Surveillance and legal privilege

[Zoe O'Connell]

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On 13/03/09 08:59, Brian Morrison wrote:
> On Fri, 13 Mar 2009 06:45:12 +0000 "Clive D.W. Feather"
> <clive@davros.org> wrote:
>> "There is no confidence in iniquity". For example, if the lawyer
>> is crooked and the communications are for the purpose of hiding
>> the proceeds of a crime, why should they be protected?
>>
>
> While I can see the point of what you say, how can one tell what
> the purpose is without eavesdropping. It's then a tall order to
> pretend you didn't hear something that is a genuine confidence.

Having been in a situation as the communications provider where it was
highly likely that priviledged information would have been
intercepted, the application for the court order explicitly mentioned
concerns about this and only asked us to disclose information that was
not legally priviledged. As we were a disinterested party with respect
to the actual content of the intercepted data this avoids the problem
of pretending you didn't hear something - you just don't tell. Of
course, we were not in a position to make that determination which
meant we would have had to pass all intercepted data via our own
solicitors which is an expensive process that the applicant would have
had to pay for, but then interception usually is expensive anyway. (It
didn't happen in the end, for reasons unrelated to this)

I'm not sure if this happens with other mediums but it's fairly easy
to figure out ways to make this work even for physcal surveillance -
have an independant contractor do the surveillance and pass the
results through a disinterested solicitors. It's possible however that
if it's worth this much effort, one could simply make a case for an
overriding public interest.
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