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Cite as: [2016] WLR 1141, [2015] 2 Cr App R 31, [2015] WLR(D) 344, [2016] 1 WLR 1141, [2016] Crim LR 779, [2015] EWCA Crim 1328, [2016] MHLR 142

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Neutral Citation Number: [2015] EWCA Crim 1328
Case No: 201207170 C4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Nottingham Crown Court
HHJ Stokes QC
T20127568

Royal Courts of Justice
Strand, London, WC2A 2LL
29/07/2015

B e f o r e :

THE RIGHT HONOURABLE LORD JUSTICE FULFORD
THE HONOPURABLE MR JUSTICE HOLROYD
and
THE HONOURABLE MR JUSTICE SINGH

____________________

Between:
Regina

- and -

Edward Brown (formerly Latham)
Appellant

____________________

Mr Edward Fitzgerald QC and Mr. Simon Clarke (instructed by Cartwright King Solicitors ) for the Appellant
Mr Steven Kovats QC and Ms Dawn Pritchard (instructed by CPS Appeals Unit) for the Crown

Hearing dates : 17th March 2015

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HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Fulford:

    Introduction

  1. On 21 November 2012 in the Crown Court at Nottingham before His Honour Judge Stokes Q.C. and a jury, the appellant was convicted of the attempted murder of Gavin Walker on 10 July 2011. On 30 November 2012 he was sentenced to life imprisonment with a minimum term of 4 years. The judge made a hospital and limitation direction under section 45A of the Mental Health Act 1983.
  2. The incident occurred in Rampton Hospital, where the appellant and Mr Walker were patients. The appellant was already serving life sentences for two other offences of attempted murder.
  3. On 9 July 2011 there was concern amongst staff at Rampton Hospital because the appellant told the relevant team leader, Philip Smithson, that he had contemplated killing his solicitor on a visit which had taken place a few days earlier. On 10 July 2011, the appellant again discussed his violent thoughts with members of staff, and at 8.30 pm the appellant approached Mr Walker from behind; he put him in a headlock, and punctured his neck and head with a homemade weapon. Staff pulled him away and he was detained. The weapon was a thin piece of metal with a spike-like tip 3 to 4 inches in length. He had fashioned this from an aerial on his radio prior to his transfer from another ward three weeks before the incident. It was sufficiently sharp to puncture Mr Walker's neck, although the injuries were superficial. He had brought the weapon to the ward concealed in his clothing. He managed to escape detection during the searches. In interview he said that he had planned to kill Walker as he wished to be returned to prison indefinitely because his violent thoughts made him dangerous ("he selected Mr Walker as the person he intended to kill"). He also gave this as the reason for his plan to kill his solicitor. The incident with Mr Walker was recorded on CCTV.
  4. Unsurprisingly, the prosecution case was that his decision to attack Mr Walker had been pre-planned and pre-meditated. He had fashioned the weapon some weeks before and he concealed it. He had selected Mr Walker deliberately from a number of patients on the ward. As set out above, on his own admission he had intended to kill him.
  5. The appellant gave evidence in which he repeated his earlier account that he had intended to kill Mr Walker: he thought killing someone would relieve the pressure he was experiencing. When he had carried out the attack, however, it had not been as if he was attacking Mr Walker; instead, what was in his mind had been his position as a victim of sexual abuse.
  6. The issue for the jury, therefore, was whether or not the evidence established an intention to kill. The appellant instructed his counsel to run the defence of insanity, notwithstanding the lack of medical evidence to support this contention. Evidence of this kind is a legal requirement under section 1 (1) Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 to support a defence of insanity.
  7. The application re: the Rampton nurses

