Sandhu bugging sparked ruling says ‘Big Brother’ report

The new ‘Freedom from Suspicion: Surveillance Reform for a Digital Age’ report suggests Government may have allowed police and prison governors to continue to authorise the covert surveillance of private consultations between solicitors and clients.

They did so despite the ruling of the Northern Ireland High Court in 2007 and a subsequent Law Lords ruling in 2009 that this was in breach of prisoners’ rights under Article 8 of the European Convention of Human Rights (ECHR).

The report refers to the High Court’s ruling on an application for Judicial Review in November 2007, which heard that solicitors representing two prisoners taken to Antrim Police Station on April 19, 2006 for questioning on suspicion of terrorism offences demanded assurances that their conversations would not be bugged.

“They asked for that assurance because there had been media reporting a short time before about the arrest of a solicitor who was subsequently charged with serious offences.

“The reports suggested that the arrest had been the result of covert surveillance of legal consultations that the solicitor had had with clients in custody,” the court was told.

The case prompting the solicitors’ concerns was that of Londonderry solicitor Manmohan ‘Johnny’ Sandhu who was secretly bugged inciting loyalist paramilitaries to murder and was later jailed for 10 years in 2009.

Under surveillance law the police can authorise spying as long as it does not intrude on a person’s home or vehicle but ‘intrusive surveillance’ which now includes that of lawyer/client consultaions needs the approval of a Surveillance Commissioner.

In 2007 the Northern Ireland Lord Chief Justice Brian Kerr ruled that the monitoring of confidential lawyer/client or doctor/patient consultations breaches the individual’s rights to privacy under Article 8 of ECHR.

He said that because the solicitors in Antrim Police Station were not given assurances they were not being monitored, private consultations such as the applicants were entitled to under Article 8 did not take place.

Two years later the case was taken to the House of Lords which in March 2009 referred to the then Home Office Secretary of State Jacqui Smith’s delay in dealing with Lord Chief Justice Kerr’s ruling on the illegality of the surveillance of lawyer/client consultations.

Lord Phillips specifically referred to Mr Sandhu’s appearance before the Antrim Magistrates’ Court in February 2006 charged with incitement to murder, and four counts of doing acts tending and intended to pervert the course of justice.

“The court was told that the case against Mr Sandhu was based on covert electronic surveillance carried out by the police of conversations between himself and clients who were purporting to consult him in the serious crime suite at Antrim Police Station.

“The fact that the case against Mr Sandhu was based upon such evidence received considerable media coverage and comment.

“It also led to requests being made of the police on behalf of each of the appellants for assurances that no such monitoring was taking place in respect of consultations that they were about to have with their lawyers or, in the case of M, his consultant psychiatrist. The police declined to give such assurances,” Lord Phillips ruled.

The ‘Freedom from Suspicion’ report quotes Lord Neuberger telling the same hearing that: “Having decided not to appeal the Divisional Court’s (NI High Court) decision that surveillance of privileged and private consultations under the present regime is unlawful, the Secretary of State should have ensured that such surveillance did not take place or she should have promptly changed the regime so as to comply with the Divisional Court’s decision...

“Unless no surveillance of privileged and private consultations has been going on for the past year in the United Kingdom (which appears most unlikely), this strongly suggests that the Government has been knowingly sanctioning illegal surveillance for more than a year. If that is indeed so, to describe such a state of affairs as ‘regrettable’ strikes me as an understatement.”

Action was taken to amend the Regulation of Investigatory Powers Act (RIPA) 2000 in February last year but the new Justice report argues: “Lord Neuberger’s judgment was handed down in March 2009. However, the Order requiring surveillance of privileged communications in custody to be treated as intrusive was not made until 25 February 2010. In other words, the government appears to have been knowingly sanctioning illegal surveillance of privileged communications for more than two years.”

The Justice group welcome the fact that since 2009, the government has accepted that surveillance of a consultation between a lawyer and client, wherever it takes place, also qualifies as ‘intrusive’ surveillance but argues all approvals should in future be made by a judge.

The Home Office responded to the report by stating: “The first duty of the state is the protection of its citizens, but this should never be an excuse for the Government to intrude into people’s private lives.

“This is why we are changing the law to restore common sense and prevent local authorities using surveillance for trivial offences.

“The Protection of Freedoms Bill will ensure local authorities cannot use Ripa without approval of a magistrate.

“This is an important further safeguard to ensure that information is not misused.”