FOURTH SECTION
Application no. 62498/11
R.E.
against the United Kingdom
lodged on 7 October 2011
STATEMENT OF FACTS
The applicant, R.E., is an Irish national who was born in 1989 and lives in Newtownabbey. His application was lodged on 7 October 2011. He is represented before the Court by Ms Nichola Harte of Harte Coyle Collins, a solicitors’ firm based in Belfast.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
Following the arrest of a solicitor in Northern Ireland in 2006, solicitors in the province became aware that their private consultations with detainees in police stations and prisons could be the subject of covert surveillance. As a consequence, solicitors attending detainees in police stations and prisons began to seek assurances from the police that their consultations would not be the subject of covert surveillance.
When the police refused to give such assurances, judicial review proceedings were initiated on the basis of the common law right to legal and professional privilege, the statutory right to a private consultation, and under Articles 6 and 8 of the Convention. In the case of Re C & Others [2007] NIQB 101A the Divisional Court of the High Court of Justice in Northern Ireland found that, despite the express statutory right to private consultations, the covert surveillance of lawyer-client consultations was permitted by the Regulation of Investigatory Powers Act 2000 (“RIPA”). However, RIPA provided for two principal surveillance schemes: intrusive surveillance and directed surveillance. At the time of the hearing, covert surveillance of legal consultations was being treated as directed surveillance, which was the least restrictive of the two schemes. The Divisional Court held that the fundamental right of a detained person to consult a legal adviser privately necessitated an enhanced authorisation scheme and that protections afforded by the directed as opposed to the intrusive surveillance scheme offered insufficient protection. If the surveillance of consultations between legal advisers and clients in police custody was to be lawful for the purposes of Article 8 of the Convention, the safeguards for the carrying out of intrusive surveillance had to apply.
The applicants in these judicial review proceedings appealed against the court’s ruling that the surveillance was permitted by the domestic legislation. The appeal went to the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15. The House of Lords agreed with the Divisional Court that although the provisions of RIPA could override, inter alia, legal professional privilege, the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued.
As the Police Service of Northern Ireland (“PSNI”) had not appealed against the Divisional Court’s ruling that the use of the directed surveillance scheme had breached Article 8 of the Convention, the House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance.
Following the decision of the House of Lords in Re McE the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6 April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect. Pursuant to the 2010 Order, directed surveillance of consultations between a detainee and his or her professional legal adviser, representative or medical practitioner in connection with legal proceedings was to be treated, for the purposes of RIPA, as intrusive surveillance.
2. The facts of the present case
On 15 March 2009 the applicant was arrested in connection with the murder of a Police Constable believed to have been killed by dissident Republicans.
When first arrested the applicant was assessed by the Forensic Medical Officer as a “vulnerable person” within the meaning of the Terrorism Act Code of Practice. Pursuant to paragraph 11.9 of that Code of Practice, he could not be interviewed, save in exceptional circumstances, in the absence of an “appropriate adult”. In the case of a person who was mentally vulnerable, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. However, prior to being seen by either a solicitor or an appropriate adult, the applicant asked to speak to the officers in charge of the investigation “off the record”. He was interviewed by police officers in the absence of a solicitor or an appropriate adult and during the course of that interview he gave information which led to the recovery of the gun used in the constable’s murder.
The applicant was detained in custody for twelve days. During this time he was twice seen by a Consultant Psychiatrist and on each occasion he was assessed as being vulnerable and requiring the presence of an appropriate adult. Also during this time his solicitor obtained an assurance from the PSNI that his consultations with the applicant would not be subject to covert surveillance.
On 25 March 2009 the applicant was charged with withholding information about the constable’s murder.
Following the charge the applicant was detained in custody on the ground that if released he would be at risk of harm from dissident Republicans.
The applicant was released on bail on 8 June 2009. He was arrested and questioned on a further occasion in October 2009 but was subsequently released without further charge.
On 4 May 2010 the applicant was arrested for a third time in connection with the constable’s murder. Following his arrest his solicitor again sought an assurance from the PSNI that his consultations with him would not be subjected to covert surveillance. The PSNI informed him that
“[they could] neither confirm nor deny whether any form of covert surveillance has been conducted in any instance. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000, related statutory instruments and the Revised [Covert Surveillance] Code of Practice”.
The applicant was detained in custody until 8 May 2010 when he was released without charge.
On 7 May 2010 the applicant had a further consultation with a Consultant Psychiatrist. He also met with an appropriate adult during his detention.
The charge of withholding evidence appears to have concluded without trial.
3. The domestic proceedings
Following the PSNI’s refusal to give an undertaking that his consultations with his solicitor would not be subjected to covert surveillance, the applicant sought permission to apply for judicial review of this decision. In particular, he alleged that the grounds upon which the authorisation of such surveillance would be appropriate were not sufficiently clearly defined and that the guidance concerning the securing and destruction of legally privileged confidential information was not sufficiently clear or precise.
