Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Miss Anal Sheikh, is a British national who was born in 1960 and lives in Stanmore. She was not legally represented.

The applicant is a solicitor who joined the firm Ashley & Co. as an assistant solicitor in 1987. In 1993 she became the sole proprietor and practitioner in the practice. Between 1987 and 2005, she was the subject of sixteen successful complaints to the Law Society, of which five related to overcharging.

In February 2004, the Law Society commenced an inspection of and investigation into Ashley & Co. On 16 February 2004 the head of forensic investigations at the Law Society wrote to the applicant stating that the books of Ashley & Co. were to be investigated and that officers of the Law Society would be attending her office for that purpose. The letter said that it was not the policy of the Law Society’s Compliance Board to authorise staff to disclose the reasons for inspections. The applicant was therefore not advised of the reasons for the inspection.

Two different departments of the Compliance Board were involved in the investigation: forensic investigations, which dealt with concerns about compliance with the Solicitors’ Accounts Rules; and multiple complaints investigation, which dealt with all other complaints. The inspection commenced with a visit to the applicant’s office on 23 February 2004, which lasted around two or three days. Five further visits took place, the last on 21 July 2004. The Law Society’s inspectors from the multiple complaints investigation department also wrote six lengthy letters to the applicant asking for further information in connection with the investigation. Although the applicant co-operated with the investigators in attendance at her offices, she did not reply in writing to any of the letters.

Following the final visit, the investigative officers compiled a report on the applicant’s practice, intended for internal consideration within the Law Society, in order to determine whether any of the powers contained in the Solicitors Act 1974 (“the 1974 Act”) should be exercised in relation to Ashley & Co. The report (“the FI Report”) was prepared in the form of a letter dated 22 November 2004 from the head of the forensic investigations department to the head of investigation and enforcement in the Law Society’s Compliance Directorate. The FI Report was 33 pages long, with between 70 and 80 pages of appendices.

On 10 December 2004 a member of the multiple complaints investigation department wrote a 19-page letter to the applicant. She did not enclose a copy of the FI Report at that time. The letter set out allegations of professional failures by the applicant and invited her to reply by 4 January 2005. The allegations related generally to alleged failures to comply with provisions of the Solicitors’ Practice Rules (see paragraph 68 below).

The applicant, despite being reminded in the letter that she had a professional obligation to reply to the Law Society, did not reply.

On 23 December 2004 the Law Society wrote to the applicant again, this time enclosing the FI Report. She was asked to comment on the report by 10 January 2005. A covering letter contained several allegations of breaches of the Solicitors’ Accounts Rules (see paragraphs 66-67 below) and invited comments on these allegations. In addition, the letter stated that the investigators were satisfied that the applicant had failed to comply with provisions of those rules, and that therefore the power to intervene (essentially, to take control of the applicant’s practice – see paragraphs 55-61 below) was exercisable.

On the evening of 23 December 2004 the applicant received a telephone call from one of the investigators telling her that there would be a large and important parcel waiting for her at her office the next day and that she should collect it and read it in order to reply by 10 January 2005. The applicant told the investigator that she was going on holiday with her mother to India the following day and that she could not deal with a large communication from the Law Society by 10 January 2005. She accordingly asked for an extension of time. No extension was granted. The applicant went on holiday without collecting the parcel. Upon her return, the parcel was waiting for her. However, she did not open it. She subsequently explained that the reason she did not open it was “because she could not deal with it”.

On an unknown date, the FI Report was forwarded to the Adjudication Panel of the Compliance Board (“the Panel”). It was accompanied by a recommendation that stringent and immediate conditions imposed on the applicant’s practising certificate would be sufficient to protect the public and the conclusion that intervention was not necessary, although the matter was “finely balanced”.

On 17 February 2005 the applicant received funds in the sum of GBP 254,000 in respect of a mortgage on her own home. As she intended to invest the funds in a client’s business, she instructed her secretary to pay the funds into the firm’s client account, intending to deal with the necessary paperwork later. However, her secretary instead credited the firm’s office account. The applicant was not made aware of the error.

The Panel met on 17 February 2005. Following consideration of the FI Report, the Panel decided that there should be an intervention in the applicant’s practice. It adopted several resolutions, the most significant of which being:

“1. The Panel were satisfied that grounds for intervention existed under paragraph 1(1)(a)(i) of Part I of Schedule 1 Solicitors Act 1974 (as amended), namely that the Panel were satisfied that they had reason to suspect dishonesty on the part of Ms Anal Sheikh practising as Ashley & Co ... in connection with her practice as a solicitor.

The Panel were also satisfied that grounds for intervention existed under paragraph 1(1)(c) of Part I of Schedule 1 Solicitors Act 1974 (as amended) namely that Ms Anal Sheikh failed to comply with the Solicitors’ Accounts Rules.

The Panel balanced the need to exercise powers of intervention in order to protect the public and the serious consequences of intervention for a solicitor. The Panel were satisfied that it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004.

The Panel were further satisfied that it was necessary to exercise powers of intervention in order to protect the public.

The Panel RESOLVED to intervene into Anal Sheikh’s practice at Ashley & Co ...”

No particulars were given in the resolution of why the Panel suspected dishonesty on the part or the applicant or why it concluded that she had breached the Solicitors’ Accounts Rules.

The Council of the Law Society also passed resolutions providing that the applicant’s practice monies vest in the Law Society and that the applicant be required to deliver practice documents to its nominated agent. In accordance with the applicable legislation, the applicant’s practising certificate was automatically suspended (see paragraph 61 below).

That afternoon a representative of the Law Society called Ashley & Co. to speak to the applicant but she was out of the office. He faxed a copy of the intervention resolution to her at her office, informing her that the intervention team would arrive at 10.30 the next morning and that an intervention had been ordered as a result of breaches of the Solicitors’ Accounts Rules, with reference to paragraphs 6 and 9 of Schedule 1 to the 1974 Act (see paragraphs 58-59 below).

On the morning of 18 February 2005 the applicant did not go to her office as she had client meetings scheduled. However, her secretary called her to inform her of the fax and the Law Society’s pending visit. According to the applicant, she was not made aware that an intervention had been ordered. She asked her secretary to reschedule the visit as she did not intend to be in the office that day. Her secretary telephoned the Law Society to relay the message. She was advised that it was imperative that the applicant attend the meeting that morning and that her practising certificate had in any case been suspended. She then called the applicant back and explained the position. The applicant made arrangements to go immediately to her office.

At some point during the second phone call, or possibly during a third phone call with her secretary prior to arriving at the office, the applicant instructed her secretary to transfer the GBP 254,000 from the client account to her personal bank account and to sign the transfer form on the applicant’s behalf. The secretary effected the applicant’s instructions, with the result that the client account was debited in the sum of GBP 254,000, leaving it heavily overdrawn.

In due course the intervention team arrived at the applicant’s office to commence the intervention. The applicant was there to meet them and asked for, and was given, time to take legal advice before the intervention proceeded. She instructed a well-known firm of solicitors. It appears that they did not recommend that she take immediate action to halt the intervention but advised her to exercise her statutory right of challenge under the 1974 Act (see paragraph 62-63 below). She permitted the intervention team to have access to the premises. She had still not opened the parcel sent to her by the Law Society on 23 December 2004 (see paragraphs 8-9 above).

On 25 February 2005 the applicant issued an application to the High Court to request the withdrawal of the intervention under paragraphs 6(4) and 9(8) of Schedule 1 to the 1974 Act (see paragraphs 62-63 below). Realising that it could be some time before the matter was heard by the High Court, the applicant’s solicitor wrote two letters to the Law Society proposing measures to allow the applicant to continue to have conduct of a limited number of specific matters on conditions intended to protect clients against the risk perceived by the Law Society to exist. One of the conditions was that she would not issue any bills to clients. The Law Society refused to accommodate the requests; no reasons were provided for the refusal. However, in accordance with usual practice where a challenge to an intervention is lodged with the High Court, the Law Society put in place arrangements to mitigate the damage to the goodwill in the practice pending the outcome of proceedings. An experienced firm of solicitors took possession of the practice and files and passed to other solicitors only those files requiring immediate action which the applicant herself was not able to take, which amounted to just over ten per cent of her files and the client and office accounts were frozen.

