Criminal

Persons under investigation or charged with criminal offence - entitlement to confidential legal advice - use of employee of solicitor's firm as covert human intelligence source improper where involving breach of legal professional privilege

R v Robinson: CA (Lord Justice Pill, Mr Justice Keith and Sir Richard Tucker): 8 November 2002

The defendant was convicted of conspiracy to defraud.

During the hearing of the defendant's appeal against conviction, the court expressed concern about the use of a solicitor's clerk in a substantial firm of criminal solicitors as a 'covert human intelligence source' and enquired whether it was sought to justify use of such informants and, if so, on what basis.

The Chief Constable of Gloucestershire was invited to make submissions on that issue.

David Etherington QC and Gary Bell (assigned by Registrar of Criminal Appeals) for the defendant; Ian Glen QC, Timothy Spencer QC and Andrew Macfarlane (instructed by the Director, Serious Fraud Office) for the Crown; Simon Freeland QC (instructed by the County Solicitor, Gloucestershire County Council, Gloucester) for the chief constable.

Held, dismissing the appeal, that it was a necessary ingredient of the rule of law that members of the public were able to obtain legal advice without the police obtaining access to what passed between lawyer and client; that those rights were enjoyed equally by a person under investigation for, or charged with, a criminal offence; that it would be a serious breach of professional duty for a solicitor or solicitor's clerk, from whom a person sought legal advice, to tell the police what had passed between them; that, if encouraged by the police, that would constitute an infringement by the police of the right to legal professional privilege; and that, in the light of the provisions of the Home Office Code of Practice 'Covert Human Intelligence Sources' (2000) relating, among other things, to the use of informants where information subject to legal privilege would be acquired, the decisions which lawyers and police officers had to make in that area of the law might be very difficult.