On 6 May 2010 he was granted permission to apply for judicial review and the court subsequently directed that his consultations with his solicitor and his medical adviser should not be subjected to covert surveillance.
The hearing of the application took place before a Divisional Court of the High Court of Justice in Northern Ireland on 28 June 2010. On 21 September 2010 the Divisional Court dismissed the applicant’s claim.
In dismissing the claim, the court relied on Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010, which found that the regime under Part I of RIPA was compatible with Articles 6 and 8 of the Convention. Although it noted that Kennedy was concerned only with Part I of RIPA, the court considered that the reasoning expressed was “very relevant in view of the parallels between Part I and Part II of the surveillance legal regimes”.
The court found, in particular, that reading RIPA, the 2010 Order and the Revised Code together it was clear that a surveillance operation could only properly be authorised if there was a high degree of risk justifying the use of surveillance as a proportionate response to the risk posed by the individual to be the subject of the surveillance, and if the potential usefulness of the surveillance was demonstrably shown. As the Court had indicated in Kennedy, the requirement of foreseeability did not require an exhaustive definition of all conduct that might justify a decision on, for example, national security grounds, and similar reasoning applied in the present case. Consequently, the court held that the wording in the Revised Code was sufficiently clear.
With regard to the applicant’s second allegation, the court accepted that the statutory provisions under Part I of RIPA, which had been considered by the Court in Kennedy, were more detailed, prescriptive and precise than those in Part II. However, taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. Moreover, as the Revised Code made it clear that material subject to legal professional privilege was not admissible in court and should be safeguarded by the taking of steps to ensure that it did not prejudice any criminal or civil proceedings, a breach of Article 6 of the Convention would not occur. While there was a risk of a potential “chill factor” (insofar as clients might be less than frank with their solicitors if they were concerned that they were under covert surveillance), the court considered that the revised Code was sufficiently detailed and precise to reassure those in custody that, save in exceptional circumstances, their consultations with lawyers would be in private.
Finally, the court observed that the special considerations which applied to consultations with lawyers or doctors did not apply in the case of meetings with an appropriate adult. It therefore followed that surveillance of such meetings could be authorised as directed surveillance rather than intrusive surveillance.
On 9 November 2010 the Divisional Court heard an application for leave to appeal to the Supreme Court. Leave to appeal was refused although the court certified four questions of law of general public importance. These were as follows:
“a. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 6 ECHR in as much as they permit the covert surveillance of legally privileged consultations and the retention of material deriving from legally privileged consultations?
b. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 8 ECHR as a result of:-
(i) a lack of precision and clarity in the guidance governing the authorisation of such surveillance; and/or
(ii) inadequate guidance as to how and when legally privileged material obtained from such surveillance should be handled, stored, used and destroyed.
c. Is the Police Service of Northern Ireland’s Service Procedure “in accordance with the law” within the meaning of Article 8 ECHR?
d. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and an appropriate adult violate Article 8 ECHR because such surveillance can be authorised as directed rather than intrusive surveillance?”
An application for permission to appeal to the Supreme Court was refused by the Supreme Court on 11 April 2011.
B. Relevant domestic law and practice
1. The Regulation of Investigatory Powers Act 2000
The Regulation of Investigatory Powers Act 2000 (“RIPA”) provides the domestic legal framework for covert surveillance. Part I provides for the interception, acquisition and disclosure of communication data, while Part II provides for the use of surveillance and covert human intelligence sources.
(a) Directed surveillance
Section 28 of RIPA provides for the authorisation of directed surveillance, that is, covert surveillance which concerns the observation of an individual in public.
Section 30 permits directed surveillance to be authorised by individuals holding such office, rank or positions with relevant public authorities as are prescribed by the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010.
Pursuant to section 28(2), authorisation should not be granted unless the authorising officer believes that the authorisation is “necessary” and that the surveillance is proportionate to what is sought to be achieved by carrying it out. Authorisation is “necessary” for the purposes of section 28(2) if it is necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; (d) in the interests of public safety; (e) for the purpose of protecting public health; (f) for the purpose of assessing or collecting any tax due to a public authority; and (g) for any purpose specified by an order made by the Secretary of State.
(b) Intrusive surveillance
Under section 32(1) of RIPA intrusive surveillance may be authorised by either the Secretary of State or a senior authorising officer. A list of senior authorising officers is included in section 32(6) of RIPA and includes high‑ranking police officers such as Chief Constables and Commissioners of Police.