  8. In advance of the trial, on 7 November 2012 the appellant's solicitor wrote to the court to ask for arrangements to be put in place "so as to enable the defendant to consult with his lawyers from the secure dock of the relevant court and in the absence of nurses, custody officers and others". On the first day of the trial, an application was made on behalf of Rampton Hospital for an order that the appellant was to be accompanied by at least two nurses during any conferences with his counsel and solicitors, and for the appellant to be handcuffed to the nurses in the course of these meetings. It was suggested these measures were necessary to protect the appellant from self-harm as well as to protect others.
  9. The appellant resisted the application on the basis that he had an absolute right to confidential communication with his lawyers. It was highlighted that it was necessary for the appellant's representatives to take up-to-date instructions on the morning of the trial. It was submitted that the nurses held him in detention – they were his jailers – and as such they represented the establishment or the state, and their ability to listen to his communications with his lawyers was similar in nature to police officers overhearing privileged conversations.
  10. At the Crown Court there were no facilities in the cells to protect defence counsel from the appellant, for instance separating the two men by means of a secure transparent screen. As a result, defence counsel repeated the proposal already made by the appellant's solicitors, namely that the appellant should be left with his counsel alone in court, with the appellant situated in the secure dock, handcuffed, with the nurses observing from the other side of a secure door.
  11. In support of this proposal, it was highlighted that the appellant had successfully participated in a number of confidential conferences with his lawyer at Rampton. These had been facilitated in a specially adapted conference room. A reinforced glass screen divided the appellant and his legal team. They spoke using a microphone and loudspeakers. Staff had watched through a door with a transparent pane.
  12. The respondent objected to this proposal on the basis that the appellant might well be able to injure himself seriously, or even fatally, unless he was handcuffed to two members of staff.
  13. The judge, in ruling on the issue, highlighted that the appellant was charged in this case with attempted murder, and that he had two previous convictions for attempted murder; additionally, he had planned to kill his solicitor. The judge decided that it was necessary to protect the appellant from the risk of self-harm, and that as a result "[…] he must be shackled to a minimum of two nurses if he is to be in direct personal contact with a third party". It is of significance that the judge determined:
  14. […] that is not simply, or solely, to protect the individual who wishes to have conversation with him but also, most importantly, to ensure that Mr Brown, as I shall call him, does not take the opportunity of harming himself. He has a long history of self-harm. He has a long history of extremely sophisticated steps being taken, some of a very extreme and unusual nature, to give him the opportunity of self-harming. One example is that he has self harmed and wounded himself and taken the opportunity of concealing within such a wound a blade, a razor blade or similar, having the wound treated, presumably stitched and then, by biting his own flesh, opening the wound, in order to remove the blade. He is, to coin a phrase, an exceptionally dangerous individual in the view of those who know him best. […] The sophisticated steps this defendant has taken in the past to injure others, are such that I have never heard of before, apparently he is capable of bursting a blood vessel in order to spray his interlocutor with his own blood.

  15. The judge noted that there were no facilities in the building "whereby he can see his lawyers whilst he is in one secure place and they are outside that secure place".
  16. The judge rejected the suggestion that he should permit the appellant to sit handcuffed alone in the dock, communicating with his lawyers on the other side of the partition in an empty court. His reasons were as follows:
  17. […] even though […] the defendant would be restrained by handcuffs or similar, there is still a risk, given his history and his individual ability to harm himself, to use the walls of the dock or the glass or anything that is within the dock, be it a lock, a handle, the seating, the glass or wooden panelling, he could throw himself about in such a way that he could injure himself. The Rampton authorities are particularly concerned, given his history and the way he has been able to create situations whereby he has been able seriously to injure himself, the Rampton authorities are understandably concerned that, unless he were shackled to two nurses, there is no practical way of preventing his injuring himself.