On or about 7 March 2005 the applicant sought case management directions. In particular, she sought directions for a speedy trial. The Law Society did not oppose the request. The applicant also sought, by way of interim relief, an order for the restoration of her practising certificate. However, the application was incompetent as it ought to have been made, in the first instance, to the Law Society itself (see paragraph 64 below).

On 9 March 2005 the application for case management directions came before the court, which made an order for an expedited trial. It also considered the arrangements put in place by the Law Society to mitigate the effect of the intervention pending the resolution of the applicant’s challenge (see paragraph 19 above). The applicant did not challenge these arrangements.

The applicant subsequently applied to the Law Society under section 16(3) of the 1974 Act to have her practising certificate restored (see paragraph 64 below). The outcome of the application was that the Law Society granted the applicant a new practising certificate for 2004/2005 with conditions to protect her clients, namely that she did not act as sole principal, as a partner or as a salaried partner. She was therefore unable to resume the Ashley & Co. practice.

The application for withdrawal of the intervention came before the High Court on 4 May 2005 and the trial lasted eight days. On 9 June 2005, Park J directed that the intervention be withdrawn, reserving his full judgment until 1 July 2005. Following Park J’s notification of his decision on 9 June 2005, the intervention was ordered to be withdrawn by order of the same date. By order of 16 June 2005, all the conditions, apart from one preventing the applicant from seeking the payment of fees for probate work without the prior approval of the Law Society, were lifted from the applicant’s practising certificate as of 16 June 2005.

In his subsequent written judgment, Park J explained that he had chosen to announce his decision before handing down judgment because every day which passed was potentially damaging to the applicant even if her application succeeded in the end. In short, Park J’s reasons for ordering the withdrawal of the intervention were that he did not think that there was reason to suspect the applicant of dishonesty and that while he accepted that there had been some breaches of the Solicitors’ Accounts Rules and other aspects of the firm’s practice about which the Law Society could legitimately feel concern, he did not think that they were serious enough to merit intervention.

Park J noted that where a decision to intervene resulted in the vesting of practice monies in the Law Society, the delivery up of practice documents and the suspension of the solicitor’s practising certificate, the consequences were very severe for the solicitor and, in the case of a sole practitioner like the applicant, it effectively meant the total destruction of the practice. However, he accepted that the powers accorded to the Law Society under the 1974 Act were both valuable and desirable to ensure public confidence in the honesty of solicitors and to ensure a quick and effective response in cases where there were grounds to suspect dishonesty on the part of a solicitor. He noted that it was possible, in the applicant’s case, that the intervention action which the Law Society had already taken might already have done substantial damage to the practice of her firm, but considered that such a consequence might be a risk which had to be accepted in the wider interests of preserving public confidence in the solicitors’ profession as a whole. However, he criticised the unexplained rejection by the Law Society of the applicant’s solicitor request that she be allowed to continue some limited practice under conditions (see paragraph 19 above).

Concerning the scope of the court’s review under paragraphs 6(4) and 9(8) of Schedule 1 to the 1974 Act (see paragraphs 62-63 below), Park J considered that the jurisdiction of the court was not to be exercised on grounds analogous to judicial review. Accordingly, he was not required to limit his consideration of the application to the question whether the notice was one which no reasonable body in the position of the Law Society could have decided to serve but was able to decide himself whether the notice of intervention should be allowed to stand. In this respect, the Law Society’s own view that the circumstances merited intervention was a relevant factor for consideration. Park J also emphasised that the relevant legislation referred to a “suspicion” of dishonesty and it was therefore not necessary for a positive finding of dishonesty to be made. Finally, the court was not limited to reviewing the evidence before the Law Society at the time when the decision was made to intervene but could consider the whole of the evidence, including incidents or discoveries post-intervention, in deciding whether to withdraw the intervention. In this regard, he noted:

“...[the applicant] acknowledges that she had been deficient in providing explanations to the Law Society’s officers in the course of the inquiries which preceded the decision to intervene. She can, however, put before me evidence which she failed to present to the Law Society at the earlier stage, and submit (as Mr Treverton-Jones has done on her behalf) that, even if the Law Society’s Panel which decided to intervene could understandably have thought that there was reason to suspect dishonesty given the absence then of answers from her to questions about matters which had caused the Society’s officers concern, the position now is different: I should, taking account of her evidence, conclude that there is no reason to suspect dishonesty in any respect which could rationally justify the drastic (and effectively terminal) step of intervention.”

He then went on to consider the events which preceded the intervention. Regarding the letter of 10 December 2004, he noted that the letter requested comments on eight different alleged failures. In general they were categorised as failures to comply with particular provisions of the Solicitors’ Practice Rules and with associated principles in the Guide to the Professional Conduct of Solicitors. He continued:

“As far as I can see there is no reference to the Solicitors’ Accounts Rules in it, nor do I find anything which could be regarded as an allegation of actual dishonesty on [the applicant’s] part.”

Similarly, Park J observed that he could not find any specific allegation of dishonesty in the letter of 23 December 2004 enclosing the FI Report.

Park J noted the absence of any details as to why the Panel had reached its conclusions and ordered the intervention, saying:

“... In this particular case I consider that the absence of particulars causes considerable difficulty, especially as regards the finding of suspected dishonesty. What precisely was the dishonesty, and what precisely were the grounds which raised a suspicion of it? The Panel does not say. This is, I understand, in line with standard practice for Law Society Panels. In normal cases (which in my opinion this case is not) the absence of particulars in a Panel’s finding of grounds to suspect dishonesty may not particularly matter, because the nature of the dishonesty and of the grounds of suspicion is perfectly obvious to anyone ... In all the earlier cases of interventions which I was shown the alleged dishonesty was clear for all to see. Similarly, in so far as the intervention may also have been founded on breaches of the Solicitors’ Accounts Rules, the breaches were equally obvious, and almost always consisted of solicitors either not having client accounts at all ... or taking money off client account and using it for private purposes or for their own professional purposes (like reducing the office overdraft or paying the office rent) in circumstances where the taking of the money was prohibited ... Furthermore as far as I can ascertain, although the members of the Panel in Miss Sheikh’s case presumably did know what sort of dishonesty they suspected and what their grounds for suspecting it were, nobody else in the Law Society knew. The Law Society officers [involved in the investigation and preparation of the FI Report] who gave evidence before me ... did not know ...

This has caused substantial difficulties in the case, and in my view has had an unfortunate effect on the nature of the proceedings. Miss Sheikh did not know any detail of what sort of dishonesty was being alleged against her, and in her first witness statement could do little more on this aspect of the case than to say that she utterly refuted any suggestion that there was reason to suspect dishonesty on her part. She has always accepted that she failed to reply to correspondence and that there have been some technical infringements of the Solicitors’ Accounts Rules, but she denies any kind of dishonesty. Since she does not know what specific kind of dishonesty the Panel suspected, she has great difficulty in doing more than making a general denial. Her legal team in this case ... could only speculate as to the case which they had to meet. In a criminal case an indictment which merely charged that there was reason to suspect dishonesty would never survive. The same would apply to a pleading in a civil claim.”

He noted that even the Law Society’s legal team were unaware of the reasons for the Panel’s suspicion of dishonesty and concluded:

“In the circumstances it seems to me that [counsel for the Law Society] have had to do the best they can to find in the extensive documentation in the case any features which, as it seems to them, might have given rise to a suspicion of dishonesty, to present them to me as giving rise to such a suspicion, and to cross-examine Miss Sheikh and Mr Sampat [an Ashley & Co. staff member] in a way which entails alleging dishonesty in numerous different respects.”

He noted that the applicant’s case had not come before the court quickly, and that it had not proceeded speedily. He continued:

“... I may be wrong, but I think that it was primarily the Law Society which had problems with an earlier commencement [of the trial].”

As to the breaches of the Solicitors’ Accounts Rules, Park J noted that, unlike in virtually all other cases of interventions of which he was aware, there was no evidence that any client money had gone missing. Further, regarding the allegations of dishonesty, he observed that the applicant had been searchingly cross-examined for a little more than two days and that she had not remotely struck him as the “dishonest, grasping, incompetent” implied by the Law Society’s multiple attacks upon her.