Section 32(2) provides that authorisation should not be granted unless the officer believes that the authorisation is “necessary” and that the surveillance is proportionate to what is sought to be achieved by carrying it out. Authorisation is “necessary” for the purposes of section 32(2) if it is necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) in the interests of the economic well-being of the United Kingdom.
Pursuant to section 32(4), in deciding whether the test in section 32(2) has been met the senior authorising officer should consider whether the information which it is thought necessary to obtain by intrusive surveillance could reasonably be obtained by other means.
According to section 35(1), once authorisation is granted notice of the grant must be given to a Surveillance Commissioner. The Surveillance Commissioner must then scrutinise the authorisation and decide whether or not to approve it (section 35(4)). Unless the case is one of urgency, the authorisation of intrusive surveillance by a senior authorising officer will not take effect until a Surveillance Commissioner has given written notice of his approval (section 36(2) and (3)).
(c) Surveillance Commissioners
Section 62(1) of RIPA requires the Chief Surveillance Commissioner to keep under review the exercise and performance of the powers and duties conferred by Part II of the Act. He may be assisted in the performance of his duties by Assistant Surveillance Commissioners.
(d) The Investigatory Powers Tribunal
The Investigatory Powers Tribunal (“IPT”) was established under section 65(1) of RIPA. Applicants can apply to the IPT if, inter alia, they believe that they have been subjected to intrusive surveillance by any United Kingdom police force or one of the intelligence services. Members of the tribunal must hold or have held high judicial office or be a qualified lawyer of at least ten years’ standing. Any person may bring a claim before the IPT and, save for vexatious or frivolous applications, the IPT must determine all claims brought before it (sections 67(1), (4) and (5) of RIPA).
The IPT has the power to award compensation and to make such other orders as it thinks fit. In the event that a claim before the IPT is successful, the IPT is generally required to make a report to the Prime Minister (section 68(5)).
2. Re McE (Northern Ireland) [2009] UKHL 15 and Re C and Others [2007] NIQB 101
Like the applicant in the present case, the claimants in this case had sought to judicially review the PSNI’s refusal to grant assurances that their consultations with their legal representatives while in detention would not be the subject of covert surveillance.
In the Divisional Court, where the case was referred to as Re C and Others [2007] NIQB 101, Kerr LCJ, giving the leading judgment, held that RIPA did impose limits on both the common law right of legal professional privilege and the statutory right to consult a lawyer privately while in detention. Moreover, he did not find any evidence that the possibility of surveillance in any way affected the fairness of the claimants’ trials contrary to Article 6 §§ 1 or 3 (b). He did, however, consider that insufficient reasons had been given to justify why this form of surveillance was not subject to the enhanced safeguarding regime used in respect of intrusive surveillance. He therefore found that there had been a violation of Article 8 of the Convention.
When the case reached the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15, Lord Carswell, with whom Lords Hope and Neuberger and Lady Hale agreed, observed that RIPA and the relevant Code of Practice had clearly envisaged the surveillance of legal consultations. Relying on the Court’s case-law, he accepted that “covert surveillance of legal consultations should not be regarded as prohibited and unlawful in all possible circumstances” and found that in the present case there was a need to incorporate exceptions to the inviolability of privileged consultations.
Their Lordships unanimously agreed with the Divisional Court judgment that the authorisation regime relating to directed surveillance could not be considered to be adequate when put against the intrusiveness of covert surveillance of legal or medical consultations.
3. Amendments to the RIPA regime following Re McE (Northern Ireland) [2009] UKHL 15
As a consequence of the decision of the House of Lords in Re McE the Secretary of State produced the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”). So far as relevant the 2010 Order provides, under article 3, that directed surveillance carried out in relation to anything taking place in, inter alia, a police station used for the purpose of legal consultations should be treated, for the purposes of Part II of RIPA as intrusive surveillance.
A revised Code of Practice was also drawn up and duly approved by both Houses of Parliament.
4. Revised Code of Practice for Covert Surveillance and Property Interference
Part 4 of the Revised Code deals with “Legally Privileged and Confidential Information”.
Authorisations for surveillance of legal consultations must comply with an enhanced regime (paragraph 4.3). Paragraph 4.5 defines legal consultation as one taking place between a lawyer and client as well as a consultation with a medical practitioner “made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.”
Where the acquisition of material subject to legal privilege is not intended but nonetheless likely, the application for authorisation should identify the steps that will be taken to mitigate the risk of obtaining such material (paragraph 4.11).
If the obtaining of legally privileged material is an intended or likely outcome of surveillance then the surveillance commissioner must be satisfied that there are “exceptional and compelling” circumstances which render the authorisation necessary (paragraph 4.12). Where the surveillance is likely to result in the acquisition of legally privileged material, such circumstances may arise “in the interests of national security or the economic well-being of the UK, or for the purpose of preventing or detecting serious crime”. Where the surveillance is intended to result in the acquisition of legally privileged material,
“such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb, or to national security, and the surveillance... is reasonably regarded as likely to yield intelligence necessary to counter the threat”.
