As reported in the Guardian:
UK intelligence agencies spying on lawyers in sensitive security cases: internal MI5, MI6 and GCHQ documents reveal routine interception of legally privileged communications
The intelligence services have routinely been intercepting legally privileged communications between lawyers and their clients in sensitive security cases, according to internal MI5, MI6 and GCHQ documents.
The information obtained may even have been exploited unlawfully and used by the agencies in the fighting of court cases in which they themselves are involved, the Investigatory Powers Tribunal (IPT) has been told, resulting in miscarriages of justice.
Exchanges between lawyers and their clients enjoy a special protected status under the law.
The Conservative MP David Davis, a former shadow home secretary, said past practice was to delete such material immediately if it was ever picked up. Amnesty International said the government was gaining “an unfair advantage akin to playing poker in a hall of mirrors”.
Their comments come after 28 extracts of internal intelligence policies showing how legally privileged material is handled by security officials were released to lawyers pursuing a claim through the IPT. The tribunal considers complaints against MI5, MI6 and GCHQ.
The claim has been brought by two Libyans, Abdel-Hakim Belhaj and Sami Al Saadi, and their families after they were abducted in a joint MI6-CIA operation and sent back to be tortured by Colonel Muammar Gaddafi’s regime in 2004.
Belhaj has been given permission to sue the government for his mistreatment. Following revelations by the US whistleblower Edward Snowden, Belhaj’s lawyers feared their communications with their client could have been compromised by GCHQ’s mass surveillance of telephone and online communications.
Responses given by lawyers for the government at the IPT imply that there has already been one unidentified case, handled by MI5, where “the potential for tainting was identified” – suggesting that lawyers pursing litigation may wrongfully have benefited from intercepts.
Until Thursday’s hearing, government lawyers had argued that releasing the internal intelligence agency guidance would compromise national security.
A claim that MI5, MI6 and GCHQ have been listening in to legally privileged communications between lawyers and their clients has forced the intelligence agencies to release extracts of internal policy documents. The 28 re-typed “exhibits”, attached underneath the government’s legal response, show guidelines in force at various times on how intelligence officers might use such sensitive material. The investigatory powers tribunal, which is considering the claim, hears complaints about the intelligence services and use of surveillance by other government bodies.
Dinah Rose QC, for Belhaj, said the documents also appeared to show that the agencies had hidden from the courts the fact that they held legally privileged material relating to security cases.
“There’s a real risk, if these matters are not fully explored, that confidence in our justice system could be undermined,” she told the tribunal. “These policies raise a strong prima facie case that there’s been abuse of process and that real injustices may have been done.
“Even the most recent policies do not adequately provide for proper information barriers [between] those handling litigation and those who received the intercepted legally privileged material.”
Among cases that may have been affected are highly sensitive hearings at the security immigration tribunal Siac, control order hearings and those who have brought claims following revelations by Snowden.
Rose said: “This [Belhaj] case is the tip of the iceberg. It raises questions about a large number of cases and about the integrity of judgments reached by courts in civil and criminal cases. We have a situation where the policies, on the face of it, appear to permit lawyers to be involved in practices that are unlawful and unethical.”
James Eadie QC, for the government, resisted calls from Belhaj’s lawyers for the original documents, showing the redactions, to be released. He said: “The claimants will have the content … the exact words used to the extent that they can be disclosed in open.”
The new chief of GCHQ, Robert Hannigan, sought earlier this week to justify the extent of surveillance powers by arguing that jihadis and criminals are becoming increasingly sophisticated in the way they exploit the internet.
One of the intelligence agency documents acknowledges: “Material subject to LPP is amongst the most sensitive sorts of information that may be obtained by the security service. The confidentiality of lawyer-client communications is fiercely guarded by the law and any departure from it in the national security context must be narrowly construed and strictly justified.”
The full hearing of Belhaj’s claim is due to be heard by the IPT in January.
Cori Crider, director at the legal charity Reprieve and US counsel for Belhaj, said: “It’s now clear the intelligence agencies have been eavesdropping on lawyer-client conversations for years. Today’s question is not whether, but how much, they have rigged the game in their favour in the ongoing court case over torture. The documents clearly show that MI5’s and GCHQ’s policies on snooping on lawyers have major loopholes. And MI6’s policies are so hopeless they appear to have been jotted down on the back of a beermat. This raises troubling implications for the whole British justice system. In how many cases has the government eavesdropped to give itself an unfair advantage in court?”
Davis, who attended the hearing, said: “Lawyer-client confidentiality is a foundation stone of our legal system, and historically has been absolutely respected by government agencies. In the past, when a bug or intercept on a criminal accidentally picked up a conversation with the criminal’s lawyer, the rule was that it was immediately deleted. Today’s hearing shows that is no longer the case.
