Serious Crime Bill [HL] — Report (2nd Day)

Part of the debate – in the House of Lords at 8:00 pm on 28 October 2014.

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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 8:00, 28 October 2014

My Lords, it is a pleasure to follow the noble Baroness, Lady Cohen of Pimlico, and to make the same point from the point of view of the Bar. I do not think that legal professional privilege is fully understood. Certainly in the criminal field, there may be a perception that defence barristers get together with their client and cook up some story, and if only the police could have access to the instructions of the barrister or the solicitor, all would be revealed. The contrary is the truth.

If I can bowdlerise a little bit, when I see a client for the first time, I say to him, “Will you please not tell me any bull? I want to know the truth. Unless you tell me the truth, I am not able to help you. I am not able to give you proper advice, just as though you went to the doctor saying that you had a pain in your toe when in fact the pain was in your head. Tell me the truth”. It very often happens that the client will then come out with a story which you can then check against the other evidence in the prosecution case, and go back to him and say, “You did tell me a lot of bull. I really need to know the truth if I am to represent you properly”. He will change his story in some instances and will tell the truth. With that truth, you can win cases or you can mitigate the just punishment that will ultimately be imposed on him and advise him to plead guilty if that is the right thing to do.

It is an extremely delicate relationship between the client and the barrister or solicitor—I have been in the solicitor position as well—that many people do not understand. A judge understands it. If a judge, on a proper application being made to him, decides that it is in the public interest that this relationship should be investigated, and if there is something about the way in which the case is being conducted that gives rise to suspicion so that prying into the papers of the defence is an appropriate thing to do, the judge from all his experience—all judges will have been through the mill themselves and will know precisely how these things should be approached—will give the ultimate permission for the file or the papers to be looked at. Generally speaking, though, he will not do so, and it is quite wrong if the police use RIPA powers—legislation that was intended for a completely different purpose—to break into that very delicate relationship and break it up.

That is the importance of the amendment moved by the noble Lord, Lord Strasburger, and I support it entirely.