One of the country’s top white-collar crime lawyers and a former head of legal affairs of GCHQ have been fined for advising a client to remove material from their premises ahead of a police search.
It was the Crown Prosecution Service that complained to the Solicitors Regulation Authority (SRA) about Ian Burton and Michael Drury, respectively senior partner and partner of top criminal defence law firm BCL Burton Copeland. Mr Drury joined the firm from GCHQ in 2010.
In another unusual move, the tribunal said last summer’s hearing was held in private because the client had not waived privilege.
However, the SRA can override privilege in the exercise of its statutory powers and that privileged material can be admitted into evidence by the tribunal. It said a private hearing was the “only way” to protect the client’s interests.
The full judgment was circulated last September to the parties and client only, and the SDT decided in December that this should be followed by the publication of a “stand-alone public judgment”, in which the two solicitors were named, but not the client or the police force involved.
The underlying matter was said by the tribunal to be one of “major public interest”. The police had carried out a search of the client’s premises, which Mr Drury “believed strongly” was unlawful.
When, nine days later, the solicitor found out that a further search might be carried out that morning, which he again thought would be unlawful, he advised the client that “specified material” should be “removed and secured”. It was sent to BCL’s offices in Lincoln’s Inn.
Shortly afterwards, Mr Burton spoke to the police and agreed to hand over the material, which happened when the police attended the offices that afternoon.
The tribunal said that an unusual feature of the case – “compared with many others that come before this tribunal” – was that the allegations involved no “bad faith” on the solicitors’ part.
The SRA argued that they could have advised the client that the material should not be interfered with, to launch a judicial review or apply for an injunction, or make an application for return of the material.
The solicitors argued that these were “examination” type answers rather than a “real life” approach given the “febrile environment” in which they were working.
The tribunal found Mr Drury to be “an honest witness who, while he held strong views about this matter and the way that the police had dealt with it, clearly wanted to give his client what he considered to be the best advice he could in the circumstances”.
The SDT accepted that Mr Drury was working in a “pressurised atmosphere and in difficult conditions”, but found that he had the opportunity in that nine-day period to lay out all the options – including those put forward by the SRA – in the event of another search.
He should also have made enquiries of the police that would have given him better information on which to base his advice, the SDT found.
The SDT said: “While the approach that was advised by [Mr Drury] had the practical effect of removing the material, it was not proper advice from a strictly legal point of view, in view of the other options that were available.”
As a result, he left himself, the firm and the client “exposed to an accusation that he or they had prevented or impeded a potentially lawful search and the consequential risk of a police investigation and possible prosecution for obstructing the police and/or perverting the course of justice. In preventing or impeding a potentially lawful search, [Mr Drury] failed to uphold the rule of law and the proper administration of justice”.
Mr Burton – though lead partner on the matter – had a less prominent role in the advice given ahead of the police search, the SDT said. But Mr Drury had sought his views.
Mr Burton had a responsibility to provide “clear, calm and detached advice” to Mr Drury, it went on. “He could have advised against the proposed removal of material, or that counsel should be consulted, but did not do so. [Mr Burton] had caused or allowed [Mr Drury] to give the advice.”
In doing so, he too had failed to uphold the rule of law and the proper administration of justice and had acted in a way which would diminish the trust the public would place in him and in the legal profession, the tribunal ruled.
The allegation that they allowed their independence to be compromised was rejected as the advice was honestly given.
On sanction, the tribunal said advising that material should be removed when it was known or suspected that the police wanted to carry out a search “would be a matter of considerable concern to the public”.
But there had been no resultant damage or loss, the police investigation had been not been prejudiced and the material was made available just three and a half hours later. “There had been no intention to keep the material from the police permanently; [Mr Drury] had told the tribunal that the intention had been to release the material, rather than let it be seized in a potentially unlawful search”.
The misconduct was too serious for no fine or reprimand, the tribunal said, but “given that the harm done was limited, that the misconduct was unlikely to be repeated and there was no bad faith shown, there was no need to interfere with either [solicitor’s] ability to practice.”
Mr Burton was fined £5,000 and Mr Drury £10,000. The SRA claimed costs of £182,000, but the tribunal said the solicitors should pay two-thirds of the costs, to be assessed if not agreed, to reflect that one of the three allegations had not been proven.