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Tue, 19 January 2021

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Legal Professional Privilege: A question of trust

Bar Council | Bar Council

2 min read Partner content

In response to the investigatory powers review report, A Question of Trust by David Anderson QC, Chairman of the Bar Alistair MacDonald QC said:

“UK surveillance laws are in urgent need of an overhaul, and today’s report makes a strong case for ensuring that any new legislation receives proper Parliamentary scrutiny and guarantees that communications between lawyers and their clients remain private.

“The Data Retention and Investigatory Powers Act (DRIPA) and Regulation of Investigatory Powers Act (DRIPA) together give dubious legal authority to security services to breach legal professional privilege, yet both were passed without Parliament being given the opportunity to debate specifically their impact on legally privileged communications. When security services were found to have spied on lawyers’ meetings with clients earlier this year, the Government was forced to admit this practice was unlawful.

“Around the world terrorists have demonstrated a growing sophistication in their ability to use technology and unless we develop a robust legislative framework to deal with that threat, our ability to respond will be hampered. As David Anderson QC says in his report, we must entrust public bodies with the powers they need to identify and follow suspects, but unless we have legislation which undergoes proper Parliamentary scrutiny and which protects the fundamental right to consult with your lawyer in private, a question of trust will of course arise.

“Legal professional privilege is one of the most important safeguards protecting the fairness of a trial. It is a doctrine that has existed as a constitutional principle for centuries.

“If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers. This has the potential result that defence teams will not even know about perfectly proper defences open to a defendant and will therefore not be able to advance them at trial.

“It is manifestly in the public interest that only those guilty of offences should be convicted and breach of this privilege carries with it great risks to the integrity and fairness of criminal and civil trials.”

“The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose, and the law should reflect that principle.”

Read the most recent article written by Bar Council - Bar Council calls on Ministry of Justice to urgently halt jury trials

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