Professional secrecy in jeopardy

Lawyers are engaged in a continuous struggle to preserve one of the core values of the legal profession: the right of clients to consult privately with lawyers. It is this which separates us from others who provide legal services, and which indeed makes us guardians of one of the foundations of the rule of law in a democratic state.

Professional secrecy is under attack as never before, chiefly because the state now has the technological means to sweep up gigantic amounts of information. It is therefore particularly regrettable to see that a further inroad has been made into it, not by the state but by a court (R v Edward Brown, formerly Latham) [2015] EWCA Crim 1328 (29 July 2015), which was recently reported in the Gazette .

The facts are highly unusual. Mr Brown was a patient at Rampton Hospital serving two life sentences for attempted murder. There, he hid a weapon and attacked another patient, leading to his third conviction. He appealed against the last on the grounds that he was not able to consult his lawyer in private during the trial because throughout he was shackled to two nurses. Before the trial, he had confessed to a member of staff that he had contemplated killing his solicitor, but the chief concern which led to his shackling during the trial is that ‘there was a real risk that the appellant would use the conference with his counsel in the courtroom at Nottingham Crown Court to cause himself serious injuries or to kill himself’. He had a long and sophisticated history of self-harm. As the judge said, these are ‘rare circumstances’.

The judgement goes through the history of whether the right to professional secrecy is absolute. The previous cases confirm this. The difficult question of when the consultation with the lawyer is used to facilitate a crime is dealt with by considering that the right does not apply at all. So when it applies, it is absolute; but it does not apply when, essentially, it is a cover for crime. However, the court itself agreed that the self-harm which might have taken place here would not necessarily involve a crime. ‘The central issue, therefore, is whether the circumstances of this case means that it falls within the “iniquity exception” to the usually inviolable right of an individual to communicate confidentially with his lawyers.’ So the crime exception becomes something broader. The court itself acknowledged there would be an extension to the usual principle: ‘Although this would not necessarily have involved the appellant committing a crime, it would have constituted an improper use of a meeting that would otherwise have been protected by legal professional privilege.’ The court believed that it was under a duty to preserve Mr Brown’s life. (I remind you that this meeting would have taken place in a court building, and that the defendant is presumably – although no evidence was given for this – a sick man.)

A number of questions arise, and should be put because the principle at stake is so important. Some were raised by the court itself: for instance, why was no application made to transfer the trial to a court where such a consultation could have taken place without shackling? But some questions arise from the court’s own judgement. Brown claimed in his defence that the presence of two nurses - state employees with a custodial function – inhibited his ability to communicate with his lawyer. That seems obvious. But the court airily dismissed this argument: ‘nurses deployed to ensure that someone who is detained does not harm himself (or others) are not to be equated with investigating police officers’. But we are told that there were witnesses at the trial from Rampton, and so presumably the two who were shackled to him and listened in to his lawyer consultation belonged to the group of people who were giving evidence against him, even if they themselves did not give evidence. Does that not give rise to a conflict? And, again, without implying anything against the staff involved, we are aware from numerous cases about the power that institutional staff have over the people they have in their custody. Incidentally, I note that the court felt impelled to note: ‘In future cases they would need to be instructed in the clearest terms that they must treat anything they overhear in confidence, and that they should not disclose the contents of the discussion save in wholly exceptional circumstances.’

The absolute should, in my view, remain absolute. I understand the crime exception, but I am not persuaded by the court’s reasoning in this case that it should be extended to self-harm. Any breach in absolute protection – no longer a crime, but just an abuse – strengthens the hand of the authorities seeking to undermine professional secrecy in other circumstances.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs