European courts block state surveillance of lawyer consultations

Two new rulings by European courts in cases concerning state surveillance of lawyers have been highlighted by the Faculty of Advocates.

In the first, the Dutch Court of Appeal has upheld a decision by a district judge which limited the scope of surveillance of confidential communications between lawyers and clients. Prakken d’Oliveira, an Amsterdam law firm, and the Dutch Association of Defence Counsel were supported by the Council of Bars and Law Societies of Europe (CCBE), of which the Faculty is a member.

The case concerned arrangements in the Netherlands permitting lawyers’ communications to intercepted by the security services if a Government minister gives prior consent, with the matter being considered after the event by a supervisory commission.

Earlier this year, the first instance judge ruled that the safeguards were insufficient, and that the Dutch authorities should, within six months, adjust their policy for intercepting lawyers’ communications. Upholding the ruling, the Court of Appeal in The Hague held that a form of control by an independent authority was required. It was not for the court to decide how the control was organised, but the judges considered that it would not require a change in the law and six months would be sufficient time to institute the control.

Click here for an English translation of the judgment.

In the second case, the European Court of Human Rights has found in favour of a man who complained about the regime for covert surveillance of consultations between police detainees and their lawyers In Northern Ireland.

The case concerned a man, RE, who was detained in connection with the murder of a police officer. In a Chamber judgment, which remains open to challenge, the judges noted that guidelines introduced in June 2010 about storing and destroying material obtained through such covert surveillance had not yet been implemented at the time of RE’s detention, in May 2010.

The court was not therefore satisfied that domestic law provisions in place at the time had provided sufficient safeguards for the protection of material obtained by covert surveillance.

It considered that the surveillance of a legal consultation constituted “an extremely high degree of intrusion into a person’s right to respect for his or her private life, home or correspondence”, in breach of article 8 of the Convention. However consultations between a detainee and an "appropriate adult" were not subject to the same privilege, and in this case thre were adequate safeguards against abuse.

Click here to view the judgment.