This post is sponsored by my friends in Scotland at Photo booth
Now to discuss National legislation and Judgments
In the Beggs v Scottish Ministers (Reported in 2015 Scottish Law Times Report page 487)
Lady Stacey envisaged that the whole argument isn’t based on opening a letter is a breach of LPP. it’s about the practices in prison are not good enough to stop this happening. its a criticism of the policy. Article 8 breach was found, however it was accepted there are exceptions. In regards to the policy she stated that:
‘They took too long to instruct the mail handling officers on the address of the UK Information Commissioner and also failed to instruct the persons handing out the mail on the appearance of mail from a double envelope, or failed to stamp the envelope when it was taken out of the outer envelope.’
This aligns to the inherent limitations of Article 8 point above. If this right did not have exemptions the court would not have needed to analyze and argue over the efficiency of prison systems. Opening and reading LPP mail would have been enough.
Before Beggs there had been 88 complaints about mail handling at HMP Edinburgh jan 2013- June 2014. Beyond legal judgments and textbooks, the reality is thus that LPP is routinely ignored. This hardly suggests that it is a cornerstone and shows the inherit limitations to Article 8 cannot make LPP a fundamental Right. We may want it to, but it can’t.
Further Limitations to Article 6 are found in
The JSC BTA Bank v. Ablyazov 2014 case, which demonstrates what happens when the relationship between client and lawyer is affected by “iniquity.” Article 6 cannot be used to make LPP fundamental because the right to fair trial sometimes relies on LPP being ignored. The ‘iniquity exception’ applies as much to litigation privilege as it does to legal advice privilege
Popplewell J had held that
“If the iniquity renders an abuse of the relationship which properly falls within the ordinary course of such an engagement, a communication for such purposes cannot attract legal professional privilege.”