Bugging and the rule of law: a first class scandal in the making

Jack Straw is now in real trouble, as it is very difficult to reconcile what he told the House of Commons on 4th February in a statement on the bugging of Saddiq Khan MP at Woodhill prison with the statement of his department in reaction to the Daily Telegraph’s breathtaking scoop on Saturday. The bugging issue is going to be an enormous political story this coming week.

The Telegraph’s Saturday story said:

The full scale of a nationwide policy to bug British jails can be disclosed today after a whistleblower revealed that hundreds of lawyers and prison visitors had been secretly recorded….Lawyers, including human rights solicitors Gareth Peirce and Mudassar Arani, were allegedly “routinely bugged” by police during visits to see clients at Woodhill prison.

Why is this so important? Simply because the right of a defendant to talk in private to his or her lawyer is basic to the fairness of our adversarial courts system. If the prosecution can find out what the defence’s strategy and tactics are, the trial itself will be prejudiced and unfair.

Indeed, there is now a serious risk that any convicted person who can prove that their conversations with legal advisers were overheard may be able to overturn their convictions, which would be an enormous embarrassment to the Government in cases like that of Ian Huntley, the Soham murderer.

If bugging has indeed been systematic, routine and extensive, there is also the risk that it will no longer yield results when there are genuine and urgent reasons for surveillance in the case of an imminent danger to public safety. Any self-respecting terrorist is now going to know that they should be very discrete in discussions with their lawyers. This could prove to be one of the most devastating own goals by the police and security services in a very long time.

Do not underestimate the offence against legal precedent. After all, the confidentiality of legal discussions with defendants has been upheld in case law going back centuries: one case was that of the Duke of Hamilton facing treason charges in 1649 when he won the right to talk to his lawyers without prison warders being present.

In 1991, Lord Justice Bingham ruled that people should be “free to unburden themselves without reserve to their legal advisers, and their legal advisers should be free to give honest and candid advice” without fear that this information would be used by their opponents in court. The importance of legal privilege was confirmed by the House of Lords in 2002 when Lord Hoffman said that it was a “fundamental human right long established in common law”.

The reason why I believe that Jack Straw is in some difficulty is because his Ministry was completely unable to deny the story in the Daily Telegraph. Its statement to the paper, repeated to the BBC Today programme, said:

Police monitoring operations are a matter for the police and are undertaken in line with the Regulation of Investigatory Powers Act 2000. The Prison Service may grant the police permission to operate in prison providing that there are no concerns about order or control.

And more in same vein. They have basically admitted it.

Yet this is in stark contrast to what Jack Straw said in the House of Commons in response to a question from Douglas Hogg, one of the more liberal Conservative MPs who also happens to have long practiced at the criminal bar. The question followed Mr Straw’s oral statement setting up an inquiry by Sir Christopher Rose into the bugging of Sadiq Khan MP in his conversations with Babar Ahmad at Woodhill prison. This is the exchange:

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): It would seem as if something has happened that should not have happened, so there is a risk that other things that should not have happened might have happened. Can the terms of the inquiry be enlarged so that Sir Christopher Rose has an opportunity to identify, whether at Woodhill or anywhere else, conversations between prisoners on remand and their legal advisers have been recorded? If they have, not only is the integrity of the criminal justice system at risk, but individual convictions will be prejudiced and will probably have to be set aside. Sir Christopher would do well to examine, too, the question of whether private conversations with legal advisers have been recorded, whether at Woodhill or at other prisons?

Mr. Straw: The inquiry is specifically into the allegations that have been made in respect of our hon. Friend the Member for Tooting. I repeat to the right hon. and learned Gentleman and to the House that on the subject of legal professional privilege—in other words, conversations between any individual, whatever their circumstances, and their legal adviser—specific rules are laid down in codes of practice and in non-statutory form, which, as I said, generally prohibit not only the interception or surveillance of such conversations but any accidental recording that takes place thereafter. To my certain knowledge, as a former Home Secretary and Foreign Secretary, those rules are rigorously enforced, and there is a careful audit of all interceptions and the use of those powers by the relevant commissioners.

Mr Straw says that these rules are rigorously enforced, but the Telegraph story which was not denied paints a monstrous picture of disregard for defendants’ rights and the principle that people are innocent until proven guilty. This is why I have written to Jack Straw today asking him to widen the remit of the inquiry by Sir Christopher Rose to consider the extent and safeguards applied to bugging of prisoners, and also asking him to state clearly which senior police officer – was it Sir Ian Blair of the Metropolitan Police responsible for counter-terrorism, or was it the chief constable of Thames Valley Sara Thornton, or was it all so slapdash that it was someone more junior – signed off the extraordinarily intensive bugging at Woodhill, Belmarsh and possibly elsewhere?

At the very least, Jack Straw must now widen the remit of the inquiry. At worst, he has misled the house with his remarks to Douglas Hogg, and he had better come back to correct the record. All in all, this is a bleak time for those who are appalled by the unthinking extension of the snooping state. It’s time to hold the Government and the police to account, tighten up the safeguards on bugging, and ensure that the creeping culture of surveillance is stopped in its tracks.

Chris Huhne is the Liberal Democrat Shadow Home Secretary.

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2 Comments

  • If the Telegraph’s source is right, this is an almighty mess. The damage from overturning of convictions may well be limited: the Crown Prosecution Service lawyers can probably prove that they had no knowledge of infromation from the “bugging” in many cases. However, some overturnings would seem inevitable. Further, anyone who authorised listening in on conversations between defendants and their lawyers, and anyone in authority who knew it was going on, will have a case to answer on charges of grave contempt of court. Lighter charges may also rest against all those who did the bugging.

    I hope Chris is also asking that all the relevant “specific rules .. laid down in codes of practice” will be revealed; at the very least to Privy Counsellors in the House. Jack Straw’s answer to Douglas Hogg suggests that Jack Straw or his advisors think he has a let out in the wording of these rules.

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