Legal professional privilege is a cornerstone of our legal system. In short, a client must be free to communicate openly with their legal advisors and any such communications are privileged and disclosure of such communications cannot be compelled.

There are, however, two generally recognised common law qualifications to legal professional privilege. Firstly, the "iniquity exception". Legal professional privilege does not apply if the relevant communications are intended to further a criminal purpose. Secondly, there may be statutory exceptions. It is accepted that statute can defeat legal professional privilege if express words are used or necessary implication indicates.

The Criminal Division of the Court of Appeal has now created another qualification or exception to legal professional privilege. The circumstances in which it may be invoked is likely to be extremely rare but it is, nonetheless, a very important case in terms of jurisprudence.

Lord Justice Fulford phrased the new qualification as follows: " in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step" (at paragraph 41).

The facts of the case

Mr Brown had been serving two life sentences for attempted murder when he attacked another patient at a high security psychiatric hospital. Mr Brown had a long history of self harming and had expressed his desire to return to prison indefinitely as his violent thoughts made him dangerous. Additionally, Mr Brown had previously informed hospital staff that he planned to kill his solicitor

During Mr Brown’s trial, his solicitor sought permission for Mr Brown to consult with his legal advisors from the secure dock of the court in the absence of any nurses or custody officers. The hospital applied for and was granted an order that Mr Brown be handcuffed to at least two nurses during any such communications, explaining that it was necessary to protect Mr Brown from harming himself or others.

Mr Brown later unsuccessfully appealed against his conviction alleging that it was unsafe because the requirement for him to brief counsel in the presence of others breached his common law right to legal professional privilege and his rights to communicate freely with his lawyer under Article 6 of the European Convention on Human Rights.

R v Brown [2015] EWCA Crim 1328 (29 July 2015).