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Anti-terrorism

24 October 2011

Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice. [Read more]

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

Professional conduct

The following sections of the SRA Code are relevant to this issue:

  • Chapter 4 - Confidentiality and disclosure
  • Outcome 4.1 - you must achieve these outcomes - you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents.

SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.

1 Introduction

1.1 Who should read this practice note?

Solicitors who are representing a person or people charged with or suspected of terrorism offences.

1.2 What is the issue?

If you are representing people charged with, or suspected of, serious crime, and in particular, in relation to suspected terrorism the interests of your clients may conflict with the interests of the public as a whole.

There are three provisions of the Terrorism Act 2000 (TA 2000) that penalise, with the threat of imprisonment, persons who fail to disclose varying degrees of knowledge, belief or suspicion of the commission by others of terrorist offences.

This practice note explains the nature of your duty of confidentiality to a client, and how the anti-terrorism 'failure to disclose' offence provisions affect this duty.

2 Failure to disclose information about terrorism

There are three provisions of the Terrorism Act 2000 ('TA 2000') that penalise, with the threat of imprisonment, persons who fail to disclose varying degrees of knowledge, belief or suspicion of the commission by others of terrorist offences.

These offences are covered by the following sections of the TA 2000:

  • Disclosure of information: duty - s 19
  • Failure to disclose: regulated sector - s 21A
  • Failure to disclose: information about acts of terrorism - s 38B

2.1 Disclosure of information: duty

Under section 19 of TA 2000 it is an offence for a person not to 'disclose to a constable as soon as reasonably practicable' his or her belief or suspicion, and the information on which it is based, that another person has committed an offence under sections 15 to 18 of the TA 2000, when that belief or suspicion is based on information coming to him or her in the course of a trade, profession, business or employment.

The offences referred to are fund raising (s 15), use and possession of terrorist property (s 16), funding arrangements (s 17) and money laundering (s 18).

2.2 Failure to disclose: regulated sector

Under section 21A TA 2000, if a person knows or suspects, or has reasonable grounds for knowing or suspecting, that another person has committed an offence under sections 15 to 18 of the TA 2000, and the information, or other matter upon which that knowledge, suspicion, reasonable belief is based, came to him or her during the course of business in the regulated sector, the person commits an offence if he or she does not disclose the information or other matter to a constable (or nominated officer) as soon as practicable after it comes to him or her.

For full money laundering guidance on these provisions, reference should be made to the Law Society's Anti-money laundering practice note.

2.3 Information about acts of terrorism

Under section 38B TA 2000, if a person has information which he or she 'knows or believes might be of material assistance in (a) preventing the commission by another person of an act of terrorism or, (b) in securing the apprehension, prosecution or conviction of another person, in the UK, for an offence involving the commission, preparation or instigation of an act of terrorism,' he or she commits an offence if he does not disclose the information to police as soon as reasonably practicable.

3 Confidentiality

The right of persons suspected of a criminal offence to communicate in confidence with their legal adviser is a fundamental aspect of their right to have a fair trial.

However, the Law Society also recognises that everyone has a public duty, reinforced by the notification offence provisions under consideration in this practice note, to co-operate with the authorities in preventing future acts which could result serious harm to others.

You must never knowingly assist others to commit, or cover up, future crimes.

3.1 The solicitor's duty of client confidentiality

You are under a professional and legal obligation to keep the affairs of clients confidential and to ensure that all members of your staff do likewise.

See the SRA Code chapter 4 - Confidentiality and disclosure for further details.

This duty of confidence is fundamental to the fiduciary relationship that exists between solicitor and client. It extends to all matters divulged to a solicitor by a client, or on his or her behalf, from whatever source.

3.2 Overriding confidentiality

In certain circumstances confidentiality can be overridden. For solicitors the most relevant instances will arise when:

  • a court order, or a statutory obligation, requires them to disclose by compulsion of law, or
  • when an exception to the duty of confidentiality arises from the public interest.

3.3 Compulsion of law

A court has the power to compel the disclosure of confidential information held by a solicitor. The most common examples of this are the statutory powers exercised by judges to compel production of confidential ('special procedure') material under Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE), and in certain circumstances, the issuing of witness summonses under the Criminal Procedure (Attendance of Witnesses) Act 1965.

3.4 A duty to the public to disclose

The circumstances in which you may make disclosure on grounds related to issues of public interest are very limited. Essentially you may reveal confidential information only to the extent necessary 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, and in cases of continuing or anticipated child abuse if disclosure is in the public interest.

4 Legal professional privilege

Certain confidential communications, however, can never be revealed without the consent of the client; they are privileged against disclosure. This protection is called legal professional privilege (LPP).

In two recent cases, the House of Lords has underlined the policy behind LPP, its necessity and its nature.

