Legal professional privilege must be enshrined in law, says Bar Council

A leading QC has called for legal privilege to be 'firmly in the statute books' amid concerns the prison service self-authorises breaches of professional privilege (LPP).

The call for action comes after justice minister Andrew Selous MP told the House of Commons that the National Offender Management Service (NOMS) has the power 'to intercept prisoner's communications in specific circumstances'.

Under section 4(4) of the Regulation of Investigatory Powers Act 2000 (RIPA) the interception of communications in prisons is authorised where the conduct is in exercise of a power conferred by the Prison Rules.

Selous said prison governors can intercept communications when they have 'reasonable cause to believe that the communication is being made with the intention of furthering a criminal purpose' and is authorised by a director or chief executive of the NOMS.

In response, Peter Carter QC, chair of the Bar Council's surveillance and privacy working group, questioned whether the power to authorise interception should lie elsewhere.

'It is not clear from this statement that those responsible for authorising interception of communications between prisoners and their legal advisers are qualified to understand the meaning or purpose of LPP, or correctly to identify when it is in effect' he said.

'The interception of communications that are potentially covered by legal privilege should be subject to authorisation by an independent judge.'

'Snooper's Charter'

The Doughty Street silk added that a provision for LPP should be 'on the face of the Investigatory Powers Bill, rather than in codes of practice which will not fully be scrutinised by parliament'.

The Bill, dubbed the 'Snooper's Charter' by its detractors, has already been criticised by the legal profession with CILEx, the Law Society, and the Bar all calling for full protection of lawyer-client communications.

Communications that threaten prison discipline, or are intended to further crime, are not protected by LPP. Carter has argued that the impact could lead to injustice.

'Where the confidentiality of conversations between clients and their lawyers is not guaranteed, those accused of crimes, and potential witnesses, can be deterred from discussing fully their case with a legal representative,' said the criminal silk.

'That undermines the fairness of the trial process. Everyone must have the right to consult with their lawyer in private. Prisoners should not be treated as exceptions to that rule.'