Here’s one to keep an eye on…

It’s not clear where this is going just yet, but we should know in the next day or two whether it has legs or not. If the former, it could have profound effects on the way policing is conducted in Northern Ireland. Hat tip to J Kelly.

  • Henry94

    If it is true that the evidence is based on taped conversations between a lawyer and his client at a police station then every member of the PNSI involved should be kicked out of the force.

  • Mick Fealty

    If we see further movement tomorrow, then that’s likely to be subject to a very long legal tussle Henry.

  • “Mr Rice alleges the police covertly taped confidential conversations between Mr Sandhu and his clients.

    He said those conversations, allegedly taped at Antrim police station, …..”

    What a bunch of monkeys we have ‘protecting’ us.
    These clowns wouldn’t last two minutes in a normal western society. They haven’t a notion about the law. It would make you laugh if it wasn’t so depressing.

    I realise the allegations made in the article are unproven , but going by the IMC report, unproven allegations=fact in the banana republic of northern Ireland.

  • Yoda

    Oh dear. This is definitely worth watching.

  • Mick Fealty

    If there is a case to answer, then anyone pushing for the highest standards in Northern Ireland’s policing arrangements will want to watch this story very carefully.

    I’ll reserve my own comments for if/when the story goes hard.

  • steve48

    surely solicitors are not above the law. is there a difference between working on behalf on a client and being a active participant in law breaking.
    can any legal beagles enlighten us?

  • Pat Mc Larnon

    steve48,

    while understanding that the legal profession are not above the law, confidential discussions between the lawyer and the client are primarily in place to protect the client. If this provision is to be done away then the law should reflect that the lawyer/client relationship that has existed for some considerable time is now at an end.

  • fair_deal

    If memory serves this is not unprecendented.

    The Metropolitan police admitted a number of years ago of eavesdropping into the solicitors and client conversations in police stations. I think they claimed it was to find out if they had the right person or not so they didn’t waste time interviewing the wrong suspect. (Yeah right)

    Was a similar tactic not used against a mob lawyer in the US?

  • wild turkey

    can any legal beagles enlighten us?

    not being a legal beagle or eagle, 2 questions;

    has the Bush Patriot Act been extended to Norn Ireland?

    (nb cahal, sadly the clowns are already in charge of the asylum in the united states of amnesia.)

    is this perhaps one of the methodologies by which the IMC gets its ‘reports’?

  • Mickhall

    Remind me not to hire this brief if the need arises, I realize one should take this seriously, but you would really have to be the stupidest Lawyer in Ireland to assume the PSNI does not eavesdrop on lawyer client conversations.

    I realize it is only fair that the shinners get in a few blows after the kicking they took yesterday. But listening in on lawyers is small change for the PSNI, they have serving officers within that august body of crime-fighters who have colluded in major crimes such as murder, kidnapping, oh and in all probability driving without a road fund license.

    I know one should not laugh, but some days this crazy Statelet cracks me up.

  • Bemused

    So THIS is what Paisley meant by his “lawyers in league with hoods” waffle……

  • SlugFest

    A bit ironic for this story to break just one day after the IMC’s report. Let’s get a panel (a NEW one) to investigate the PSNI and have their findings reported as openly as the IMC’s.

  • Shore Road Resident

    We need some legal opinion on this.

    What is the status in law of lawyer-client confidentiality?
    Also, do the police need a warrant to tape suspects for evidence?

  • la dee dah

    If the police didn’t have some good reason e.g. information / intelligence that something illegal was to take place how can they ever justify this?

  • Dec

    But surely this is a sign of how far policing has come in NI. Bear in mind that in days gone past the Police, rather than arrest him, would simply have had him shot (preferably in front of his wife and children).

    The glass is always half full with some of you lot.

  • Dec

    Rather, half empty.

  • The Beach Tree

    As per Halsbury’s Laws of England, as updated:

    ” 541. Duty of confidence.

    A barrister must preserve the confidentiality of his lay client’s affairs.

    He must not without the prior consent of the lay client or as permitted by law lend or reveal the contents of the papers in any instructions or communicate to any third person information which has been entrusted to him in confidence or use such information either to the lay client’s detriment or to his own or another client’s advantage.

    This duty of confidentiality continues after the relation of counsel and client has ceased, and prevents a barrister from accepting a brief to act against a former client, even if that client has refused to retain him, if by reason of his former engagement the barrister possesses any confidential information which might be prejudicial to his former client in the later litigation.”

    674. Legal professional privilege.

    Confidential communications passing between a barrister and his professional or lay client for the purpose of requesting or giving legal advice, such as instructions to counsel and counsel’s advice, are privileged from disclosure.
    The court will not, at the instance of a third party, compel the client, and will not allow the barrister, to disclose them.

    The privilege is not confined to such communications as are made in the course of, or in anticipation of, litigation, but the communications must be made in a professional capacity; and the communications must be of a confidential character…

    The privilege does not extend to communications made for the purpose of committing a fraud or crime; but where legal professional privilege exists, it is absolute and is not capable of being overridden by any other public interest.

    The right to the confidentiality of communications between lawyer and client is also protected by Community law and by the Convention for the Protection of Human Rights and Fundamental Freedoms.

    Legal professional privilege is not merely a rule of evidence but is a substantive legal right of great constitutional importance, being a necessary bulwark of the citizen’s right of access to justice.

    The privilege is the privilege of the client and not of the barrister or other legal professional adviser13. It may be waived by the client, but never ceases unless waived by the client or his successors in title.”

    Broadly the same rules apply to a solicitor accepting instructions for the purposes of initial advocacy.

    Happy, Shore Road?

  • Pete Baker

    Beach Tree

    I would have thought that the lines

    “The privilege is the privilege of the client and not of the barrister or other legal professional adviser.”

    also deserved to be highlighted in this example.

  • The Beach Tree

    PB

    The most accurate answer to your assertion would probably be “well, YOU would!”

    But frankly I merely gave the information as a curtesy as I was in possession of it. I have no intention on getting involved on any debate on this site.

    god night.

  • Yoda

    Surely taping the conversation with a solicitor, barrister or “other legal professional advisor” would still violate the privilege of the client if they do not waive it?

  • Pete Baker

    Beach Tree

    My apologies, no offence was intended.

    I appreciated that you were providing the info as a curtesy and was merely pointing to a line that stood out to my eye.

