In the Media

Solicitors warned over disclosure traps in terror law

PUBLISHED July 27, 2007

Legal professional privilege (LPP) is not overridden by the statutory duty to disclose information about terrorism ? but solicitors should be ?extremely cautious? when dealing with the conflicting duties of client confidentiality and public interest in this area, the Law Society?s criminal law committee has warned.

Responding to requests for assistance, the committee published a practice note last week giving guidance on the potential tension where solicitors represent people charged with, or suspected of, serious crimes.

Three provisions of the Terrorism Act 2000 penalise ? with the threat of imprisonment ? those who fail to disclose varying degrees of knowledge, belief or suspicion of the commission by others of terrorist offences.

Sections 19 and 21A provide specific exemptions for professional legal advisers in relation to information received in privileged circumstances. Section 38B, however, has no equivalent provision excluding them.

The committee?s practice note states that LPP can only be overridden expressly by statute or by necessary implication, and suggested this has not been done in section 38B. Information received in privileged circumstances cannot therefore be disclosed without the authority of the client.

The document also confirms the duty owed by a solicitor to disclose confidential information not obtained in privileged circumstances to prevent the client, or a third party, committing a criminal act that is reasonably believed to be likely to result in serious bodily harm.

Christopher Murray, a senior partner at City firm Kingsley Napley and committee chairman, said: ?Privileged communications can?t be disclosed without the client?s permission, but solicitors must be extremely cautious. It is crucial that a solicitor be absolutely satisfied that the client?s purpose in supplying the information is for obtaining legal advice and is directly related to the performance of their professional duty. If they aren?t satisfied about this, privilege does not bite and although the information may be confidential, there is a clear public duty to disclose it.?

Catherine Baksi