Disgraced lawyer in the dock

By Bryce McGarel
BBC News

Sandhu admitted incitement to murder

In the wake of Manmohan 'Johnny' Sandhu's sentencing, the BBC News website looks at how the use of covert police surveillance of confidential lawyer/client interviews came to provide the basis of the case against him.

Last week, solicitor Johnny Sandhu found himself in the unusual position of being the one appearing in the dock at Belfast Crown Court.

The Londonderry lawyer, who had previously proclaimed his innocence, pleaded guilty to a series of charges, including inciting loyalist paramilitaries to murder and perverting the course of justice.

The case against Sandhu arose out of covert police recordings of confidential meetings he had held with clients at Antrim Police Station on various dates in 2005 and 2006.

During those meetings, Sandhu was heard inciting others to murder and also advising clients on how to dispose of evidence which could link them to crimes.

He also admitted using his position as a solicitor to keep loyalist paramilitaries up to date with the progress of police investigations.

Up until Sandhu's case, police had never brought a case against a suspect from evidence based on the covert surveillance of confidential interviews between a client and their solicitor.

'Inadmissable'

Sandhu's legal team made a pre-trial application to the Crown Court in an effort to get the proceedings against him dropped.

They argued that the evidence against their client was inadmissible because it had been obtained from interviews which were supposed to be confidential.

Historically, meetings between clients and their solicitors have been protected under the remit of Legal Professional Privilege (LPP).

LPP has its origin in the 16th Century and is described in legal doctrine as the "fundamental requirement that a man should not be inhibited in speaking freely and frankly to his lawyer".

However, in Sandhu's case the protection of LPP did not apply for a number of reasons.

One of those is down to what the House of Lords have described as the "inequity exception".

In short, this means that meetings between a lawyer and client are not protected by LPP if those communications are "in furtherance of crime or fraud".

Sandhu also fell short of being given protection under the remit of LPP because the right to privacy under its remit belongs to the client and not the solicitor.

Sandhu operated out of premises in Limavady

Following his initial arrest in February 2006, John Bailie, chief executive of the Northern Ireland Law Society, met with Chief Constable Sir Hugh Orde to discuss the issue.

At that time, Mr Bailie said they were taking the case so seriously because it was the first occasion they were aware of in Northern Ireland that "there had been this kind of intrusion into the solicitor-client relationship".

In the past, high-profile lawyers Pat Finucane and Rosemary Nelson both alleged that their meetings with clients in police stations had been bugged.

The point that police surveillance must "on occasion" have enabled the authorities to hear communications between a lawyer and their client is also made in a House of Lords judgement on the issue in March 2009.

Surveillance

However, it points out that, until the Sandhu case, the police had never attempted to submit the surveillance as evidence against a suspect.

Rory O'Connell, from the Human Rights Centre at Queen's University Belfast, said police had the legal authority to record solicitors' interviews with clients under the Regulation of Investigatory Powers Act (RIPA).

Dr O'Connell said that, under RIPA, police were entitled to record interviews between solicitors and clients to prevent or detect serious crime" to protect national security or the economic well being of the country, providing they have the authority of the chief constable, deputy chief constable or secretary of state.

"RIPA contains language that is very sweeping in terms of surveillance; few people were aware that it covered lawyer/client meetings, but according to the House of Lords it does," he said.

"I don't think it would be lawful for its use to become standard practice (during these meetings) as it has to be authorised by the chief constable or the secretary of state; and only where "necessary" and "proportionate".

"However, I do think that if there is to be this power, there needs to be more explicit guidelines on how RIPA acts within the remit of lawyer/client privilege.

"For example, some judges have strongly hinted that it would violate a detainee's rights if the results of that surveillance were used to bring a case against him or her, but the legislation does not expressly forbid this use of the material".

"Several of the law lords indicated that the guidelines set out do not deal with this in as rigorous a manner as human rights law requires.

"Indeed, some law lords criticised the Home Secretary for failing to take steps to revise the Code of Practice following an earlier court ruling in November 2007."