CHAPTER 5: LEGAL CONSTRAINTS
to distinguish between those communications that would attract privilege and
those that would not. The court was also particularly exercised that the
determination of that question was delegated to an official in the Post Office’s
legal department: a part of the executive and not an independent judge.60
(b)
In other cases, the court has noted with approval that the French state offered
specific protections to preserve the confidentiality of lawyer/client relations
when their telephones are to be tapped.61 Additional protections will also be
necessary, in many cases, in order to protect the right under ECHR Article 6 to
a right to a fair trial.62
5.47.
In the domestic sphere, the Judicial Committee of the House of Lords (the
predecessor body to the UK Supreme Court) considered the question of LPP in the
context of surveillance. The case concerned the power to listen in to confidential
consultations held at a police station between lawyers or doctors and their clients.
The court held that it was lawful, in some circumstances and where authorised
expressly by statute, to carry out surveillance of those conversations. However, the
House of Lords also upheld the view of the Administrative Court that the safeguards
set out in RIPA, and the Code of Practice for surveillance, offered insufficient
protections in a case where privileged communications would be gathered.63
5.48.
More light has recently been shed on this issue by the Belhadj IPT case. The UK
Government had already conceded that its policy concerning interception of privileged
communications has been unlawful: the IPT held that the privileged communications
of a claimant had been intercepted, and ordered GCHQ to destroy its copies of the
relevant documents.64 Both the Draft Interception of Communications Code of
Practice of February 2015 [Draft Interception Code] and the new Acquisition and
Disclosure of Communications Data Code of March 2015 [Acquisition Code] contain
expanded sections concerning access to privileged communications.65
5.49.
Secondly, communications between journalists and their sources are entitled to be
treated in confidence. The ECtHR has held that an interference with the confidentiality
of journalistic sources can only be justified by “an overriding requirement in the public
interest.”66 The threshold that must be passed is significantly higher than the ordinary
necessity and proportionality test. In Weber v Germany the applicant was a journalist,
who argued that the interception of her communications was a breach of her right to
maintain the confidentiality of her sources. The ECtHR held that the purpose of
“strategic monitoring” (widespread and without reference to a particular individual)
was not to gather information about journalistic sources. Therefore, the procedures
60
61
62
63
64
65
66
Kopp v Switzerland (Application no. 13/1997, judgment of 25 March1998), paras 73-75.
Kruslin v France, para 34; Huvig v France (Application no. 11105/84, judgment of 24 April 1990), para
33.
See S v Switzerland (Application no. 12629/87, judgment of 28 November 1991).
McE v Prison Service of Northern Ireland and another, C and Another v Chief Constable of the Police
Service of Northern Ireland and M v Same [2009] UKHL 15, [2009] 1 AC 908. See in particular the
comments of Lord Neuberger, para 113.
Belhadj IPT Case, order of 26 February 2015; judgment of 29 April 2015. The decision was the first
time the IPT has found in favour of an individual Claimant, in an open judgment, and held that the
Agencies have acted unlawfully.
Draft Interception Code paras 4.2-4.25; Acquisition Code paras 3.72-3.84.
Goodwin v United Kingdom (Application no. 17488, judgment of 27 March 1996), para 39.
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