The authorising officer and the surveillance commissioner must be satisfied that the proposed surveillance is proportionate to what is sought to be achieved (paragraph 4.13).
Where public authorities deliberately acquire knowledge of matters subject to legal privilege, they may use that knowledge to counter the threat which led them to acquire it. However, it will not be admissible in court and any knowledge acquired should be kept separate from law enforcement investigations or criminal prosecutions (paragraph 4.23).
In relation to the handling and dissemination of legally privileged information, advice should be sought from a legal adviser. Any onward transmission of such information should be accompanied by a clear warning that it is subject to legal privilege. Where onward transmission does take place, it should be notified to the relevant commissioner (paragraph 4.26).
5. Police Service of Northern Ireland Service Procedure, “Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material”
The Service Procedure was issued and implemented on 22 June 2010. Its aim is to set out the position of the PSNI regarding the steps to be taken in relation to any material which is obtained by virtue of the covert surveillance of legal consultations.
Section 6 of the Service Procedure echoes the Revised Code in making clear that deliberately acquired knowledge of legally privileged matters cannot be admitted in court and is to be kept separate from law enforcement investigations and criminal prosecutions.
The section further provides that dissemination of such information to an outside body will only be permitted where “necessary” and any such dissemination should be notified to the relevant commissioner or inspector during their next inspection.
Under the Service Procedure, material subject to legal privilege should only be retained for as long as is necessary to counter the threat in respect of which it was obtained, comply with obligations under the Criminal Procedure and Investigation Act 1996, and comply with the Revised Code.
6. Guidance relating to “appropriate adults”
The Police and Criminal Evidence Act 1984 “Code of practice in connection with the detention, treatment and questioning by police officers of persons under section 41 of, and Schedule 8 to, the Terrorism Act 2000” sets out the circumstances in which an appropriate adult should be appointed.
Pursuant to paragraph 11.9 of the Code, a juvenile or person who is mentally disordered or otherwise mentally vulnerable should not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult.
According to paragraph 1.13, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people.
Paragraph 3.17 provides that the appropriate adult must be informed by police “as soon as practicable” of the arrest and detention of the mentally disordered or mentally vulnerable person and the adult must be asked to come to the police station. Paragraph 3.19 further provides that the detainee should be advised that the duties of the appropriate adult “include giving advice and assistance” and that they can “consult privately... at any time”
COMPLAINTS
The applicant claimed that the arrangements for the authorisation of covert surveillance of consultations – in this case with his solicitor and his doctor – violated Article 6 of the Convention, as they permitted covert surveillance of legally-privileged consultations and the retention of material deriving from them. In particular, the applicant complained that his ability to communicate effectively with a solicitor in private was damaged contrary to Article 6 § 3 (c) of the Convention and that his ability to communicate effectively with a doctor or appropriate adult was also compromised in breach of Article 6 generally.
The applicant further contended that the arrangements for the authorisation of covert surveillance of consultations violated Article 8 of the Convention, because the provisions governing the authorisation of such surveillance, and guidance relating to the use, handling, storage and destruction of any resulting material, lacked the precision and clarity required by the Convention. The arrangements were therefore not “in accordance with the law” and failed to provide “adequate and effective guarantees against abuse”, as required by Article 8 § 2.
He similarly submitted under Article 8 that the PSNI’s Service Procedure was no more than a policy document, which was relatively inaccessible and susceptible to change. It lacked the force of law, meaning that any interference with the applicant’s rights under Article 8 was not “in accordance with the law”.
Lastly, the applicant complained under Article 8 of the Convention that the regime for surveillance of his consultations with an appropriate adult did not attract the same safeguards as for legally-privileged consultations because surveillance could be authorised as directed rather than intrusive surveillance.
QUESTIONS TO THE PARTIES
1. In the concrete circumstances of the applicant’s case, did the provisions of RIPA permitting the covert surveillance of the consultations of persons in detention interfere with the applicant’s rights under Article 8 of the Convention?
2. If so, was that interference justified in accordance with the requirements of the second paragraph of Article 8?
3. In particular, having regard to the status of the PSNI Service Procedure, was the applicable “law” governing covert surveillance of the legal consultations of persons in detention – in particular, as regards the regulation of the retention, storage, transmission, dissemination and destruction of material obtained by covert surveillance – sufficiently clear and precise to satisfy the requirement of foreseeability under Article 8 § 2 of the Convention?
4. In sum, did the applicable domestic “law” permitting the covert surveillance of the consultations of vulnerable persons in detention with their appropriate adult give rise to a violation of Article 8 of the Convention on relation to the applicant?
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