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.