Park J expressed doubt at the proposition by counsel for the Law Society that, once intervention had been commenced by the Law Society, the subsequent review by the High Court of whether to withdraw the intervention could take into consideration all matters relating to the solicitor’s conduct, even those which, under the 1974 Act, did not justify intervention. He concluded:

“... I accept that I should look at the evidence as it exists when the case is presented to me, and that I am not limited to considering only the materials which were before the Panel when, some months previously, it resolved to intervene ... Thus, if there is new evidence of the existence of reasons to suspect dishonesty or of breaches of the Solicitors’ Accounts Rules, I can certainly take account of it. It is far from clear, however, that I should take account of new evidence (or for that matter old evidence) of alleged shortcomings on the part of Miss Sheikh which do not bear on any suspicion of dishonesty or on breaches of the Solicitors’ Accounts Rules ... [A] Panel cannot resolve that a practice be intervened upon on the basis of a general opinion that the practice is unsatisfactory, and that it will be in the public interest for the Law Society to intervene. That being so, I am unconvinced that a general opinion of that nature should carry any substantial weight when it comes to deciding whether the court should order an intervention to be withdrawn. Suppose that it had appeared to the Panel that there was no reason to suspect dishonesty and that, although there had been breaches of the Solicitors’ Accounts Rules, they were not themselves of the sort which could justify the drastic step of intervention. Could the Panel nevertheless have decided that the Law Society should intervene in Ashley & Co because there were other aspects of the firm’s practice which the Panel considered to be unacceptable? I think not. Is it, therefore, any different at the stage when the court is considering whether an intervention should be withdrawn? Again, I think not ...”

Park J considered in some detail the matters raised in the FI Report. He concluded in relation to each that they were insufficiently serious to merit intervention. He further considered the matters raised by the Law Society as regards the applicant’s alleged dishonesty and concluded that the evidence before him supported no such suspicion. He noted that some of the matters to which the Law Society referred might be relevant to any disciplinary proceedings which could be taken against the applicant, but were not relevant to the question of intervention. As to the failure of the applicant to respond to the Law Society’s letters, Park J noted that the letters were very demanding and that the applicant was a busy sole practitioner with clients to look after and without much in the way of high grade supporting staff in her office. He considered that she would have been unable to deal with the letters in the detail which the Law Society required without neglecting her current clients and risking failing in her duty to them.

In relation to the pre-intervention material put before him, Park J concluded:

“On the basis of matters as they stood before the intervention (and taking account of evidence which I had of such matters, whether the Panel had it or not), I believe that the intervention should be set aside.”

He reviewed the events of 17 and 18 February and accepted the applicant’s account that she had been unaware that an intervention would take place. He continued:

“... To an extent her lack of awareness of what might happen was her own fault. I have described ... how she never even opened the parcel which had arrived at the office on 24 December 2004 and which contained, among other things, the Law Society’s letter of 23 December. If she had opened the parcel and read that letter it would have put her clearly on notice that an intervention was a possibility.”

In respect of post-intervention issues, the only matter considered to be of significance by Park J was the transfer, on the morning of the imposition of the intervention, of GBP 254,000 from the client account to the applicant’s personal bank account (see paragraph 17 above). Park J found that the applicant was not aware, at the time when she instructed the transfer, that there had been an intervention. However, he accepted that she gave the instructions to her secretary because of a general feeling that she did not want the money to be in the client account when the Law Society arrived. He continued:

“The more general point is that I cannot find it in me to condemn Miss Sheikh for wanting to get the money out of an Ashley & Co bank account before the Law Society arrived. She did not (in my view) know that the Law Society was coming to effect an intervention into her practice, but after the second telephone call from [her secretary] she apprehended that something of a serious nature was quite likely to happen, and she must have felt deep concern about what might happen to this large sum of money which she had borrowed personally only the day before. It must have been a desperate anxiety to her that, because the money had gone into an Ashley & Co bank account, it might become entangled with the problems which it seemed that she was going to have with the Law Society. Feelings of that nature would surely have been enhanced by the reflection that the money might be regarded as still really being hers and not as belonging to a client yet. She was of course under the erroneous impression that the money was being held in the firm’s client account ... She did not realise that the money was in fact in the firm’s office account, but I comment that it was not appropriately held there. The £254,000, if (as I suspect was correct) it did not yet belong to Red River but still belonged to Miss Sheikh , did not belong to her in her capacity as the sole proprietor of the practice. On 18 February the £254,000 did not really have anything to do with the practice. She had just borrowed it on a mortgage of her private house, and it was intended to be invested in a commercial project in which she ... would be participating as an investor and not in her solicitor capacity.

In retrospect Miss Sheikh might have been better advised just to leave the money alone and wait fatalistically to find out what was going to happen to it, but I can well understand that it did not seem that way to her at the time. I repeat that I cannot find it in me to say that wanting to remove the money from (as she thought) the Ashley & Co client account was so objectionable a thing that I should leave in place an intervention upon her practice which otherwise I would direct to be withdrawn.”

The applicant’s remaining files and all monies from the client and the office accounts, plus interest, were subsequently returned to her. She resumed practice at Ashley & Co.

On 5 April 2006 the Law Society was given permission to appeal to the Court of Appeal on three grounds: first, that Park J had inappropriately assessed whether the applicant had in fact been dishonest, rather than addressing whether the statutory test of suspicion of dishonesty had been met; second, that Park J had applied too high a threshold as regards whether the breaches of the Solicitors’ Accounts Rules could justify an intervention; and third, that, in exercising his discretion as to whether to withdraw the intervention, Park J had wrongly failed to take into account other matters relating to the applicant’s conduct which were not directly related to her alleged dishonesty and breaches of the Solicitors’ Accounts Rules. The judgment granting leave noted that the Law Society was not minded to re-intervene in the applicant’s practice at that time but was considering disciplinary proceedings against her. The appeal was heard between 3 and 5 July 2006.

On 23 November 2006, the Court of Appeal handed down its judgment. As regards the scope of the appeal proceedings, Chadwick LJ, giving judgment for the court, noted:

“The Law Society has made it clear that, whatever the outcome of these appeals, it does not seek to re-intervene in [the applicant’s] practice on the basis of the intervention notices served in February 2005. Its concern is that the findings of fact made by the judge – almost all of which it regards as wrong – present serious difficulties in relation to the exercise of its powers to impose conditions on [the applicant’s] practising certificate. Put shortly, the Society fears that those findings of fact, if not reversed, make it impossible for it to impose the conditions on [the applicant’s] practising certificate which it considers necessary for the protection of the public. It is concerned, also, that it may not be able to go behind those findings of fact in disciplinary proceedings against [the applicant] in which it may wish to allege actual dishonesty. And, further, the Society is concerned that the judge’s approach to the issues which were before him in this case gives rise to uncertainty as to the proper scope of the summary procedure which Parliament must have intended should follow from an application to withdraw under paragraphs 6(4) and 9(8) of schedule 1 to the 1974 Act: uncertainty which, unless resolved, will lead to problems in future cases ...”

Chadwick LJ considered the various matters relied upon by the Law Society before the High Court as evidence that continued intervention was justified. As regards the allegations of breaches of the Solicitors’ Accounts Rules, he reached different conclusions from Park J as to the honesty of the applicant in her dealings with the client account. In particular, he commented on the failure of Park J to deal with certain anomalies as regards the applicant’s charging practice:

“For my part, I find it surprising that the judge was able to attribute [certain aspects] of the Society’s complaint ... to ‘mistakes’ and ‘an error of judgment’ without a more rigorous analysis of the material which had led the Society to take the view that those matters gave rise to suspicion of dishonesty. It is, I think, difficult to avoid the conclusion that he did so because he had already persuaded himself, from his observation of Miss Sheikh and [her employee] as witnesses, that they were not dishonest; so that matters which, objectively, were capable of giving rise to suspicion of dishonesty had to be explained in a way which avoided a finding of dishonesty ...”

He further highlighted the failure of Park J to explain why, in relation to one particular matter, he had rejected the Law Society’s submission that client funds had indeed gone missing contrary to his general finding that the applicant’s case did not involve missing client funds. Chadwick LJ pointed to various other aspects of the Law Society’s complaints concerning the applicant’s conduct in respect of client funds and charging which, in his view, had not been fully addressed by Park J. He referred to Park J’s observation that a client benefitted from clear protections, notably the possibility of requiring the solicitor to obtain a remuneration certificate from the Law Society where he considered that he was being overcharged by his solicitor, and that intervention was therefore not required in such circumstance. He concluded:

“The Law Society submits that that is too narrow a view of the circumstances in which it may be appropriate to use its intervention powers. It points out that an honest solicitor should be endeavouring to charge no more than he (or she) believes is due ... I agree: a fortiori where the solicitor, as sole executor, is himself (or herself) the client [as in a number of the examples in the applicant’s case], it seems to me that evidence of persistent and deliberate overcharging in probate matters of that nature might well justify intervention on the basis of suspected dishonesty.”

