what have been referred to as “the Mohammed cartoons” which were first published in a Danish magazine back in 2005. The fallout of their publication continues 10 years later. Three of the 12 drawings are particularly noteworthy. The first, showed the Prophet Mohammed crying and saying “It’s hard being loved by idiots”. The caption read “Mohammed overwhelmed by fundamentalists”. The second showed the Prophet Mohammed apparently guarding the gates of heaven and saying to a line of suicide bombers, “Stop, stop we have run out of virgins!” The third showed the Prophet Mohammed wearing a turban in which a bomb is concealed with the fuse lit. The publication of these cartoons caused a major crisis in Denmark and later as we know far beyond. There were death threats, mass demonstrations and ultimately murders. In the legal context in Denmark several Muslim organisations initiated legal challenges against Jyllands-Posten, the Danish publication. The charges were dismissed by the Public Prosecutor in Denmark on the grounds that the publishing of the cartoons did not violate laws on religious or racial discrimination or on blasphemy.
Not content with the outcome of the decision not to prosecute the complainants then lodged a private libel action against the Editor in Chief and Cultural Editor claiming that the cartoons were offensive and insulting and that they attacked the honour of believers because they portrayed the Prophet as war-like and criminal and made a clear link between Mohammed, war and terrorism. The Aarhus City Court dismissed the complaint holding that the cartoons were “not offensive … even if the text accompanying the pictures could be read as being derogatory and mocking … Of course it cannot be excluded that the drawings offended some Muslims. But there is no sufficient reason to assume that the cartoons are or were intended to be insulting or put forward ideas that could hurt the standing of Muslims in society.”
A number of European Newspapers decided to republish the images in support of freedom of expression. The case that perhaps best illustrates the hate speech debate is the one that followed the Charlie Hebdo republication in 2006. After the publication a coalition of Islamic groups sued Charlie Hebdo and its editors on the grounds that the 3 cartoons to which I have referred insulted their religious beliefs. The Paris “Tribunal de Grande Instance” ruled in 2007 that the cartoons did not incite hatred and therefore did not fall foul of the criminal law. The court was however critical of the third cartoon but held that its republication was justified in the setting of the wider international debate around the cartoons. The decision was upheld on appeal with the Court of Appeal providing a much stronger defence of the third cartoon. The Court of Appeal rejected the claim of the Islamic Groups and concluded that “the cartoons … have by their publication, participated in the public debate on freedom of expression which was undermined by controversy, intimidation and reaction to their dissemination in the Danish newspaper … The cartoons satirise a minority of extremists within the Islamic religion and not the whole of the Muslim community. They do not constitute an insult or a personal and direct attack against a group of people because of their religious beliefs and do not exceed the permissible limits of the rights to freedom of expression.”
Perhaps by way of an interesting digression in the UK, the cartoons featured in the conviction of an atheist in 2010 for religiously aggravated harassment. The cartoons had been left in a prayer room in Liverpool’s John Lennon Airport along with cartoons mocking Christianity. The atheist reportedly objected that there was a prayer room at John Lennon airport at all, given Lennon’s ‘Imagine no religion’ line in the song ‘Imagine’. He was given a suspended 6 months sentence and barred from carrying any anti-religious leaflets in public. So it appears he is the only person who has been legally condemned in relation to the cartoons, but would he have been if he had not also added the ones mocking Christianity?
In this context I think it is to be regretted that the European Court had a chance to rule on the Mohammed cartoons but declined to do so. Following the Danish prosecutor’s refusal to prosecute the authors of the cartoons, two associations of Muslims lodged a complaint with the European Court of Human Rights. They argued that not only had the publication of the cartoons violated their rights of freedom of religion and non-discrimination, Articles 9 and 14, but that the publication also constituted a violation of Article 17 of the Convention, which prohibits the abuse of rights to undermine other rights (in this case the abuse of free speech to undermine freedom of religion). Unfortunately, the court has ducked out of what would have been an excellent and high profile opportunity to establish case law, on jurisdictional grounds – the applicants were of Moroccan residence who could not establish a link with Denmark.