“Each of the three main agencies are clearly keeping records of legal privileged material, and have explicit policies to handle it. In the case of MI5 that policy includes concealing from the court that they have the material, including the secret courts and security cleared special advocates paid by the state.
“This change has been carried out without changing the law or telling parliament. This is an enormous breach of defendants’ judicial rights. Indeed, one dreadful possible consequence is that it could lead to historic convictions being quashed in serious cases, including terrorism cases.”
Richard Stein, a partner at Leigh Day who represents the Belhaj family, said: “After many months’ resistance, the security services have now been forced to disclose the policies which they claim are in place to protect the confidential communications between lawyers and their clients. We can see why they were so reluctant to disclose them. They highlight how the security services instruct their staff to flout these important principles in a cavalier way. We hope the tribunal will tell the government in no uncertain terms that this conduct is completely unacceptable.”
Hugh Tomlinson QC, for Amnesty International, who are involved in the case, said: “The guidance [revealed in the documents] contemplates the systematic invasion by state agents of a right in English common law which is absolute.”
Rachel Logan, Amnesty UK’s legal adviser, said: “We now know that the government sees nothing wrong in routinely spying on the confidential communication between lawyers and clients. This clearly violates an age-old principle of English law : that the correspondence between a person and their lawyer is confidential. It could mean, amazingly, that the government uses information they have got from snooping on you, against you, in a case you have brought.”
Officials believe the documents set out safeguards to ensure legal privilege is respected by the intelligence agencies. The government says the Interception Code of Practice requires that an additional level of scrutiny should be applied in cases where that legally privileged communications might be intercepted.
The government said: “We do not comment on ongoing legal proceedings.”
Elizabeth Knight, legal director of the Open Rights groups, said: “We already know that Ripa [Regulation of Investigatory Powers Act] allows the security services to intercept all ‘external’ communications, breaching our right to privacy. By undermining journalistic and legal privilege, Ripa also threatens our rights to free speech and a fair trial. The government cannot keep defending these abuses. We need urgent reform of this broken law now. This disclosure demonstrates the need to introduce judicial authorisation.”
As reported in The Times:
Spies eavesdropped on lawyers’ conversations with their clients
The government has been forced to release secret documents showing that intelligence agencies have “eavesdropped” on confidential lawyer-to-client communications protected by legal professional privilege.
The disclosure of policy papers held by MI5, MI6 and GCHQ has come in a case brought before the Investigatory Powers Tribunal, which examines complaints against the intelligence services. Lawyers said that dozens of terrorism-related cases over many years could have been “tainted” by the security services accessing confidential communications with their clients.
The documents have been released after a claim brought on behalf of Abdel Hakim Belhaj and Sami al-Saadi, who, with members of their two families, were kidnapped and sent to face punishment in Libya in 2004.
The families allege that by intercepting their privileged communications with the charity Reprieve and the law firm Leigh Day, the government has infringed their right to a fair trial.
Campaigners said that the disclosures raised “troubling implications for the whole British justice system”.
“It’s now clear the intelligence agencies have been eavesdropping on lawyer-client conversations for years,” said Cori Crider, a director at Reprieve acting for the Belhaj and al-Saadi families. “This raises troubling implications for the whole British justice system. In how many cases has the government eavesdropped to give itself an unfair advantage in court?”
Legal professional privilege is a central principle of British law that protects confidential communication between a lawyer and client.
Disclosure of all the materials was resisted on national security grounds by the government until a tribunal hearing last week when it reversed its position.
GCHQ policy for its staff says: “You may in principle target the communications of lawyers,” although it adds: “You must give careful consideration to necessity and proportionality.”
MI5 tells its intelligence officers that “in principle, and subject to the normal requirements of necessity and proportionality, LPP material may be used just like any other item of intelligence”.
The disclosures show that until recently the intelligence services did not even have policies that blocked their lawyers from seeing intercepted privileged material about relevant cases.
Richard Stein, a partner at Leigh Day, said: “After many months’ resistance, the security services have now been forced to disclose the policies which they claim are in place to protect the confidential communications between lawyers and their clients.
“We can see why they were so reluctant to disclose them. They highlight how the security services instruct their staff to flout these important principles in a cavalier way.”
Cases affected could include hearings at the Special Immigration Appeals Commission, control order hearings and civil proceedings brought after the Snowden revelations, lawyers say.
David Davis, the Tory MP, described the revelations as a “national scandal” that broke a longstanding convention that lawyer-client communications are protected from state intervention.
As reported in the Daily Mail:
Fury as UK spies are given orders to snoop on lawyers and their clients in move branded a ‘national scandal’
Top secret documents suggest MI5, MI6 and GCHQ may have illegally intercepted telephone calls and emails in sensitive security cases – even though lawyer-client relationships are protected by strict rules.