As to the transfer of the GBP 254,000 (see paragraph 17 above), Chadwick LJ agreed with Park J that at the time she ordered the transfer, the applicant did not know of the intervention. However, like Park J, he found that she had, nonetheless, realised that the impending visit of Law Society officials was more serious that just another inspection. He concluded that in the circumstances, the applicant must have known that intervention was a real possibility, and that she had for that reason transferred the money. He further considered that there was no evidence to allow Park J to conclude whether beneficial ownership of the money remained with the applicant. In light of the instructions that she had given to her secretary, Chadwick LJ considered that she could not claim that she thought it was still her money. That the applicant had requested her secretary to sign the bank transfer form on her behalf was a clear attempt to deceive the bank. In the circumstances it was not difficult to understand why the Law Society took the view that the incident gave rise to particular concern as to the applicant’s fitness to carry on her practice. He noted:

“... What took place is a significant demonstration of the way in which this solicitor was prepared to act in the face of what she must have seen as an impending (if not actual) crisis in her practice. She was prepared to act in a way which – as she must have appreciated and intended – involved a deception.”

Chadwick LJ disagreed with Park J’s approach to the question whether the intervention notices should be withdrawn. In his view, the correct approach was to look at the matter as a whole and in this regard, the conduct of the solicitor at the time of, and immediately following, intervention could well affect the way in which pre-intervention conduct should be viewed. In the applicant’s case, her conduct in relation to the GBP 254,000 demonstrated that she was willing to deceive and Park J ought to have asked himself whether his impression of her as a witness required re-evaluation in the light of her willingness to deceive in relation to that transfer.

Chadwick LJ referred to the distinction between an application to the court to withdraw the intervention (as in the present case) and a challenge to the use by the Law Society of its intervention powers:

“Plainly, if there is a challenge to the exercise of the intervention powers, the court will need to ask itself whether the grounds under Part I of schedule 1 to the 1974 Act upon which the Society relied at the time of the resolution to intervene were made out on the basis of the information available (or, perhaps, reasonably available) to the Society at that time. If that question is answered in the negative, then (as it seems to me) the resolution under paragraph 6(1) is of no effect and notices served under paragraph 6(3) or 9(1) are ‘fundamentally flawed’ ... That is because the powers under Part II of schedule 1 are exercisable only in circumstances within Part I. So, if the Society is to exercise intervention powers in reliance on paragraph 1(1)(a), the Council must have reason to suspect dishonesty at the time when it passes the resolution under paragraph 6(1) or serves the notice under paragraph 9(1).

Cases in which there is a challenge to the validity of the resolution under paragraph 6(1) or to the service of intervention notices are rare. Where the Society relies on paragraph 1(1)(a) of schedule 1, the solicitor may well find it impossible to contend that, on the material available to the Society at the time when the resolution was passed and the intervention notices served, the Society did not have reason to suspect dishonesty. That was the position in the present case. And it is pertinent to keep in mind that, in many cases (as in the present case), the Society will rely, in addition, on paragraph 1(1)(c) (breaches of the accounts rules) and will have given a notice under paragraph 1(2) – thereby providing an opportunity for challenge in advance of intervention. In such cases a challenge to the validity of the resolution under paragraph 1(1) or to the service of intervention notices on the grounds that the condition in sub-paragraph (a) was not met will serve little purpose: the Society will be able to rely (in relation to validity) on sub-paragraph (c). In such cases the solicitor will usually focus his (or her) submissions on seeking to persuade the court that, whether or not the Society had reason to suspect dishonesty on the material available to it at the time, the court should hold, on the basis of additional material deployed at the hearing of the application under paragraph 6(4), that suspicion of dishonesty has been dispelled. That, again, was the position in the present case.

What is not open to doubt is that, absent a challenge to the validity of the resolution under paragraph 6(1) of schedule 1 or to the service of intervention notices, the single issue for the court on an application under paragraphs 6(4) or 9(8) is whether the notices should be withdrawn ...”

The sole issue for the court, therefore, in the present case being whether the intervention notices should be withdrawn, Chadwick LJ noted:

“In addressing that question ... the court must, indeed, weigh the risks of re-instating the solicitor in his (or her) practice against the potentially catastrophic consequences to the solicitor (and the inconvenience, and perhaps real harm, to his or her existing clients) if the intervention continues. In weighing the risks of re-instatement the court must have regard to the views of the Law Society as the professional body charged by statute with the regulation of solicitors ... and as the body whose members are obliged, through the compensation fund, to underwrite those ... In a case where the Society has taken, and continues to take, the view that there are reasons to suspect dishonesty on the part of the solicitor, the court may well need to address those reasons in the context of weighing the risks of re-instatement; although ... that will not always be the case. It is important to keep in mind that (in cases where there is no challenge to the validity of the resolution or to the service of the notices) there is no free-standing requirement for the court to decide whether there are grounds for suspecting dishonesty; a fortiori, no requirement for the court to decide whether the solicitor is or has been dishonest. The issue arises (if at all) in the context of deciding whether the intervention needs to continue.”

Accordingly, all matters could be taken into account in reaching the decision whether to withdraw the intervention, including conduct falling outside the statutory grounds for its original imposition, such as the applicant’s poor regulatory history and her failure to respond to proper requests for information from the Law Society. Chadwick LJ considered that Park J had erred in seeking to determine whether or not the applicant was dishonest as the question to be decided was simply whether the suspicion of dishonesty had been dispelled, and Chadwick LJ was satisfied that it had not, bearing in mind the serious inconsistencies between the applicant’s oral evidence at the trial on the one hand and the answers which she had given at interview, the explanations in her witness statements and the documentary material on the other hand.

Finally, as regards the Law Society’s criticism of Park J’s approach to whether intervention should continue, Chadwick LJ found:

“... First, as it seems to me, past regulatory history is plainly relevant to a consideration whether it is realistic to think that future compliance can be enforced by regulatory powers short of intervention. The Society was entitled to take the view that the history of successful complaints in relation to Miss Sheikh’s conduct of probate matters demonstrated that there could be no basis for confidence that (absent intervention) her practice in relation to such matters could be altered by tighter regulation.

Second, on an application under paragraph 6(4) of schedule 1, the court is required to have regard to all matters before it: it is not confined to the grounds which led to the exercise of the intervention powers ... As I have sought to explain, the court’s task on an application under paragraph 6(4) of schedule 1 is not constrained by the statutory grounds on which the Society can exercise intervention powers.

Third, on an application under paragraph 6(4) which does not include a challenge to the validity of the resolution under paragraph 6(1) of schedule 1 to the 1974 Act or to the service of intervention notices, past ‘misconduct’ is relevant if, and only in so far as, it informs an assessment of future risk ... The question, in each particular case, is whether the experience of past conduct should lead to the conclusion that the risks of reinstatement are, or are not, acceptable.”

The court made the limited orders sought by the Law Society regarding the lifting of limitations on its ability to impose conditions on the applicant’s practising certificate.

Chadwick LJ also commented on the intervention procedure and the possibility to challenge an intervention. He noted that it was not in doubt that intervention in a solicitor’s practice, without advance notice, was likely to have the most serious consequences for the solicitor. However, Parliament had provided the solicitor with a summary process by which the matter could be brought before the court and had imposed short time limits within which that process had to be commenced. He observed that in Holder v. Law Society (see paragraphs 69-74 below) the Court of Appeal had rejected an argument that the intervention procedure was incompatible with the solicitor’s Convention rights, on the basis that the court’s power to consider whether a fair balance had been struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights met the requirements of Article 1 of Protocol No. 1. However, he continued:

“... it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor’s clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event.”

