Intelligence agencies in the UK have policies that allow their staff to spy on calls and emails between lawyers and their clients, according to new reports, and this information could be illegally used to influence terrorist trials.
As part of the Investigatory Powers Tribunal (IPT) case filed by the charity organization Reprieve against the UK Government, the intelligence agencies MI5, MI6, and GCHQ were asked to reveal their policies for monitoring lawyers.
Defense lawyers of two Libyan men – Sami al-Saadi and Abdul Hakim Belhaj – who sued the UK government for involvement in their detention and representation, began to suspect someone was snooping on their conversations with their clients when they noticed peculiar technical problems.
Cori Crider, US counsel and Reprieve director for the al Saadi and Belhaj families, often noticed that when he called his clients in Libya, the dial tone was an American one.
They had their suspicions confirmed when the secret documents were released on Thursday. Rachel Logan, Legal Advisor at Amnesty UK, said that it is against the principle of ‘legal professional privilege’ (LPP) that has been in practice since the 16th century.
“It could mean, amazingly, that the government uses information they have got from snooping on you, against you, in a case you have brought.”
GCHQ revealed that it does not prevent its agents from targeting the communications of lawyers.
However, the agency advises them to carefully consider the necessity and proportionality of their actions. MI5 also allows its users to use LPP material like other items of intelligence if they observe the regular requirements of proportionality and necessity.
MI6, on the other hand, does not offer any guidance to its agents regarding the interception of LPP material. The three agencies also admitted that their intercepts could have been used to influence at least one court case.
The Daily Telegraph reported that the edited parts of the document seemed to suggest that the three agencies may also have intercepted the communication channels of other professionals like politicians and judges.
The documents clearly reveal that GCHQ’s and MI5’s policies on eavesdropping on lawyers have several loopholes. MI6 does not even have any ‘policies’ in the first place, which has major implications for the British justice system.
The shocking revelations invoked mixed reactions from the legal and security communities in the UK. Europol adviser Alan Woodward feels that monitoring of communication channels is an important source of information that can prevent potential attacks, but when it is used against a person in a court case, it becomes dangerous.
“There’s got to be cast-iron ways of making sure it doesn’t leak back. There should be no way for the information to go back to the legal team that’s prosecuting that person. That’s just so against our principles of how our legal system works.”
He added that having the right processes is in everybody’s interest because a case should not be allowed to fail just because the prosecution had unlawful access to privileged information. Lawyers should take all the measures to protect themselves, including encryption.
A few weeks ago, Edward Snowden also urged professionals, including lawyers to encrypt their data routinely to protect themselves against surveillance.