Conspiracy theories and employer funding of criminal defences

The idea that lawyers within or connected to NOTW may have conspired to encourage misleading evidence surfaced in today’s hacking trials.  The specific evidence given appears to have been that Dan Evans made something up in the heat of the moment and that this was used by others, including lawyers, in the formulation of witness statements and -perhaps – other communications.  The evidence (as reported) does not specifically say that the lawyers involved knew Mr Evan’s story was false or wilfully turned a blind eye to its falsity.  It may be the story is incomplete, but it is an important detail.

We may yet hear more about the broader claim of a conspiracy to suppress the truth and the extent to which lawyers were involved.  Regardless of whether that is true or not, the broader circumstances highlight a concern about which I have expressed misgivings before: the potential for a significant conflict of interest and/or impropriety where an employer funds an employee’s criminal defence.  The potential for an employee to have a fuller (or better funded) defence because the employer is paying must also be borne in mind.  There is also a  risk to the instructed lawyers’ that their independence may be compromised by (say) allowing employers to know of defence tactics and to participate in meetings and the like.  It’s an under-scrutinised area of practice

I came across this passage in Lawrence Ambramson’s evidence to the Leveson Inquiry recently, where the same anxiety surfaced when I read it.  Counsel for the Inquiry, Jay QC asks Mr Ambramson what was in certain of the emails he had seen when asked to review by News International to see if they supported specific elements of Clive Goodman’s allegations.  His reply was this:

“There were some emails that I brought to Mr Chapman’s attention even though they did not show evidence of knowledge by others of phone hacking by Clive Goodman or show that others were engaged in similar illegal activities or were slightly outside the date range I had been asked to look in. This was because, having seen them, I wanted to ensure that Mr Chapman was aware of them in the event that the matter ever proceeded on to an ET, because in my view they contained potentially confidential or sensitive matters that News may not want to have to give disclosure of.”

Mr Jay: Are you able to give us any idea of what these emails were about, apart from the fact that they might be potentially embarrassing?

I’m hesitating because I know you don’t want to go into the content of the emails. They showed confidential sources, concerns not to reveal sources. They revealed cash payments — will you stop me if you say something you don’t want — I’m not supposed to —

Mr Jay: Yes.

They revealed quite an active involvement in Clive Goodman’s prosecution. They showed the — trying to influence the way the prosecution was being conducted — or the defence was being conducted. And there is one email that’s been redacted that I thought would not reflect well on —

Mr Jay: Yes, I’ll stop you there, Mr Abramson. I think that’s a sufficient flavour

The extent to which it is proper for a funder to influence the conduct of a defence of its employee is an extremely important question which deserves rigorous scrutiny.  On a more general level we do not know what the regulators are doing, if anything, to investigate the broader problems, or the conduct of individual lawyers involved in hacking. Maybe they are awaiting the outcome of this trial (and there may yet be others), but I – for one – would be reassured if we heard a firm indication of what they were doing.  The Bar precludes itself from revealing outstanding investigations: a kindness to their regulated community that, whilst not totally without merit, will one day bite them in the bum. The SRA is less wary but has also tended towards saying the minimum on these cases.  We know some referrals were made to them, but not whether action has been taken.  A lot of time has now passed. They should have a reasonably clear view of what they are doing in this area.

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