    Yoda

    Very possibly.

  • Mick Fealty

    Many thanks for the extract TBT. Much appreciated.

    There is no call for anyone to be asserting anything at this stage. The man concerned is still being held without charge, so far as I know. There’s a lot of gun jumping going on here.

    This case can move forward in a number of ways.

  • The Beach Tree

    Mick

    You’re welcome. Given Pete’s unnecessary graciousness after my bad tempered put down, I’m feeling suitablly chastened. I may even begin posting again….

    Pete

    No apologies necessary. I’m in a bad mood for personal reasons, and took offence at nothing. You are of course quite correct, though perhaps not in this particular case. We shall see.

    Of course, just to play devil’s advocate, it would be interesting to see if any ‘supergrass’ ever quietly waived privilege back in the day – and what information was gained.

  • TAFKABO

    What happens when the police suspect the Lawyer/Client privelage is being used as a pretext to conspire for criminal purposes?

    Hypothetical situation.

    Say an incarcerated suspect was telling a lawyer the name of a witness he wanted dealt with, and the lawyer was taking the information to pass on to other criminal elements.

    In such a case, wouldn’t the police be within their rights to intercept and aprehend any such conspiracy?

  • Pete Baker

    Beach Tree

    That’s quite alright, it happens to us all, and I should have phrased my comment more carefully to avoid any possible misinterpretation.

    I hope you do begin posting again.. the more saner voices we have here the better.

  • The Beach Tree

    TAFKABO

    Within their rights? No – as stated above “NO PUBLIC INTEREST” justify’s breach of the privilege.

    In reality, if the example you give – and its obviously the Finucane Allegation by Sean O’Callaghan – then it wouldn’t actually attract privilege.

    But there’s a minefield were say X tells his lawyer after discussing the witness sub poenaed so far, “Jeez, Bob, thank God they haven’t asked Mary!”

    The fact that the client believes that ‘Mary’ would be an incriminating witness would be covered by privilege.

    You can see the horrible situation were a whole case against X could be destroyed when police are tempted to drag Mary in on the back of the ‘tip-off’, especially if it’s obvious how they found out.

    Mr, that’s a mistrial right there, and a disciplinary squad for the police.

    in the UK, and in Ireland,we talk about legla professional privilege, the EU talks of fundamental rights, and even America would consider the above (a) entrapment and (b) a breach of the right not to self-incriminate.

    bottom line, the police should NOT be listening in the hope of a juicy titbit – it’s highly illegal, and IF it’s true, they’ll be in huge trouble.

  • TAFKABO

    Beach Tree

    Thanks for the reply, but I really must stress that I was using a totally hypothetical situation, any similarities between an actual event or alleged event is coincidental.

  • Pete Baker

    It should be pointed out that the ‘listening in the hope of a juicy tidbit’ theory is being advanced by the solicitor for the person still being questioned.. but who has not yet charged with any offence.

    ..and that the Law Society has responded anyway.

  • Shore Road Resident

    Thank you for the information, Beach Tree.
    Like any excerpt of law I’ve ever read that seems absolutely clear until you look at it closely, whereupon it’s not – i.e. the privilege is absolute regardless of any public interest, unless it involves communication persuant to a crime.

    Still seems fairly amazing that the police have admitted doing this though. They’re either incompetent beyond belief, or arrogant beyond belief – or maybe they thought they’d get away with it because it was loyalists.

  • harpo

    ‘The privilege is not confined to such communications as are made in the course of, or in anticipation of, litigation, but the communications must be made in a professional capacity; and the communications must be of a confidential character…

    The privilege does not extend to communications made for the purpose of committing a fraud or crime; but where legal professional privilege exists, it is absolute and is not capable of beprivilege ing overridden by any other public interest.’

    The Beach Tree:

    This obviously means that the communication must only be in relation to the defence of the client for it to be legal. ‘the communications must be made in a professional capacity’ The only reason the lawyer is there is to defend the client.

    So if it goes beyond that and involves say the lawyer taking instructions from the client about having pals of the client kill a witness, that would not be legal. And so legal professional privilege would not exist. So the police could listen in in order to stop a potential crime.

    The privilege is only absloute where legal professional privilege exists, so if it doesn’t exist there can be override.

  • Pete Baker

    SRR, Harpo

    The point, or at least one of the points, being made, is that any such listening in cannot be in the hope of hearing incriminating information.

    Recounting the conversation later, though, can be compelled under the circumstances described.

  • Betty Boo

    “It is the first occasion I am aware of in Northern Ireland that there has been this kind of intrusion into the solicitor-client relationship” (John Bailie, Law Society chief executive)

    I would say that it is the first occasion it came out in public. I doubt very much, it happened for the first time.
    As much as most of us wish a just and in particular crime preventing police force, most of us also and independently where we coming from, see in them the exact opposite of what we want them to be through experience.

  • The Beach Tree

    Harpo

    The fatal difficulty with your suggestion is that you have to break the law (listen in to what you belive to be privileged) to find out if you may not be breaking the law after all(i.e. a small bit may not attract privilege). Sorry, but it doesn’t fly.

    The only reason the lawyer is there is to defend the client.

    Simply. Not. True. The lawyer is there to provide any legal advice pertinent to his client. On Any Subject.

    There is no bar on the professional instruction an advocate may take from his client in these circumstances, short of an instruction to break the law.

    If he chose to write his will in his cell (many have), it would be privileged; if he chose to talk about how to sue the cops, it would be privileged. If he chose to discuss buying a house, it would be privileged.

    The communication doesn’t need to be part of his defence – any legal advice, or frankly any instruction in his capacity as a lawyer, NOT JUST HIS CAPACITY AS YOUR DEFENCE LAWYER, short of a criminal offence attract the privilege.

    I’m sorry if you think otherwise, but as a matter of law, and grammer, you are mistaken. I would have thought the phrase

    The privilege is not confined to such communications as are made in the course of, or in anticipation of, litigation

    would have made that obvious.

    The proper course of action if you have these suspicions of a crime or fraud is not to eavesdrop, but to object to counsel in a court of law, or refuse him entry and inform the law society why….

    now keep practising your statutory interpretation … 😉

  • The Beach Tree

    Pete

    Absolutely correct.

    Oh, and the fun of ” a declaration of professional diffiuclties” – another night perhaps…

  • steve48

    hypothetical question what if the lawyer is part of the same criminal conspiracy?