The guidelines – branded by MP David Davis as a ‘national scandal’ – sparked fury because these communications are generally covered by ‘legal professional privilege’ to protect privacy and the right to a free trial.
It was disclosed yesterday through a tribunal that GCHQ guidelines said its staff ‘may in principle target the communications of lawyers’, while an MI5 document said that ‘in principle’ legally privileged material could be used ‘just like any other item of intelligence’.
All the guidelines stressed careful consideration and justification for using the material.
Campaigners said the revelations had ‘troubling implications for the whole British justice system’.
The papers were released following a claim brought on behalf of two Libyan men – Abdul Hakim Belhaj and Sami al-Saadi – who accuse the British government of being complicit in kidnapping them and sending them back to Libya to be tortured.
The men brought a claim to the Investigatory Powers Tribunal (IPT), which examines complaints against the intelligence services and government surveillance, over concerns that their private discussions were being eavesdropped.
A Government spokesman said: ‘We do not comment on ongoing legal proceedings.’
As reported by the Bureau of Investigative Journalism:
Intelligence agencies target and exploit legally privileged communications, tribunal hears
Intelligence agencies are intercepting privileged communications and have inadequate barriers in place to stop them being used in criminal and civil trials, a tribunal has heard.
Newly released policy documents have revealed “unlawful and unethical” practices at MI5, MI6 and GCHQ, the Investigatory Powers Tribunal (IPT), which oversees the agencies, was told today.
Lawyers and privacy campaigners say the policies call into question the integrity of judgements in a large number of criminal and civil cases.
And Conservative MP and civil liberties champion David Davis has described the revelations as a national scandal in the making.
Communications between individuals and their lawyers are subject to “legal professional privilege” which means they are recognised as private in law.
Now, policy documents released in response to a legal claim brought by Libyan politicians and human rights groups, show that:
*Intelligence agencies are permitted to deliberately target legally privileged material, with MI5 saying this may then be “used just like any other item of intelligence”;
*There is currently nothing to prevent the involvement in litigation of security service lawyers who have previously viewed relevant privileged material;
*MI5 abandoned a “Chinese wall” meant to stop abuse of intercepted communications between lawyers and clients in 2011 because it had too few in-house lawyers to make the system work;
*The Security Service does not disclose the fact it has looked at privileged material to the court or the defendant in hearings it is involved in.
The government has admitted to a single instance of “potential for tainting” of litigation resulting from the interception of privileged correspondence and says it took steps to rectify this.
Today’s IPT case is being brought by Libyans who allege the UK was complicit in their kidnapping and rendition back to Gadaffi’s Libya, where they were tortured.
Abdul-Hakim Belhaj and others believe that intelligence agencies involved in defending their claims for compensation may have intercepted and used their communications with lawyers.
At today’s hearing, counsel for the Libyan families suggested that MI5 had only established a Chinese wall in 2014 after the families had obtained undertakings from the government to protect their privileged material more effectively.
The 28 documents released to them so far are not copies of original documents, but are retyped and in some cases, summarised, extracts.
The Libyans are pushing for redacted copies of the originals and for disclosure of further information, such as details of instances when material has been collected in contravention of the law.
Dinah Rose QC, who is acting for Belhaj, told the IPT the case was the tip of the iceberg and that the disclosed policies “raise a strong prima facie cases that there has been an abuse of process and that real injustices may have been done.”
The policies “on the face of it, appear to permit lawyers to be involved in practices that are unlawful and unethical,” she said.
The intelligence services are involved in a range of court cases, from civil and criminal proceedings to secret immigration hearings and security vetting appeals.
If the IPT rules that their interception of legal communications is unlawful, people who have lost cases in which the intelligence services have been involved could apply for the judgment to be dismissed as an abuse of process.
Speaking outside the tribunal, David Davis said: “This has the makings of a national scandal. It seems that it is not uncommon that lawyer-client privilege is broken, which is a fundamental piece of our rights.”
Cori Crider, a director at legal charity Reprieve and US counsel for Belhaj, said: “The documents clearly show that MI5’s and GCHQ’s policies on snooping on lawyers have major loopholes.”
She asked: “In how many cases has the Government eavesdropped to give itself an unfair advantage in court?”
The hearing at the IPT is one of several ongoing legal actions involving state surveillance following the Snowden disclosures.
The Bureau is currently bringing a case to the European Court of Human Rights in which it is asking the court to rule whether the UK provides adequate legal protection for journalists’ communications.
Of particular concern is the issue of whether journalists’ communications with their sources are being intercepted, which could be unlawful under European human rights laws.
Rosa Curling, a solicitor with Leigh Day & Co, said the Belhaj case “highlights yet again the urgent need for the European Court to resolve TBIJ’s claim against the UK government for its failure to protect journalistic communications.”