Author: Mr Adrian Ramdat (Director of Training & Consultancy)
September 2026
Getting Legal Professional Privilege Right at the Planning Stage.
Picture the scenario: a directed surveillance operation is running on a subject and nobody has given Legal Professional Privilege (LPP) a second thought because the subject is nowhere near a solicitor's office. Several days into the surveillance, the subject goes into a coffee shop, buys a coffee and sits down. A couple of surveillance operatives get in close and sit nearby to maintain the surveillance. The subject then takes a video call from his solicitor, in full view and earshot of the surveillance operatives.
Nobody had planned for that happening because nobody had thought beyond "solicitor's office" when considering where legal privilege might arise.
That creates a problem for the investigation, and it illustrates why LPP needs to be considered as part of the planning process rather than treated simply as something to deal with once the product has been obtained.
For too long, LPP has sometimes been approached as a damage limitation exercise. The surveillance takes place, potentially privileged material is identified afterwards, access is restricted, somebody reviews it and the Authorising Officer is brought back into the process if necessary. Those safeguards are important, but they are not the whole picture.
The more fundamental question is whether the surveillance is likely to result in the acquisition of knowledge of matters subject to legal privilege. If that possibility can reasonably be foreseen when the operation is being planned, it should be considered and addressed in the application before the authorisation is granted, rather than becoming an issue only after the material has been obtained.
Where this sits in the Code of Practice
The Covert Surveillance and Property Interference Code of Practice provides specific safeguards for legally privileged material. It distinguishes between surveillance that is intended to acquire legally privileged material and surveillance which is not intended to do so but where the acquisition of such material is nevertheless likely.
For directed surveillance, it is that second situation that is likely to be encountered most often. Paragraph 9.54 of the Code deals specifically with circumstances where the surveillance is not intended to obtain privileged material, but it is likely that such material will nevertheless be acquired. In those circumstances, the application should make clear that the acquisition is likely, include an assessment of how likely it is that legally privileged information will be obtained, explain how inadvertently obtained privileged material will be dealt with and set out the reasonable and appropriate steps that will be taken to minimise access to it.
That is important because it moves the consideration of LPP back into the planning stage.
It’s not enough simply to have a standard paragraph in an application saying that LPP is unlikely. The applicant should be considering the circumstances of the particular investigation and the way in which the surveillance is going to be conducted. What do we know about the subject? What are they likely to be doing? Where is the surveillance going to take place? How close are surveillance officers likely to be? Is there a realistic possibility that the subject will communicate with their legal adviser while the surveillance is taking place?
It is very easy to interpret that last question as meaning, "Is the subject going to a solicitor's office?" and stop there. In reality, legal consultations can take place in all sorts of circumstances. A solicitor's appointment may be face to face, but legal advice can just as easily be provided by telephone or video call, or discussed somewhere as ordinary as a coffee shop. The circumstances of the surveillance need to be considered rather than relying on an assumption about where legal advice normally takes place.
If the assessment is that the acquisition of privileged material is likely, that should be reflected in the application, together with the safeguards that will apply. If the assessment is that it is not likely, the applicant should be able to explain why. The reasoning needs to be capable of standing up to scrutiny later, rather than simply satisfying the person signing the application on the day.
That also fits with the wider requirement in the Code for applications to be presented fairly and in a balanced way, including information that supports or weakens the case for authorisation.
What Chatwani Actually Tells Us
The case of Chatwani v National Crime Agency brought this issue into sharp focus. The case concerned covert listening devices and the acquisition of legally privileged communications. The IPT considered the way in which the possibility of acquiring privileged material had been dealt with when the operation was planned and authorised. One of the important features of the case was the assumption about where legal advice would be obtained. The possibility of privileged communications had been considered, but the circumstances in which those communications might actually be acquired had not been properly reflected in the application. In practice, privileged communications were captured in circumstances that had not been properly anticipated.
The lesson from Chatwani isn’t that every RIPA application has to assume that LPP will be acquired. It is that the assessment has to be a genuine one. If privileged material is likely to be obtained, the application should say so and explain the basis for that assessment. If it is considered unlikely, the decision-maker needs sufficient information to understand why that conclusion has been reached.
That is where the duty of candour is relevant. It’s not about suggesting that an applicant has deliberately withheld information. It is about ensuring that the Authorising Officer has the information necessary to make an informed decision. If there is something about the circumstances of the surveillance that makes the acquisition of privileged material more likely, that is something the person making the decision needs to know.
An Authorising Officer signing the authorisation doesn’t cure an application that has failed to identify an issue that should have been considered in the first place. The assessment of the likelihood of acquiring privileged material is part of the decision-making process, not something that can simply be left until the product has been obtained.
Sutherland: The Problem Is Not Just Acquiring the Material
The judgement in R v Sutherland case demonstrates why the issue is more serious than simply identifying privileged material after it has been acquired.
The case involved the deliberate interception of communications between the defendant and his solicitor. The Court of Appeal considered the significance of the interception of legally privileged communications and the safeguards that should apply to them.
The practical concern is obvious. Once somebody involved in an investigation has heard legal advice or learned something about a person's defence strategy, that knowledge cannot simply be removed from their mind because somebody later decides that the material should not be used.
It may influence the direction of an investigation, decisions about disclosure or the way in which the case is approached. The fact that the material itself is never relied upon in court does not necessarily remove the concern created by investigators having had access to it.