  • The Beach Tree

    steve48

    i’m not sure what you mean. Please explain.

  • missfitz

    The focus seems to be on the sanctity of client/attorney privilege, as well as the code of confidentiality to be employed. Both of these areas are of course well laid out and defined.

    I would have thought that the area which needs to be explored are the extra-ordinary circumstances under which a privleged conversation can be invaded under the law.

    I am leaping away from the case in question, as there are no hard facts known as yet, and everything we have said here so far has been speculative.

    To continue the hypothesis, say for instance the police suspects that the attorney/client visit is being used to further advance a criminal intent. In this case, I wonder if a warrant could be procured to monitor the conversation? If this were to happen, then the Police would not be acting out of turn, and the evidence would be admissable.

    The points made previously in the argument appear to infer a breach on the part of the attorney in respect of the privilege, which of course is not permissable.

  • harpo

    ‘The fatal difficulty with your suggestion is that you have to break the law (listen in to what you belive to be privileged) to find out if you may not be breaking the law after all(i.e. a small bit may not attract privilege). Sorry, but it doesn’t fly.’

    But if it isn’t covered by the privilege then it isn’t breaking the law to do so, is it? If you have other evidence that the lawyer is doing something more than giving professional advice to his client, then that activity by the lawyer isn’t covered by the privilege, is it? So you would be entitled to listen in. You would believe in that case that the conversations were not privileged.

    You are taking the view that ALL listening in is illegal, but it clearly isn’t.

    I would imagine that if a lawyer is suspected of being engaged in criminal activity that some sort of permission would be granted to allow the police to listen in. Just in the same way that phone taps are not usually allowed, but if specific permission is given for one then they can be used legally.

    I’m not saying that all client-lawyer discussions can be listened to, but it is clear that some can. Presumably if there is probable cause to think that non-privileged activity is going on. Thus in specific cases it could be used, but couldn’t be used for general fishing expeditions where you have no probable cause.

    That’s probably why this is the first issue of its sort. It is the rare exception as opposed to the general rule.

  • The Beach Tree

    Harpo

    Actually it would be breaking the law – the law being “attempting” the offence.

    If you fly into heathrow to pick up drugs intending to take them to Tokyo, and the courier is missed – you’ve still committed the crimes of attempt, and probably conspiracy.

    In this case the fact that some part of the conversation did not attract privilege does noit prevent the fact that they clearly inteded to listen to it all, in order to find the bit they hoped to get, and that is a crime.

    and we dn’t have ‘probable cause’, that’s american – we have reasonable grounds to suspect. Which is actually a higher theoretical barrier.

  • harpo

    ‘In this case the fact that some part of the conversation did not attract privilege does noit prevent the fact that they clearly inteded to listen to it all, in order to find the bit they hoped to get, and that is a crime.’

    TBT:

    Now that’s nonsense.

    I may not be a lawyer, so I use common terms that I hope people get the intent of. By probable cause I meant what you mentioned – that they have some grounds to suspect that the lawyer is up to no good.

    What you say can’t be true. Are you really trying to tell us that if the authorities knew that a crooked lawyer was going to discuss something that constitutes a crime on his part with the client he is seeing, that the police wouldn’t be allowed to listen in to get the info simply because something that IS privileged would be discussed too?

    That would make it impractical to ever listen in then. All the crooked lawyer has to do them is to discuss ANY issue that is privileged – your example of the clients will for example – and that negates the whole conversation from being listened to. Even if a crime is discussed.

    What you are asking for then is for the police to as well as knowing that a crime is to be discussed, to listen in at the exact point in the conversation that the crime is discussed and at no other point. That’s crazy. How can the police know in what order things are going to be discussed?

    Surely the way that rule is worded means that when it is in the public interest, the police could listen in, even if a mix of normally privileged items and non-priviliged items are discussed.

    The intent is to get the non-priviliged item and since you don’t know when it is going to be discussed, you have to listen to all of the conversation.

  • Yoda

    Harpo

    Why are you struggling so hard against what you’re being told is the proper functioning of the law?

  • harpo

    ‘Why are you struggling so hard against what you’re being told is the proper functioning of the law?’

    Yoda:

    I’m not.

    How do I know that TBT really knows anything about the proper functioning of the law?

    Those rules have an exception to the general in them, but TBT is presenting a picture whereby it is impossible for there to be an exception.

    That can’t be right.

    I’m just trying to get a proper understanding of this law.

    Do you accept everything that people tell you just because they tell you stuff? Or do you try to determine if what they are telling you is nonsense if it appears to be nonsense?

  • The Beach Tree

    Harpo

    I’m not willing to give YOU my credentials, I simply don’t trust your motives, – if you wish I will in confidence Identify myself, with his agreement, to Mick. I assure you he will be able to tell you i could scarcly be better qualified in the field.

    and the exception is there for BARRISTERS and SOLICTORS to avail of, not for the police – that’s how and why it works. It allows them to reveal matters they have been told that might otherwise attract privilegge which belongs to THE CLIENT, not THE ADVOCATE; it is not designed and was not designed for third parties listening in.

    you simply assumed that that exception must be designed for universal application. you were wrong.

    And essnetially calling me a liar because you don’t like being proved wrong is an ad hominem attack. desist.

  • Yoda

    I’m not.

    If you say so. But it seems like you’re going on a long walk for a small drink of water.

    How do I know that TBT really knows anything about the proper functioning of the law?

    Did you read the excerpt he posted from Halsbury’s on page one of the thread?

  • The Beach Tree

    Harpo, yoda

    Here is an incredibly recent case, involving in-house lawyers, historically the least protected types of advocate

    The European Court last week granted relief in a case that extends the scope of privilege to communications between companies and their in-house lawyers

    Legal professional privilege (LPP) is the rule under which communications between lawyers and their clients are confidential and may not be examined or used by third parties without the clients’ express consent. LPP is one aspect of a company’s rights of defence.

    The EC rule, established in the case of AM&S v Commission 1982, provides that communications between companies and their external lawyers who are established in the European Economic Area benefit from protection.

    On 30 October 2003, the President of the European Court of First Instance granted relief in a case brought by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd .

    Assuming the case is not overturned on appeal, the scope of LPP will be extended to communications between companies and their in-house lawyers.

