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Vera Baird: Does that go beyond the position for the generality of cases? Perhaps the hon. Gentleman countenances circumstances in which the information is not privileged. I cannot think how a solicitor could mistakenly think that information was privileged unless the information fell under the provisions of subsection (9)—that is, it was always intended to further a criminal purpose. I cannot countenance a case in which a solicitor would be mixed up about what was privileged. The basis on which information is privileged is fairly clear—let us not get into the argument about whether the law is still evolving—so it is hard to imagine a solicitor being muddled about it. It might transpire that, unknown to the solicitor, information was given to him to further a criminal purpose and he was used, although he did not appreciate it, as a pawn in a money launderer's hands. Is that any different from the generality of ways in which a solicitor can be used for all sorts of criminal purposes without realising it? The issue will be whether the police accept that he did not realise. I am not sure that the disclosure element makes the position any different from the usual one. That is why I think that the hon. Gentleman is barking up the wrong tree. Dr. Howard Stoate (Dartford): Not for the first time. Column Number: 1161 Mr. Grieve: I heard that, and I am the first to accept that in the course of the Committee I may have barked up the wrong tree on many occasions. I am not wholly persuaded by the hon. Lady's argument, because the provision is linked to an offence that, as we discussed on Tuesday, can be committed negligently in any event. Solicitors who carry cases are not under the obligation to run off to NCIS to declare what their clients have told them unless they know or suspect or have reasonable grounds for knowing or suspecting that another person is laundering money. If they have had the wool pulled over their eyes and are exploited by a client, as she suggests, they lose the protection of legal professional privilege and can be convicted for negligently not realising that they had reasonable grounds for knowing or suspecting. Ian Lucas (Wrexham): If someone does not realise that they know or suspect that a criminal offence has been committed by the person giving instructions, they do not lose the protection of legal professional privilege. It is still there. That is correct, is it not? Mr. Grieve: I apologise to the hon. Gentleman, but I am not sure that I follow his argument. If the professional adviser is given information and something alerts him about it, he would say, ''Goodness, that's information that makes me know or suspect that that person might have committed a criminal offence.'' However, he would then consider that the circumstances in which the information was divulged to him were such that it was covered by legal professional privilege. Although the professional may take other steps such as telling the person to go elsewhere or saying that he will not continue to act for him, he cannot and must not declare the information to NCIS. A professional legal adviser must follow such a train of thought. The alternative approach is that the adviser never cottons on to the fact that the information is such that he should know or suspect that money laundering is taking place. However, a court could show that he ought to have realised that, even though he honestly did not. At that stage, the professional might say, ''Well, in those circumstances, all I can say is that I also believed that I was covered by legal professional privilege.'' That is a fallback defence. I would not have pursued the amendment if we had not introduced the offence of negligence that could fall on a legal practitioner by virtue of the decision taken by the Committee on Tuesday. I apologise for my lack of clarity. Perhaps too many weeks in Committee have fuddled my mind. I must accept that I would not have got into the muddle this morning if I had bothered to read the note in front of me, which said, ''Read out subsection (8)''. However, what I have described is a fallback position to protect a legal professional adviser in such circumstances. If it had not been for what happened on Tuesday, I would not be asking the Committee to agree to the amendment. It would provide a measure of protection for the legal professional adviser in those limited circumstances. I am worried about the burden that will be placed on him, including criminalising him. Surely, if he were able to pass those two tests, a reasonable person would say that he was blameless. Column Number: 1162 Mr. Paul Stinchcombe (Wellingborough): I do not know whether I understand the hon. Gentleman's point. If the lawyer does not know or suspect that the information is of a particular quality, it will never cross his mind to question whether he received it in privileged circumstances, because he had never contemplated disclosing it. I do not think that ''believes'' would add anything to the clause. Mr. Grieve: I understand exactly what the hon. Gentleman has said, but I disagree with him. We have spent much time compartmentalising those two matters, but in reality, when a legal professional adviser is dealing with a client, I wonder whether that compartmentalisation will take place with the clarity that the hon. Gentleman would wish. Circumstances are likely to arise in which the mere fact that the legal adviser believes that legal professional privilege applies would make it far less likely that he would then consider the earlier issue of, ''Do I know or suspect something or could someone subsequently, with the benefit of hindsight, say that I might have had reasonable grounds for knowing or suspecting?'' Mr. Stinchcombe: The question whether such information came to that professional in privileged circumstances will be addressed only if he is already suspicious that it is of a quality that should be disclosed. Otherwise, he would not be taking such action. If he already knows or suspects, that means that the offence cannot be committed through negligence on the objective standard, so the hon. Gentleman's circuitous argument must be wrong. Mr. Grieve: I disagree with the hon. Gentleman on that, because of subsection (9). One of the difficult tests to which a professional legal adviser may be subject is to ask himself what the information was given to him for. Was it given for the furthering of a criminal purpose, which would vitiate the defence of privilege? Alternatively, was it given as part of a package of information in relation to seeking legal advice, in respect of which he has an absolute duty to protect the client? I accept that the hon. Gentleman has a good point, but one of the problems is breaking down into narrow compartments a process that is by no means clear-cut, in terms of the way in which information is communicated to the professional legal adviser, what he has to do with it, or the circumstances in which he receives it. Other questions are whether it is being given to him for the purpose of general legal advice, or whether it might have been given to him in circumstances such that he might subsequently ask himself whether information was being sought from him that he should not have given. Some of those circumstances might be difficult, which is why the Committee should consider the extra layer of the defence of reasonably believing—or believing—that the information was privileged. I appreciate the hon. Gentleman's point. In a perfect world, in which everyone carries out a perfect analysis, such problems might not occur. However, when one considers the diversity of circumstances in which professional legal advisers are called on to provide advice—which often may appear to be a million miles from money laundering—I wonder Column Number: 1163 whether there is a not a risk that we are exposing them unwittingly, when they are morally blameless, to serious penalties and criticism when they have acted with integrity throughout. The amendment has been tabled because the Committee did not remove the negligence offence on Tuesday.I stand by the view that this is a complicated question. The surrounding circumstances are likely to be such that it would be easy for a professional legal adviser to be lulled into a sense that the matter that he was considering did not fall anywhere near money laundering. With hindsight, however, it might turn out that it did. Stephen Hesford: The hon. Gentleman may recall from an earlier debate that the Minister made the point, with which the Committee agreed, that part of the reason for this part of the Bill was to force the regulated sector to get its act together in terms of regulation. If that is right, and a laudable thing to do, it would be incumbent on a firm employing a legal adviser, knowing that the legislation had been passed, to ensure, in every case, that it knew the circumstances under which professional legal privilege was or was not being operated. It would not just be a question of sitting in a turret somewhere with a half-baked notion that one had legal professional privilege—one would be under a duty to inform oneself properly. Mr. Grieve: I take the hon. Gentleman's point, and I do not disagree with him. I hope that those who provide legal advice will, after the passing of this legislation—as I hope they were doing before—try to consider, on every occasion, whether they have duties. However, one must distinguish between the professional legal adviser and other people caught under the clause. It is true that all sorts of people have a duty of confidence to clients, but the professional legal adviser has a duty, enshrined in legal professional privilege, that extends further than that. That became clear this morning when the Minister effectively said, ''If in doubt, tell NCIS.'' That might be a good rule for an accountant, but it cannot be followed by a professional legal adviser, because if he were to tell NCIS something that was covered by privilege, he would be guilty of serious professional misconduct. That is why the extra protection would be helpful to him.
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| ©Parliamentary copyright 2002 | Prepared 24 January 2002 |