Thus it is clear that the European Courts both domestically and at the European Court have been broadly protective and supportive of the cartoons. They have been generally slow to interfere with decisions made by domestic courts and in truth it is difficult to ascertain any fixed principle to divide the line between offence which is acceptable and offence which leads to an unacceptable incitement to hatred on the grounds of either race or religious beliefs. It is also instructive to consider again in the context of Islam and in particular France the legal controversy surrounding the wearing of the Burka. The case of SAS v France, concerned an unnamed 24 year old woman of Pakistani origin, a “perfect French citizen with University education … who speaks of the republic with passion” and who wore both the Burka covering her entire head and body, and the Niqab, leaving only her eyes uncovered. France argued that facial coverings interfere with identification, communication and women’s freedom. The European Court of Human Rights rejected her appeal against the ban and held that it encouraged citizens to aim for ‘living together in society’ and that this was a ‘legitimate aim of the French authorities’. Belgium intervened as a party supporting the French position.
It should be noted that both France and Denmark have very strict hate speech laws. In Denmark, it is a criminal offence to publicly “mock or scorn the religious doctrines or acts of worship of any lawfully existing religious community”. In France, insulting individuals on the basis of their religion or inciting hatred is a criminal offence, as is inciting or “glorifying” terrorism or holocaust denial. In the immediate aftermath of the Charlie Hebdo attacks prosecutions have been taken against several hundred citizens for anti-Semitism, the most famous being the comedian turned activist Dieudonne m’bala m’bala who actually attended and participated in the march in support of Charlie Hebdo.
Unlike the ‘Mohammed Cartoons’ – his case did make the European Court. On 10 November 2015 it upheld a conviction against him which arose from circumstances where he invited a controversial academic on stage to present him with a 3 branched candlestick – awarded by an actor wearing a pair of striped pyjamas with a yellow star bearing the word ‘Jew’.
The court held this was not comedy but a political event – one of anti‑semitism, hatred and support for Holocaust denial. The court described it as a blatant display of hatred and anti-semitism disguised as an artistic production.
In this jurisdiction the battle has raged in university campuses. One might have thought to quote Disraeli that “a university should be a place of light, of liberty and of learning”. Yet time and time again efforts are made to prevent speakers on issues of public interest. Indeed, the practice has developed its own adjective namely “no platforming”. Recently we have seen protests about speakers such as Germaine Greer, Katie Hopkins, and Maryam Namazie an ex‑Muslim Marxist. We see the controversy concerning David Starkey appearing in an advertisement for Cambridge University.
In this regard I draw your attention to the Counter-terrorism and Security Act 2015 which imposes a duty on universities to ‘have due regard to the need to prevent people from being drawn into terrorism’. The guidance issued by Ministers and approved by Parliament in September requires universities to address ‘not just violent extremism, but also non-violent extremism, which can create an atmosphere conducive to terrorism, and can popularise views which terrorists exploit’.
The guidance tells universities that when considering whether to host a particular speaker they should carefully consider whether the views likely to be expressed “constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups”. If so, the event should not be “allowed to proceed” except where the university is “entirely convinced” that such a risk can be “fully mitigated” without cancellation of the event, for example by challenging the speaker with opposing views. As a result of pressure from the House of Lords the Government agreed to add a provision stating that when carrying out these functions a university must have “particular regard” to both “a duty to ensure freedom of speech” and “the importance of academic freedom”. However, the message seems to me to be clear. We now have universities “risk assessing” possible speakers and ultimately pandering to the subjective views of people who may take offence. Whilst, of course, this act has to be seen in the context of terrorism and radicalising young people it seems to me another example of an increasing intolerance of unpopular views and an increasing restriction on freedom of expression.