    The facts of this case are that Akzo and Akcros’ premises were raided in February 2003. During the raid the Commission seized and copied a number of documents. The applicants argued that two sets of these documents were privileged:

    The documents in the first set were drafted in preparation for seeking the companies’ external lawyers’ advice. The Commission examined the documents and put them into a sealed envelope.

    The documents in the second set comprised drafts of the documents in the first set and e-mails correspondence between the companies and their in-house lawyers. The Commission examined the documents in the second set and put them on its files.

    The Court’s President accepted that: it may be timely to extend legal professional privilege to written communications between a company and its in-house lawyers;

    an internal document prepared by the company for the purposes of seeking external legal advice may be privileged even if the document does not make any reference to seeking such advice; and if a company shows that a document is privileged, Commission officials may not examine the document, even cursorily, without the company’s “unreserved consent”. If the Commission disputes the claim of privilege, it may seize the document and place it into a sealed envelope until the dispute is resolved, but it may not examine it, and it may not use it.

    In-house lawyers will be hanging on to their seats awaiting the appeal!

    As you can see here we have a privileged document (though a conversation would make no difference) where the in house lawyers are thought to be in possession, and having knowledge of incriminating documents.

    The law did not even allow the Commission (the police body in this case) to cursorily examine the documents to work out if they were privileged or not!

    It’s an incredibly high threshold, Harpo, and you seem to be in denial of it.

    Pity.

  • The Beach Tree

    Yoda

    As an end note, I did my quick research. The power to have wiretap surveillance of any conversation likely to include legal privilege can only be exercised with the consent and authrorisation of a senior official known as the Surveillance Commissioner, and only on the back of exisiting evidence.

    as it happens the current commisioner is ab it easy on the police. But not this easy.

    this request for authorisation can only be done if there is consistent evidence already available that the lawyer is involved in a criminal conspiracy. The knowledge of the conspiracy must pre-date the wire tap. you can’t wire tap to find out about the scheme, but only, and only rarely at that, to get details on a scheme you already have plenty of cogent evidence of. Otherwise privilege kicks your butt, not least because of course it is ‘assumed’ to be privilege until proven otherwise, and you can’t use the wiretap to do the proving!

    good old Archbold on criminla procedure!

    In essence Harpo, you can’t do it, and certainly not on the fishing expedition you suggest. You need to go through the commissioner with exisiting and seperate evidence, and even then you have to prve to a judge that privilege does not attach and that its worth putting in.

  • harpo

    The Beach Tree

    ‘I’m not willing to give YOU my credentials’

    I’m not asking you to.

    ‘I simply don’t trust your motives’

    I’m trying to find out the truth of the situation. That’s my only motive.

    ‘I assure you he will be able to tell you i could scarcly be better qualified in the field.’

    Well if you say so dear. Your explanations to date just don’t make much sense.

    ‘and the exception is there for BARRISTERS and SOLICTORS to avail of, not for the police’

    Now that makes no sense. What if the legal adviser is a crook? Surely any third party can break the privilege if the lawyer and client are in cahoots to carry out a crime.

    And you say what I understood the rule to be – that the privilege belongs to the client. If the third party – the police – has no intention of using anything they discover against the client, then that privilege is not compromised. But since the lawyer has no right to privilege, anything that is discovered can be used against the lawyer.

    As I understand this case that is in the news, it is not the privilege of the clients of this lawyer that is being broken. The clients are not being charged with anything new as a result of this surveillance. It is the lawyer that is being charged and he has no privilege, does he?

    In that cut-and-paste you did you posted this:
    ‘Confidential communications passing between a barrister and his professional or lay client for the purpose of requesting or giving legal advice, such as instructions to counsel and counsel’s advice, are privileged from disclosure.’

    It says ‘privileged from disclosure’. It doesn’t say that they can’t be listened to. It just says that they can’t be disclosed, presumably to protect the client. Thus if a prosecuter tried to introduce them as evidence against the client, the judge would shoot that down.

    It also says:
    ‘The privilege does not extend to communications made for the purpose of committing a fraud or crime’

    There’s that exception, and it obviously can’t be for the lawyer to use since any communication between the client and lawyer made for the purpose of committing a fraud or crime obviously means that the lawyer is involved in the fraud or crime.

    I’m not buying it. The exception is not for the benefit of lawyers. It’s for some third party.

    Now you have said that the exception is not for third parties, but what you cut-and-pasted doesn’t give any qualifiers as to who it does apply to, so do you have any proof that what you claim is true?

    ‘you simply assumed that that exception must be designed for universal application’

    In the absence of any evidence that states who the use of the exception is limited to, then it is universal.

    You also posted the 541 paragraph which has nothing to do with the issue. It deals with the lawyer keeping things confidential. That isn’t the issue here.

    ‘And essnetially calling me a liar because you don’t like being proved wrong is an ad hominem attack’

    I’m not calling you a liar. There is no attack. I just don’t think that what you say makes sense.

    As I understood it this is a discussion board, not a ‘do you know who I am sonny? I’m an expert on this, so shut up’ board. This is a discussion board, and not a legal proceeding, so I don’t see that people get ‘proven wrong’ on Slugger O’Toole.

    It’ll be a sad day for us all when we reach the point where lawyers come onto discussion boards and say ‘I’m a lawyer and you have been proven wrong’ to other people who are discussing issues.

    If you’re up for discussion let’s discuss it. Show me more evidence to back up what you say. But let’s not play the infantile ‘you called me a liar’ game when I did no such thing.

  • harpo

    ‘In essence Harpo, you can’t do it, and certainly not on the fishing expedition you suggest.’

    TBT

    If you read what I said, I mentioned getting permission to do it from some authority, based on the provision to that authority of evidence that the lawyer is up to something.

    I wasn’t talking about fishing expeditions.

    Given that you have described in detail how you CAN do it if you meet all of those criteria, why do you conclude that you in essence CAN”T do it?

    Again what you say makes no sense.

    Legal wire taps happen all the time, don’t they? So why are you denying that they can’t?

  • lah dee dah

    Right on Harpo

  • Pat Mc Larnon

    ‘All I can say is the solicitor in question is fortunate he was representing Loyalists and not Republicans or he might have been set up for assassination like Pat Finucane was .’

    While that is always an option for those unionists still actively involved in violence there is no doubt at all that had a lawyer been arrested over republican activities in such circumstances the airwaves would have been hot with DUP/UUP spokespersons proclaiming that is was ‘EVIDENCE’ of bad faith on the part of republicans and a clear indication of republican involvement in blah blah blah (fill in youself).

