Investigatory Powers Bill

Lord Thomas of Gresford Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, many concerns have been expressed in this debate—by my noble friend Lord Paddick and the noble Lord, Lord Blunkett, in particular—about personal privacy and the right to maintain a private life. However, I want to concentrate on legal professional privilege. It has been analysed brilliantly by the noble Lord, Lord Pannick, and my noble friends Lord Lester and Lord Macdonald, and I want to put some sort of colour to it.

Legal professional privilege is concerned with the public interest, not personal privacy, and it has been recognised as such since the 16th century. In criminal law, the individual is set up against the state. We prosecute from time to time and we are familiar with the power of the state to exercise surveillance and intrusion in the interests of arriving at the truth. On the other hand, defence lawyers are equally concerned with arriving at the truth. Something that some lay people fail to realise is that you do not win cases by putting forward defences based on lies. The immediate role of the defence lawyer is to impress upon his client the value of telling the truth, thereby building trust between him and that client.

What a defendant says at the beginning following his arrest may be completely untrue. Sometimes what he says has been suggested to him by other inmates in the prison where he is held on remand, or sometimes he will not tell the truth because of fear and sometimes because of guilt. When talking to defendants, I frequently say that if I were a doctor it would be no use if they had a pain in the head to tell me that they had a pain in their foot. I need to know the truth so that I can do the best for them. My noble friend Lord Lester was absolutely right when he said that defence lawyers might not know of a possible defence, and therefore the court and, particularly in a criminal case, a jury will not know that defence because the defendant, for reasons of his own, has not told his lawyer.

To illustrate that, I vividly recall a case in which I was involved in which the defendant—my client—was alleged to have shot somebody outside a nightclub in the presence of his friend. When, six days later, his friend was discovered also shot and my client had absconded and left the country, he was in trouble. His defence was that he knew that the friends of the person he had shot in the first instance were coming after him and they had shot the wrong person—they had shot his friend instead of him. The trial went ahead and he denied both the attempted manslaughter and the murder. He was convicted of both. We appealed because I did not think the conviction for murder was right. We failed and then, when I went to see him in the cells after the appeal, he told me, “Well, now I’ll tell you what really happened”. And for the first time I received from him an account that was completely consistent and believable. However, rather like a referendum, you cannot have a trial over again. That was it; that was the end of the case. He served a life sentence—and possibly is still serving it—for murder.

I am more familiar with the problems of client confidentiality in other jurisdictions. I recall one case in particular in a foreign jurisdiction, where the state was the other party, when we felt it was necessary to have our consultations and conferences standing in the middle of the swimming pool at the hotel in which we were staying because it was almost certain that our conversations were being bugged. Even in this country, involving a political issue in a foreign country, I recall that we talked to the wall as though there were people listening when the team met to discuss their tactics—for example, what inquiries were to be made and how we could support our client in the position that he was at that time.

So I am entirely with the noble Lord, Lord Pannick, in saying that when the commissioner is considering exceptional and compelling circumstances, the warrant must require—it must be shown—that there is a probable cause for belief in iniquity. Obviously, if a lawyer is colluding with his client in some shady business, that cannot be subject to legal professional privilege. I recall, in a very far-flung foreign jurisdiction, advising clients in a situation where the previous legal team had been arrested for attempting to bribe the prosecuting officers of that jurisdiction. We felt a little uncomfortable in the first place, but when something equivalent to half a million pounds in cash was put on the table in front of us in a plastic bag, we thought it was time to leave. So iniquity does happen; it is sometimes a temptation that is put in the way of lawyers.

I do not wish to carry on with further legal language such as “I once had a case”, so I will draw my remarks to a conclusion. However, I think the provisions in the Bill for legal professional privilege require considerable examination.