He referred to Park J’s criticism of the resolution of 17 February 2005 on the basis that it failed to disclose the reasons which had led the Panel to decide that intervention notices should be served, and noted:

“... The true vice, in my view, is that the reasons which were disclosed – ‘it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004’ – were stated in so general and unspecific terms. Disclosure of reasons in those terms is calculated to make it difficult for the solicitor to know and address the real concerns which had led to the exercise of intervention powers. The Society should, I think, give thought to the need for Panel resolutions to identify, with much more specificity than in this case, the reasons which (in the Panel’s view) make intervention necessary. If those reasons are not identified at an early stage, there is a danger that the solicitor will be denied the effective protection which Parliament plainly intended a summary process to provide.

There will, of course, be many cases in which the solicitor who has suffered intervention will be in no doubt as to the Society’s concerns. And, as I have said, there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds. But, in cases where, although the solicitor knows what material was before the Panel, there is genuine doubt as to the matters which the Society regards as sufficiently serious to justify intervention, it seems to me that the court should be ready to assist – on an early application for directions following the issue of an application under the schedule 1 procedure – by requiring the Society to state the grounds upon which (on the material then known to it) the application will be resisted. Such a statement would enable the solicitor to address the Society’s concerns in a focussed response. And, in the light of that response, the Society can explain to the court why it takes the view (if it does) that the concerns have not been met.

I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro-active role on applications under schedule 1 to the 1974 Act than hitherto; and that the need for an early determination of such applications will place demands on the court’s resources which it may be difficult to meet. But, as it seems to me, the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the Convention requires and which the 1974 Act was plainly intended to provide.”

The applicant applied for leave to appeal to the House of Lords. In her petition for leave to appeal, she identified as a matter of general public importance requiring examination by the House of Lords the question whether the intervention provisions in the 1974 Act were compatible with the Convention. The House of Lords refused the applicant’s request for leave to appeal on 22 May 2007.

On 14 March 2008 a second intervention was effected into the applicant’s practice. Her High Court challenge in respect of that intervention was dismissed.

Disciplinary proceedings against the applicant before the Solicitors Disciplinary Tribunal followed. The case was heard on 5 May 2009 and on 29 June 2009 the findings of the tribunal resulted in the applicant being struck off as a solicitor.

The Law Society is the governing body of the solicitors’ profession. It has a regulatory function and regulatory powers under the Solicitors Act 1974. Under section 35 of the 1974 Act, the Law Society is given the power to intervene in a solicitor’s practice in circumstances specified in Part I of Schedule 1 to the Act by exercising any or all of the powers set out in Part II of Schedule 1 to the Act.

Paragraph 1(1) of Part I to Schedule 1 of the Act provides that the Law Society may exercise its right of intervention inter alia where the Council of the Law Society have reason to suspect dishonesty on the part of a solicitor in connection with that solicitor’s practice or in connection with any trust of which that solicitor is or formerly was a trustee; or where the Council are satisfied that a solicitor has failed to comply with the Solicitors’ Practice Rules, the Solicitors’ Accounts Rules or rules requiring solicitors to hold professional indemnity insurance.

Paragraph 1(2) provides that the intervention powers shall only be exercisable in cases concerning a suspected breach of the solicitors’ rules if the Society has given the solicitor notice in writing that the Council are satisfied that he has failed to comply with rules specified in the notice and that the intervention powers are accordingly exercisable in his case.

Part II of Schedule 1 sets out the powers available to the Law Society upon intervention. Under paragraph 6, the Law Society has the power to take control of the practice’s accounts pursuant to a resolution passed by the Council.

Under paragraph 9, the Law Society has the power to take possession and control of the firm’s documents.

Paragraph 10 allows the Law Society to intercept the firm’s mail.

Finally, section 15 of the 1974 Act provides for the suspension of the solicitor’s practice certificate in the event of an intervention.

The 1974 Act allows an intervened-upon solicitor to apply to the High Court to request the withdrawal of an intervention. Under paragraph 6(4) of Schedule 1, a decision to take possession of the practice monies can be challenged within eight days of the service of the notice by application to the High Court for an order directing the Law Society to withdraw the notice, with not less than 48 hours’ notice to the Law Society. Paragraph 6(5) provides that upon an application under paragraph 6(4), the Court may make such order as it thinks fit.

Under paragraph 9(8) and (9), a solicitor can, within eight days of receiving the notice that the Law Society has taken possession of the firm’s documents and on not less than 48 hours’ notice to the Law Society, apply to the High Court for an order directing that the documents be delivered to such person as the applicant may require. Paragraph 9(11) provides that upon an application, the Court may make such order as it thinks fit.

Under section 16(3), a solicitor may, at any time before the expiry of her practising certificate, apply to the Law Society to have the suspension of the certificate terminated. Under section 16(4), upon receipt of an application:

“... the Society may in its discretion—

(a) by order terminate the suspension either unconditionally or subject to such conditions as the Society may think fit; or

(b) refuse the application.”

If the Law Society refuses the application or terminates the suspension subject to conditions, the solicitor may appeal against the decision of the Society. At the relevant time, an appeal was to be made to the Master of the Rolls, who could, under section 16(5):

“(a) affirm the decision; or

(b) terminate the suspension either unconditionally or subject to such conditions as he may think fit.”

The Solicitors’ Accounts Rules govern the treatment of client and practice monies by solicitors. They set out a number of general principles, including that a solicitor must keep client money separate from money belonging to the solicitor or the practice; keep client money safe in a bank or building society account identifiable as a client account; establish and maintain proper accounting systems, and proper internal controls over those systems, to ensure compliance with the rules; keep proper accounting records to show accurately the position with regard to the money held for each client and each controlled trust; and account for interest on other people’s money in accordance with the rules.

Detailed rules exist concerning bank accounts and require in particular that solicitors to keep at least one client account for the holding of money belonging to clients. They define the circumstances in which transfers can be made from the client account to cover payment of the solicitors’ fees. The rules also provide that the client account must not be overdrawn and that interest must be allocated to monies held in client accounts. Finally, the rules impose strict accounting obligations on solicitors.

The Solicitors’ Practice Rules are the principal set of rules governing the practice of solicitors in England and Wales.

In the case of Holder v. Law Society ([2003] EWCA Civ 39) the Court of Appeal considered an appeal by the Law Society against the grant of permission by the High Court for an application for withdrawal of an intervention to go to trial on the basis that the intervention violated the claimant’s rights under Article 1 of Protocol No. 1.

The Court of Appeal discussed the possibility of obtaining an injunction, noting:

“16. Where necessary the procedure can operate very quickly. By way of illustration, we were referred to one case (Wilson Smith v. Law Society, 29th March 1999) where the Judge gave a temporary injunction by telephone on the day before the proposed intervention to enable the matter to be considered in Court the following morning. In another recent case to which I shall return (Wright v. Law Society, 4th September 2002), an interim injunction was granted to preserve the position pending the full hearing a few days later. The Judge recorded the speed with which all the parties had worked, including the submission of skeleton arguments by e-mail over the weekend.”

In overturning the decision of the High Court and restoring the order of the Master to dismiss the claim, Carnwath LJ explained:

“17. Before the judge it was submitted by Mr Engelman (appearing then as now for Mr Holder) that the intervention power, either generally or as applied in this case, infringed Mr Holder’s right to ‘peaceful enjoyment of his possessions’ under article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as applied by the Human Rights Act 1998 ...

“29. Mr Engelman referred to the principles laid down by the Strasbourg court for the application of the public interest test: ‘the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ (Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 , 52, para 69); ‘There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions’: Holy Monasteries v Greece (1994) 20 EHRR 1 , 48, para 70. He submitted that if, as the judge found, the more draconian features of the intervention procedure were not ‘necessary’, the requirement of ‘proportionality’ was not satisfied.”

He continued:

“30. With respect to the submission, and to the judge, this approach ignores the ‘all important’ factor, when considering issues of proportionality, of the ‘margin of appreciation or discretion’ or ‘area of judgment’ allowed to the legislator and the decision-maker ... This aspect was not mentioned by the judge, although it was referred to in Mr Engelman’s written submissions to him. [The judge] appears to have approached the matter on the basis that it was for the court to determine what was ‘necessary’ in the public interest, and in doing so to compare other possible procedures devised by the court. In my view, this was fundamentally wrong.”