  18. The judge referred to the undertaking given by the appellant's trial counsel, Mr Clarke, that if necessary he would raise the alarm. The judge was of the view that by handcuffing the appellant to the furniture, the court would be providing him with a potential weapon with which to injure himself or others.
  19. The judge recognised "the importance of a defendant in a criminal case being able to instruct his lawyers without anyone concerned being present". He concluded, however, that the right on the part of the accused to instruct his lawyers "privately" was not "so absolute" that it could be used to "trump his right to life". His overall conclusion was:
  20. Insofar as it necessary to take any further instructions from him and I emphasise that a (limited) defence statement has been served […] it seems to me that a proportionate and sensible view has to be taken of his right to instruct his lawyers. It is somewhat artificial, in my judgment, to equate nurses from Rampton, who may well know something of the case, with police officers who are investigating a case, overhearing deliberately what a defendant may say to his lawyers and equating that with quite disinterested nurses whose only concern is for the welfare of this highly dangerous and volatile individual. Insofar as any conference needs to take place, I am not prepared to direct that this defendant should be permitted, restrained or unrestrained, into the dock of this court in the absence of appropriate nursing staff, to ensure he cannot harm himself.

  21. On 21 November 2012 one of the nurses made a comment during a conference at court when the appellant's counsel was giving advice as to whether the appellant should give evidence, in the following circumstances. After counsel had explained that he was unable to assert that the appellant was insane, a nurse said "one of the things he stated yesterday was how he was feeling generally leading up to this incident. That's what you said the other day. You told us you would … you remember? You said …". At this point counsel interrupted him.
  22. Shortly thereafter the judge enquired whether the appellant was proposing to give evidence. Although counsel indicated he intended to do so, he complained that the appellant had not had the benefit of the usual privacy in which conferences take place. He suggested that the appellant's instructions were being given under apparent pressure because of the presence of the two nurses. The judge thereafter refused a request to revisit his ruling.
  23. The appellant gave evidence without a further consultation with his counsel, who took the view that it would be inappropriate to discuss matters further with his client given the denial of confidentiality. As set out above, during the course of his evidence, the appellant admitted that he had intended to kill his victim.
  24. The Appeal

  25. The central ground of appeal is that the appellant's conviction is unsafe because the ruling of the judge – viz. that the appellant's conferences at court with his lawyers were to take place in the presence of two nurses from Rampton Hospital – breached his right at common law to consult privately with his lawyers and under Article 6(3)(c) European Convention on Human Rights to "defend himself through legal assistance of his own choosing" (with the concomitant right to private discussions with his lawyers).
  26. It is argued, additionally, that the intervention by one of the Rampton nurses at the conference with counsel on 21 November 2012 in fact interfered with his ability to communicate freely with his lawyers. It is suggested that the presence of the two nurses contributed to the appellant's decision to instruct his counsel not to cross-examine the Rampton witnesses, and that it inhibited the ability of counsel to give advice and take instructions shortly before the appellant gave evidence. The presence of the nurses – state employees with a custodial function – who were able to overhear confidential communications meant that this right was abrogated both in itself and in its consequences at the appellant's trial, thereby rendering the proceedings unfair. In the result, it is contended that he may not have done justice to his case during his testimony.
  27. It is further submitted that a conviction following an unfair trial in these circumstances cannot be regarded as safe.
  28. The appellant contends there were two crucial flaws in the judge's reasoning. First, it is argued that he erred when he decided that the right to confidential communication between the appellant and his legal representatives was "not absolute" but instead was qualified, and that in any event it did not trump the appellant's right to life. The appellant argues that the right to confidential communications is absolute (alternatively, that it is not qualified), although it is accepted restrictions can be placed on the time and place of the meeting between counsel and solicitors. Furthermore, it is acknowledged that if there are sufficient grounds for believing a conference is being misused – for instance, to perpetrate crime – then surveillance is justified. This is on the basis that the meeting was not one to which legal professional privilege applied because the proper and lawful basis for the confidential meeting was vitiated by the illegal purpose or objective. In those circumstances it is suggested the privilege would not exist.
  29. If the exercise of the right to confidential communication could not be guaranteed without a serious risk to the appellant's life (whereby Article 2 of the Convention became engaged), then it is suggested the trial should not have gone ahead until some feasible alternative could be devised. It is argued additionally that the state's duty under Article 2 is to take all reasonable precautions, not to remove all possible risks.
  30. The appellant's second criticism of the judge's reasons is that he wrongly distinguished the position when police officers as opposed to "disinterested nurses" overhear or listen to privileged communications. It is suggested exactly the same principles apply in both situations.
  31. Discussion

