A man detained under the Mental Health Act for attempted murder and who had threatened to kill his solicitor had no right to be left alone with lawyers when on trial for a further attempted murder, the Court of Appeal has ruled. 

In Regina v Edward Brown (formerly Latham) the court heard an appeal against a conviction on the grounds of a Crown court ruling that the defendant's conferences with his lawyers be conducted in the presence of two nurses. Brown was sentenced to life imprisonment for the attempted murder of a fellow patient at Rampton hospital in Nottinghamshire, where he was already serving life sentences for attempted murder, with a weapon fashioned from a radio aerial.  

The judge in the case had ruled that, as there were no facilities at court to screen defence counsel from their clients, Brown, described as an 'exceptionally dangerous individual', must be shackled to a minimum of two nurses when in direct personal contact with a third party.

Brown's appeal argued that the ruling breached his right at common law to consult privately with his lawyers and his 'fair trial' right under article 6 of the European Convention on Human Rights.  

Dismissing the appeal, the Rt Hon Lord Justice Fulford, the Honourable Mr Justice Holroyd and the Honourable Mr Justice Singh ruled that the inviolable nature of legal professional privilege does not apply if communications are used for an improper purpose - in this case for the defendant to harm himself or his lawyers. The judgment also notes there was no suggestion that any misuse was made of overheard communications. 'Nurses deployed to ensure that someone who is detained does not harm himself (or others) are not to be equated with investigating police officers,' the judgment states. 

On the ECHR argument, the judges ruled that the right to confidential communications with lawyers is not absolute. 'Instead, it can be restricted for good reason and one of those reasons is if the individual's life is at risk.'

Therestrictions on Brown 'were a proportionate and appropriate response to the grave threat the appellant posed to himself and we do not accept that they rendered the proceedings unfair'.

A Law Society spokesperson said: ‘This is an interesting decision in a narrow and rare set of circumstances. We will monitor how this judgment is interpreted. Legal professional privilege is a precious human right, tested and refined by centuries of common law.’