ANALYSIS:DAVID NORRIS told RTÉ yesterday that he could not publish documents appealing for clemency for his former partner Ezra Nawi for legal reasons.
“I am absolutely restricted by questions of privacy,” he said. “I understand people’s interest but I’ve been told by my lawyers that these letters are subject to professional legal privilege and I’ve been told I cannot publish them.”
Nawi was convicted in 1997 of statutory rape of a 15-year-old boy.
There are two completely separate issues here, that of privacy and of professional legal privilege.
The reference to professional legal privilege is puzzling, as Norris also said the letters were written to senior politicians in Ireland and Israel.
Professional legal privilege attaches to correspondence between lawyers and clients, not between non-lawyers on a legal matter.
Professional legal privilege goes back to the 16th century and exists throughout the common law world. It is based on the assumption that people need skilled legal professionals when litigating or defending themselves.
Such representation can only work if the client is free to be totally frank with his or her legal adviser, without fear of disclosure.
Therefore, all communications between a solicitor or barrister and client are protected from disclosure, and the lawyer may not disclose their contents without the permission of the client.
The client may, of course, give permission for such disclosure.
The only exception to this is where the client discloses to the lawyer the intention to commit a crime.
Norris was not involved in the Nawi case and was not, as far as we know, the client of a solicitor or other lawyer in relation to it.
It is difficult to see, therefore, where professional legal privilege might arise, as the letters concerned are not between a lawyer and a client.
It is conceivable that Nawi asked his lawyer to contact Norris to encourage him to seek clemency on his behalf and authorising him to make disclosures to Norris about the case, in strict confidence and with the proviso that no one else received the disclosures.
Nawi’s correspondence with his solicitor would be covered by privilege, as any letter from the lawyer to Norris written on those terms.
It would, of course, be open to Nawi himself to lift this privilege. However, none of this would extend to letters written by Norris to third parties seeking an intervention or clemency.
The issue of privacy is quite different.
While the Constitution does not expressly guarantee a right of privacy, following the seminal case involving former Irish Times editor Geraldine Kennedy and fellow journalist Bruce Arnold, a person’s right to privacy in their private communications has been recognised as a constitutional right.
Norris is entitled to privacy in his private communications with other people.
If the purpose of such communications though was to seek clemency in a court of law, the matter would be in the public domain anyway and would, to that extent, not be private correspondence.
In addition, as the author of such letters, Norris can waive his right to privacy with regard to the correspondence.
The invocation of legal advice in this matter is not likely to make it go away.