||All England Reporter
|| All ER (D) 123 (Sep)
||Alan Newman QC and John Lennon (instructed by Giovanni de Stefano, Rome, with Attridges acting as London agents) for the claimant.
||Jeremy Johnson (instructed by the Treasury Solicitor) for the defendant.
||23 September 2002
Prison - Access to legal adviser - Foreign lawyer - Lawyer of member state of European Community - Prisoner on remand awaiting hearing on sentence - Prisoner instructing foreign lawyer - Governor considering foreign lawyer not to be 'legal adviser' - Governor accordingly refusing foreign lawyer access to prisoner - Governor stating if foreign lawyer held to be 'legal adviser' verification procedure would be instigated - Foreign lawyer unable to access prisoner for duration of verification procedure - Whether foreign lawyer a 'legal adviser' - Whether permissible to instigate verification procedure - ss 27, 28 - European Communities (Services of Lawyers) Order 1978, arts 2, 5, 12, 13 - Prison Rules 1999, rr 2(1), 38(1).
Articles2 and 5 of the European Communities (Services of Lawyers) Order 1978 (the Order), which provided that an EEC lawyer (which term included an Italian avvocato) should not be prevented from providing any service in relation to any proceedings by reason only that he was not an advocate, barrister or solicitor impacted on ss27 and 28 of the Court and Legal Services Act 1990 (which identified those persons with a right of audience and the right to conduct litigation). As such, an avvocato who complied with the requirements of the Order was entitled to exercise rights of audience and the right to conduct litigation before the English courts. Furthermore, the Prison Rules 1999 (the Rules) had to be read and given effect in such a way as to be compatible with the European Convention on Human Rights (the Convention), art6(3)(c) of which provided that everyone had the right 'to defend himself through legal assistance of his own choosing ' It followed, therefore, from reading rr2 and 38 of the Rules so as to be compatible with the Convention that a prison governor could not lawfully prevent an avvocato from having reasonable facilities for interviewing a prisoner who had chosen to instruct him, on the ground that the avvocato was not a 'legal adviser' within the meaning of the Rules.
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