He concluded that the legislation itself and the approach taken by the Law Society and the courts in carrying out a balancing exercise was no different from the requirement in Article 1 of Protocol No. 1 that a fair balance be struck, noting:

“31. In the present case, the ‘margin’ arises at two stages: first, the discretion allowed to the legislature in establishing the statutory regime, and, secondly, the discretion of the Law Society as the body entrusted with the decision in an individual case. (In the former case, the only remedy for exceeding the ‘margin’ may be a ‘declaration of incompatibility’ under the 1998 Act.) The intervention procedure, now contained in the Solicitors Act 1974, is long-established (dating back to 1941, in its earliest form), and has been reviewed by the court on many occasions. As appears from the cases to which I have referred, it has been recognised as ‘draconian’ in some respects, but necessary for the protection of the public interest; and the courts have repeatedly emphasised the ‘balancing exercise’ which it involves. I see no material difference between this and the ‘fair balance’ which article 1 requires ... I see no arguable grounds for thinking that the margin allowed to the legislature has been crossed, particularly having regard to the deference which is properly paid to an Act of Parliament, as compared to an administrative decision ...

Having reached that point, the Law Society’s actions must be judged by reference to the procedure laid down by Parliament, not to some hypothetical alternative procedure ...

The Law Society also has a ‘margin of discretion’, but the court has a separate duty to consider the merits of the case, in accordance with the principles I have discussed, while paying due regard... to the views of the Law Society, as the relevant professional body. As I have said, this meets any ‘fair balance’ requirement ...”

Sir Christopher Staughton agreed that the appeal should be allowed, adding:

“38. In the exercise of its powers of intervention the Law Society must of course comply with the Human Rights Convention. I can imagine circumstances where the Law Society might be found not to have complied with the Convention, or with the Human Rights Act 1998. After all, a solicitor whose practice is the object of an intervention loses his practising certificate, and in all probability his livelihood as well. The provisions for bringing an intervention to an end are very unlikely to restore the solicitor’s goodwill and his prosperity. If it comes about that the intervention was mistaken or unjustified, there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy. In practice this may never happen; but it is a cause for concern. However, not in this case.”


Violation of Art. 8;No violation of Art 13+8

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants were born in 1972, 1965, 1980, 1961 and 1980 respectively and live in Chişinău. They are members of “Lawyers for Human Rights”, a Chişinău-based non-governmental organisation specialised in the representation of applicants before the Court.

According to the applicants, after the coming to power of the Communist Party the number of violations of human rights increased considerably. In that context their organisation was created, whose sole purpose was the protection of human rights by assisting persons who sought to introduce applications with the European Court of Human Rights.

As a result, the applicants considered that they had caused the Government serious harm in terms of damage to their image and financial loss as a result of the findings of violation in cases they had helped to bring before this Court.

The applicants maintained that they ran a serious risk of having their telephones tapped as a result of their activity, due to the state of the legislation in force. They did not claim to have been victims of any specific interception of their communications, whether by telephone or post, and they had not instituted any domestic proceedings in that respect.

The Government disputed the allegation concerning the increase of the number of violations of human rights after the Communist Party had won the elections.

On 17 January 2008 one of the applicants wrote to the President of the Supreme Court of Justice and asked for statistical information concerning, inter alia, the number of applications lodged by the investigating bodies with courts for interception of telephone conversations and the number of successful and unsuccessful applications.

In a letter of 6 February 2008 the Head of the President's Office of the Supreme Court of Justice replied that in 2005 of a total of 2,609 applications for interception lodged, 98.81% had been successful; in 2006 of the 1,931 applications lodged, 97.93% had been successful; and in 2007 of the 2,372 applications lodged, 99.24% had been successful.

The Operational Investigative Activities Act of 12 April 1994 reads as follows:

a) revealing attempts to commit crime; preventing, suppressing or discovering criminal offences and the persons who organise, commit or have already committed offences; and ensuring compensation for damage caused by a criminal offence;

b) searching for persons who are evading the preliminary investigative authorities, the preliminary investigation or the court, or who are fleeing from a criminal sanction, or for persons who have disappeared;

c) collecting information on events or actions which endanger the State or the military, economic or environmental security of the Republic of Moldova.

(1) The Constitution, the present Law and other regulations enacted in accordance with them constitute the legal basis for operational investigative activities.

(2) The authorities which are entitled to conduct operational investigative activities may issue, within the limits of their competence, in accordance with the law and with the consent of the Supreme Court of Justice and the General Prosecutor's Office, regulations governing the organisation, methods and tactics of carrying out operational investigative measures.

(2) Anyone who considers that the actions of the authority which has carried out investigative measures have infringed his or her rights and liberties may lodge a complaint with the hierarchically superior authority, the General Prosecutor's Office or the courts.

(3) In order to ensure a full and thorough examination of the complaint lodged by a person against whom operational investigative measures have been applied without due grounds, the authorities which have applied such measures shall, at the request of the prosecutor, present the latter with a record of every operational action taken on duty. Data concerning persons who have confidentially contributed to the conduct of operational investigative measures shall be presented only at the request of the General Prosecutor.

(4) Should the authority (the official) exercising the operational investigative activity have infringed the legitimate rights and interests of natural and legal persons, the hierarchically superior authority or prosecutor shall take measures restoring such legitimate rights and interests, and afford compensation for the damage caused, in accordance with the law.

(1) Operational investigative measures shall be carried out only in accordance with the law and only when it is otherwise impossible to achieve the aims provided for in section 2.

(2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ...

(c) intercept telephone and other conversations; ...

The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of offences, and the protection of health, morals, and the rights and interests of others. ...”

In 2003 this section was amended as follows (amendment in bold):

(1) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section 2.

The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of very serious offences and the protection of health, morals, and the rights and interests of others. ...”

The section was further amended in 2007 and currently reads as follows (amendment in bold):

The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of serious, very serious and exceptionally serious offences, and the protection of health, morals, and the rights and interests of others. ...”

Under Article 16 of the Criminal Code the serious offences are considered to be those offences which are punishable with imprisonment of up to fifteen years; very serious offences are intentional offences punishable with imprisonment of over fifteen years; and exceptionally serious offences are those intentional offences punishable with life imprisonment. Approximately 59% of all offences provided for in the Moldovan Criminal Code fall into the category of serious, very serious and exceptionally serious offences.

“(1) The grounds for carrying out operational investigative activities are:

(a) unclear circumstances concerning the institution of criminal proceedings;

(b) information of which the authority carrying out an operational investigative activity has become aware in connection with:

- an illegal act that is being prepared, committed or has already been committed, or persons who are preparing, committing or have already committed such an act, where the basis for instituting criminal proceedings is insufficient;

- persons who are fleeing from a criminal investigation or the courts, or who are avoiding a criminal sanction; ...

(c) instructions given by a criminal investigator, investigative body, prosecutor or court in pending criminal cases;

(d) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section. ...”

(1) The grounds for carrying out operational investigative activities are:

(c) instructions given by an officer of criminal investigation, investigative body, prosecutor or court in pending criminal cases;

(1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious offences or are committing or have already committed serious offences, and only with the authorisation of the prosecutor pursuant to a reasoned decision of one of the heads of the relevant authority. ...

(2) In urgent cases where otherwise there would be a risk of commission of serious criminal offences, it shall be permitted, on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity, to carry out operational investigative measures. The prosecutor must be notified within 24 hours.

(3) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the prosecutor shall be notified.”

In 2003 this section was amended as follows (amendment in bold):

(1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit very serious offences or are committing or have already committed very serious offences, and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority. ...

(2) In urgent cases where otherwise there would be a risk of commission of serious criminal offences, it shall be permitted, on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity, to carry out operational investigative measures. The investigating judge shall be informed within 24 hours. He shall be presented with the reasons and shall verify the legality of the measures taken.

(3) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the investigating judge shall give his authority.”

The section received further amendments in 2007 and currently reads as follows (amendment in bold):

(1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious, very serious and exceptionally serious offences or are committing or have already committed such offences, and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority. ...

(2) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the investigating judge shall give his authority. ...

(1) In cases envisaged under section 7, bodies exercising operational investigative activities are entitled to carry out operational control. A record must be kept of any measure of operational control.

(2) Operational control shall be carried out with the authorisation and under the supervision of the head of the body conducting it. The results of operational investigative measures applied shall be reflected in duly filed official operational documents. ...

(3) Official operational documents shall be submitted to the prosecutor in order to obtain approval for carrying out operational investigative measures.