    The Common Law

  32. Domestic jurisprudence has underscored that legal professional privilege and the closely connected right of a person to consult a lawyer in private are longstanding common law principles. In McE v Prison Service of Northern Ireland [2009] 1 AC 908 at [6], Lord Phillips described legal professional privilege as an important substantive right as opposed to a mere procedural right, and Lord Neuberger at [108] observed that "Any modern civilised legal system recognises the fundamental importance of these two rights […]". In Regina v Derby Magistrates' Court, ex p. B. [1996] 1 AC 487, Lord Taylor CJ at p. 507 D, having reviewed a number of the relevant authorities, generically summarised the position as regards these rights as follows:
  33. The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

  34. Indeed, the principle of legal professional privilege is often described in absolutist terms, in the sense that the right is not dependent on a balancing exercise by which the rule may yield to a consideration of greater importance. For example, in Regina (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 at [5] Lord Bingham observed:
  35. 5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.

  36. In a similar vein, Lord Scott in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, at [25]) indicated it cannot be overridden by "some supposedly greater public interest" and in R v Derby Magistrates' Court, Ex p B Lord Taylor, together with Lord Nicholls, described this as a principle for which there are no exceptions.
  37. Therefore, when the privilege exists, it is inviolate. It is necessary in those circumstances to investigate whether in a given situation the protection is, in fact, available. R v Cox and Railton (1884) 14 QBD 153 established circumstances – "the fraud exception" or "the iniquity exception" – when the privilege does not exist as regards a meeting between an individual and his lawyers. As Stephen J set out when giving the judgment of the court:
  38. The question, therefore is, whether, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the result would be that a man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which they are involved. Upon the fullest examination of the authorities we believe that they are not warranted by any principle or rule of the law of England, but it must be admitted that the law upon the subject has never been so distinctly and fully stated as to shew clearly that these consequences do not follow from principles which do form part of the law, and which it is of the highest importance to maintain in their integrity.

    Later in the judgment, Stephen J added as regards the circumstances in which it can be assumed that the protection does not exist:

    We have one other matter to notice. We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorized to say upon this matter is, that in each particular case the Court must determine upon the facts actually given in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question whether the advice was take before or after the offence will always be decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death. In this particular case the fact that there had been a partnership (which was proved on the trial of the interpleader issue), the assertion that it had been dissolved, the fact that directly after the verdict a solicitor was consulted, and that the execution creditor was met by a bill of sale which purported to have been made by the defendant to the man who had been and was said to have ceased to be his partner, made it probable that the visit to the solicitor really was intended for the purpose for which, after he had given his evidence, it turned out to have been intended. If the interview had been for an innocent purpose, the evidence given would have done the defendants good instead of harm. Of course the power in question ought to be used with the greatest care not to hamper prisoners in making their defence, and not to enable unscrupulous persons to acquire knowledge to which they have no right, and every precaution should be taken against compelling unnecessary disclosures.

  39. In Cox and Railton the court focussed on legal advice given at a meeting between the individual and his lawyer that was to be misused in order to commit a crime, and this case raises the issue as to whether exactly the same principle ought to apply if the meeting between the individual and his lawyer is to be used for a different improper purpose, albeit not a crime, that amounts to an abuse of the privilege such as to warrant or necessitate intervention. To hold otherwise would arguably risk reducing this important protection to absurdity. As Lord Neuberger set out in McE v Prison Service of Northern Ireland [2009] UKHL 15; [2009] 1 AC 908:
  40. 109. However, while these two rights (viz. the right of a person to consult a lawyer in private and the right to legal professional privilege in connection with communications with one's lawyer) are very important, neither can possibly be regarded as unqualified. Both rights can self-evidently be abused for improper, even criminal, purposes; indeed, as a result of such abuse, the rights themselves could fall into disrepute.

