Behind bars | Waiving client confidentiality

Last month Ian Brady's independent mental health advocate Jackie Powell was arrested following allegations that she had failed to hand over letters that contained information about the location of 12-year-old Keith Bennett's corpse on Saddleworth Moor. Powell isn't a lawyer whose communications with clients are protected by privilege, but had she been one, should she have handed the letter to the police? A 1970s case from sleepy Upstate New York provides a troubling answer.

In the summer of 1973, Robert Garrow Jr stood charged in Hamilton County with the murder of Phil Domblewski. Garrow was assigned two attorneys, Frank H. Armani and Francis R. Belge. Armani and Belge were somewhat unconventional attorneys. Armani, who was convinced from the outset of his client's insanity, arranged for Garrow to be hypnotised during conferences. When under hypnosis, Garrow revealed the location of two missing girls whose murders he had not been charged with.

To test Garrow's instructions, Belge and Armani undertook gruesome site visits. Following Garrow's directions, the attorneys found the body of Susan Petz was in the airshaft of a mine and the body of 16-year-old Alicia Hauck, in Oakwood Cemetery, Syracuse. Belge took photographs of Hauck's corpse for use at trial and, after disturbing the corpse during his investigations, repositioned the girl's head.

Breach of duty

Pressure on police to find the missing girls mounted. There was hope that Susan Petz was still alive '“ she had gone missing only a short time before Garrow's arrest. Armani was confronted by her father, Daniel Petz, who pleaded with him for information about his daughter's, or her corpse's, whereabouts. Armani and Belge remained silent on what they knew of the girls' corpses.

Garrow's attorneys did not give the location of the missing girls' bodies until 1974 when their client's killing of Petz and Hauck was deployed as evidence of his insanity at the time of the murder of Phil Domblewski.
Belge and Armani were pilloried. How could they have known of the girls' deaths and not told police? An investigation commenced into both men's alleged violation of sections 4143 and 4200(1) of the New York State's Public Health Law, which respectively required that a person's death without medical attendance be reported and that a decent burial should be accorded to the dead. A Grand Jury later no-billed Armani but lead-counsel Belge was indicted on both charges.

In People v Belge, 372 N.Y.S. 2d 798 (County Ct. 1975), Gale J dismissed the indictment against Garrow's attorney. The 'sacred trust' of confidentiality had to be upheld, with Gale J concluding that Belge had 'conducted himself as an officer of the court with all the zeal at his command to protect the constitutional rights of his client'.

No waiver

Extending this approach to a UK lawyer, it is unlikely that privilege would have been waived and the location of a murder victim's burial disclosed to authorities.

Waiver can, of course, only occur if the client authorises the cordon of privilege to be broken. Were a communication from a client regarding the location of a corpse to be received during the giving of legal advice or in the course of contemplated or ongoing litigation, legal professional privilege would apply to prevent compelled disclosure.

Of course, merely handling clients' letters, especially those addressed to a third party, as Brady's was to Keith Bennett's mother, outside of legal advice and litigation, does not give rise to legal professional privilege (see Bursill v Tanner (1885-86) L.R. 16 QBD 1). And it might be possible for a letter detailing the location of a corpse to lose the shield of privilege as a communication made in furtherance of a crime.

Ultimately, though, without a lawful compulsion to disclose a corpse's resting place, client confidentiality would prevail.

Ethical duty

But would a solicitor be arrested for preventing the lawful and decent burial of a body, as Brady's advocate was, were his knowledge of a corpse's location to be suspected? It is moot whether preventing a body's lawful burial could be made out merely by a solicitor's knowing of, but not disclosing, a murdered body's location.

The case of R v Hunter [1974] QB 95, the leading case on the offence of preventing lawful burial, strongly suggests that concealment is a positive act: all three appellants in Hunter participated in the covering of a 17-year-old girl's corpse with stones after her accidental strangulation during horseplay. Although section 16 of the Births and Deaths Registration Act 1953, for instance, creates an offence of failure by specified persons to notify the registrar of a death, as a general principle of criminal law an omission to act cannot constitute an offence.

Privilege aside, ethically, should a solicitor reveal the location of a murder victim's corpse? Confidentiality is the sine qua non of the lawyer-client relationship. However, the lawyer is a member of society too. The old version of the Solicitors' Code of Conduct detailed situations in which confidentiality may '“ not must '“ be broken. Examples included a belief that the revelation of a client's confidences would prevent the client or another from criminally causing another serious bodily harm. What of the serious psychological harm caused by not knowing where a loved one's body lies? The new outcomes-focused code unhelpfully does not repeat the old code's ethical guidance on breaching client confidentiality in the interests of others.

Francis Belge knew when to breach Garrow's trust in him though. After Garrow escaped from prison, the murderer's belongings were found to include a hit list. Belge's name appeared in Garrow's proscription. The attorney broke faith with Garrow and told police of his client's possible boltholes. Garrow was found by police and shot dead.

Jackie Powell has since been released on bail without charges.