According to Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax and Another [2002] UKHL 21 and [2003] 1 AC 563 at paragraph 30

  • The policy of legal professional privilege requires that the client should be secure in the knowledge that protected documents and information will not be disclosed at all.

According to Lord Scott in Three Rivers District Council v Bank of England (No 6) [2004] 3 WLR 1274 and [2005] 1 AC 610 at paragraph 61

  • ... it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busy bodies or anyone else...

and according to Lord Hoffmann in Morgan Grenfell (ibid) at paragraph 7

  • ...(LPP is) a fundamental human right long established in the common law. It is a necessary corollary to the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.

4.1 What communications are privileged?

Not everything that lawyers have a duty to keep confidential is privileged. Only those confidential communications falling under either of the two heads of privilege - 'advice privilege' or 'litigation privilege' - are protected by LPP.

4.1.1 Who is a 'lawyer' for such purposes?

This includes solicitors and their employees, barristers, in-house lawyers, but does not include accountants, even if they give legal advice (subject to one very limited exception).

4.2 'Advice privilege'

Communications between a lawyer (acting in his or her capacity as a lawyer) and a client are privileged if they are confidential and for the purpose of seeking legal advice from a lawyer or providing legal advice to a client.

For example:

  • conveyancing documents are not communications
  • neither is a client account ledger maintained in relation to the client's moneys (Nationwide Building Society v Various Solicitors [1999] P.N.L.R. 53). Such entries are not created for the purpose of giving legal advice to a client but are internal records maintained, in part, to discharge a solicitor's professional and disciplinary obligations under the SRA Accounts Rules 2011.
  • nor is an appointments diary or time record on an attendance note, time-sheet or fee record relating to a client; (R v Manchester Crown Court, ex parte Rogers [1999] 1 W.L.R. 832)
  • a solicitor's bill of costs and statement of account may, in certain circumstances, be privileged (Chant v Brown (1852) 9 Hare 790);
  • but notes of open court proceedings, (Parry v News Group Newspapers (1990) 140 New Law Journal 1719) or conversations, correspondence or meetings with opposing lawyers (Parry (ibid)) are not privileged, as the content of the communication is not confidential.

Merely because a client is speaking or writing to his or her solicitor does not make that communication privileged - it is only those communications between the solicitor and the client relating to the matter in which the solicitor has been instructed for the purpose of obtaining legal advice that will be privileged.

Such communications do not need to 'contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client.' (Lord Carswell in Three Rivers DC v Governor of the Bank of England (ibid) at paragraph 111).

4.3 'Litigation privilege'

Under this head the following are privileged:

Confidential communications made, after litigation has started, or is 'reasonably in prospect', between:

  • a lawyer and a client;
  • a lawyer and an agent (whether or not that agent is a lawyer); or
  • a lawyer, or his or her client, and a third party;

for the sole or dominant purpose of litigation, whether:

  • for seeking or giving advice in relation to it, or
  • for obtaining evidence to be used in it, or
  • for obtaining information leading to obtaining such evidence.

4.4 Pre-existing documents

An original document, which is not brought into existence for either of these privileged purposes and so is not already privileged, does not acquire privileged status merely by being given to a lawyer for advice or otherwise for a privileged purpose.

4.5 Fraud or illegality - the crime/fraud exception

It is proper for a lawyer to advise a client on how to stay within the law and avoid committing a crime, (Bullivant v Attorney-General of Victoria [1901] AC 196) or to warn a client that proposed actions could attract prosecution,( Butler v Board of Trade [1971] Ch 680 14; R v Cox & Railton (1884) 14 QBD 153) and such advice will be protected by privilege.

LPP does not, however, exist in respect of documents which themselves form part of a criminal or fraudulent act, or communications which take place in order to obtain advice with the intention of carrying out an offence. (R v Cox & Railton (ibid)).

It is irrelevant whether or not the lawyer is aware that he or she is being used for that purpose. (Banque Keyser Ullman v Skandia [1986] 1 Lloyds Rep 336).

If the lawyer suspects that he or she is unwittingly being involved by their client in a fraud, before they can consider themselves released from the duty of confidentiality, the courts require there to be strong prima facie evidence before LPP can be displaced (O'Rourke v Darbishire [1920] AC 581)

While the lawyer may release himself or herself if such evidence exists, he or she may also raise the issue with the court for an order authorising him or her to make disclosure to the victim (Finers v Miro [1991] 1 W.L.R. 35).

The general 'crime/fraud exception' principle is restated in the Police and Criminal Evidence Act 1984 ('PACE') at section 10(2), where items held with the intention of furthering a criminal purpose are declared not to be items subject to LPP.

