Allegations that lawyers are at the forefront of illegal hacking have provided the majority of the press with (another) Leveson bashing story. The extent of the scoop, and the problem with the Leveson failed to investigate stories, are covered here on Inforrm’s blog. The basic point is that such allegations were beyond Leveson’s remit. The idea that Lord Justice Leveson gave lawyers a free pass during his Inquiry is rather undermined by watching the evidence session for former Times’ Lawyer, Alistair Brett (it starts 72 minutes, and should be obligatory watching for all in-house lawyers in particular).
A wider remit might have led him to investigate more closely the role of in-housers at (then) News International/News Group newspapers Tom Crone and James Chapman; and private practitioners, Julian Pike, Laurence Ambramson. The potential for criminal prosecution may have inhibited him also (Tom Crone was arrested in August 2012, but one assumes the likelihood of prosecution has receded as it does not appear that he has been charged).
It may now, however, be time for the regulators to say what the state of play on their investigations of these matters is. The Bar Standards Board is not overly keen on the disinfectant of scrutiny in these matters. The complained against have the anonymity criminal justice affords only to a narrow class of few victims. It is known that Mr. Crone was reported to them. And I believe the SRA were investigating at least some of the concerns raised by developments (you can see some of my earlier thoughts on these matters in this series of posts). The instruction of an investigator to conduct surveillance on two opposing lawyers acting for claimants is a matter which raises matters of both public and professional interest. Indeed, the conduct of Mr Pike bears investigation in a number of regards. Mr Abramson’s handling of an ‘independent’ investigation for his client , might I suspect, be regarded as less problematic by many lawyers but raises crucial issues about lawyers role and duties in such situations. Whilst I would not wish to see him punished on the facts as known, I do believe a full investigation and airing of the issues in that part of the case would benefit the profession when dealing with issues that can be very tricky. The regulator needs to send a signal that it takes an interest here.
The importance of the surveillance allegations are underlined by the story in yesterday’s Independent that:
It is understood that one of the key hackers mentioned in the confidential Soca report admitted that 80 per cent of his client list was taken up by law firms, wealthy individuals and insurance companies. Only 20 per cent was attributed to the media, which was investigated by the Leveson Inquiry after widespread public revulsion following the phone-hacking scandal.
This is not something reported in the SOCA report, at least the version which is available, and so one is left wondering whether the Leveson Inquiry had any indication that lawyers were involved in hacking or other forms of illegal or unethical surveillance beyond the specific evidence in relation to the Pike/Crone affair.* So quite apart from the ‘beyond our remit’ line, Leveson may not be culpable because he was not given the evidence that the Independent is getting from a source (not the report). Whether that is so or not, the Independent’s story does suggest that the regulators need to take a significantly harder look at the allegations. There is the reputational issue which is that lawyers may be monstered in much the same way journalists have been. There is a principled point to be made too: if lawyers have been engaged in illegal or unethical surveillance, then the regulators and the professions need identify the problem and tackle it.
*Inforrm have pointed out that the report does refer to the use of private investigators in matrimonial and family proceedings. This might be reasonably read as implying wrongdoing by private investigators in such cases instructed by lawyers but this is not made clear in the report.