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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> West Yorkshire Police v Lincoln Crown Court & Anor [2005] EWHC 843 (Admin) (27 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/843.html Cite as: [2005] EWHC 843 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		27th April 2005

Wednesday, 27th April 2005

1. LORD JUSTICE SEDLEY: The application which comes before this court, by leave of Moses J, is for judicial review of "the decision of HHJ Heath, sitting at the Crown Court at Lincoln, dated 11th October 2004, whereby he forbade the West Yorkshire Police from examining certain tapes."
2. The application is made by Mr David Perry, who appears with Mr Robin McCoubrey, on behalf of the Chief Constable of West Yorkshire, whose interest I will come to in a moment.
3. The decision in question, however, was not one given in open court, or indeed in the course of any proceedings. It was contained in a letter from Judge Heath to Detective Chief Superintendent Rennison, who had written to him to ask for permission to examine tapes, now in the custody of the West Yorkshire police force, of which DCS Rennison is a member, following a trial at which they had been the basis of a successful application to stay, founded on abuse of process. They included tapes which recorded conversations between solicitors and their clients in the custody area of Sleaford Police Station in Lincolnshire.
4. Once he had established this to his satisfaction, and had made findings to this effect, the judge made an order forbidding any disclosure of the content of these tapes. It followed that for the duration and purposes of the trial his order was binding and final. It remains axiomatic, and not in contention, that the content of any of those tapes which may contain material protected by legal professional privilege may not be listened to, without the express waiver of the client concerned, by anybody involved in these proceedings or elsewhere.
5. At the conclusion of the trial, because of what had been revealed, the Chief Constable of Lincolnshire himself called in the Independent Police Complaints Commission. The solicitor acting for the interested party, who has appeared before us today, Mr Fraser, also complained, both in his professional capacity as Mr Sentance's solicitor and in his own capacity, of the same misconduct, consisting of the illicit bugging of privileged conversations. The IPCC appointed the West Yorkshire Police to investigate what had happened and will in due course have to decide, on the basis of what is reported to it, whether there is evidence of misconduct or of a crime, requiring further action.
6. It was because of the order made by the judge in the course of, and for the purposes of, the trial, that DCS Rennison wrote on 21st June 2004 to ask the judge's permission, firstly, to analyse the seven tapes which it could be established did not contain privileged material in order to ascertain what kind of equipment had been used for surveillance; and secondly, in the light of this, to establish whether the Lincolnshire Police had recorded legally privileged conversations. The judge allowed the former on condition that the defence lawyers were able to be present, but in substance refused the latter. He did so by letter.
7. A further letter to him of 27th September 2004 explained that the West Yorkshire Police's expert would be able to make the relevant analysis without listening, or enabling anybody else to listen, to the content of the tapes. Nevertheless, on 11th October 2004, the judge, by letter, again purported to refuse. After some further correspondence which demonstrated, among other things, the care with which the judge was considering and responding to these requests, he repeated his purported refusal.
8. I have said "purported", not out of any disrespect, but because it seems to me that, as a matter of law, the judge had no surviving power, following the conclusion of the trial, to determine what was to be done with the tapes. His order had been valid and binding for the purposes of the trial (indeed I would think it will have been protected from challenge by section 29(3) of the Supreme Court Act 1981) but for no other purpose. With the conclusion of the criminal process his power to regulate the use of the tapes was, in my view, spent: see R v Lushington ex parte Otto [1894] 1 QB 420 per Wright J at 423-4.
9. Mr Ian Wise, appearing today for the interested party, has argued the contrary. He submits that the judge's order is good against the world for all time. He has not been able to cite any authority to this effect. That in itself does not mean that he is wrong. But it seems to me, nevertheless, that on principle he is wrong, because the jurisdiction of the Crown Court extends, on the face of it anyway, to the conduct of proceedings and to matters necessarily relating to the proceedings in the Crown Court, but not, as, for example, the jurisdiction of the High Court may do, to the world at large.
10. This, of course, does not leave the West Yorkshire Police or the IPCC with a free hand. It is common ground in this case, and I would for my part respectfully endorse it, that they are under an absolute obligation to respect the continuing right of each of the accused who are the subject of surveillance to maintain the legal professional privilege which they personally enjoy in their conversations with their lawyers about their cases. There is, however, no suggestion here either that there is an intention to violate that privilege (Mr Wise accepts as much) or that there is any material risk of an inadvertent violation of the privilege.
11. The latter, Mr Wise challenges. He says that the risk of an inadvertent overhearing is real and cannot be eliminated and is itself a reason for withholding the declaration which Mr Perry accepts is his proper form of relief in this case.
12. What Mr Perry proposes that his client should be able to do, through his expert, is to determine whether the privileged conversations could have been recorded by accident, or whether the equipment was being deliberately switched on and off in order to pick up the conversations. His evidence is that this can be technically accomplished without listening to the tapes. There is no reason to doubt this evidence.
