I recently finished series one of BBC legal drama New Street Law. In the finale episode the prosecution decided to put a camera in the accused’s cell and monitors her conversations with her barrister :eek: . Is that really done in England? What about attorney-client privilege (whatever it’s called in England)? In the end she’s found not guilty, but her barrister is arrested for perverting the course of justice (what we call obstruction of justice in the US). Specifically that he suggested a defence. I’m very confused. What does “suggesting a defence” mean and why is it bad (from the other episodes I gather it’s a major sin). I thought lawyers were supposed to do that (or is that an American thing).
P.S. Can a jurors really start shouting “not guilty” in the middle of the trial and have the “verdict” stand? :dubious:
Are you sure he wasn’t “suggesting a false defense”…i.e. telling his client to lie on the stand…i.e. suborning perjury? That’s illegal in both the US and the UK (and in most places, I’d imagine).
As to the camera in the cell and the observation of attorney and client I saw exactly the same thing on an old episode of Law & Order. McCoy took his suspicions to a judge (the attorney had, inadvertently, transmitted messages from her client to others ordering hits) and the judge allowed surveillance of the next interview.
I haven’t seen the show myself. However, legal professional privilege exists in England and Wales and would prevent any information gained like this from being used in any court proceedings. The only person who could choose to waive the privilege is the client. Also, I’d have to check to be sure, but it wouldn’t surprise me if placing a camera in an accused’s cell to monitor their conversations with their lawyer was illegal (it’s certainly a breach of Art.6 of the ECHR). So, no it’s not done in England.
Was the client actually guilty? The only thing I can think of is that the client had admitted their guilt to their barrister who then suggested they run a defence that they knew was false. This would be misleading the court, which is against the Barrister’s Code of Conduct and probably counts as perverting the course of justice.
Otherwise, I don’t get it. Suggesting a defence is often a key part of a barrister or solicitor’s advice. Many people don’t know if they’re guilty or not, and certainly don’t know what defences are available to each offence. So if a solicitor listens to their client’s side of the story and tells then, based on those facts, what defences are available to them and even which they think is most likely to be effective, then they’re only doing their job. Certainly nothing illegal.
Has there been any case law saying that monitoring attorney-client communication does breach article 6? It’s not prohibited by a plain reading of the article…the requirement is just that the accused have access to legal assistance.
Also, information gathered from the monitoring wouldn’t be admissible against the client because of privilege, but it still could be used against the barrister, couldn’t it? Besides, there’s a fraud exception to the privilege.
I don’t know if it’s done by the police, but yes, it’s done by the security services. There was a big ruckus a few months back when it came to light that they’d taped a conversation between an MP and a suspect.
IANAL, but the first thing I thought of when I read “suggested a defense” was a little different. I once was present when someone accused of assault was being interviewed (not by her lawyer). The accused admitted to stabbing the victim, but never said anything about self-defense. The interviewer, while not outright telling the accused to lie, kept asking questions that seemed meant specifically to elicit a story of self defense. Not open-ended questions like “why did you stab him?” or “what happened before you stabbed him?”. but questions like “did he hit you before you stabbed him?”
This link does a better job of explaining what I mean.
Yep - Brennan v. UK [2001] ECHR 39846/98. Not the same facts - this was a police officer being present during the client’s first interview with their solicitor. However the court were pretty clear that the right under Art.6(3)(c) to legal assistance would not be effective unless the client could communicate confidentially with his solicitor:
I hadn’t thought about it that way round. I suppose as long as they were authorised to obtain information on the barrister and no information about the client was revealed then that would probably be OK.
As far as the fraud exception goes, we’d need to know more details. It applies where the client intends to use their legal advisor’s advice to facilitate a crime or fraud, and the legal advisor is not aware of this. Or, if the legal advisor does know of the dishonest intent and still gives advice, he is not held to be acting as a lawyer. Professional privilege does not apply in either case.
The UK police covertly taped hundreds of lawyer interviews in prison over the last few years. While the evidence may be inadmissable itself, it of course can be used in many other ways.
I’m very confused. What does “suggesting a defence” mean and why is it bad (from the other episodes I gather it’s a major sin). I thought lawyers were supposed to do that (or is that an American thing).