High Court: Use of the same RI for court proceedings and defence consultations does not breach defendant’s rights

A defendant in a criminal trial described as “deaf and effectively mute” has had his application for Judicial Review of a decision of the Department of Justice for Northern Ireland dismissed in the High Court.

Accepting that Registered intermediaries (RIs) were subject to legal professional privilege, Lord Justice Weatherup upheld the decision of the DOJ to refuse to provide the man with an alternative RI for a separate with his legal advisors to the RI provided to him for the proceedings in court.

Registered Intermediaries

The statutory scheme for the use of RIs in court proceedings is set out in the Criminal Evidence (Northern Ireland) Order 1999 as amended by the Justice Act (Northern Ireland) 2011.

The applicant, Mr Jonathan Sweeney is described as deaf and effectively mute and suffering from significant and severe communicative difficulties because of his disabilities. He is charged with theft, false imprisonment and common assault and is awaiting arraignment at Antrim Crown Court.

In October 2016 Mr Sweeney’s solicitor requested a separate RI so that the consultations could be conducted confidentially and in private and the contents of those consultations be protected by legal professional privilege.

A Judge at Antrim Crown Court directed that Mr Sweeney was to have a separate RI for defence consultation, however an RI for defence consultation is outwith the statutory scheme and outwith the powers of the Judge to direct and is a matter for the DOJ.

The DOJ emphasised that RIs were subject to legal professional privilege and that a separate RI would not be provided to Mr Sweeney for defence consultations.

Application for Judicial Review

Mr Sweeney’s grounds for Judicial Review were that the refusal to provide him with a separate RI for defence consultation was

  1. incompatible with Article 6 of the ECHR by breaching his right to a fair trial.

  1. discrimination contrary to Article 14 of the ECHR.

  1. unreasonable because the DOJ:

  1. in granting an RI to assist at consultation thereby accepted that the circumstances of this case warranted the service and it was then unreasonable to advise Mr Sweeney to seek the services of a court defender or appropriate adult.
  2. failed to appreciate that the role of an RI is separate to that provided by an appropriate adult.
  3. misdirected itself in finding that an RI is bound by legal professional privilege.
  4. failed to give proper reasons for refusing the request
  5. did not afford enough, if any, weight to the fact that it is common practice to allow a separate lip reader or interpreter for the defence.
  6. did not afford enough weight to the opinion of the medical professionals who advised that it is likely that Mr Sweeney would not understand.

Legal Privilege

Emphasising the principle of legal professional privilege that communications between clients and lawyers must be uninhibited as per R v Derby Magistrates’ Court ex parte B 1 AC 487 at 510; Mr Sweeney’s application was based upon the impact on legal professional privilege of the failure to provide separate RIs.

Such legal advice cannot be obtained effectively unless the client is able to put all the facts before the advisor without fear that they may afterwards be disclosed and used to his prejudice (R (Morgan Grantham and Company Limited) v Special Commissioner of Income Tax 1 AC 567 at ).

A lawyer must be able to give his client an absolute and unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent (B v Auckland District Law Society 2 AC 736 at para ).

Mr Sweeney contends that such an absolute and unqualified assurance cannot be given that exchanges made in the presence of the RI will be privileged and remain undisclosed.

The Court emphasised the fact that the RI does not communicate the answers of the accused to the Court and jury – this is provided by the accused, and the RI’s role is to advise on the way the evidence might be obtained from the accused and provided to the Court.

The Procedural Guidance Manual for RI’s states: “When assisting a suspect, a defendant or a defence witness the RI should be aware of legal professional privilege and must treat what they hear as confidential not disclosing anything about the defence case or what has been said to them without the defendant’s express consent.”

The Code of Practice for Northern Ireland Registered Intermediaries states “….they must understand the different obligations regarding data protection, confidentiality, legal professional privilege and disclosure of information between the prosecution and the defence legal teams, and must maintain their professional integrity in relation to these different obligations”.

The Court was satisfied that the training of RIs included the requirements for confidentiality and legal professional privilege, and that a lawyer would be “no less able to give an absolute and unqualified assurance that what a client tells him in confidence will never be disclosed without his consent when that disclosure is made in the presence of an RI”.

As such, the principle of legal professional privilege would be unaffected using the same RI at consultation with the accused and at trial.

Accepting the DOJ’s assessment that the nature of the role of an RI is such that it is desirable to maintain continuity of service and provide the same RI at pre-trial consultations and at trial, Mr Sweeney’s ECHR arguments based on the provision of separate interpreters’ were rejected by the Court – the provision of a common RI at consultation and trial need not impact on confidentiality or legal professional privilege and would not offend fair trial rights. The judge also rejected the arguments regarding Wednesbury unreasonableness on this basis.

  • by Seosamh Gráinséir for Irish Legal News