25 February 2014

Mr Justice Treacy, sitting today in the High Court in Belfast, allowed a challenge to the PSNI’s decisions to open a read a letter from Kyle Jones, an ex-police officer, to his solicitor and to refuse to provide an undertaking that further communications between him and his solicitor would not be opened and read.

Kyle Jones (“the applicant”) is an ex-police officer who was dismissed following allegations relating to drugs. In 2011 he was arrested for armed robbery and remanded in custody until he was released on bail on 25 February 2012. On 28 February 2012 a prisoner in Maghaberry handed police a list written by the applicant containing the personal details of around 42 police officers. On 29 February the applicant was arrested for possessing/collecting information likely to be of use to terrorists. His house was searched and officers seized an envelope addressed to a solicitor from Madden and Finucane. It was a standard prison envelope that had the applicant’s prison number written on the seal.

The applicant’s solicitor, on being informed that the police were in possession of the envelope, said it was a legally privileged document and that it should be returned immediately. The solicitor was told that an independent barrister was being engaged to open the letter to see if it was privileged. The solicitor said this was unacceptable and it was decided that the envelope would be removed to safe storage until the matter could be settled. On 1 March, during police interview, the applicant’s solicitor read two pre-prepared statements in which the applicant admitted to writing the lists but stated that the list was incomplete and that the completed version contained the names and detail of a further 45 police officers and 51 people from school and university. In a further interview, the applicant was asked to name the 45 police officers but was only able to name 15 persons who he said were in his training squad. The applicant denied there was any malicious intent in the compilation of the lists.

The applicant was charged later that day with possessing/collecting information likely to be of use to terrorists. The police were concerned that the envelope may contain the details of the unnamed police officers and there was a potential Article 2 risk to them. On 2 March, a PSNI Legal Adviser sent an e-mail to the solicitor advising him that the envelope would be opened on 5 March unless the matter was raised in court. However, at 5.40 pm that day, a direction was given by a Detective Chief Superintendent to open the envelope. This was done at 9.10 pm and it was confirmed that it did not contain any information that created a security risk. The applicant’s solicitor was informed of this course of action on 5 March.

The applicant challenged the decision of the PSNI to open and read a private letter from him to his solicitor. He claimed that the decision was in breach of his common law right to privileged communication with his solicitor and was in breach of his rights under Article 8 of the ECHR (right to respect for private and family life, home and correspondence).

Mr Justice Treacy firstly considered whether there had been a breach of the common law right. He said that the right to communicate confidentially with a legal adviser under the seal of legal professional privilege could only be curtailed by clear and express words and then only to the extent reasonably necessary to meet the ends which justified the curtailment. In this case there was no statute or statutory scheme or existing policy which was considered or used by the PSNI in deciding to open the letter. He held that the applicant’s right was removed on the basis of a “bare suspicion” without any accompanying safeguards and accordingly the common law right was curtailed without any lawful authority. The judge added that the further decision not to offer the applicant’s solicitor an assurance that no further privileged communication would be opened was similarly unlawful as the PSNI are under an obligation not to so interfere in the absence of lawful authority.

On the claim there was a breach of Article 8 the PSNI argued that the interference was justified because it was performed for the legitimate aim of protecting the Article 2 rights of the police officers whose names were on the second list. The PSNI also argued that the applicant’s rights were safeguarded sufficiently as an independent barrister was provided to open the letter and ensure that it did not contain the second list.

Mr Justice Treacy said it is accepted that in appropriate circumstances protection of Article 2 guarantees can make interference with Article 8 guarantees lawful, however Article 8(2) of the ECHR clearly spells out when and how this interferences will be made lawful ie it is in accordance with the law, it pursues a legitimate aim and it is necessary in a democratic society. Mr Justice Treacy said the decision to open the letter flowed from “a bare and untested suspicion”. He added that there was no statute, statutory scheme or policy underpinning the PSNI’s decision which was “clearly flawed as not being in accordance with the law”:

“The criteria which make lawful an interference with Art 8 rights are designed to prevent exactly this kind of arbitrariness. If Art 8 fundamental rights could be interfered on the basis of mere suspicion and in the absence of appropriate safeguards, the Art 8 guarantees would be largely emasculated.”

Mr Justice Treacy added that the applicant did not have the benefit of any safeguards as the independent counsel was ultimately relieved of his role and the letter was opened by the PSNI in the absence of the applicant or his legal advisors: “Neither [the applicant] nor is representatives even knew the envelope was being opened or that it had in fact been opened and read for a further three days”. The judge added that the refusal to give an undertaking that further communications between the applicant and his solicitor would not be opened was also in breach of Article 8: “In refusing to give such an undertaking the police service was, in effect, refusing to be bound by their Article 8 obligations without any statutory or judicial authority. Clearly, this was not in accordance with the law”.

The PSNI contended that legal professional privilege is not established until it can be ruled out that the contents of the letter were not in furtherance of a crime and subject to the “iniquity exception” (the principle that consultations between a lawyer and his client that are in furtherance of crime or fraud are not protected by legal professional privilege). Mr Justice Treacy referred to the principle that disclosure of such communications will normally be based on a “provisional conclusion” that the communications were in furtherance of crime or fraud. He said that, in this case, the removal of the applicant’s right to legal professional privilege was based on mere suspicion without any accompanying safeguards and there was a complete absence of process: “If a mere suspicion was sufficient to override an individual’s Article 8 rights, Article 8 would be largely devoid of content”.

Mr Justice Treacy allowed the application for judicial review.