The allegations revealed by the Chamber of Advocates that confidential communications between lawyers and prisoners may have been monitored or recorded at the Corradino Correctional Facility are of grave concern, not only for practising legal professionals but also for anyone who believes in the importance of fundamental human rights.
It is imperative, therefore, to elaborate on the issue so that the general public can grasp what we are really dealing with here.
Ensuring that all detainees have prompt access to a lawyer is a key safeguard of their rights in prison, whether they are in pre-trial detention or convicted of an offence.
Prison authorities are responsible for providing adequate opportunities, time and facilities for detainees to be visited by, and confidentially communicate and consult with, a lawyer of their choice or one appointed to them by the state.
Given the vulnerability of persons in the early stages of detention, in the prison context, the right to access a lawyer is particularly important for pre-trial detainees and is broader than assisting the detained person to prepare their defence. Lawyers are often a detainee's only contact with the outside world. They can see the physical condition of the detainee and advise them on exercising their rights, including challenging the detention if it is arbitrary. Ensuring access to a lawyer is therefore important for transparency, protecting rights, reducing the risk of arbitrary detention and acting as a deterrent for abuse in these early stages.
Prison authorities should provide adequate opportunities and facilities for detainees to meet with a lawyer, without delays or unjustified time limits. The facilities should allow detainees to meet with their lawyers out of hearing of prison staff, although the visits may be in sight of staff or observed through a glass panel. Detainees should be able to hand their lawyer confidential instructions, meaning that they should be provided with writing material. Detainees should also be allowed to have access to or keep with them materials related to their legal proceedings.
Detainees should be able to communicate freely with their lawyer, without delay, interception or censorship. Communications between detainees and lawyers must be confidential. Letters between them should not be opened, and telephone calls should not be monitored.
The right to confidentially consult, communicate and meet with a lawyer may not be suspended or restricted save in "exceptional circumstances". These circumstances must be specified in law or lawful regulations. For example, some domestic regimes allow restrictions on access to a lawyer where an ongoing investigation may be jeopardised or where public safety is at risk. Restrictions must be approved as indispensable for the justified purpose in the individual case, preferably by a judicial authority or other competent authority. In any case, confidential communication shall not be denied for more than a matter of days.
In some jurisdictions, if the authorities have a legitimate reason to suspect that confidential mail between a detainee and their lawyer is being used to send illegal or dangerous items, they may open correspondence in the presence of the detainee to check the contents. However, the authorities should under no circumstances read the correspondence. Any restriction on the right to access a lawyer must not circumvent the protection of non-derogable rights, even in exceptional circumstances.
In the particular cases in question, the justice minister must explain the authorisation process for listening to communications between lawyers and clients in prisons. Still, the nature of the allegations advanced suggests that the prison service effectively self-authorises breaches of legal professional privilege (LPP).
As far as I know, the Prison Rules allow for interception of a prisoner's communications only if it is necessary on certain specified grounds and proportionate to what is sought to be achieved. The Prison Rules do not permit interception of a prisoner's communication with the prisoner's legal adviser.
This latest revelation about the loose standards governing the authorities' approach to lawyer-client communications underlines the importance of placing protections for legal privilege firmly in the statute books. That means making provision for LPP on the face of the investigatory powers legislation, rather than in codes of practice.
It is unclear from the allegations whether those responsible for authorising the interception of communications between prisoners and their legal advisers possess the necessary qualifications to comprehend the meaning and purpose of legal professional privilege (LPP) or to accurately determine when it is applicable.
Where the confidentiality of conversations between clients and their lawyers is not guaranteed, those accused of crimes and potential witnesses can be deterred from discussing their case fully with a legal representative. That undermines the fairness of the trial process.
Every individual should have the right to consult their lawyer in private. Prisoners should not be treated as exceptions to that rule.
The sole circumstance in which legal professional privilege (LPP) does not apply is when communications pose a threat to prison discipline or are aimed at furthering criminal activity. Only in circumstances where there are reasonable grounds to believe that the communication threatens prison discipline or is intended to further criminal activity would interception be deemed legitimate.
I wish to make a sincere appeal to the relevant authorities to provide anonymised details regarding the instances in which such authorisation has been granted. This information is necessary for a special board of inquiry to assess whether the correct criteria are being applied.