Ministers are coming under growing pressure from the legal profession to act over the regulation of bugging.
Defence solicitors told The Times that they go about their daily business in the belief that their conversations with clients could be bugged routinely, in breach of confidential professional privilege.
Many believe that they are particularly vulnerable when handling terrorist or other sensitive cases, even though a judge in 2004 condemned the practice as a “fundamental breach of a human right”.
Robert Brown, a criminal and fraud specialist with Corker Binning, the London law firm, said: “Solicitors don’t feel comfortable that their conversations are confidential and they have often to assume that these are subject to surveillance, whether taking place in police stations or prisons.”
The bugging of clients’ conversations with their family and friends was commonplace, he claimed.
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John Cooper, a criminal barrister on the Bar Council, who advised the Labour peer, Lord Ahmed, when he alleged that his telephone had been tapped, said that bugging of lawyers was technically permissible but that authorisation had to be granted for a very good reason. If bugging of a privileged conversation revealed evidence that a criminal offence had been committed, it would probably not be admissible in court, he said. In 2004 a case against 11 drug dealers was dropped after it emerged in court that police had bugged a defendant’s conversation with his solicitor. But Mr Cooper said that despite the rules that existed to control surveillance, lawyers assumed it took place. “The practice is wider than people think: about 1,000 applications are made a month to bug people. We don’t know how often it happens to lawyers.” However, Max Hill, QC, a criminal barrister who has acted in a number of terrorist cases, said he believed that the rules were largely complied with.
“There may be inadvertent capturing of a conversation with a solicitor that was not the target of the intelligence gathering,” he said.
Andrew Holroyd, of the Law Society, said that if conversations between lawyers and clients were “accidentally captured, the tapes should be immediately destroyed”. He called for an overhaul of the guidelines on the use of intercepts under terrorist legislation and the Regulation of Investigative Powers Act.
Shami Chakrabarti, of the human rights group Liberty, said judges, not police, should issue surveillance warrants. “If we had this protection, then this kind of thing would not happen.”
Tim Dutton, QC, chairman of the Bar Council, said: “The right to consult with a lawyer for legal advice with complete confidentiality is a recognised constitutional right and is inviolable. Any attempt to invade that right is extremely serious.”