  41. In the present context, therefore, the question for the court was whether it should prevent the protection of legal privilege being utilised to enable individuals to inflict violence on themselves or others. The judge identified the real possibility that the appellant might use this meeting with his legal adviser for this improper purpose or in this improper manner, such as to constitute an abuse of the privilege justifying interference.
  42. In our view, Judge Stokes was entirely justified in his conclusion 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. Although this would not necessarily have involved the appellant committing a crime, it would have constituted an improper use of a meeting that would otherwise have been protected by legal professional privilege.
  43. The central issue, therefore, is 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. 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 B Lord Taylor and Lord Nicholls both focussed in their speeches on the possible use 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.
  44. This important difference was considered by Lord Carswell in McE v Prison Service of Northern Ireland, as follows:
  45. 82. It is to be noted that these and other authorities dealing with privilege were all concerned with the use of evidence consisting of what was said between legal advisers and clients. The rule preventing that remains absolute, even if that evidence would exculpate another person accused of a criminal offence (the position in R v Derby Magistrates' Court, Ex p B ). The only exceptions, which may not be true exceptions, are when the privilege is spent (per Lord Nicholls in Ex p B , at pp 512–513) or when the communication has been made to a solicitor by his client for the purpose of being guided or helped in the commission of a crime ( R v Cox and Railton (1884) 14 QBD 153 ), since the privilege does not attach at all to communications made for such a purpose. As Schiemann LJ expressed it in Barclays Bank plc v Eustice [1995] 1 WLR 1238 , 1249, "advice sought or given for the purpose of effecting iniquity is not privileged".

    83. None of these decisions concerned covert surveillance of legal consultations. Although the privilege is described in terms of a legal right, it is not clear from the decisions whether such surveillance is to be regarded as unlawful per se or whether the principle extends only to the protection of the product of legal consultations. I incline to the latter view, which appears to be consonant with the Strasbourg decisions, but I do not find it necessary to reach a definite decision on the point. The inviolability of the rule against the admission in evidence of privileged communications remains whichever way it might be decided.

  46. Thereafter, in the course of a review of the reasons why Parliament in the Regulation of Investigatory Powers Act 2000 made legal consultations subject to the surveillance provisions, Lord Carswell included the following as one of five significant indicia:
  47. 102. Thirdly, there is the need to incorporate exceptions to the inviolability of privileged consultations. One such is the R v Cox and Railton 14 QBD 153 exception: if it were not possible to exercise covert surveillance of legal consultations where it is suspected on sufficiently strong grounds that the privilege was being abused, the law would confer an unjustified immunity on dishonest lawyers. There may be other situations where it would be lawful to monitor privileged consultations, for example, if it is necessary to obtain information of an impending terrorist attack or to prevent the threatened killing of a child. The limits of such possible exceptions 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.

