Exceptions prove the absolute rule

Under the dramatic headline – Professional secrecy in jeopardy – the Law Society Gazette of 17 August 2015 published a comment by Jonathan Goldsmith (consultant and former secretary-general at the Council of Bars and Law Societies of Europe and well-known to LSG readers) on R v Brown [2015] EWCA Crim 1328 (29 July 2015). In that case, the Court of Appeal (Fulford LJ sitting with Holroyd and Singh JJ) reviewed legal professional privilege (LPP) in highly unusual circumstances (see especially in §§[20]-[41]). The case does not, in my view, justify the headline nor Mr Goldsmith’s comments on an ‘attack’ by the Court of Appeal ‘professional secrecy’ (his term for advice privilege, the aspect of LPP here under review).

Indeed the Fulford LJ stresses that it is only because you have a rule which is absolute that narrow exceptions may need to be found to it (not mentioned by Mr Goldsmith). In McE v Prison Service of Northern Ireland [2009] UKHL 15, [2009] 1 AC 908 Lord Carswell (quoted in full in R v Brown at §[35]) explained this:

[102] … The limits of such possible exceptions [to the LPP rule] have not been defined and I shall not attempt to do so, but they could not exist if the rule against surveillance of privileged consultations were absolute.

R v Brown provides a tiny category of instances (see below) where a court or a professional with a confidence or material covered by LPP may breach that confidentiality. For exceptions-prove-the-rule reason the case and its narrow application should be welcomed by the legal profession, not denigrated. Further, it may fairly said, the case thereby illustrates a welcome controlled adaptability and realism in the common law; and I say that as a lawyer who yields to none in my support for the fundamental importance of the right which LPP protects.

Brown: the case

For the background to Brown I am grateful to, and quote, the Gazette article:

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 reviews some of the recent cases on the absolute nature of LPP (see eg R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513) and points out that it may only be overridden by express or necessary statutory exception (see eg R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563).

The ‘iniquity’ exception

The court explained the iniquity exception to the LPP confidentiality rule (per R v Cox and Railton (1884) 14 QBD 153, Stephen J). It then summarised the central issue in Brown:

[35] … 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. This conclusion would involve an extension – albeit significantly limited in nature – to the principle established in Cox and Railton.

The court added to this summary an emphasis on the distinction between ‘use’ of confidential information by the person who become privy to it; and the ‘consequence of the presence of someone who was able to overhear what was said’ (the factual basis of Brown):

[35] … We note there is a clear basis for distinguishing between an attempt to use the content of privileged conversations in evidence, on the one hand, and the fact that the discussions were not entirely private, on the other. In R v Derby Magistrates’ Court, Ex p BLord Taylor and Lord Nicholls both focussed in their speeches on the possible use [judicial underlining] of evidence consisting of what had been said between the legal adviser and his client. Lord Hoffmann, in a similar vein, in Regina (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax and another [2003] 1 AC 563 when stressing the importance of right to confidentiality, observed at paragraph 7 “[…] advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. […]” These and a number of other similar authorities did not address the discrete issue of the consequence of the presence of someone who was able to overhear what was said as distinct from the use that might be made of privileged communications in evidence. (emphasis added in italicised passage)

Four exceptions to LPP

There are two ‘recognised common law’ exceptions to LPP, said the court:

[36] Currently there are, therefore, two generally recognised common law qualifications to the inviolable nature of legal professions privilege. First, the privilege does not apply if the communications are intended to further a criminal purpose (the ‘iniquity exception’). Second, statute can defeat the privilege if express words are used or necessary implication indicates, as demonstrated in McE v Prison Service of Northern Ireland: the privilege was overridden by the Regulation of Investigatory Powers Act 2000.

To this I would add a third – W v Egdell [1989] EWCA Civ 13, [1990] Ch 359 (not considered in Brown – and the careful explanation by Bingham LJ of the circumstance where the confidant professional (eg a lawyer or, in the case of Dr Egdell, a consultant psychiatrist) may override LPP where s/he feels a report to a relevant authority (eg police or child protection) is justified ‘in the interests of public safety and the prevention of crime’.

R v Brown provides a fourth exception, formulated by the court (especially in the italicised passage below) as follows:

In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step.

It is a very narrow exception. It was justified and fully explained by the Court of Appeal. As Egdell and Brown shows, each case depends on very specific facts. Legal principles will only apply to a very rarefied batch of highly unusual circumstances; and only then can a professional ‘secret’ be in jeopardy.

Postscript – the Court of Appeal gave no real thought, and Mr G none (it seems), to the duty of confidentiality of the nurses. They may have heard what was to be said by Mr Brown to his lawyers, and – yes – they may be employed by the state, the prosecuting authority; but to whom do their duties of confidentiality lie. I only ask?


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