    At this juncture they are unsurprisingly sileny

  • TAFKABO

    After thinking about the situation I have to say that I agree more with the argument put forward by Beach Tree than any other.

    It’s a cliché to be sure, but the old saying that it’s better for ten guilty men to go free than one innocent man to be put in jail applies in this case.
    Lawyer/client confidentiality is such a fundamental cornerstone of the justice system that it can’t be disregarded for what is proably a miniscule number of cases where a wiretap might be helpful in securing a conviction.

  • Mick Fealty

    The discussion so far has been empassioned but informed. Let’s try and keep it that way. Let’s go easy on the sweeping, groundless statements martin!

  • DK

    Why wasn’t this bit highlighted:

    “The privilege does not extend to communications made for the purpose of committing a fraud or crime”

    Surely this is an example of clever police work?

  • DK

    And another thing – I saw that “waking the dead” programme and they were listening in on a solicitor and a client throught their one-way mirror thingie.

  • Perhaps, the client was one of just many loyalist agents, and he was being used by the PSNI to trap the solicitor……..suffice, to say, we will never know, but in this domain anything is possible.

  • Mickhall

    Mick,

    Why do you feel martins proposition was groundless, most of us on our side of the fence believe Pat Finucane was set up to be murdered. It seems to me policemen, politicians and touts all played their allotted role in choreographing his murder.

    It is also true most PSNI offers believe that lawyers representing paramilitaries collude with their clients in criminality, hence it is not difficult to believe this type of thing goes on.[listening in on lawyer client] Once again we come up against the question of how far the PSNI has reformed itself from its RUC days. Myself I do not feel any real change will take place until the Branch is abolished, because its very existence sends a message down the police line about an enemy within and all that flows from that, not least the end justifies the means.

    I say again, how can you condemn police officers from doing what we are discussing when serving officers, including some in senior ranks, have colluded in serious crimes. Such a debate is surreal.

    Regards

  • steve48

    I find the discussion fascinating especially those elements relating to lawyer-client priviledge. However no one has yet answered the question what if the client is not the subject of the investigation? What if the lawyer is suspected of serious criminal activity and the police are gathering information for an ongoing investigation against the lawyer? Surely the right of a lawyer to confidentiality does not extend to him/her breaking the law.

  • Mick Fealty

    Well, I wasn’t stretching for a card of any description. But I had been enjoying a thread of rare focus – and a conspicuous lack of ‘whataboutery’.

    I’ve no problems with a discussion of the relevancy of the Finucane case, I just think that the subject of this thread has the potential to have a far greater baring on how the police conduct their procedures in future than that or any other historic (albeit tragic) cases.

    And it’s a shame if we loose that focus.

  • harpo

    ‘Perhaps, the client was one of just many loyalist agents, and he was being used by the PSNI to trap the solicitor……..suffice, to say, we will never know, but in this domain anything is possible.’

    gypsynolan:

    The guy being charged is a lawyer, and presumably has many clients, so it is indeed possible that one of them is a loyalist informer and was used by the police.

    When the story hit many people went for the angle of ‘you can’t override client-lawyer confidentiality ever’, on the basis that there is never ever any justificaion for doing so.

    But it appears that there are in law exceptions to that general rule. Now some are arguing that in practical terms you can’t use these exceptions, but I’m not convinced. If exceptions were written into the law, I presume it was done for a specific purpose, and not just because the framers thought ‘for the hell of it let’s include some exceptions that can’t actually be used.’

    There was the usual rush to judgement by many when the story came out – the crowd who bash the police at any and all opportunities. They went with the ‘you can’t do that’ knee-jerk reaction, which is based on their biases and not the law.

    This monitoring of conversations obviously forms part of the case against this lawyer, so the basis for doing the monitoring is going to come out in court. If the judge rules that there are no exceptions to the general rule then the evidence produced from the monitoring will be excluded, but if there are legal exceptions to the general rule then the evidence will be allowed.

    Shouldn’t we all wait until the court case? Or do we just want to jump to conclusions based on layman’s knowledge of the law, or a limited understanding of the law?

    Of course even if the judge does allow this evidence under some legal basis, there are those who will still claim that it’s all British dirty tricks and the judge is under the control of the evil British securocrats.

    But hey, that’s another day and another discussion.

  • harpo

    ‘Lawyer/client confidentiality is such a fundamental cornerstone of the justice system that it can’t be disregarded for what is proably a miniscule number of cases where a wiretap might be helpful in securing a conviction.’

    TAFKABO:

    I respect your opinion here, but it is just an opinion.

    Isn’t the only thing that is relevant here whether what the police did IS legal or ISN’T legal?

    We can argue back and forth all day about what the law SHOULD be, but that’s not the point. If there are exceptions in actual law to the general rule that you have stated, then they are there for a purpose, and using them properly would be legal.

    We can argue about whether the exceptions SHOULD be there in law, but if the PSNI used them properly then what they did would be legal. Wouldn’t it?

    Maybe this will be a test case that will eventually form part of case law to back up future actions regarding the issue, but at the moment we have to differentiate between the two issues of:
    1. what the law SHOULD be with respect to this issue, and
    2. what the law currently actually is in this area.

    We can’t blame the police for taking actions that are legal because we don’t like the law involved. If we don’t like the law, start a campaign to get it changed.

    The only issue here with respect to judging the police actions is ‘did they follow the law?’.

  • harpo

    ‘I say again, how can you condemn police officers from doing what we are discussing’

    Especially if it’s legal.

    Mickhall:

    I understand that you have opinions about the police, but can we stick to the subject instead of reducing it to ‘well we all know that they colluded to have people murdered, so why should we be surprised when this goes on?’.

    If this action is legal – and the courts will determine if it is or not – then what has supposed collusion got to do with the police taking legal action in order to gather evidence against someone?

    We on this forum seem to be unclear as to what the actual law in this area actually means, but if there is a legal basis for doing this then what are you complaining about?

    Would you rather have the police use the law to try to ‘get’ criminals (including lawyers), or would you rather have them have some of their supposed pals just murder them as you claim they have in the past?