It is also reflected in numerous other criminal statutes - including the Proceeds of Crime Act 2002 s 330 (failure to disclose) and s 333 (tipping off).

It is important to note that the intention to further a criminal purpose need not be that of the client (or the lawyer) - it is sufficient that a third party intends the lawyer/client communication to be made with that purpose, for example where the innocent client is being 'used' by a third party (R v Central Criminal Court ex parte Francis & Francis [1989] 1 AC 346).

5 Overriding privilege

5.1 By statute

LPP is a fundamental human right; Parliament can of course legislate contrary to fundamental principles of human rights. However, the House of Lords in Morgan Grenfell (ibid.) stressed that a parliamentary intention to override rights, such as LPP, must be expressly stated in the statute or appear by necessary implication. See also R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115.

5.2 Public duty

Unlike the position in relation to confidential material (see above), there is no public interest exception to LPP. It is therefore prima facie unlawful for a solicitor to disclose a communication if to do so would involve a breach of LPP.

5.3 Do sections 19 and 21A of the Terrorism Act 2000 override LPP?

Section 19(5) does not require disclosure by a 'professional legal adviser' of either information which he or she obtains 'in privileged circumstances', or a belief or suspicion based on information which he or she obtains in 'privileged circumstances'.

Section 21A (5) provides that a person does not commit an offence under the section if he or she is a 'professional legal adviser' and the information or other matter came to him or her in 'privileged circumstances'.

Under both provisions, 'privileged circumstances' effectively mirror LPP at common law, and both are subject to the caveat that it will not cover communications in furtherance of a criminal purpose.

A solicitor does not therefore, subject to the caveat, breach these sections of the TA 2000 if he or she fails to disclose information which has come to him or her in privileged circumstances.

5.4 Does section 38B of the Terrorism Act 2000 override LPP?

While there is no equivalent provision in this section to that relating to 'professional legal advisers' as in sections 19 and 21A TA 2000, in order to override LPP the statute must do so expressly or by necessary implication.

No express words are used overriding LPP; therefore, only if there is a 'necessary implication' can LPP be overridden.

5.4.1 What is meant by 'a necessary implication'?

Lord Millett expressed the test in B v Auckland District Law Society [2003] 3 WLR 859:

A useful test is to write in the words 'not being privileged documents' and ask, not 'does that produce a reasonable result' or 'does it impede the statutory purpose for which production may be required?' but 'does that produce an inconsistency?' or 'does it stultify the statutory purpose?' The circumstances in which such a question would receive an affirmative answer would be rare.

This provides helpful assistance in the absence of specific judicial interpretation of s 38B TA 2000. It would seem unlikely that it could be successfully argued that the statutory purpose of s 38B would be stultified if it was to read (adopting the wording in the earlier sections and adapting Lord Millett's formula), 'the person commits an offence if he does not disclose the information unless it was obtained in privileged circumstances as soon as reasonably practicable...'.

In these circumstances, therefore, the Law Society considers that LPP is not overridden by s 38B TA 2000 and that information of the kind referred to in the section, if received in privileged circumstances, cannot be disclosed without the authority of the client.

It is crucial, however, that a solicitor, when in receipt of such information, should be absolutely satisfied that the client's purpose in supplying that information has been for the obtaining of legal advice and is directly related to the performance by the solicitor of his or her professional duty as the legal adviser of the client.

If it is not, then it is not protected by LPP. It will, however, remain confidential.

The only defence available to an offence under s 38B is that the person charged has a reasonable excuse for not making a disclosure. Is confidentiality a 'reasonable excuse?'

There is a clear duty owed by the solicitor to the public to disclose confidential information 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.

If there is a public duty to disclose in such circumstances, it would seem likely that confidentiality would not amount to a reasonable excuse for non-disclosure under s 38B TA 2000, and that a solicitor prosecuted for failing to disclose such information would have no defence.

It is the Law Society's view that the solicitor must disclose such confidential information as soon as reasonably practicable.

6 More information

6.1 Legal and other requirements

6.2 Further products and support

6.2.1 Law Society Consulting

If you require further support, Law Society Consulting can help. We offer expert and confidential support and guidance, including face-to-face consultancy on risk and compliance. Please contact us on 020 7316 5655, or email consulting@lawsociety.org.uk.

Find out more about our consultancy services

6.2.2 Practice Advice Line

The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5797  from 09:00 to 17:00 on weekdays.

6.2.3 Other

Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.

6.2.4 Law Society practice notes

7 Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should

  • Outside of a regulatory context, good practice for most situations in the Law Society's view.
  • In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

2007 Code - Solicitors' Code of Conduct 2007

OFR - Outcomes-focused regulation

SRA - Solicitors Regulation Authority

IB - indicative behaviour

TA 2000 - Terrorism Act 2000

 
 
 

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