In terms of this jurisdiction the question of incitement to hatred and criminal prosecution has featured in public discourse over the years. Incitement to hatred legislation in Northern Ireland dates back to the Prevention of Incitement to Hatred Act (NI) 1970; the current position is contained in the Public Order (Northern Ireland) 1987, Article 9 which makes it an offence to use or display threatening, abusive or insulting words or behaviour, with intent to stir up hatred or fear or where such fear or hate was likely to be stirred up. The fear of hatred must be directed against a group of persons defined by a religious belief, sexual orientation, disability, colour, race, nationality (including citizenship) or ethic or national rights. It is similarly an offence under Articles 10 and 11 of the Public Order (Northern Ireland) 1987 to publish, distribute, play or show written or taped material which is threatening, abusive or insulting, with the intention of stirring up fear or hatred or where such fear or hatred is likely to be aroused.
The Communications Act 2003 by Section 127, criminalises the use of a public electronic telecommunications service to send messages which are grossly offensive, indecent, obscene or menacing; this includes telephone calls (considered in DPP v Collins  where racially offensive terms were used). In 2013 a Democratic Unionist party councillor was accused of committing an offence under Section 127 of the Act for sending a grossly offensive tweet but charges were subsequently withdrawn. This provision is currently being used to prosecute a pastor. Whilst it would be wrong of me to make any specific comments on that particular case it is clear that Article 10 of the European Convention is engaged and will have to be taken into account by the court in assessing culpability under this provision. Clearly there is a high threshold required and as per the Collins’ case:
“Prosecutors are reminded that what is prohibited under Section 127 of the Communication Act 2003 is the sending of a communication that is grossly offensive. A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law.”
I am grateful to Paul Dougan, the solicitor involved in the defence of that case who has obtained some interesting statistics as a result of a Freedom of Information request.
Since 2010 to date there have been a total of 1586 investigations under Section 127 of these 544 resulted in no prosecution, 196 resulted in diversions and 844 in summary prosecutions and two in indictable prosecutions. I confess I was surprised at the level of this activity. Whilst we do not have the figure for convictions – there were a total of 95 prosecutions in 2010, 84 in 2011, 142 in 2012, 168 in 2013, 178 in 2014 and 179 in 2015 to date. However, s127 covers a range of offences and it is not clear how many specifically refer to “hate crime”.
It will be interesting to see if a significant appellate body of case law develops as a result.
The vast amount of communication permitted via the world wide web has simultaneously liberated freedom of expression and opened up limitless avenues for abuse, including the potential for instantaneous global dissemination of defamatory and inflammatory material.
Of particular interest in this context is the Northern Ireland case of CG v Facebook Ireland Limited and McCloskey which was decided this year. CG was convicted of a number of sex offences and released on licence in 2012. The second defendant, Joseph McCloskey, operated a Facebook profile/page entitled ‘Keeping our kids safe from Predators II’. Facebook also facilitated a profile/page operated by RS the father of one of CG’s victims.
CG sued the defendants in relation to a series of postings about him on both pages. He brought the action alleging that the defendants misused private information, were in breach of Articles 2, 3 and 8 of the Convention and the Protection from Harassment (Northern Ireland) Order 1997 and that each of them were guilty of negligence. The plaintiff also alleged that the first defendant was in breach of the Data Protection Act 1998. The plaintiff sought damages and an injunction.
There was a previous similar action XY v Facebook Ireland  NIQB 96 in which an injunction had been granted in respect of a page which was taken down. Within hours the second defendant had started a new page.
The action involved three separate series of postings which were removed by Facebook within around a month of them being posted. CG was fearful of him or his family being hurt and believed one of the individuals who posted comments on the profile/page used to be a commander in the UDA. Several incidents reinforced his fears. Mr Justice Stephens decided:
· The plaintiff had an expectation of privacy.
· The balancing exercise came down firmly in favour of the plaintiff. The information it published harmed the public interest, incited violence and hatred, was indiscriminate and led to the potential for public order situations.
