GCHQ: 7+ years of spying on lawyers/clients heralds mistrials claims

Yesterday we reported on the recent ruling by the Investigatory Powers Tribunal (IPT) that the mass snooping of citizens by GCHQ in conjunction with the NSA was unlawful. This revelation also strengthens the argument that lawyers (and journalists) and their clients could instigate legal claims against GCHQ (and the police and other intelligence and security agencies) for mistrials, given that snooping on confidential correspondence and phone calls of lawyers and their clients could have led to miscarriages of justice.

One case very relevant is that of two Libyans, Abdel-Hakim Belhaj and Sami Al Saadi and their families, who were subjected to rendition by US forces in co-operation with MI6 and who were subsequently tortured by agents of the Gaddafi regime. Next month Reprieve is to appear before the Investigatory Powers Tribunal alleging Government surveillance by GCHQ of confidential – or ‘legally privileged’ – communications between the lawyers acting on behalf of Al Saadi and Belhaj.  The principle of legal privilege is a long-standing one in UK law, and is crucial to ensuring a fair trial. Cori Crider from Reprieve commented: “This raises troubling implications for the whole British justice system. In how many cases has the government eavesdropped to give itself an unfair advantage in court?” Dinah Rose QC added, “This…is the tip of the iceberg. It raises questions about a large number cases and about the integrity of judgements reached by courts in civil and criminal cases.”

The question of the surveillance of communications between lawyers and their clients, doctors and other professionals’ guarantee of privacy is outlined in the following Draft Code of Practice: Acquisition and Disclosure of Communications Data: Code of Practice Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000 Draft for public consultation, 9 December 2014. The draft code says: “3.73: However the degree of interference with privacy may be higher where the communications data being sought relates to a person who is a member of a profession that handles privileged or otherwise confidential information (such as a medical doctor, lawyer, journalist, Member of Parliament, or minister of religion). It may also be possible to infer an issue of sensitivity from the fact someone has regular contact with, for example, a lawyer or journalist.” eavesdropping policy still has serious problems – it still envisages that MI6 will snoop on private legal calls even in cases where it is being sued for torture.”

However, according to section 10 of the Police and Criminal Evidence Act 1984 the interception and monitoring of communications by Government agencies covers:
(a) communications between a professional legal adviser and his client or
any person representing his client made in connection with the giving
of legal advice to the client;
(b) communications between a professional legal adviser and his client or
any person representing his client or between such an adviser or his
client or any such representative and any other person made in
connection with or in contemplation of legal proceedings and for the
purposes of such proceedings; and
(c) items enclosed with or referred to in such communications and made-
(i) in connection with the giving of legal advice; or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,
when they are in the possession of a person who is entitled to possession of them.

As well as implications for lawyers and their clients there are concerns for other professional groups. For example, GCHQ’s mass monitoring practices provides the agency with direct access to medical records, education records and other, similar confidential information. Professional associations representing health professionals, teachers, social workers, etc, could consider taking legal action if the integrity of the information they held or held on their behalf had been compromised.

Finally, it is worth remembering that when challenged about its practices in the past GCHQ always stated that “All of GCHQ’s work is carried out in accordance with a strict legal and policy framework, which ensures that our activities are authorised, necessary and proportionate …” This, in light of the recent IPT ruling, is now shown to be a lie. Furthermore, the ruling  has shown that Sir Malcolm Rifkind and senior Government ministers have lied to the British public and parliament about the activities of GCHQ. So, resignations in order?

In the meantime the Home Office has been forced to submit a draft code of practice for comments. This code reveals that GCHQ intends to continue to bypass end-to-end encryption facilities, sweep up the content of computers, listen in to phone calls, track locations and even switch on microphones or cameras on computers. GCHQ refers to these practices as ‘equipment interference’. Furthermore the draft states that the security services will ‘self authorise’ surveillance operations. The Government hopes that by releasing this code of practice GCHQ will be provided with the legal authority to continue their up-to-now illegal practices (as declared by the IPT) and expand upon them.

Here are the the three ‘consultation’ documents issued by GCHQ:

• Equipment Interference and Interception of Communications Codes of Practice
• Equipment Interference code of practice
• Interception of Communications code of practice