On 19th July 2013 Nick Marray, a criminal solicitor based in Liverpool, was sentenced to two years imprisonment having been convicted of Perverting the Course of Justice (our factsheet on what this offence is is here).
Mr Marray was representing Carl Stewart (who part of a drug dealing gang). Mr Marray became aware that the police intended to visit Mr Stewart in prison and arrest him for further drugs offences. It’s not clear how he knew, or whether there was anything wrong in him knowing, but probably not. It may well be that Mr Marray was informed so that he could be present at any arrest and interview.
In fact, Mr Stewart had been released on licence two days previously, which Mr Marray knew but the police and CPS didn’t. The allegation was that Mr Marray failed to tell the CPS this and then advised Mr Stewart to leave the country, suggesting a route out.
Mr Stewart did indeed try to leave the country, but by a different route, and was arrested as he tried to leave. He was later sentenced to 5 years for other drugs offences.
Mr Marray’s involvement came to light because the Serious Organised Crime Agency (SOCA) had bugged Mr Marray’s car when he recounted this to another client of his.
Isn’t this what a lawyer is supposed to do?
To be honest, my first reaction was that while Mr Marray had clearly behaved unethically in advising Mr Stewart to leave the jurisdiction, it was hard to see how it was criminal.
Firstly, had Mr Marray just allowed the CPS to remain in ignorance of Mr Stewart’s release, there wouldn’t have been a crime. Perverting requires a positive act and in this case a failure to tell the prosecution information (which they should frankly have known) could not amount to a positive act.
What is needed to be guilty “is a possibility that what the suspect has done “without more” might lead to a wrongful consequence,“. Assisting another to evade an arrest is capable of doing this.
It would ultimately have been a matter for the jury. The act relied on would have been the advice given to leave the country. There may be more that we don’t know about, but while Mr Marray should have been in front of the Solicitors Disciplinary Tribunal, on the face of the news reports I am not convinced that what Mr Marray did crossed the line into illegality.
In this case Mr Marry faced a second, far more serious, charge of perverting the course of justice. He was accused of conspiring “with a convicted criminal to bribe and threaten witnesses into supporting an appeal,” but he (and the other man – Conrad Jones) were acquitted of that. It may be that had it been the single allegation relating to Mr Stewart the matter would not have got as far as a prosecution.
Can the police bug a solicitor?
Normally the answer is no. A very strict no. The Court of Appeal have quashed a conviction for a very serious offence of conspiracy to murder because the police listened in to a conversation with a solicitor (even though no information came from it). Conversations between a lawyer and his client are privileged – a court cannot force a lawyer to say what he has been told.
In this case if Mr Stewart gave evidence of advice that he received, then that would be permitted as it is his privilege to ‘waive’. It doesn’t seem that he did this.
Bugging a persons car is ‘intrusive surveillance‘ under the Regulation of Investigatory Powers Act 2000. It requires authorisation by a high ranking police officer and a ‘surveillance commissioner’ and would only be granted if it is necessary for the prevention or detection of serious crime. Protection for legal privilege is contained in the RIPA Codes of Practice, but if there are reasonable ground to believe that the solicitor is involved in crime then these would not apply.
For more details of these issues, have a read of the Supreme Court judgment in the Northern Irish case of Re McE.
Also, the usual rules of privilege do not apply if the conversations are for the purposes of furthering a crime – “communication in furtherance of a criminal purpose does not come into “the ordinary scope of professional employment” (R v Cox & Railton). In this case, it is not entirely clear that this would apply – leaving the jurisdiction to avoid prosecution would not be a criminal offence. If (when?) there is an appeal, this will all become clearer.
What now for Mr Marray?
Well, he’ll be in prison for the next 12 months (half of the 2 year sentence imposed, as is the norm), or possibly less if he is released on a tag.
But his career in the law is certainly over. The Solicitors Regulation Authority have already ‘imposed conditions‘ on him due to this case, but a conviction for Perverting the Course of Justice is an offence that goes right to the heart of the role of a lawyer and there is no way that they will do anything other than strike him off and he won’t be able to be able to practice again.
Unless, of course, he wins an appeal. For the reasons above, it is almost certain that Mr Marray will try to appeal. Given the complicated issues that arise, I would expect him to get permission. Winning an appeal is a very different matter though …