Friday, December 19, 2008

Exclusive: police spies violated legal professional privilege

Police spy Rob Gilchrist forwarded an email covered by legal professional privilege to the police Special Investigation Group.

As mentioned in the Herald, Gilchrist forwarded an email from activist Simon Oosterman, in which Oosterman asked him to be a witness in his case against police for misusing pepper spray. That email was covered by litigation privilege.

The rules governing litigation privilege are laid out in s56 of the Evidence Act 2006. While not in force at the time, the Act codifies common law on the subject, and the same rules apply. To be covered by the privilege, a communication must be for the dominant purpose of preparing for legal proceedings (whether actual or anticipated). Communications by a client to third parties - such as possible witnesses - are covered under s56 (2) (a). Oosterman's email to Gilchrist clearly falls under that category.

Litigation privilege prevents evidence from being presented in court, and it may not be seized by a search warrant (Calver v District Court (2004) 21 CRNZ 371) or intercepted by a wiretap or listening device. Where police apply for an interception warrant likely to intercept privileged material (e.g. on a legal office), the judge is required to prescibe conditions to prevent such communications from being intercepted. The Law Commission extensively discusses the issue in their review of search and surveillance powers [PDF], and the underlying presumption is that Such material is simply not supposed to be acquired by police under any circumstances. But in this case, the SIG has deliberately or inadvertantly bypassed all of those restrictions by the simple expedient of bribery.

Gilchrist subsequently served as a witness in the case. It is unclear if he forwarded any other information regarding the proceedings to his police handlers, or whether they told him that such information was off-limits. It is also unclear how police used the information we know they acquired. Only a full investigation into police spying will be able to answer that.