· The second defendant is the primary publisher and is liable to the plaintiff for misuse of private information.
· Content in relation to CG was oppressive and unreasonable and there was a course of conduct over a period of time that amounted to harassment and which both defendants knew or ought to have known amounted to harassment of him. The second defendant was liable to the plaintiff for unlawful harassment.
· In relation to the first series of posts it was apparent to the first defendant that individuals were trying to find out where CG lived with an obvious risk of vigilante violence. The first defendant misused private information in not deleting that information. The first defendant was liable to the plaintiff for misuse of private information. Similar findings were made in respect of RS’s profile page.
· The judge ordered an injunction against the second defendant and ordered the first defendant to terminate the page ‘Keeping our kids safe from Predators II’.
· Finally, judgment was ordered against both defendants in the amount of £15,000, the first defendant was to further pay the plaintiff the additional amount of £5,000.
Both defendants have appealed this decision and I understand this case is to be heard later this month by the Court of Appeal. The plaintiff has cross-appealed in relation to damages. Clearly this is a case which will be watched with great interest raising as it does the right to freedom of expression and the extent to which that should be balanced against other Convention rights of individual citizens. The question of Facebook and inter‑reaction with human rights and the freedom of speech has been considered in this jurisdiction in the industrial tribunal case of Teggart v Teletech UK Limited. In that case the tribunal held that the dismissal of an employee for making vulgar comments about the promiscuity of a female colleague on Facebook was reasonable in the circumstances and was therefore fair. Although the comments did not bring the employer’s reputation into serious disrepute, the harassment of a colleague was sufficiently serious on its own to justify the dismissal of the employee for gross misconduct. Furthermore, having made his comments public the employee had no reasonable expectation of privacy for the purposes of Article 8 of the European Convention on Human Rights. It appears from other employment cases in England that the courts take the view that when an individual puts something in his Facebook account, even if only visible to his friends, they did not have a reasonable expectation of privacy in respect of such posts and Article 8 was therefore not engaged. Similar considerations apply to employers checking out employees online profiles.
That the CCBE has a particular concern for protection of the freedom for a client to speak to his or her lawyer comes as no surprise to me. I well recall in my first month as Chairman of the Bar Council, attending the annual CCBE conference in Vienna. The main resolution called on the members of the Bar Associations attending to endorse a motion declaring the absolute protection for this freedom and condemning any interference as unlawful and unjustified. The right was declared to be “inviolable”.
I confess I was a little nervous as myself and Norville Connolly, then President of the Law Society, took our seats in a beautiful room in one of the many old historical buildings for which Vienna is justly renowned. The room was set out with a huge circular table with allocated seats complete with national flags and earphones for translation of the proceedings. Norville and I sat proudly in front of our little Northern Ireland flag (yes there is a photograph available) next to England and Wales (they got the Union Jack!) and the Scots (the Saltire!).
As we listened to a series of worthy, but dull speeches about the sanctity of the privilege, aware of the very recent decision in Re McE I turned to Norville and said we cannot support this motion. So I think for the first time in the history of the conference the delegates from Northern Ireland were compelled to intervene drawing the conference attention to the decision and background facts. Unsurprisingly, we quickly received support from the Law Society and Bars of England and Wales and perhaps more surprisingly from the Bar of the Republic of Ireland! There was much consternation as the planned unanimous endorsement came apart. Efforts to agree amendments were unsuccessful although they continued throughout the night. It was simply impossible to agree that there was a conflicting right or at least a requirement for balance in approaching the undoubted requirements for legal professional privilege.