  • harpo

    ‘I find the discussion fascinating especially those elements relating to lawyer-client priviledge. However no one has yet answered the question what if the client is not the subject of the investigation? What if the lawyer is suspected of serious criminal activity and the police are gathering information for an ongoing investigation against the lawyer? Surely the right of a lawyer to confidentiality does not extend to him/her breaking the law.’

    steve48:

    Great post. That is the issue exactly.

    Just one thing – in a client-lawyer relationship, the lawyer doesn’t have any right to confidentiality. The right only belongs to the client.

    So as I see it the lawyer is double whammied here. They have no right to confidentiality in the first place, plus there is no confidentiality at all if there is law breaking going on in the communication.

    To all those who object to my layman talk – ‘double whammied’ is not to be taken as a proper legal term.

    The only issue with respect to going after a lawyer is of course that details of what he and the client communicated about will come out. Thus does that impact the clients right to confidentiality? I’d say not, if the evidence produced isn’t being used against the client.

  • Mickhall

    harpo

    What my post shows is like many people both within the north and out side it, I have no real confidence in the PSNI. Now if this incident had occurred in say London and eyebrows were raised about whether or not Met officers had been engaged in a lawful act such as the one we are discussing. The Met press office like a flash would have pointed out it was either legal, or if not they would say they were conducting an inquiry into the said matter.

    I have absolutely no doubt the PSNI press office monitors sites like slugger, nuzhound etc. Yet they have done no such thing, which to me says they are either arrogant, incompetent or do not feel the communities they serve have any right to question how they behave operationally. Myself I feel it is the first option brought about by the latter one.

    You are correct in that I keep harping back to collusion, I would simply reply that it is perverse to ask me to have any faith in a police service which has refused to adequately clean its stables and come clean about what some of its officers got up to when they were supposed to be implementing the rule of law but in fact were doing the reverse.

    What you seem to be demanding of me, [IMO] is like saying we can make a judgement on what the Gestapo got up to during the Hitler period without looking at what went on in the cellar of Prinz Albrecht Strasse.

    One can call the police in the north the PSNI but for some of us, unless the stables are cleaned it will still be the RUC. Which is a great shame as im certain many of those serving in the norths police are genuine about turning over a new leaf. What we all need to do is muck out, then we can all move on.

    all the best.

  • harpo

    ‘What you seem to be demanding of me, [IMO] is like saying we can make a judgement on what the Gestapo got up to during the Hitler period without looking at what went on in the cellar of Prinz Albrecht Strasse.’

    Mickhall:

    I’m not asking you that at all.

    I too have my opinions and mine regarding Irish Republicans would mirror those of yours regarding the police. I don’t trust the ***** because of what they did in the past, and just like the police many of the same players are still involved.

    All I’m saying is that you shouldn’t jump to conclusions about an issue on the basis of your preconceived notions about the group involved. Thus in your case, you see parts of the police as inherently evil, so they must be up to no good in this case, even if what they are doing is entirely legal.

    I’m in the same boat, so if I see some member of the Provo RM up to something that looks fishy but I don’t really know what the law relating to the matter is, my natural inclination is to assume they are up to no good. But I try not to spread that opinion to others until I have determined what the legal position is. if it turns out that they are breaking the law, then I will share my opinion.

    But it’s pointless to immediately yell ‘look at what the Provo is doing. They used to bomb civilians so what more do you expect from them in this case?’. You just end up looking stupid if what they are doing is perfectly legal, and you were ignorant of that fact.

    Back to your Gestapo example. It’s not a good one. Your example implies that I am asking you to ignore something specific before arriving at an opinion on a group generally. I’m not. I’m asking the opposite.

    What I am doing is asking you to set aside your preconceived general opinion about a group and look at the facts of a specific incident. You headed into this with the general view that parts of the police are baddies, so what do you expect in this case? Assuming that they are up to no good in this specific case. I think the truth is that like others you are assuming something illegal has happened here, despite the fact that, like me, you are no expert on the law.

    If it does turn out that the police acted within the law here will you accept that? Or will it be ‘well that may be, but whatabout collusion?’. Or will the explanation be that it was the nice new intake of policemen who weren’t involved in collosion that acted legally here, since they know what they are doing and act legally?

    I must say its handy to have this group of baddie policemen to hang things on. If the police do anything bad it’s because of those bad guys who were involved in collusion. And if they do something right its the nice new policemen who arrived since the reforms.

    Maybe I can do that in future with respect to the Provos. They do something good – sweet Mary Lou must be involved. They do something bad – it’s that butcher Martin McGuinness and the old gang who were behind it.

  • harpo

    This discussion so far brings up an issue that I think deserves an airing. It’s the issue of the perception of lawyers.

    Much of the debate about client lawyer privilege attacks the subject from the angle that lawyers are always innocent of wrongdoing.

    From what I’ve read, much of the literature on the subject assumes that the lawyer is always acting within the law, and it addresses what the lawyer and other parties should do if they discover (by whatever means) that the client is up to no good.

    But that doesn’t address the point that has been raised by others (me included) about what happens if the lawyer is part of a criminal conspiracy with the client. Surely that needs to be considered, since there is no point going around with the unrealistic belief that all lawyers are good people.

    The legal profession must have rules that cover this scenario, in order to deal with instances of it. If they don’t then they are very naive.

    To move onto the larger issue, many people consider issues relating to the Troubles that involve lawyers with the same general view – that somehow lawyers are above reproach and it can never even be considered that they could be up to no good.

    At the risk of starting up the usual firestorm, take the Pat Finucane case. If anyone dares raise the question of the possibility of Pat Finucane being in the PIRA or aiding the PIRA, there is a wall of ‘everyone has the right to consult a lawyer’ and ‘a lawyer can represent whoever he likes and no conclusions can be drawn from it’ and other claims as if that means that no lawyers ever do bad things.

    While both of those things are true, they do not mean that any one particular lawyer is clean. Now we can’t start from the assumption that people are guilty and have to be proven to be innocent, but neither can we blindly conclude that all lawyers are innocent and that a lawyer can never be involved in bad things.

    Lawyers are like any other group in society – doctors, nurses, policemen, IT workers, bricklayers, pub workers, churchmen – there are the good, the bad and the ugly. Some break the law and some don’t break the law. It can’t be concluded that any one group is above reproach, just as it can’t be concluded that the population as a whole is above reproach.

