Sweeping solicitors' offices and barristers' chambers for bugging devices could become routine if the Government presses ahead with its proposals to allow the police to authorise their own surveillance operations without any exemption for legal professional privilege.
Home Secretary Michael Howard is “considering his position” on the intrusive surveillance provisions after the Police Bill was savaged in the Lords. Peers backed the opposition amendments which would require prior authorisation of such operations by a senior judge. However, a Labour amendment intended to protect privileged information fell on a tied vote.
The “Bugging Bill”, which comes before the Commons later this month, has prompted concern among many professionals, including lawyers, doctors, accountants and journ- alists, as well as the Catholic Church. But one senior lawyer said despondently: “I think we may have lost the chance to protect legal professional privilege and must hope that there will be some proper system of prior authorisation by a judge.”
Peter Heims, spokesman for the Association of British Investigators, says the Bill could mean more work for those specialising in de-bugging. In general, about 90 per cent of everyday private investigator business comes from lawyers, but the majority of PIs would not be equipped to undertake this sort of work.
Ian Leigh, Reader in Public Law at the University of Newcastle-upon-Tyne, claims the Bill introduces a number of paradoxes. For example, the police need the Home Secretary's permission for telephone tapping, but not for bugging – even though the same facts and grounds might apply – and a judicial warrant was required for an open search, but not for a covert one.
Conventional procedures gave sensitive material held by lawyers special protection, unlike the Bill, which does not make any exceptions for professional confidences. The Government claims safeguards will be included in a code of practice, but Leigh believes there is a danger the 43 forces in England and Wales could apply different standards. “The prospect of covert police searches or bugging of solicitors' offices is far from fanciful,” he says.
Leigh questions whether the Bill's proposals would violate Article 8 of the European Convention on Human Rights, which protects privacy. Before the Bill, intrusive surveillance was governed by a Home Office circular requiring a chief constable's prior approval. The police argue that seeking prior judicial approval could hinder a swift operation.
Leigh says: “There is the argument that the bill is only validating what previously happened. But that was very unsatisfactory and if it is to be made into a code of practise we should be putting in safeguards.”
It was unfortunate timing for Michael Howard and the police that the Lords' outspoken criticism of the Bill coincided with a report that hundreds of phone-tapping files gathered during an inquiry into a corrupt detective had gone missing.
Barrie Irving, director of the Police Foundation, an independent research charity, studied anonymous confessions by detectives of some of their worst “cock-ups” for the Royal Commission on Criminal Justice. “In almost all cases, the officers were able to keep the mistake or wrongdoing away from their senior supervising officers, including places broken into, and people listened to without permission,” he says.
Robert Roscoe, chair of the Law Society's Criminal Law Committee, claims Michael Howard was being “disingenuous” to talk about law firms being used as fronts by criminal gangs as an excuse for refusing to include any exemptions or exceptions. It was already the case that if a lawyer conspired with a criminal, he could not claim privilege.
He says: “The problem with bugging is its indiscriminate nature – it doesn't stop when an innocent person enters the room. A lot of sensitive issues are discussed with solicitors and people will be worried who might be listening and who the information being discussed might be passed on to. Even if the client is a criminal it is vital they can speak freely with their solicitor to get the best advice.
“What is really frustrating,” he continues, “is the blatant way in which the Government has ignored concerns about individuals' civil rights. It is also disappointing that the Labour Party offered no support until shamed into taking action.”
Roscoe claims the definitions of when intrusive surveillance can be used are “wishy washy”. The conditions under which bugging is considered appropriate are first defined as when serious crime could be prevented by its use. But Roscoe points out: “Serious crime is defined as offences which carry sentences of three years or more, but this includes shoplifting. It should be redefined as offences carrying 10 years or more.”
Second, people gathered together for common purpose are deemed legitimate targets, “but these could be Newbury by-pass protesters or union members meeting to discuss strike action,” says Roscoe.
Third, bugging is allowed in situations where there could be a substantial financial gain through criminal means, but as Roscoe points out: “One person's £5,000 is another's £5m.”
The final scenario where surveillance is condoned is in cases of a violent nature, but here, violence is left undefined.
“I think clients will come to expect solicitors to sweep their offices for bugs and there will be a new industry in de-bugging and jamming devices,” says Roscoe. “But I suspect that the people at whom the Bill is aimed do that now, anyway.”
Brian Barker QC sees a time when conferences with clients will take place during a walk in the park or at a swimming pool to ensure confidentiality.
“It will mean giving a warning before starting a conference in chambers that it may not be wise to discuss the case at all,” he says. “It is a totally retrograde step, because the reality is that we often end up advising a client to plead guilty.
“Every client has the right to frank and fearless advice. We all want serious crime to be dealt with properly, but it is vital that there is prior judicial authorisation. All other major democracies have some kind of judicial oversight of this type of bugging operation.”
Carl Garvie, joint head of commercial and corporate litigation at Pinsent Curtis' Birmingham office, says: “I am worried by the police having this power without independent oversight. I wonder what would happen to all the information that could be picked up in lawyers' offices. Some of it is price-sensitive, which could be damaging in the wrong hands. Once you hear frightening surveillance stories and are offered de-bugging services, you might be tempted to use them.”
But security specialist Roy Chantler, of Southampton-based Business Development International, which specialises in sweeping multi-national companies for surveillance devices, has a warning for those contemplating specialist help. “Make sure you choose someone reputable,” he says. “They get to see lots confidential material and if they are 'buyable', they can do you a lot of damage.”