Of course our European colleagues were right to be concerned. There is no doubt that mass governmental surveillance has a particular impact on the lawyer client relationship and indeed it is probable that prior to the Re McE case we were perhaps naïve and ignorant about the extent of that surveillance and its impact on legal professional privilege. Judgment was given in the In Re McE case and others by the House of Lords on 11 March 2009. The case involved the tension between the importance of covert surveillance in the fight against terrorism and serious crime and the importance of legal professional privilege. The background to the case was that in 2006 a local solicitor Mr Sandhu appeared before the courts charged with incitement to murder, and four counts of doing acts tending and intended to pervert the course of justice. The case against him was based on covert electronic surveillance carried out by the police of conversations between himself and clients who were purporting to consult him in the serious crime suite at Antrim Police Station. The fact that the case was based upon such evidence received considerable media coverage and comment. It led to requests being made of the police on behalf of each of the appellants for assurances that no such monitoring was taking place in respect of consultations that they were about to have with their lawyers, or, in the case of one of the appellants, his consultant psychiatrist. The police declined to give such assurances. The appellants initially brought applications for judicial review, seeking declarations that they were entitled to hold such consultations without being monitored, and that the failure to provide assurances was unlawful. The judicial reviews were successful. The court held that monitoring such consultations would be unlawful and that the refusal of the police to give the assurances had been a violation of Article 8 of the Convention. The majority at the court held that the Regulation of Investigatory Powers Act 2000 (RIPA) was intended to extend to consultations between legal advisors and their clients but that surveillance in the instant circumstances was not proportionate.
Although successful unusually the applicants sought to appeal the decision focussing on the majority judgment that RIPA did extend to consultations between legal advisors and their clients and because of the importance of the case the House of Lords agreed to hear the matter. There were a significant number of intervening parties including the Law Society and the Bar Council. Indeed, Alan Hunter, who is present today, provided a written submission for the benefit of the court. In any event the appeals were dismissed. The court concluded that the covert surveillance provisions of RIPA should extend to consultations that were ordinarily protected by professional privilege. The court held that there was a need to incorporate exceptions to the inviolability of privileged consultations otherwise privilege could be abused. The limits to situations where it might be lawful to monitor privileged consultations had not been defined, but they could not exist if the rule against surveillance of privilege consultations was absolute. However, the court agreed with the Northern Ireland courts that the Code of Conduct covering the provisions for obtaining authorisation for monitoring consultations covered by legal professional privilege was inadequate and that the surveillance in question was disproportionate. Both the Divisional Court and the House of Lords made it clear that in order for any surveillance to be proportionate at the very least such surveillance should be classified as “intrusive” surveillance rather than “directed” surveillance thereby invoking the additional protections for such surveillance. The leading judgment in the case was given by Lord Carswell (to continue with the Northern Ireland connection) but I would briefly refer to a number of passages in the judgment of Lord Neuberger which summarised the principles and the approach of the court. In his judgment he states:
“It must be acknowledged that there are two inherent paradoxical problems in the exercise of intercepting or listening in on privileged communications and private consultations between lawyer and client. First, the authorities cannot know if the privilege and right to privacy are being abused and that the iniquity exception applies, until the interception or listening in has occurred and its results examined. Secondly, the authorities cannot warn the parties in advance that an interception or listening in will or will not occur, as to do so would defeat the whole point of the exercise. Further, it is self-evident that knowing that a consultation or communication may be the subject of surveillance could have a chilling effect on the openness which should govern communications between lawyer and client, and is the very basis of the two rights. However, none of these provisions can call into question the lawfulness of the statutory authorising of the surveillance of privileged communications, although they undermine the fundamental requirement of clear and stringent rules governing the authorisation, circumstances, manner and control over the fruits of any such surveillance.
Accordingly, there is nothing intrinsically objectionable in a statute which authorised surveillance of communications and consultations between a lawyer and client, provided the statute includes safeguards which ensure that such authorisation complies in all respects with the requirements of the Convention.”
Like the other judges Lord Neuberger was critical of the failure of the Secretary of State to put in place measures which would embody the changes to ensure that such surveillance was carried out legally despite the Divisional Courts declaration. In the penultimate paragraph of his judgment he says:
“Unless no surveillance of privilege and private consultations has been going on for the past year in the United Kingdom (which appears most unlikely) that 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.”