    And to take it further, certain folks would have supported the PIRA murdering Edgar Graham, but would be against the UFF murdering Pat Finucane purely on the basis that he was a lawyer. If it is pointed out that Edgar Graham was also a lawyer they would say ‘well he wasn’t killed because of that, he was killed because of his links to…, or because of his politics…, or because he supported tough security measures against paramilitaries…’

    The problem is that loyalists do that to – they would say that Pat Finucane was killed because he was in the PIRA and not because he was a lawyer. He could have been a bricklayer and they would have gone after him.

    So which is it? Are lawyers above the normal ‘rules’, both legal and illegal? So that legally you can’t charge them with stuff that other people would be charged with, just because they do it under the guise of talking to a client? And from the illegal rules that some organizations set, lawyers are off limits? But only is it’s ‘our’ lawyers and ‘not’ theirs?

  • Mickhall

    harpo,

    I will concede I’m engaged in a certain amount of whataboutary, but there is [imo] a valid reason for me doing so which you make no effort to understand. Day after day, large sections of the media, the Unionist political leadership and their supporters demand of Republicans that is they who must make one concession after another. [say the war is over, decommission, recognize the PSNI, etc, etc] As if it were Republicans who first led the unionist State-let into the sorry predicament it was circa 1969. There is no attempt to concede that nationalists suffered enormous hurt at the hands of those who administered and enforced the law within NI, instead all we get is the PRM is the font of all evil in the northern statelet. Thus my attempt to highlight the shortcomings of the PSNI should be seen in this light. Making concessions cannot be a one way street, for if it becomes one, bitterness and hatreds will simply be stored up to explode at a later date and in doing so will entangle future generations in a rerun of the nightmare years..

    The example you have given when you compared my take on the PSNI with your own on the Provos is spot on, although from your position it has some weaknesses, as I tend to feel you would have great difficulty in seeing any-thing the PRM might do, bar dissolving itself as a positive act.

    Whereas I can see the advantages of there being a proper democratically accountable police force which is acceptable to both the nationalists and Unionist people, even though I understand for Republicans to accept the writ of the PSNI is a very thorny problem and for Gerry Adams to square this particular circle will take great skill, honesty and openness on his part. For if he chooses his normal sleight of hand politics to bring this about, the moment a PSNI officer over steps the mark or acts in an illegal manner it will blow up in Mr Adam’s and SF’s face and rightly so.

    Myself I doubt the majority of Irish Republicans will ever regard the PSNI as a legal entity which has a moral right to police the northeast of Ireland. What many will do if the correct building bricks are put in place is put a peg on their noses and acquiesce to the PSNI going about its duty, as long as they do so in a correct and civilized manner and the nationalist/republican communities have some democratic control over the police.

  • harpo

    ‘one concession after another. [say the war is over, decommission, recognize the PSNI, etc, etc]’

    Mickhall – part 1 of reply:

    Well excuse us for asking ‘republicans’ to move to normal behaviour that exists in any other decent society in the real world. You see asking for IRs not to kill people, not to have illegal ‘armies’ and to accept the police as being concessions?

    It’s asking for civilized behaviour.

    ‘Making concessions cannot be a one way street’

    Oh lordy no – it can’t. So has it been? Are you saying that its IRs/nationalists that have had to make all the concessions? With zero benefits in return?

    ‘The example you have given when you compared my take on the PSNI with your own on the Provos is spot on, although from your position it has some weaknesses, as I tend to feel you would have great difficulty in seeing any-thing the PRM might do, bar dissolving itself as a positive act.’

    There you go again. My view is weak, yours isn’t presumably. I do feel that way about the PRM, but then going back to your Gestapo view, I’m sure they helped the odd little old lady across the street. That’s a good thing, but doesn’t make up for the basic fact that the Gestapo was an instrument of evil.

    Just as you want the police reformed, I don’t want the whole PRM dissolved. I just want it reformed. My definition of the PRM is PSF plus the PIRA. I want it reformed so that there is just PSF as a political party that is wholly committed to democracy. The PIRA as an attached private army has to go. There shouldn’t be political parties with private armies attached. I don’t think that’s an unreasonable request for a true democracy.

    If that happened the PRM would be a democratic political party only and could stand in elections etc etc. They could have all sorts of policies, and as a democrat I would accept their right to campaign to get elected to bring those policies to reality. I may not like their policies but I would defend their right to campaign for them peacefully. Seeing Gerry Kelly arguing for something as a Minister would be better than seeing him blowing up London to try to get them.

    If you count ‘the PRM’ as just the PIRA and you see them as having some positive role to play, I can’t agree with that. They are an illegal private army and there is no place for them in decent society, no matter how many old ladies they help across the street. They might not be the only source of evil in NI, but they are evil. Like the Gestapo. And the UDA and the UVF. They all have to go.

  • harpo

    Mickhall – part 2 of reply:

    ‘even though I understand for Republicans to accept the writ of the PSNI is a very thorny problem’

    Now we get to the crunch. I am of the opinion that there is no practical solution to the NI question (for want of a better phrase) that can please everyone. ‘Republicans’ by definition are anti-state and thus they will always be anti-police. No matter what the police looks like. That’s why I think it is futile to try to build a police force that will be acceptable to everyone. It’s impossible. How can you build such a police force if republicans are always going to be against it simply because they do not accept the current constitutional position? So long as NI is in the UK, any police force in NI is going to be British to them.

    The best that can be done is to build one that suits everyone who is willing to live with the current constitutional position until it changes. That would be one that suits DUP and UUP unionists, Alliance types, non-aligned types, SDLP nationalists, and maybe some PSF types. I say some PSF types because some/many of them will be in the same position as traditional republicans, despite what PSF signed up to in the Multi Party Agreement – that everyone accepts the current constitutional position until a vote changes it. I think that some/many PSF supporters don’t actually believe that.

    Face it – traditional republicans (aka dissidents these days) will never accept any police force while NI is in the UK. Trying to please them and PSF supporters of a like mind is futile.

    ‘What many will do if the correct building bricks are put in place is put a peg on their noses and acquiesce to the PSNI going about its duty’

    I think that is the best we cn hope for.

    ‘as long as they do so in a correct and civilized manner and the nationalist/republican communities have some democratic control over the police’

    Fair enough, but in return it has to be accepted that such republicans will behave in a correct and civilized manner too, and simply won’t revert to accusations of ‘political policing’ etc if people from republican communities commit crime and the police turn up to deal with it.