13. I have indicated my view that the judge's ruling was spent with the conclusion of the trial. I have no doubt, even so, that the West Yorkshire Police and the IPCC, in its turn, will pay close attention to the expressed reasons given in open court for the judge's ruling. The ruling, however, cannot as a matter of law pre-empt the independent inquiry which the IPCC is conducting under its distinct statutory powers. There is no relevant sense in which the judge's ruling makes the question of surveillance res judicata.
14. Indeed, it is difficult to see why Mr Sentance's own interests would not be assisted by a further examination of exactly what mechanism was used for the surveillance, in order to deduce whether the surveillance was inadvertent or deliberate throughout.
15. The real concern that Mr Wise candidly accepts is his client's, is that there is a possibility that the West Yorkshire Police and the IPCC will come to a conclusion different from that of the trial judge. That may be a risk, but it is a risk which the statutory scheme means that Mr Sentance must live with.
16. Today Mr Wise has developed his argument that even if the judge was functus officio at the point at which he wrote his letters, his decision was nevertheless the right one and should be endorsed by this court in the form of a refusal of the relief that Mr Perry seeks. He has advanced a series of propositions, only one of which is contentious. They amount to a reiteration of the doctrine of R v Derby Magistrates' Court ex parte B [1996] AC 487, to the effect that legal professional privilege is absolute and unless waived is not subject to trade-offs against other public or private interests.
17. The jurisprudence of Article 8 of the European Convention on Human Rights reflects a similar protectiveness towards legal professional privilege. The one contentious proposition advanced by Mr Wise, namely that where a trial is stayed the court retains residual control of the possibility that the prosecution will be reinstated, does not have to be directly addressed. It does not arise here, but if it was intended to suggest, as I think it was, that the reach of an order made within the four corners of proceedings extends beyond those proceedings, it is a proposition I have already dealt with.
18. The importance of not letting legal professional privilege be eroded by a process that Mr Wise describes as "chipping it away" is something which I, for my part, accept. What I do not accept is his proposition, under questioning by the court, that not only would a client's apprehension of illicit surveillance in the police station itself make him reluctant to speak to his solicitor, something which I unhesitatingly accept, but that his apprehension that a subsequent IPCC investigation might bring about an inadvertent overhearing by others of the privileged conversation would make the client even more reluctant to - as the saying is - make a clean breast to his solicitor.
19. The second limb seems to me entirely fanciful and to involve nothing that could be characterised as even potentially "chipping away" at legal professional privilege. There is nothing in the material before the court to suggest that the process described by the Chief Constable's expert, Mr Chris Mills, would be liable to the kind of inadvertent leakage that is suggested.
20. For these reasons I do not consider that there is a well-founded objection to the relief that Mr Perry seeks. In my respectful view the judge no longer had his capacity as the trial judge when he wrote the two letters of refusal, so that this was not strictly speaking, in my view, a decision of the Crown Court sitting at Lincoln.
21. The claimant's mistake, an understandable one, was to invite the judge, by correspondence, to give a post-trial ruling of the kind I have described. Once this had been done it might well have been unwise (compare R v Cain [1985] AC 46 at 55), and it would certainly have been disrespectful for Mr Rennison to treat the judge's responses as legal nullities and to ignore them. They, nevertheless, on analysis, lack the character of decisions of a court capable of being brought up and quashed.
22. I would, accordingly, confine the order of this court to a declaration to the effect (and I am not spelling out wording here) that the West Yorkshire Police are at liberty, provided they do not violate the legal professional privilege attaching to their contents, to subject the tapes now in their possession to any appropriate examination for the purposes of the investigation which they are conducting on behalf of the Independent Police Complaints Commission.
23. If my Lord agrees, we will ask counsel to agree, as I am sure they can, a suitable form of declaration which will both state the legal position as we have held it to be and protect the legitimate interests of Mr Wise's client. Upon that footing, I would allow this application.
24. MR JUSTICE PITCHERS: I agree.
25. MR PERRY: Thank you very much.
26. LORD JUSTICE SEDLEY: What would you like to do, Mr Perry, Mr Wise? Do you want to leave court for a short while and come back, or would you rather go away, do the business, and send it into us in writing?
27. MR PERRY: My Lord, may we send it in in writing? I hope we can agree it very shortly, and we would expect to provide it to your Lordships by the end of today.
28. LORD JUSTICE SEDLEY: That would be most helpful and if you can make sure that it goes both to our clerks and to the Administrative Court Office so the associate can include it in the formal order as drawn.
29. MR WISE: I will clearly liaise with Mr Perry and ensure that is carried out, my Lord.
30. LORD JUSTICE SEDLEY: Thank you very much indeed.
31. MR WISE: I do need an order for detailed assessment, my Lord.
32. LORD JUSTICE SEDLEY: Yes. You have a representation order, is that what it is called?
33. MR WISE: No, we have the normal Legal Aid funding certificate, my Lord.
34. LORD JUSTICE SEDLEY: Yes, you may have an assessment. Are there any other applications?
35. MR PERRY: My Lord, no thank you.
36. LORD JUSTICE SEDLEY: Thank you both very much indeed.