Belatedly government did address this issue by the Regulation of Investigatory Powers (Extension of Authorisation Provisions; Legal Consultations) Order 2010 which had the effect of describing surveillance of legal consultations as “intrusive surveillance”.
It certainly would be an interesting exercise to enquire and establish the extent to which such surveillance has been authorised in the interim. What of course has yet to be decided is what use will be put to any material obtained under such surveillance should it come before a court in the future. In McE the court was not required to decide whether information obtained through lawful surveillance was admissible but Lord Hope stated that “basic rules of fairness strongly indicate the contrary”. Interestingly, in the case of R v Turner  Crim LR 993CA, it was said that those arranging covert surveillance must pay meticulous attention to the need to preserve legal professional privilege, and, where the relevant precautions have failed, must ensure that the interests of the potential defendant during the course of the investigation itself, and that any subsequent trial, are not prejudiced in consequence. On the facts, the authorised intrusive surveillance did not give rise to an abuse of process where those responsible for the surveillance used their best efforts to comply with the principles relating to legal privilege, and to implement the surveillance so as to avoid infringements; there was no basis for suspecting that there was any deliberate or intentional breach of privilege or that any of the officers responsible for the surveillance acted otherwise than in good faith; and nothing in the privileged material that was overheard resulted in any further or wider investigations, or produced a single item of incriminating material to strengthen the case against the defendant. The lawful surveillance produced damaging evidence itself, and any flaws were minor and inconsequential.
The 2000 Act does not deal with the question of the admissibility of evidence obtained under their provisions. Their relevance is confined to the fact that they provide a framework of law by which the legality of the actions of the police may be judged; where evidence has been unlawfully obtained, this is a matter to be taken into account by a court in deciding whether it is fair to admit it and so presumably will be left to be dealt with under the PACE provisions and the authorities under that statute. The Re McE case was followed in two subsequent cases. The first was AJA v Commissioner of the Police of the Metropolis . In that case it was held that the words “personal or other relationship” in the RIPA Act included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who allegedly had sexual relationships with them. The appellants in that case were environmental activists. MK, a married police officer with two children, used a false identity given to him by the police to deceive all three appellants into embarking on intimate sexual relationships with him while he was performing his duties as an undercover officer. The issue in that case was not whether the conduct was justified but whether or not the Tribunal had power to hear their complaints which involved the interpretation of RIPA. The appellants did not want the matter to be determined by the Tribunal but the court came to the view that the Tribunal did indeed have jurisdiction. In coming to their conclusion they relied on the McE judgment as is clear from the following passages:
“In McE, the issue was whether RIPA permitted court surveillance of communications between persons in custody and their legal or medical advisors. This turned on whether such surveillance could be permitted as having been authorised in accordance with Section 29 of RIPA as being “lawful for all purposes”. In accordance with Section 27(1) at paragraph 61 Lord Hope said that Section 27(1) was expressed in clear and simple language and it must be taken to mean what it says (ie that conduct to which Part II applies shall be lawful “for all purposes”).”
At paragraph 62 Lord Hope acknowledged that fundamental obligations could not be overridden by general or ambiguous words. He then said:
“In my opinion that cannot be said to have been so in the case of RIPA. Far from being general and ambiguous the very essence of its provisions was to enable fundamental privacy rights to be overridden to an extent that was no more than necessary under precise conditions that were sufficiently strict and carefully regulated.”
In other words the House of Lords held that the term “lawful for all purposes” was sufficiently clear to indicate that Parliament intended them to bear their natural and ordinary meaning, despite the fact that such an interpretation involved overriding essential privacy rights. An important part of the reasoning was that the whole point of the system of authorisation under RIPA was to enable state agents to interfere with an individual’s fundamental rights, provided that the conditions of necessity and proportionality set out in Section 29(2) were satisfied. The protection for the individual afforded by these conditions meant that giving the words “lawful for all purposes” their plain and ordinary meaning would not produce startling or unreasonable consequence as Parliament could not have intended.
