This guest post was written by Daniel Machover, Charles Kuhn and Christopher Honnery, respectively Head of the Civil Litigation Department, In-house Criminal and Regulatory Barrister, and Legal Researcher at Hickman and Rose.
The European Court of Human Rights’ (“ECtHR”) Chamber judgment in the case of Öcalan v. Turkey (No. 2) does nothing to further the debate on lawyer-client privilege. The ECtHR missed an important opportunity to confine the creeping interference with privilege that has characterised the post 9/11 world.
This decision was eagerly awaited in the UK because of the unsatisfactory framework left by the 2009 House of Lords decision in a Northern Irish case, In Re McE. In that instance an Irish solicitor, Manmohan Sandhu, had been convicted after security forces secretly recorded him inciting paramilitary clients to commit murder. A number of terrorist suspects subsequently sought assurances that their legal meetings were not subject to surveillance. The House of Lords ruled that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) permits the RIPA Code of Practice on Covert Surveillance to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. They rejected arguments that the express terms of the Police and Criminal Evidence Act 1984 (PACE), as well as the common law on privilege, prevented electronic surveillance of privileged conversations. Since then there has been an amendment to RIPA to clarify that such surveillance must be judge authorised, and an amendment to the Code of Practice to clarify that it is justified only to prevent threat to national security “or to life and limb” – a criterion so loose as to be nearly meaningless.
In reaching its decision the House of Lords reviewed European case law but omitting consideration of S and Marper v UK, where the ECtHR had elaborated the limits to the state’s margin of appreciation and defined very clearly the need for proportionality in Article 8 cases. A number of commentators have opined that the European Court was unlikely to overturn the principle set out In Re McE but that it could – and should – clarify the proportionality question which the House of Lords had left unanswered. The case of Öcalan v Turkey was an opportunity to do just that.