(4) The operational control shall be suspended when the specific aims of the operational investigative activity set out in section 2 are accomplished or when circumstances are established proving that it is objectively impossible to accomplish the aim.”

In 2003 paragraph 3 of this section was repealed.

(1) The results of operational investigative activity may be used for preparing and carrying out criminal investigative activities and for carrying out operational investigative measures in order to prevent, stop or discover criminal offences, and as evidence in criminal cases.

(2) Data obtained during operational control shall not constitute a reason for limiting the rights, liberties and legitimate interests of natural and legal persons.

(3) Information about the persons, means, sources (with the exception of the persons who may provide assistance to the authorities carrying out such measures), methods, plans and results of the operational investigative activity, and about the organisation and the tactics of carrying out the operational investigative measures which constitute State secrets, may be disclosed only in accordance with the conditions provided by law.

(1) Operational investigative activity shall be exercised by the Ministry of Internal Affairs, the Ministry of Defence, the Information and Security Service, the Protection and State Security Service, the Department of Customs Control attached to the Ministry of Finance and the Prison Department attached to the Ministry of Justice. ...

Scrutiny, on behalf of Parliament, of operational investigative activity shall be exercised by the relevant permanent parliamentary commissions. The authorities which exercise operational investigative activities shall submit information to these commissions in accordance with the law.

(1) Enforcement of the laws by the authorities carrying out operational investigative activities and the lawfulness of the decisions adopted by these authorities shall be supervised by the General Prosecutor, his or her deputy, and the municipal and county prosecutors...”

On 29 June 2007 the Ministry of Internal Affairs, the Secret Services and the Centre for Combating Organised Crime and Corruption enacted special instructions in accordance with section 4 (2) of the above Law. The instructions regulated the co-operation between the intercepting bodies and the telephone operators. In particular it obliged the operators to co-operate with the intercepting bodies in order to facilitate the interception of telephone conversations and to provide them with all the necessary information and with unlimited access to their networks.

The Code of Criminal Procedure in force until 12 June 2003 read as follows:

The interception of telephone conversations or other means of communication used by a suspect, defendant or other person involved in a criminal offence may be carried out in connection with criminal proceedings instituted in accordance with a decision of the authority conducting the preliminary investigation or the criminal investigator with the authorisation of the prosecutor, or in accordance with a court decision, where such a measure is deemed necessary in a democratic society in the interests of national security, public order, the economic welfare of the country, the maintenance of order and the prevention of crimes, or the protection of the health, morals, rights and liberties of others. The interception of telephone or other conversations may not last more than six months. ... Conversations held over the telephone or other means of communication may be recorded.

The interception and recording of telephone conversations or other means of communication shall be carried out by the criminal investigator unless the task is entrusted to the authority in charge of the preliminary investigation. In this case, the criminal investigator shall draw up a warrant and a decision concerning the interception, which shall be sent to the authority in charge of the preliminary investigation. At the same time the criminal investigator shall liaise with the authority in charge of the preliminary investigation or specify in the warrant the circumstances and manner of interception of the conversations and recording, modification and disposal of the information obtained. ...

Following the interception and recording, a record shall be drawn up giving a summary of the content of the taped conversations relevant to the case. The tape shall be attached to the record and the part which does not relate to the case shall be destroyed once the judgment becomes final.”

The Code of Criminal Procedure, in force after 12 June 2003, in so far as relevant, reads as follows:

The investigating judge ensures judicial supervision during the criminal prosecution by:

authorising the interception of communications, seizure of correspondence, video recordings;...”

(1) The interception of communications (telephone conversations, or communications by radio or using other technical means) is carried out by the prosecution body on the basis of an authorisation issued by the investigating judge issued on the basis of a reasoned warrant of a prosecutor charged with the examination of very serious and exceptionally serious crimes.

(2) In case of urgency, when a delay in obtaining an authorisation as stipulated in paragraph (1) could cause serious harm to the evidence-gathering procedure, the prosecutor may issue a reasoned warrant for the interception and recording of communications. She or he is obliged to inform the investigating judge about this immediately and no later than 24 hours after issuing the warrant. The latter is required to take a decision within 24 hours regarding the warrant issued by the prosecutor. When she or he confirms it, she or he authorises the further interception if necessary. When he or she does not confirm it, she or he orders its immediate suspension and the destruction of records already made.

(3) The interception of communications may be carried out at the request of the victim of a crime, a witness and members of his/her family, in case of threats of violence, extortion or commission of other crimes affecting such parties, based on a reasoned warrant of the prosecutor.

(4) The interception of communications during a criminal investigation is authorised for a maximum of 30 days. The interception may be extended on the same conditions if justified. Each extension cannot however exceed 30 days. The total duration cannot exceed 6 months. In any case, it cannot last longer than the criminal prosecution.

(5) The interception of communications may be stopped before the end of the period for which it has been authorised, if the grounds initially justifying it no longer exist.

(6) During a criminal prosecution, after the end of an authorised interception, and after having asked the opinion of the prosecutor who supervises and carries out the criminal prosecution, the investigating judge shall inform in writing the persons whose conversations were intercepted and recorded. This shall be done within a reasonable time, and must be done before the termination of the criminal prosecution.

(1) The interception of communications is carried out by the criminal prosecution body. Persons whose responsibility is technically to facilitate the interception and recording of communications are obliged to preserve the secrecy of the procedure and the confidentiality of correspondence. They are liable in the event of a violation of their obligations under the provisions of articles 178 and 315 of the Criminal Code. A note must be made to the effect that they have been informed of these obligations.

(2) A record of the interceptions and recording carried out by the prosecution body must be drawn up in conformity with the provisions of articles 260 and 261. It must record information about the authorisation given by the investigating judge, the intercepted telephone number or numbers and their addresses, together with details of the radio or other technical equipment used for conversations. The record must also indicate the name (where known) of the parties and the date and time of each separate conversation and the number assigned to the tape used for the recording.

(3) Recorded communications must be fully transcribed and annexed to the record along with the authorisation of the criminal prosecution body, after its verification and signature by the prosecutor carrying out or supervising the criminal prosecution. Communications in languages other than the one in which the criminal prosecution is carried out shall be translated with the assistance of an interpreter. The tape containing the original recorded communications shall also be annexed to the record after having been sealed and after the stamp of the criminal investigation body has been applied.

(4) The tape of the recorded communications, the transcript and the records of the interception and recording of communications shall be handed over to the prosecutor within 24 hours. The prosecutor shall assess which parts of the collected information are important for the case in question and draw up a record in this regard.

(5) Original copies of the tapes along with the complete written transcript and copies of the records shall be handed over to the investigating judge who authorised interception of the communications for further storage in a special place in a sealed envelope.

(6) The court shall adopt a decision regarding the destruction of records which are not important for the criminal case. All the other records shall be kept up to the moment when the file is deposited in the archive.

Evidence collected under the provisions of articles 135 and 137 may be verified through technical expert examination by the court at the request of the parties or ex officio.”

Under section 15(5) of the Advocacy Act of 13 May 1999, a lawyer's professional correspondence can be intercepted only under the conditions provided for by law. Section 15 (13) provides that the confidentiality of a lawyer's correspondence with his client is guaranteed and that such correspondence cannot be intercepted.


Violation of Art. 6-1;Violation of Art. 6-2;No separate issue under Art. 10;Costs and expenses partial award - domestic proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On 7 June 1996, at approximately 6.00 a.m., two detective police officers left Limerick city in an unmarked police car escorting a post office van carrying significant sums of money on its way to Adare village, Co. Limerick. When the two vehicles arrived at the post office in Adare, the police car was rammed from behind by a stolen vehicle and immediately surrounded by five heavily armed and masked individuals dressed in paramilitary style uniforms. One of the five opened fire at point blank range on the police officers. One of those officers died instantly and the other was seriously wounded.

The police suspected a local unit of the Irish Republican Army (an unlawful paramilitary organisation known as the IRA) and the IRA later claimed responsibility for the murder. It was also suspected by the police that, on the night prior to the attack in Adare, the stolen vehicle together with all firearms and ammunition used in the attempted robbery had been stored in a safe house in Patrickswell, Co. Limerick.

As part of the investigation that followed, a number of persons suspected of being members of the local unit of the IRA were arrested and charged, including the applicant’s brother who was charged with conspiracy to commit robbery (in relation to the Adare incident), possession of ammunition and of membership of the IRA. A total of 63 persons were arrested and asked to account for their movements at particular times surrounding the attack, including the remaining members of the applicant’s family except his two sisters. All of those persons who were asked to account for their movements did so.