The court held that similar reasons should be applied to the undercover police case. The phrase “personal or other relationship” in Section 26(8)(a) forms part of the definition of the type of conduct which can be authorised under Section 27 on which, if it is carried out in “challengeable circumstances” may be the subject of human rights proceedings before the IPT under Section 55. In its plain and ordinary meaning it includes intimate sexual relationships. The court held that there was no doubt that, in enacting RIPA, Parliament intended to override fundamental human rights subject to certain protections. Most pertinently these include the requirements for necessity and proportionality. It can fairly be said that Parliament may not have foreseen in precisely what way these human rights might be overridden and there is certainly nothing to suggest that Parliament contemplated that surveillance by a CHIS might be conducted by using the extraordinary techniques that are alleged to have been used in the case. But none of that mattered. To give “personal or other relationship” its ordinary meaning so as to include intimate sexual relationships does not produce any startling or unreasonable consequences as Parliament could not have intended.
In the case of R v Brown  the Court of Appeal held that it was appropriate, in an extremely narrow brand of cases and as an additional common law exception to the inviolable nature of legal professional privilege to extend the principle by imposing a requirement that particular individuals could be present at client/lawyer discussions if there was a real possibility that the discussions would be misused in a way amounting to abuse of privilege that justified interference. In that case lawyers acting for a particularly violent defendant sought leave to consult with him whilst he was present in a secure dock of the court but in the absence of nurses, custody officers and others. However, the hospital who were in charge of the defendants care insisted that the appellant be handcuffed to nurses in the course of these meetings. It was assessed that these measures were necessary to protect the appellant from self-harm as well as to protect others. Relying on the McE case the court took the view that the restrictions were justified. Quoting from the judgment:
“Whether or not the restrictions were properly justified is clearly relevant to the issue of proportionality, and, against that background, the court needs to make the assessment as to whether the trial was fair.”
The court took the view that these restrictions were a proportionate and appropriate response to the grave threat the appellant posed to himself and did not accept that they rendered the procedures unfair.
Earlier in the judgment the following passage appears:
“In our judgment by way of additional common law qualification or exception to the inviolable nature of legal professional privilege, and 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 matter, that involves impropriety and might be an abuse of their privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step. This appellant with his particular criminal history was charged with an extremely grave crime that it was self-evidently in the public interest to try. As set out above the judge made a clear and sustainable finding that the appellant was at risk of harming himself, either seriously or fatally, if he acceded to his proposal that conference with his lawyers should take place using an empty dock in one of the court rooms. It follows that this step constituted a legitimate exception to the protection which the common law provides as regards legal professional privilege and the linked right of a person to consult a lawyer in private. We note that whether or not the risk, if it exists, justifies intervention will be a question of fact or degree in each case.”
I think it is fair to say that the cases to which I have referred truly challenge our instinctive support for the principle of freedom of speech. There is precious little, if any, moral or artistic merit in the various expressions that have tested the courts. That, however, is the point. In my view we must set aside our understandable shock and distaste at such material. As lawyers our objective must be to develop a consistent body of case law which applies the principles, which are not in dispute, to the challenges of the day – be they religion, the internet or terrorism.
We should not be distracted by or dictated to by those who use offence to justify murder.
Freedom of speech, probably has its strongest legal support in American Constitutional Jurisprudence – where the courts have come closest to endorsing Voltaire’s sentiment - “I disapprove of what you say, but I will defend to the death your right to say it.”
No doubt that is why only in the USA could a candidate like Donald Trump be leading the race for nomination as Republican candidate for the presidency - the party whose fore bearers helped draft the American Constitution based on the principles of pluralism and democracy – but that is a story for another day.