That’s why the Code's approach is important. It doesn’t simply require investigators to identify privileged material after the event. Paragraph 9.54 requires reasonable and appropriate steps to minimise access to privileged material, while the later provisions dealing with the examination of product require those analysing the material to be alert to communications or items which may be subject to legal privilege.
There is therefore a significant difference between inadvertently acquiring privileged material despite having considered the risk and put safeguards in place, and failing to consider the risk at all.
Turner: Privilege Is Not Always as Straightforward as It First Appears
R v Elliott Turner takes the issue into slightly different territory, but it is particularly relevant when considering covert surveillance.
During covert surveillance of Turner, conversations were recorded in which he discussed matters with his parents, including legal advice he had received from his solicitor. The defence argued that the surveillance had resulted in the acquisition of legally privileged information.
The important point is that the Court of Appeal did not simply treat everything Turner said to his parents about the advice as legally privileged. There was an issue about whether, by discussing the advice with his parents, Turner had waived privilege. The court considered that issue and did not regard the discussion with his immediate family as an automatic waiver of privilege to the world at large, particularly given that Turner was unaware that he was being listened to.
The case is useful because it demonstrates why investigators should be cautious about trying to resolve the question simply by applying the label "LPP" after the material has been obtained.
The conversations captured during the surveillance contained incriminating material, and the Court of Appeal was satisfied that the surveillance officers had made proper efforts to protect legal privilege. Importantly, there was no evidence that information obtained through the surveillance which might have raised privilege concerns had been passed to the investigating officers or had resulted in further or wider investigative activity.
So, although the Court did not treat the relevant material as simply being protected by LPP, the way in which it had been obtained and handled still mattered.
That is the point I think is particularly useful for practitioners. Material does not necessarily become legally privileged simply because a suspect mentions something their solicitor has told them. At the same time, that doesn’t mean that the surveillance team should treat the issue as irrelevant. Where surveillance captures a conversation about legal advice, the circumstances should be recognised, access should be controlled and appropriate legal advice obtained where necessary.
The Code reflects that approach. Where there is doubt about whether material is subject to legal privilege, advice should be sought from a legal adviser to the public authority, and there are specific safeguards governing the retention and handling of privileged material that has been inadvertently obtained.
What This Means in Practice
Put the Chatwani, Sutherland and Turner case together and the practical message is fairly clear. LPP should be considered when planning the surveillance, rather than simply being treated as an issue that arises when the product is reviewed. The applicant should consider what is known about the subject, the circumstances of the investigation and the proposed surveillance and make a realistic assessment of whether privileged material is likely to be acquired.
That doesn’t mean trying to predict every possible conversation that might take place during surveillance. It means considering the circumstances properly.
If the subject is known to be receiving legal advice, that may be relevant. If the surveillance is going to take place at a location where the subject is likely to speak to their solicitor, that may be relevant. If the surveillance team is going to be in a position where telephone or video conversations can be overheard, that may also be relevant.
The important thing is that the application demonstrates that these matters have actually been considered.
If acquisition is likely, the application should explain why and set out the safeguards that will apply. If it is considered unlikely, the reasoning for that assessment should be recorded. The wording should be tailored to the particular operation rather than relying on a paragraph that appears in every application.
The same applies to the safeguards themselves. Saying that any LPP will be "appropriately handled" does not tell an Authorising Officer very much. It is much more useful to explain how the risk will be managed in the circumstances of that particular operation, who is likely to encounter the material and what steps can be taken to minimise access to it.
And if potentially privileged material is actually encountered, that is when the safeguards put in place at the planning stage become important. The Code contains specific requirements around the handling, retention and legal review of privileged material, including consultation with a legal adviser where appropriate.
Foreseeability, Not Damage Limitation
There is a tendency with LPP to focus on what happens when the material turns up. Of course, that matters, and the Code provides safeguards for dealing with privileged material when it is obtained.
But the more important question is whether the risk could reasonably have been anticipated when the surveillance was being planned.
Chatwani, Sutherland and Turner are different cases dealing with different circumstances, but they each help illustrate why LPP cannot simply be treated as a filtering exercise at the end of an operation.
The Code expects applicants and Authorising Officers to consider the likelihood of acquiring legally privileged material and, where that likelihood exists, to think about the safeguards that can be put in place to minimise access to it.
That means looking at the circumstances of the particular operation and making a genuine assessment of what is likely to happen, rather than relying on a standard paragraph or an assumption about where legal advice is likely to be given.
The issue is therefore one of foreseeability rather than simply damage limitation. If the possibility of acquiring legally privileged material can reasonably be anticipated, it should be considered and addressed before the surveillance begins. That gives the Authorising Officer the information needed to make an informed decision and gives the investigation the best opportunity to protect privilege if circumstances change once the operation is underway.
RIPA & RIPSA Training
Understanding the requirements around Legal Professional Privilege is just one part of making sure covert activity is properly planned, authorised and managed. Our RIPA and RIPSA training is designed to give staff the knowledge and practical understanding they need to apply the legislation confidently in their own organisation.
We provide RIPA and RIPSA awareness and refresher training, as well as role-based training for Applicants, Gatekeepers/Monitoring Officers, Authorising Officers and Senior Responsible Officers. Training can be tailored to the organisation, the roles being undertaken and the level of experience of those attending, with practical examples and scenarios used to help delegates understand how the requirements apply in practice.
Whether you are looking to give staff a better understanding of the boundaries around covert activity, refresh existing knowledge or provide more detailed training for those responsible for applying, authorising or overseeing RIPA or RIPSA activity, we can tailor the training to your requirements.
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