The state should not have the power to eavesdrop on conversations between lawyers and clients even in exceptional circumstances, the Law Society and Bar Council have said in a brief to MPs ahead of a parliamentary debate on investigatory powers.
Today’s debate will respond to a government-commissioned review on data law by David Anderson QC published last week, which recommended that lawyers should be granted extra protection from interceptions of communications data
But in a joint brief, the Society and Bar Council say the report did not go far enough. They maintain that legal professional privilege is ‘inviolable’, and particularly important in criminal cases or cases where the government is being sued in civil courts.
‘The possibility of privileged information leaking to the investigating or prosecuting authorities creates an obvious, and serious, danger or miscarriages of justice,’ they say.
The associations warn that clients would feel unable to speak openly with their lawyers if the state eavesdrops on privileged communications, which could result in defence teams being unaware of proper defences open to a defendant.
‘Breach of this privilege also carries with it the risk that those guilty of offences are not successfully prosecuted because of the risks to the integrity and fairness of criminal and civil trials,’ they say.
The brief stresses that proper protection for legal privilege is not ‘special pleading’ on behalf of lawyers, but would be for the client’s benefit and in the public interest in ensuring the proper administration of justice.
‘The principle underpinning LPP has been consistently recognised by the courts and parliament for several hundred years,’ the brief says.
It notes that both professional bodies have previously suggested amendments to the code of practice to ensure strengthened protection for legal privilege. ‘None of these proposed reforms would have, in any sense, compromised the important public interest in preventing and detecting serious crime, including acts of terrorism,’ the brief says.