2/02/2006

Legal advice compromised by RUC/PSNI

I find it sinister but not unexpected to learn that the RUC/PSNI are listening in on private conversations between a solicitor and a client. This is the news that a Limavady solicitor, Manmohan Sandhu, is being questioned about serious crime. His solicitor alleges police gathered evidence by covertly taping confidential conversations between Mr Sandhu and his clients.



Law Society chief executive John Bailie said it was an "intrusion into the solicitor-client relationship"

"A client in these circumstances - who is arrested and in police custody, suspected of having committed a criminal offence - needs to be able to speak to his solicitor candidly,"

This is a complex area of the law and I am not claiming to be an expert. The use of covert intelligence is controlled by the Regulation of Investigatory Powers Act 2000. The legislation relating to surveillance has always been implemented on a piece-meal basis. This act provides for no real accountability, it only provides a legal framework in which surveillance is operated. It also makes a rather spurious distinction between "intrusive" and "regular" surveillance.

The police are controlled by the Police and Criminal Evidence (NI) Order 1989. Section 59.—(1) of the PACE order relates to legal advice and states

"A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time."

This provision does not relate to those who have been arrested on "terrorism" offences but the law is quite clear, a solicitor must be allowed to consult his client privately.

I have also heard that the police may be considering using these alleged incriminating statements as part of the evidence. The law is also complex on this matter. As a general rule, the courts have traditionally been unconcerned by how the evidence was obtained and they have stated that unfairly or improperly obtained evidence must not be excluded just to punish the cops.

There are however exceptions to this. In R v Sang [1979] 2 All ER 1222 the House of Lords held that there was no defence of entrapment in English law and that the discretion should not be used to introduce such a defence by the ‘back door’.

Lord Diplock drew a distinction between the general discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value and the discretion with which we rule out reliable but wrongfully obtained evidence. On this discretion, he observed save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after the commission of the offence, the judge has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.

Article 76 of PACE states that ‘the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’

The courts have accepted that Article 76 is broader than its common law counterpart but they have been loathe to use this new found freedom.

This case is far from clear but as a law student it is an interesting development, almost a pity that I have completed my Evidence law module already.

This is a new direction for the RUC/PSNI and it will be a case to keep an eye on.

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