Protection of Freedoms Bill

Debate between Lord Rosser and Lord Scott of Foscote

Thursday 15th December 2011 Grand Committee

[Lord Scott of Foscote]

My Lords, I am in general sympathy with the objective behind this amendment but have some anxieties about the effect of subsections (9) and (12), which mirror one another in similar language. They seem to say that the question of whether a communication has been made with the intention of furthering a criminal purpose is to be determined in accordance with regulations or provisions made by the Secretary of State. Whether a particular communication is protected by privilege or that privilege is forfeited because the purpose of the communication was to further a criminal purpose is the sort of issue that could easily come up in legal proceedings before an ordinary court. On this notion that the Secretary of State could pre-empt that, I note the language,

“make provision for the determination (on an application for an”—

interception warrant, which I can understand—

“or otherwise)”.

That “or otherwise” seems to carry the power right through to legal proceedings where the question of privilege is an issue. I would like some elucidation on the intention behind these two subsections.

[Lord Rosser]

My Lords, I will be brief because the noble Baroness, Lady Hamwee, has gone over the thinking and reasoning behind this amendment, which, as she said, emanated from the Bar Council. She referred to the House of Lords judgment which appeared to hold that RIPA permitted the covert surveillance of meetings between defendants and their lawyers even though no express provision in the Act authorises it and such actions were regarded as contrary to the Police and Criminal Evidence Act 1984. The noble Baroness also referred to other developments, such as the undercover police officers who infiltrated protest groups and maintained their cover while fellow protestors were prosecuted and tried for offences. In one of those cases, I think I am right that significant non-disclosure of the officers’ role led to a number of overturned convictions and cases dropped against other campaigners. The Lord Chief Justice also expressed disquiet that an undercover police officer might have been party to legally privileged communications between the defendants and their lawyers. I suppose that the concerns of the Lord Chief Justice were confirmed in the case related to DC Boyling when it was revealed that he had indeed attended meetings with the defendant and his solicitor.

As the noble Baroness said, the Government made a partial response to the House of Lords judgment on the McE case by making two orders, one relating to direct surveillance and the other to covert human intelligence sources. Clearly, as the noble Baroness said, that has not addressed what the Bar Council regard as the fundamental problem. In making those comments, we want to hear the Government’s response to this amendment. Clearly, there are concerns—probably highly justifiable ones—about others having access to communications between a defendant and his lawyers. One suspects that it is perhaps a case of recent developments leading to RIPA being interpreted in a way that was probably not intended. We want to hear the Government’s response since they may well argue—we wish to hear the case—that the Bar Council amendment would not be appropriate. Equally, it might turn out that they will accept it.