View source for ICLR R v Brown (formerly Latham) (2015) EWCA Crim 1328, (2015) MHLO 100

''CRIME — Practice — Trial — Legal professional privilege — Risk of defendant harming himself or others — Ruling that interview between defendant and lawyers be conducted in presence of two mental health nurses to whom defendant handcuffed — Whether breach of legal professional privilege — Whether breach of right to fair trial — Human Rights Act 1998, Sch 1, Pt I, art 6''

'''Regina v Brown (Edward)'''

'''[2015] EWCA Crim 1328;  [2015] WLR (D)  344'''

CA:  Fulford LJ, Holroyde, Singh JJ:  29 July 2015

By way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what was likely to be an extremely narrow band of cases, it was appropriate to impose a requirement that particular individuals could be present at discussions between an individual and his lawyers if there was a real possibility that the meeting would be misused for a purpose, or in a manner, that involved impropriety amounting to an abuse of the privilege that justified interference.

The Court of Appeal, Criminal Division, so held when dismissing an appeal by the defendant, Edward Brown (formerly Latham), against his conviction on 21 November 2012 in the Crown Court at Nottingham (Judge Stokes QC and a jury) of the attempted murder of Gavin Walker on 10 July 2011.

'''FULFORD LJ''', giving the judgment of the court, said that the defendant, who was serving life sentences for two previous offences of attempted murder, was convicted of the attempted murder of a fellow patient at Rampton Hospital. Prior to the incident he had disclosed a plan to kill his solicitor. In interview he said that he had planned to kill his fellow patient. The issue for the jury was whether or not the evidence established an intention to kill. The defendant instructed his counsel to run the defence of insanity but the requisite medical evidence was lacking. In advance of the trial the defendant’s solicitor asked the court to make arrangements to enable the defendant to have a further consultation with his lawyers. When the trial started application was made on behalf of Rampton Hospital for an order that the defendant should be accompanied by at least two nurses during any conference with his lawyers, those measures being necessary to protect the defendant from self-harm as well as to protect others. There were insufficient facilities in the cells at the Crown Court. A proposal was made for use of the court for the interviews to take place in court with nurses observing from the other side of a secure door. The prosecution objected on the grounds that the risks necessitated the defendant being handcuffed to two members of staff. The judge, noting that the defendant had a long history of self-harm, acceded to that objection notwithstanding the importance of a defendant in a criminal case being able to instruct his lawyers without anyone concerned being present. The interview took place under the required conditions. The defendant was convicted.

The central ground of appeal was that the ruling of the judge that the defendant’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 a corresponding right under article 6.3(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. It was contended that the judge had erred in deciding that the right to confidential communication between the defendant and his legal representatives was not absolute but instead was qualified, and that in any event it did not trump the defendant’s right to life, but it was accepted that if there were sufficient grounds for believing a conference would be misused, for instance, to perpetrate crime, then surveillance would be justified, legal professional privilege being vitiated by the illegal purpose of objective. It was also contended that the judge had wrongly distinguished the position when police officers as opposed to disinterested nurses overheard or listened to privileged communications.

In the light of R v Cox and Railton (1884) 14 QBD 153, R v Derby Magistrates’ Court, Ex p B [1996] AC 487 and McE v Prison Service of Northern Ireland (Northern Ireland Human Rights Commission intervening) [2009] AC 908 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 had been justified in his conclusion that there was a real risk that the defendant would use the conference with his counsel at the Crown Court to cause himself serious injuries or to kill himself. Although that would not necessarily have involved the defendant committing a crime, it would have constituted an improper use of a meeting that would otherwise have been protected by legal professional privilege. It followed from observations in McE’s case that the usually inviolable or absolute nature of the rule of privilege was capable of qualification at common law outside the particular situation addressed in R v Cox and Railton. A public authority had a duty of a public authority to protect human life: see article 2 of the Human Rights Convention. By way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what was likely to be an extremely narrow band of cases, it was appropriate to impose a requirement that particular individuals could be present at discussions between an individual and his lawyers if there was a real possibility that the meeting would be misused for a purpose, or in a manner, that involved impropriety amounting to an abuse of the privilege that justified interference. In any event there was no real possibility that the course of the trial would have been materially different if a discussion had taken place in the absence of the nurses. In the light of S v Switzerland (1991) 14 EHRR 670, R v Togher [2001] 1 Cr App R 457, Brennan v United Kingdom (2002) 34 EHRR 507, and Ocalan v Turkey (2005) 41 EHRR 985 it was clear that, under the jurisprudence of the European Court of Human Rights, the right to confidential communications with lawyers was not absolute, but could be restricted for good reason, one of those reasons being if the individual’s life was at risk. The restrictions were a proportionate and appropriate response to the grave threat the defendant posed to himself and did not render the proceedings unfair. As a result, there had been no breach of article 6.

'''Appearances:''' Edward Fitzgerald QC and Simon Clarke (assigned by the Registrar of Criminal Appeals) for the defendant; Steven Kovats QC and Dawn Pritchard (instructed by Crown Prosecution Service, Appeals Unit) for the prosecution.

'''Reported by:''' Philip Ridd, Solicitor.

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