Digital working and the criminal lawyer – the world after Snowden and Miranda

Some lawyers do not like the digital world.  Long-standing habits of deep consideration of the facts, careful analysis and arcane procedures for document production do not sit well with the immediacy of digital communication.  Click ‘send’ and your message has gone – no retrieval from the post tray.  I had a colleague in the early 1980s who put his resignation letter in a senior partner’s tray on a Friday, had second thoughts over Sunday lunch and wine and retrieved it unopened that evening.  That would be unlikely to happen today.

There is a deeper reason why the digital world may prove a step too far for some solicitors and may indeed lead to fundamental changes in the way we work.  We are contractually bound by The Legal Aid Agency to have an IT infrastructure.  Digital working is likely to be compulsory in the new contract to be awarded from September 2014. Increased commercial pressures mean now that much of our criminal work is done by email.  Counsel is instructed by email. Client’s statements are sent by email.  Case discussions take place by video conferencing and telephone.

What will this mean for the concept of legal professional privilege; for the long-established principle that clients’ instructions are between them and their solicitor and that the prosecution are not privy to them?

It means that a criminal solicitor cannot, with confidence, tell his client that what is said between them is in any sense private. We know from recent news reports involving the material divulged by Mr Snowden that all of our digital communications are collected by the USA and GCHQ and that the telephone and internet companies co-operate willingly in providing access to their customers’ communications.

In the past, a secretary would type a statement and a carefully prepared brief would be reverently wrapped in pink tape and sent down to the barrister, sometimes by hand.  It would not be opened en route. No one would or could know its contents, but the solicitor, his client and counsel. These days the minute that the ‘send’ button has been pressed, this confidential material is potentially available to the prosecution to the very real detriment of the client’s case.

I accept it will not happen in most cases, the volume is too great. But there will be cases, cases where the stakes are high, big conspiracies, murder cases, terrorism cases, matters where the interests of large companies are involved. Perhaps public order cases against demonstrators, such as the current fracking arrests; where the digital communications of the defence solicitors will be collected, analysed and used on behalf of the Crown.  The only solution is to de-digitise these cases. Type the statements and comments on the evidence on a manual typewriter, send them by hand, have face-to-face meetings. Play cloak and dagger.

The firm I used to work for has commendably gone to the High Court to seek an Injunction to stop the authorities reviewing material they claim was unlawfully seized from Mr Miranda at Heathrow.  The digital genie is out of the box. Nothing is private anymore. The words stable, door and bolted spring to mind.  The only answer is to revert back to pen.

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