Covert Surveillance of Privileged Consultations and the Weakening of the Legal Professional Privilege

Abstract

Covert surveillance of privileged consultations with a lawyer at a police station, as in the case of R.E. v The United Kingdom, constitutes an extremely high degree of intrusion into a person’s right to respect for his or her private life. The European Court of Human Rights confirmed that interference with the legal professional privilege (LPP) is possible but only under specific circumstances (the interference needs to correspond to a pressing social need and be proportionate to the aim pursued) and covered by a very high level of procedural safeguards. Domestic law thus needs to be sufficiently clear, giving citizens an adequate indication as to the circumstances and the conditions in which public authorities are empowered to resort to any such measures. Exceptional circumstances in Northern Ireland, particularly relating to violent paramilitary groups as in the case of R.E., certainly warrant some exceptions to LPP. Although the ECtHR in R.E. did find a violation of a person’s right to private life, it was generally satisfied with the plethora of legislation in the UK covering covert surveillance of consultations covered by LPP, allowing it for the catch-all purpose of national security, with no limitations to persons that may be subjected to it, and without prior judicial scrutiny. This decision, hence, seems to weaken the requirement of foreseeability and the status of LPP.