    I think there is an attitude in republican circles that British law, institutions and law enforcement agencies don’t apply to republicans (back to your moral right point), so if the PSNI turns up they must be trying to pick on some poor republican who has done nothing since the law doesn’t apply, and they must be opposed.

    Thus we get republican representatives accuse the police of heavy handedness, no matter what the situation. Or they automatically go into ‘defend the community mode’ if the police dare go after someone, as happened in the McCartney case. The police turned up to try to grab suspects, republicans got the community to try to stop them. With no questions asked about the rights or wrongs of the specific situation. It was back to us against them.

    These ‘tolerant of the police’ republicans have to accept that crime is happening in their communities and that if the police are to deal with it they are going to have to operate in those communities, and that will involve arresting and charging people. That’s the reality of normal policing, and we can’t have the situation where such republicans demand a hands-off approach to ‘their’ communities, so that no one can be arrested or even questioned. Pretending there is no crime in republican communities so the police should stay out is a non-starter.

    But to be honest, I don’t see how it can work. There will always be enough traditional republicans around to stir up trouble, or even attack those republicans who are prepared to give the police a chance. The tolerant republicans will just become the next generation of SDLP types – traitors to the hardliner position of no acceptance of the British state. And you don’t need many hardliners to keep the pot boiling.

  • Yoda

    The Beach Tree

    Thanks for that.

    Slugger at his/ her/ its best.

    Bravo!

  • Belfast Gonzo

    I’m no legal expert, so forgive any naivity when I ask this:

    If the lawyer were to be charged with a scheduled offence, is there something in the Terrorism Act that would legally justify the bugging of a conversation between the lawyer and his client?

  • harpo

    ‘If the lawyer were to be charged with a scheduled offence, is there something in the Terrorism Act that would legally justify the bugging of a conversation between the lawyer and his client?’

    Belfast Gonzo:

    Why don’t you read the act and see?

    The justification is already there in normal law, never mind the Terrorism Act.

    The US Patriot Act made it easier for US authorities to bug such conservations – previously they always had to get a court order. Now they don’t. But I don’t know if the same thing happened in the UK legislation.

    Have a read at it and see.

  • Yoda

    The justification is already there in normal law

    Still at this?

    You’d be better off citing John Bailie than persisting with the furrow you’re trying to plough.

  • harpo

    ‘You’d be better off citing John Bailie than persisting with the furrow you’re trying to plough.’

    Yoda:

    Why?

    Of course he is going to defend the general rule, and his membership. He probably doesn’t know all of the circumstances, so he just whips off the party line.

  • harpo

    The lawyer in question has now been charged.

    It is reported that he was making phone calls to bad people passing on details/instructions to have people killed from inside Antrim police station using his mobile phone.

    So maybe this was all a fuss over nothing. He supposedly made these calls from consultation rooms, but they wouldn’t be communications between the lawyer and his clients, would they? They would be communications between the lawyer and people outside the police station.

    He can’t be the smartest tool in the toolbox if he thought ordering hits on people from inside a police station was a good idea. Silly boy. He should just have received his instructions from his clients and then did his passing on of the messages once he left the police station.

    Still, we will get the full details when the whole thing reaches the courts.

    Do those who rushed to judgement feel silly now.? Those who assumed that the evil police broke some law.

  • Yoda

    Why so smug?

    How do you know they weren’t his clients?

    Why were consultation rooms bugged?

    Have all those who were investigating the allegations about the police given full reports exhonerating them? If so, where can we read them?

    Nothing of substance has been answered yet.

  • harpo

    ‘How do you know they weren’t his clients?’

    Yoda:

    So he calls clients using his mobile phone from inside a police station?

    ‘Why were consultation rooms bugged?’

    For the reasons already discussed. It’s legal in certain circumstances.

    ‘Have all those who were investigating the allegations about the police given full reports exhonerating them?’

    I don’t know. I haven’t heard anything from any of them. And doesn’t the presumption of innocence until guilt is proven apply to the police as well? Or do you consider any rumour of any allegation against them to be true until they can be cleared?

    ‘Nothing of substance has been answered yet.’

    No? Well as the thread said, this one is worth keeping an eye on, so I am. I just reported the latest developments.

    The thing about this case is that if no one does keep an eye on it it could just be yet another of those cases where the authorities are proven to have acted correctly, but no one will care about that. All they will remember is the initial allegations. So the police will be accused for evermore of illegally bugging confidential communications. When in fact it was legal.

  • Yoda

    So he calls clients using his mobile phone from inside a police station?

    I have no idea. And neither do you, it would seem.

    It’s legal in certain circumstances.

    Fishing expeditions are not legal.

    Well as the thread said, this one is worth keeping an eye on, so I am. I just reported the latest developments.

    You seemed to have come to a whole raft of conclusions.

    it could just be yet another of those cases where the authorities are proven to have acted correctly

    Which is as it should be.

    They won’t be getting a pat on the back for doing their job to the required standard.

    Talk about lowered expectations.

  • harpo

    ‘They won’t be getting a pat on the back for doing their job to the required standard.’

    Yoda:

    No?

    Exactly what is it that people like you want from the police? It seems to me that no matter what they do, you complain.

    If they have followed the law in this case and have dealt with someone who was involved in terrorism, won’t you be glad of that? Or will you still sit and whine about everything that happens?

    We hear continually that the police are doing nothing about loyalist terrorism, yet here is a case where they have done something about it. Yet there are still complaints. Based on asumptions about what the situation was.

    So what do people like you want? It seems to me that if the police do anything new, innovative or unorthodox, they immediately get flak. The cry starts ‘they can’t do that, we have rights…’.

    We hear it all the time – republicans commit murder (or whatever), the police go after the perps but the local community riots to try to stop searches or accuses the police of heavy handedness. The whining starts on the same old basis.

    It seems you want it both ways – you want crimes to be solved, but you don’t actually want the police to do any policing to solce them. Are they just supposed to sit in police stations and wait for evidence to come to them, or are they to go out like any other police force and make attempts to gather it?

    On the other hand in the Devlin case we had the cry ‘why don’t the police arrest the perps? – everyone knows who they are’ as if the police were supposed to act within minutes. No time was allowed for normal investigation, taking of statemnts etc. The police are just supposed to do what people in a republican community want them to do. Which in this case was to immediately arrest certain people.

    I really don’t know what you people wantwhen you say you want a police force that is acceptable to everyone. Such a thing can’t exist given your disposition to the police in general.