Clerks in privilege worry

POLICE INFORMANTS: Court of Appeal concerned that clerks may breach duty to clients

The Court of Appeal has expressed deep concern over the use of solicitors' clerks as police informants and the possible breaches of privilege that may occur as a result.

The issue arose in a ruling to uphold the fraud conviction and sentence of a solicitor who was sent to jail in April 2001 for seven years over a legal aid green form fraud.

The solicitor was the firm's senior and founding partner.

He and two of the firm's clerks were convicted of the fraud, which is thought to have cost the then Legal Aid Board 897,000.

He was made subject to a 532,275 confiscation order.

The firm's managing clerk blew the whistle on the fraud, and gave evidence against the solicitor in the original trial.

The clerk had earlier been convicted of conspiracy to defraud and sentenced to 14 months in jail.

The clerk had also been a police informant, although he was not acting in this role when he drew attention to the fraud.

While dismissing the appeal, the court expressed concern over the use of solicitors' clerks as police informants - in the clerk's case, the judges said it 'appears to have been treated by police as a perfectly routine matter' - and drew attention to possible breaches of privilege.

It was not suggested that the clerk had breached privilege.

The judges said that if a solicitor - or clerk - were to tell the police what passed between him and a suspected criminal, 'this would be not only a serious breach of duty by the solicitor, or clerk, to the client, but...

if encouraged by the police, an infringement by the police of those rights'.

The court was so concerned at the use of solicitors' clerks as informants that it called the chief constable of the local police force to explain the current situation.

His counsel quoted from a Home Office code of practice on 'covert human intelligence sources', which came into force in September 2000 and states that 'legally privileged information obtained by a source is extremely unlikely to ever be admissible as evidence in criminal proceedings...

the mere fact that use has been made of a source to obtain such information may lead to any related criminal proceedings being stayed as an abuse of process'.

It added that 'the use of a source, likely to result in the acquisition of legally privileged information, should only be made in exceptional circumstances'.

Counsel for the chief constable stressed that it was 'very unlikely' that a solicitor's clerk would be used as an informant today.

The people involved cannot be named for legal reasons.

Victoria MacCallum