  48. 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.
  49. It is of note that in the present case there is no suggestion of an intention to misuse any of the privileged communications that were overheard. In this context, nurses deployed to ensure that someone who is detained does not harm himself (or others) are not to be equated with investigating police officers. They are not present to eavesdrop or to secure a tactical advantage over the accused. The nurses were not present as part of an unlawful surveillance exercise. In future cases they would need to be instructed in the clearest terms that they must treat anything they overhear in confidence, and that they should not disclose the contents of the discussion save in wholly exceptional circumstances. Those circumstances may well be limited to the situation when it is apparent that the communications are intended to further a criminal or other serious abuse of the privilege.
  50. This situation, therefore, is to be distinguished from the circumstances when the prosecuting authorities deliberately behave in an unlawful way in order to gain access to confidential communications, albeit it is not automatic when this occurs that the proceedings will be stayed as an abuse of the process of the court. In R v Grant [2005] EWCA Crim 1089; [2006] QB 60 the Court of Appeal Criminal Division allowed an appeal on the basis that the police, in the course of an investigation prior to criminal proceedings, had taken steps to eavesdrop on the communications of suspected persons which were subject to legal professional privilege. The court found that these steps, which were "categorically" unlawful and capable of infecting the proceedings, constituted an abuse of the court's process. Even in the absence of prejudice to the defendant, on the particular facts the court decided the case should have been stayed and the conviction was unsafe. Disapproval of this aspect of the decision in Grant was expressed by the Privy Council in Warren and others v Attorney General for Jersey [2011] UKPC 10; [2012] 1 AC 22, in that Lord Dyson observed:
  51. 36. Nevertheless, the Board respectfully considers that the decision in R v Grant was wrong. The statement at para 54 suggests that the deliberate invasion of a suspected person's right to legal professional privilege is to be assimilated to the abduction and entrapment cases where the balancing exercise will generally lead to a stay of the proceedings. The Board agrees that the deliberate invasion by the police of a suspect's right to legal professional privilege is a serious affront to the integrity of the justice system which may often lead to the conclusion that the proceedings should be stayed. But the particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the "but for" factor had a part to play. The misconduct had no influence on the proceedings at all. In these circumstances, surely the trial judge was entitled to decide in the exercise of his discretion to refuse a stay and the Court of Appeal should not have held that his decision was wrong.

  52. The statement by Lord Carswell in McE v Prison Service of Northern Ireland to the effect that it is necessary "to incorporate exceptions to the inviolability of privileged consultations" is clearly of particular significance in this context. As set out above, Lord Carswell indicated that in addition to the need to qualify the absolute rule when it is suspected, on sufficiently strong grounds, that the privilege is being abused in order to perpetrate a criminal offence, the courts need to be alive to other circumstances which will make it lawful to monitor confidential consultations, for instance in order to save life (e.g. terrorism or the killing of a child). It follows that the usually inviolable or absolute nature of the rule is capable of qualification at common law outside the particular situation addressed in Cox and Railton.
  53. The court, moreover, is a public authority within the meaning of section 6 (1) Human Rights Act 1998 (see section 6 (3) (a)). It has a duty to protect human life in circumstances where this positive obligation is applicable. Article 2 of the European Convention on Human Rights ("ECHR") undoubtedly applied in this case ("Everyone's life right to life shall be protected by law") and it is desirable that the common law is interpreted (and, if necessary, developed) in a way that is compatible with an individual's Convention rights. Indeed it may be that this is required of a court, since the obligation created by section 6 of the Human Rights Act is a statutory one and legislation normally overrides the common law.
  54. 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 was not suggested that any alternative (and available) Crown Court had been identified which had the facilities for a conference of the kind proposed by the appellant, essentially matching the arrangements provided at Rampton Hospital. The appellant did not apply for an adjournment in order to establish if another court could reasonably be used for the trial, and in the circumstances there was no other feasible alternative to the proposal made by the Crown. This appellant, with his particular criminal history, was charged with an extremely grave crime that it was self-evidently in the public interest to try. As set out above, the judge made a clear and sustainable finding that the appellant was at risk of harming himself, either seriously or fatally, if he acceded to his proposal that conferences with his lawyers should take place using an empty dock in one of the courtrooms. It follows that this step constituted a legitimate exception to the protection which the common law provides as regards legal professional privilege and the linked right of a person to consult a lawyer in private. We note that whether or not this risk, if it exists, justifies intervention will be a question of fact and degree in each case (JSC BTA Bank v Ablyazov 2014 EWHC 2788 Comm).
  55. Additionally, addressing the impact of the European Convention on Human Rights and the Human Rights Act in this context, the duty to protect life will clearly be enforceable if there is a risk the individual may abuse legal professional privilege in this particular "iniquitous" manner: the risk identified by the judge would have constituted an occurrence that amounts to a clear and sufficient abuse of the privilege such as to justify this particular interference in order to preserve the appellant's rights under Article 2.
  56. If, contrary to our conclusions set out above, this case constituted an infringement of the appellant's right to confidential communications between a subject and his lawyer under the common law and the interference was not justified under section 6 Human Rights Act 1998, the question then arises as to whether a) the proceedings were, as a result, rendered unfair and whether the conviction is unsafe, or b) the interference was of such seriousness that the court's sense of justice and propriety means that the proceedings should have been stayed (see Warren and others v Attorney General for Jersey [2011] UKPC 10; [2012] 1 AC 22). As Lord Brown set out in McInnes v HM Advocate [2010] UKSC 7; [2010] HRLR 17 at [35] in a criminal case involving non-disclosure:
  57. 35. What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non- disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury's verdict should be allowed to stand. I understand Lord Hope's approach in para 22 to be entirely consistent with this formulation.

