Omerta is the code of silence that supposedly binds members of criminal gangs in Italy. Lawyers take the same vow of silence. What a client tells you must not be revealed, unless ordered by a court. The idea is of course that it encourages clients to tell their lawyers the whole truth so they can provide properly informed advice (and don’t get dropped in the clarts when it all comes out six months later…)
Lawmice were interested therefore to see an item on Legal Futures this week where a solicitor talks about his momentous decision to breach this duty. Stephen Chittenden is putting his Archbold back on the shelf for the last time after forty years as a criminal defence lawyer, and has unburdened himself of his terrible deed. We thought it might be interesting to see how the courts had dealt with this ghastly affair.
In 1978, Mr Chittenden represented a teenager, Fitzroy Brookes. Fitzroy was accused of murdering his friend and neighbour, sixteen year old Lynn Siddons. The boy was acquitted. During the course of the trial, the real culprit appeared to be the boy’s stepfather, Michael Brookes.
Exactly what was going on with the CPS and CID in the 1980s Midlands is difficult to comprehend. It wasn’t as though Michael Brookes was – in the manner of “Nordic-Noir” – a man of power and influence. He was a minicab driver. Nonetheless the prosecuting authorities made a fine Horlicks of it all. The police even managed to lose a rather relevant pair of blood-stained trousers and a knife. These had been handed in by the incoming tenant of Michael Brookes’ former council home.
Unable to get justice for her granddaughter any other way, Lynn’s Nan, Flo, was not prepared to let the matter lie. As Lynn’s executrix, she brought a civil action against the ensanguined Michael for damages for battery of her daughter. Tort students may remember the case as Halford v Brookes (no 3). Civil actions for criminal acts are more common now, but in the 1990s, this was radical stuff.
Flo’s London solicitors asked Mr Chittenden for his old files from Fitzroy’s trial. Now, at this stage, as Rougier J makes clear in his judgment, the solicitors were only contemplating an action against Michael. As it turned out Flo later decided to amend her claim to embrace young Fiztroy just to be on the safe side. Mr Chittenden did not, at the time of the original request, know that the civil action would eventually be brought against both Michael and his own client.
Mr Chittenden describes his moral dilemma:
“I had a murderer out there, wandering free, an inept police force and a distraught family. What do you do about that?
“I had to do something about it. There’s a dead girl and you have the information to enable a prosecution to be brought. Only your conscience at that point can answer as to what you should do.
“My mind said to me, ‘You have to do this’, but I was risking being struck off as a lawyer if it ever came out that I had handed over my documents to the prosecution.
“I spoke to my wife and told her about the predicament and she backed me. We had a young family, three boys, I was risking all that. But I was torn between professional duty and common sense. I couldn’t not do it.”
Flo won damages for the battery of her granddaughter. Rougier J gave a powerful judgment in which he found stepdad Michael guilty of Lynn’s murder. Even the CPS could not ignore this, and in due course Michael was convicted and remains in prison.
The files that Mr Chittenden sent to Flo’s solicitors came up for judicial consideration in both Halford v Brookes (no 2) before the Appeal Court, and Halford v Brookes (no 3). Flo was not allowed to rely on the material contained in them. Rougier J held that there was nothing in them that could not be sourced from the transcript of the 1978 trial. He ordered that the files be returned to their legal owner. Ultimately therefore Mr Chittenden’s actions had little bearing on the outcome of the trial. Incidentally, as the client, the legal owner is in fact, young Fitzroy so he ended up with the files.
But that was not the end of the story. In Derby Magistrates ex parte B, the stepfather attempted to get hold of the same files to use in his defence. The Lord Chief Justice, Lord Taylor of Gosforth was unequivocal about lawyer – client privilege being sacrosanct:
“But it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established.”
Given recent stories of the authorities bugging client lawyer conferences in prison, this judgment has considerable relevance.
Mr Chittenden, despite both the High Court and the Court of Appeal taking a neutral view of his conduct, clearly had his dereliction of duty on his conscience. The interview on Legal Futures now moves from Nordic Noir to Magical Realism. Mr Chittenden goes on:
“A couple of years ago, I ran into a former judge while I was on a ferry to Spain. We ended up talking about the Lynn Siddons case and I told him what I had done, releasing the papers.
“I said to him, ‘Should I have done it?’ and he replied ‘Yes’, so I feel completely absolved. “It has taken more than 30 years but I feel I have finally got it off my chest. It feels cathartic.”
I wonder who the judge was. Probably it wasn’t Sir Richard Rougier himself who died in 2007. I found the interchange oddly moving though. The informal absolution of a sin from a priest against whose code Mr Chittenden had transgressed.
A sour note from the SRA saying it is considering its position in relation to Mr Chittenden ends Legal Futures’ account. They should get back in their box. If they cared that much, then they, or their predecessors should have acted back in 1993. Although given the attitude of the judges involved, that would have been rather presumptuous.
Lawmice are pleased to wish Mr Chittenden a long and honourable retirement.