RIPA, Lord Neuberger and ‘The Penalty’

When it came to light, late last week, that the UK’s intelligence services had been routinely intercepting legally privileged communications between lawyers and their clients, my initial reaction was just a raised eyebrow.

Surely, even this government, which has brought draconian cuts to legal aid,reduced access to justice, promised to scrap human rights legislation, passed a controversial emergency surveillance Bill within just hours of debate, attempted to limit the scope of judicial review and made a complete pig’s ear of the parliamentary debate on the European Arrest Warrant, would not go as far as to spy on the private conversations between lawyers and their clients?

There is just no way this government would have violated one of the founding principles of the English legal system which guarantees the confidential exchange of advice between a lawyer and an accused person – an act that would undoubtedly provide said government with an unfair advantage upon a case appearing before the courts.

It all just had to be a big mistake; a misunderstanding, perhaps. Apparently not.

The disclosure of the intelligence service’s policies came in a case brought by Abdel-Hakim Belhaj who claims he was abducted in a joint MI6-CIA operation and sent to Libya to be tortured by the now deposed Colonel Gaddafi regime.

Dinah Rose QC, who is acting for Belhaj, said: “This case is the tip of the iceberg. It raises questions about a large number of cases and about the integrity of judgments reached by courts in civil and criminal cases. We have a situation where the policies, on the face of it, appear to permit lawyers to be involved in practices that are unlawful and unethical.”

Mr President

The day after these revelations surfaced, the president of the Supreme Court appeared at the annual Bond Solon expert witness conference in which he gave the opening keynote speech on some of the challenges facing expert witnesses as they seek to perform their duty to their clients and the courts.

Lord Neuberger may well have expected a question to be directed his way on the RIPA news and he wasn’t disappointed. Mark Solon, solicitor and director of Bond Solon asked whether experts should now use a typewriter or carrier pigeon to communicate with their instructing solicitors.

“First of all, I hardly think anyone now has a typewriter, although it might be very good for the second-hand typewriter market if I said yes,” responded Neuberger. “Carrier pigeons no doubt can be intercepted. Those who want to will employ hawks and falcons. We all get tired of reading that email is not secure. That’s something we all agree to and then ignore.

“How much truth there is to this [story], I don’t know. It would be inappropriate for me to comment, but all I would say is that when I was in the Court of Appeal, we had a case involving evidence which was classified. I thought there was no problem in using my computer because we were within the government’s secure intranet. But the secret services took the view that the government’s secure intranet was not sufficiently secure, and I was provided with, as it were, an even more secure system. That was rather a long answer to say nothing. I’m sorry.”

Who says judges don’t have a sense of humour.

‘The Penalty’

Last week I attended a Kickstarter event for the launch of a documentary film entitled ‘The Penalty’. The independent film is the work of reel nice, the production company the acclaimed series of online documentaries, ‘One For Ten’.

Since the death penalty was re-instated in the United States in 1976, it has been estimated that for every ten people that have been executed, one person has been exonerated and released from death row after spending an average of ten years in isolation. The series of short online films told the stories of those who had spent time on death row despite being innocent.

Having finished ‘One For Ten’, the reel nice team found themselves left with more questions than answers, which led them to their latest offering.

‘The Penalty’ seeks to lift the lid on the human cost of capital punishment by following the journeys of both defence and prosecution lawyers, innocent men and victims’ families through the politically charged landscape of the death penalty.

The filmmakers were the only team on the ground during this year’s recent botched executions in Ohio, which saw convicted murderer Dennis McGuire take 25 minutes to die, following the use of untested lethal injection drugs. It was a death that McGuire’s defence attorney, Allen Bohnert, called a “failed, agonising experiment”.

The new film looks to be as powerful a piece of work as ‘One For Ten’ was before it – perhaps even more so. It will undoubtedly help more people become informed about the death penalty both at home and abroad, allowing them to reach their own conclusions as to its effectiveness and morality.

At a time when the British public’s support for the reintroduction of capital punishment is on the rise, and with cuts to legal aid making access to justice and appropriate legal representation all the more difficult, this film may well be a reminder as to how far our own criminal justice system has come.

It may also act as a warning as to how far it may eventually fall.

This blog was first published in the Solicitors Journal on 12 November 2014 and is reproduced with kind permission.

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