  58. We recognise that the judgment of Lord Brown in this regard (along with those of Lord Hope and Lord Rodger) has been the subject of some editorial criticism (see Archbold Criminal Pleading, Evidence and Practice 2015 page 1184) and that, inter alia, it is important to remember that the two questions as to whether an accused had a fair trial and whether his conviction is safe are separate, albeit they will often result in the same answer (see, for instance, R v Togher and others [2001] 1 Cr App R 33, considered below). However, in the context of the present case, when considering fairness and safety it is undoubtedly relevant to assess whether there might have been a different outcome if the two nurses had not been present.
  59. We reiterate that these conferences took place at court after the appellant's core instructions had been taken, following service of his defence statement. This observation is not to denigrate the importance of discussions between an accused and his lawyers at whatever point they take place during the trial. That said, however, notwithstanding Mr Fitzgerald's broad assertion that the presence of the nurses affected the appellant's decision to instruct his counsel not to cross-examine witnesses from Rampton and it had an adverse impact on the process of giving advice and taking instructions, we do not accept there is a real possibility that the course of the present trial would have been materially different if a discussion had taken place in the absence of the nurses. The appellant's evidence was that he had intended to kill, and counsel's consistent advice was that he was unable to advance a defence of insanity in the absence of appropriate medical evidence. Even allowing for the suggestion that the presence of the nurses may have had an inhibiting effect on the appellant and his counsel (the appellant apparently suggested he was worried the nurses would report the conversations to Rampton Hospital), there is no evidence before this court that counsel and the appellant were unable to communicate information of importance that might have altered the course, or the outcome, of the trial. On the material before this court, there was nothing that the appellant could have put to the prison officers in cross- examination that would have assisted his defence. This step was taken to protect or preserve the life of the appellant, and in consequence this case is very far removed from circumstances in which the court's sense of justice and propriety was offended in a way that meant it should not have been asked to try the accused in the particular circumstances of the case.
  60. To adopt Lord Brown's formulation and addressing the position at common law, we do not consider the jury might reasonably have come to a different conclusion if the nurses had not been present. We do not consider the appellant's trial, applying common law principles, to have been unfair nor is his conviction unsafe.
  61. The European Convention
  62. Addressing whether the European Convention on Human Rights ("ECHR") yields a different result, by Article 6(3)(c):
  63. "Everyone charged with a criminal offence has the following minimum rights:

    […]

    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free where the interests of justice so require."

  64. The essence of the appellant's argument in this regard is that the necessary corollary of the right in Article 6(3)(c) is that the defendant has the right to confidential communications with his lawyers. This, it is submitted, rendered the trial unfair and the conviction unsafe. In R v Togher and others, Lord Woolf CJ observed:
  65. 30. […] However, in the […] case of Francom [2001] 1 Cr.App.R. 17, this Court indicated, in a judgment which I gave on behalf of the Court, that we would expect […] that the approach of this Court applying the test of lack of safety would produce the same result as the approach of the ECtHR applying the test of lack of fairness. We would suggest that, even if there was previously a difference of approach, that since the 1998 Act came into force, the circumstances in which there will be room for a different result before this Court and before the ECtHR because of unfairness based on the respective tests we employ will be rare indeed. Applying the broader approach […] we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe. […]

  66. Turning to the suggested right under the ECHR to confidential communications with lawyers, in S v Switzerland (Application No 12629/87, 28 November 1991) a number of the applicant's meetings with his lawyer were supervised by a police official, and his letters to his lawyer were intercepted and used for graphological reports. Against that background the European Court of Human Rights held that:
  67. 48. […] an accused's right to communicate with his advocate out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6(3)(c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment of 13 May 1980, series A no.37, p.16, para.33).