On 19 July 1996 at 9.30 a.m. the applicant, who resided in the family home in Patrickswell, Co. Limerick, was arrested under section 30 of the Offences Against the State Act 1939 ("the 1939 Act") on suspicion of being a member of the IRA contrary to section 21 of the 1939 Act.

He was questioned on eight occasions during two 24-hour consecutive periods of detention for which provision is made under section 30 of the 1939 Act. While in detention, he saw his solicitor on three occasions: between 11.12 a.m. and 11.36 a.m. on 19 July 1996 prior to his first interview with the police; between 5.54 p.m. and 6.27 p.m. on 19 July 1996 and between 1.28 p.m. and 2.00 p.m. on 20 July 1996. That solicitor did not attend the applicant’s interviews with the police.

At the beginning of the interviews, the applicant was cautioned that he was not obliged to say anything, but that anything he did say would be taken down in writing and could be given in evidence. Many of the questions put to the applicant related to the attack in Adare and to his alleged membership of the IRA. On several occasions during those interviews he was also requested to account for his movements during certain periods of time on 6 and 7 June 1996 immediately before, during and after the incident in Adare. In being so requested, he was informed by the questioning police officers that a failure to provide this information would constitute an offence under section 52 of the 1939 Act for which the potential penalty was six months’ imprisonment. The applicant was also informed, on certain occasions only, that the initial caution given to him did not apply as he was obliged to respond under section 52 of the 1939 Act.

The applicant denied any connection with the events in Adare, indicated that he was in London when he heard the news of the murder and otherwise refused to give an account of his movements stating, on one occasion, that he had been advised by his solicitor not to answer questions.

On 17 January 1997 he was charged, pursuant to section 52 of the 1939 Act, on three counts of refusing to give an account of his movements. On 15 May 1997 the District Court dismissed one charge, he was convicted on the second charge (a section 52 request made on 21 July 1996) and no ruling was made on the remaining charge. The applicant was sentenced to six months’ imprisonment.

The applicant appealed against conviction and sentence to the Circuit Court and was released on bail pending the appeal. He appealed on the basis, inter alia, of an overlap in the times referred to in the charge which was dismissed and the charge on which he was convicted. In early October 1997 the Circuit Court rejected this part of his appeal. When the Circuit Court sat on 20 January 1998 to hear the applicant’s submissions on sentence, he withdrew that portion of the appeal which was then struck out. The applicant was detained immediately to serve his prison sentence and was released on 4 June 1998.

In February 1999 the applicant’s brother pleaded guilty to the charge of conspiracy to commit robbery and the remaining charges were not proceeded with. Four other men pleaded guilty to the manslaughter of the detective police officer and the wounding of his colleague in Adare, Co. Limerick.

Article 38(1) of the Irish Constitution provides that no person shall be tried on any criminal charge save in due course of law. By Article 40, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions.

The Offences Against the State Act 1939 (“the 1939 Act”) is described in its long (explanatory) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the State and, for that purpose, to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts.

Section 21 of the 1939 Act makes it an offence to be a member of an unlawful organisation as defined in the Act.

Section 30 deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under the 1939 Act or an offence scheduled under Part V of the 1939 Act (the scheduled offences are mainly offences under the firearms and explosive substances’ legislation). This power of arrest is a permanent power so that it is not dependent on a section 35 proclamation (see the following paragraph).

Section 35 of the 1939 Act provides that Part V of that Act (which establishes the Special Criminal Courts and contains section 52) is to come into force by means of a proclamation by the Government made when the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and when the Government therefore makes and publishes a proclamation to that effect. The proclamation was made in 1972 and is still in force. Accordingly, section 52 of the 1939 Act has been in force since 1972 to date.

By section 36 of the 1939 Act the Government may declare that a particular class or kind of offence is a scheduled offence for the purpose of the 1939 Act and such offences are to be tried by the Special Criminal Courts established under section 38 of the 1939 Act.

Section 52 of the 1939 Act reads as follows:

“1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the <police> may demand of such person, at any time while he is so detained, a full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence.

If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the <police>, fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.”

Under the terms of the Good Friday Peace Agreement of 10 April 1998, the Government committed to initiating a wide ranging review of, inter alia, the 1939 Act with a view to reform and dispensing with those elements of the 1939 Act which would no longer be required. The Minister for Justice, Equality and Law reform has, with Government approval, established a committee to examine all aspects of the Offences Against the State Acts and to report to the Minister with recommendations for reform. The Committee has commenced its work.

In the case of the People (Director of Public Prosecutions) v. McGowan (1979 IR 45) the accused had been arrested under section 30 of the 1939 Act and had made certain statements to the police. The defence argued that because of the basis of his arrest (section 30), the existence of section 52 of the 1939 Act and even though no section 52 requests had actually been made, the accused was bound under penalty to give an account of his movements. Accordingly, the statements which had been made by him were involuntary and not therefore admissible. The Court did not find this argument persuasive since no section 52 requests had in fact been made. It went to point out that, even if section 52 had been invoked by the police, the defence submission was not well-founded because of previous Irish case-law which had held that statements obtained in accordance with Irish law, even a law which made it a criminal offence to refuse to answer, were not inadmissible in any legal proceedings.

The Garda Siochana (police) Handbook contains relevant legislation and commentaries and is published by the Incorporated Law Society of Ireland in association with the Garda Siochana. The commentary on section 52 of the 1939 Act in the sixth edition (1991) provides as follows:

“The fact that the accused is bound under threat of penalty to answer questions lawfully put under section 52 does not render the resultant answers or statements inadmissible in evidence”

The judicial authority for that proposition was noted in the handbook as being found in the above-cited McGowan case and the earlier Irish case-law approved in the McGowan case.

In the case of Anthony Heaney and William McGuinness v. Ireland and the Attorney General ([1994] 2 ILRM), two individuals had been sentenced to six months’ imprisonment pursuant to section 52 of the 1939 Act for failing to give an account of their movements. The High Court rejected their challenge to the constitutionality of section 52, considering that section 52 constituted a proportionate interference with those persons’ right to silence guaranteed by Article 38 of the Constitution: the objective was to assist police investigations into serious crimes of a subversive nature involving the security of the State; the restrictions were not considered arbitrary or irrational; and other legal protections were available to persons in custody under section 30 of the 1939 Act which minimised the risk of an accused wrongfully confessing to a crime and safeguarded against the possible abuse of the powers provided by section 52 of the 1939 Act.

Those protections were listed by the High Court: the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligatory informing of the suspect of the offences under the 1939 Act and/or of the scheduled offences of which he is suspected; the right to legal assistance when reasonably requested; the right to medical assistance; the right of access to court; the right to remain silent and to be told of that right; the obligations to provide appropriate cautions to detainees and to abstain from cross-examining a person in detention under section 30 of the 1939 Act and from unfair and oppressive questioning of such detainees; and the conditions attaching to any extension of the length of detention under section 30 of the 1939 Act.

The Supreme Court rejected the appeal (Anthony Heaney and William McGuinness v. Ireland and the Attorney General [1996] IR 580). It noted that section 52 of the 1939 Act was silent on the question of the later use of statements made pursuant to requests of the police under that section. While it noted that the Court of Criminal Appeal had suggested in the above-cited McGowan case that information lawfully obtained under Section 52 might be later used in evidence, the Supreme Court expressly reserved its position as to whether that view was correct or not.

The Supreme Court pointed out that the right to silence was a corollary to the freedom of expression guaranteed by Article 40 of the Constitution. The relevant assessment was, therefore, to consider the proportionality of the restriction on the right to silence in view of the public order exception to Article 40 of the Constitution. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made under section 35 of the 1939 Act remained in force.

As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those, with something relevant to disclose concerning the commission of a crime, to remain silent must be regarded as of an even lesser order.

In the case of National Irish Bank Ltd (In the matter of National Irish Bank Ltd and the Companies Act 1990, 1999 1 ILRM 321, at 343) the Supreme Court found that a confession of a bank official obtained by Inspectors as a result of the exercise by them of their powers under Section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary. The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution. That court also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial if the trial judge considered, in all the circumstances, that it would be just and fair to admit it.