  68. In Brennan v UK (2002) 34 EHRR 18 the European Court of Human Rights, having cited the above passage, set out:
  69. 58. The Court has noted above that Article 6(3) normally requires that an accused be allowed to benefit from the assistance of a lawyer in the initial phases of an interrogation. Furthermore, an accused's right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6(3)(c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of the hearing of third persons, is illustrated by the international provisions cited above. However, the Court's case-law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary to prove, assuming such were possible, that restriction had a prejudicial effect on the course of the trial, the applicant must be able to claim he had been directly affected by the restriction in the exercise of the rights of the defence.

    In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act of preventing information being passed on to suspects still at large. There was however no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure—there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes—, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction. (emphasis added)

  70. The court went to consider proportionality, and then concluded "that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him" [62] and that the presence of the police officer at the hearing and within earshot during the applicant's first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there had been, in consequence, a violation of Article 6(3)(c) read in conjunction with Article 6(1) of the ECHR.
  71. In Ocalan v Turkey (2005) 41 EHRR 18 (Tab 6), at para 133, the Grand Chamber of the European Court of Human Rights quoted approvingly a section of the Chamber's decision:
  72. 133. […] However, as stated above … restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing.

    … In the present case, the Court accepts … that the applicant and his lawyers were unable to consult out of hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that [might prove] important to the preparation of his defence. The rights of the defence were thus significantly affected.

    … The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the State Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent. Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of hearing of third parties.
    … As to the Government's contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant's security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they had threatened their client's life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant's security".

    Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence.

  73. It is clear, therefore, that under the jurisprudence of the European Court of Human Rights, the right to confidential communications with lawyers is not absolute. Instead, it can be restricted for good reason and one of those reasons is if the individual's life is at risk.
  74. It is of note in this regard that Recommendation Rec (2006) 2 of the Council of Europe Committee of Ministers to member states on the European Prison Rules (which is designed to reflect the ECHR and the case law of the European Court of Human Rights) provides:
  75. Legal advice
    23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.

    23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

    23.3 Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners.

    23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.

    23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.

    23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.
    (emphasis added)

  76. As set out above, Article 2 of the ECHR imposes a positive obligation on public authorities, including the court, to take reasonable measures to avert a real and immediate risk to life (see van Colle v United Kingdom (2013) 56 EHRR 839 at [88]-[89] and Osman v United Kingdom 29 EHRR 245: "it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge" [116]).
  77. Whether or not the restrictions were properly justified is clearly relevant to the issue of proportionality, and, against that background, the court needs to make the assessment as to whether the trial was fair. The correct approach was clearly adumbrated by Lord Carswell in McE v Prison Service of Northern Ireland at [85] when, after referring to S, Brennan and Ocalan, he set out:
  78. In other words, it was the effect of the supervision, not the supervision itself, which brought about the breach of Convention rights. It was accepted in Brennan (para.58) and Ocalan (para.146) that the right of access to a solicitor might be subject to restrictions for good cause, the ultimate question in each case being whether the restriction deprived the accused of a fair hearing.

  79. For the reasons already set out at [41], [45] and [46], we consider these restrictions were a proportionate and appropriate response to the grave threat the appellant posed to himself and we do not accept that they rendered the proceedings unfair. As a result, there has been no breach of Article 6.
  80. Conclusion

  81. In light of the conclusions set out above, this appeal is dismissed.


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