Aubrey knocked on the door, opened it and stuck his head inside. As he had hoped, Harriet had returned from court. She was sitting at her desk reading the day’s law report in The Times.
‘Ah, I was hoping I might catch you,’ he said. ‘Merlin said you were on your way back to chambers. Is Ben around?’
‘I haven’t seen him.’ She looked at her watch. ‘But he should be back from the Bailey any time now.’
‘In that case,’ Aubrey said, ‘let’s talk in my room. Alan will bring us some tea. I want to revisit our conversation about legal privilege and our mutual friend Danny Ice.’
They walked together along the corridor. She thought he looked tired and rather pale.
‘Are you all right, Aubrey?’
‘What? Oh, yes, fine. Bit of a late night, that’s all. Come in. Have a seat.’
Alan had already left a pot of tea and a plate of digestive biscuits for them on an occasional table behind Aubrey’s desk. Harriet tested the tea for strength and poured.
‘I pored over Cross for quite some time,’ Aubrey began, ‘and as far as I can see, there is no rule that the privilege ends automatically just because the information would be useful to the defence in a criminal prosecution. Technically, the privilege relating to communications between lawyer and client lasts indefinitely, even after the client’s death.’
‘That doesn’t seem right to me,’ Harriet replied. ‘The whole purpose of the privilege is to encourage the client to speak freely to her lawyer; once the client is dead, it’s hard to see what purpose it could still have.’
‘I agree, and that’s why I think you should raise it with Conrad Rainer.’
Harriet looked at him quizzically.
‘Raise it with him, how? Val and I are not parties to the case. We have no right to a hearing, and we can’t tell Ben to raise it without violating the privilege.’
‘Write Conrad a note and ask him to see you privately in chambers tomorrow morning before court sits,’ Aubrey suggested. ‘Explain what you want to see him about, without going into detail, obviously. Tell him you have some evidence which might be important in the case he is trying, but you would need a ruling from him before you can disclose it to the parties. Then he’ll have to make up his mind. Either he will decide to make some new law, which we both agree ought to be made, or he will say he can’t interfere with the privilege – in which case you have done all you can.’
‘If he says no, there’s nothing more we can do?’
Aubrey shook his head.
‘Harriet, disobeying an order of a High Court judge is called contempt of court. You don’t need me to tell you that. It’s too much of a risk. Both you and Val could get into serious disciplinary trouble.’
‘But if it would make a difference to the defence of a man charged with murder –’
‘Harriet, you don’t know whether it would make a difference or not, but even if it would, if a High Court judge rules that the privilege survives, you can’t go against that.’
‘In that case, maybe it would be better not to ask the judge to make an order. Maybe I should just tell Ben and let him handle it with the judge.’
‘How would that help? You would still have violated the privilege.’
‘But I would have done it for the right reason, wouldn’t I? It just seems wrong to let it go without doing everything I can.’
‘That wouldn’t help you with the Bar Council, and it wouldn’t help Val with the Law Society. You would both be in hot water.’
‘Unless they agreed with us. There are times when you have to stand up for what you believe to be right.’
Aubrey shook his head, but smiled. ‘That’s the pupil I know talking.’
She returned the smile. ‘Don’t give me that, Aubrey. You’ve tilted at a few windmills yourself in your time.’
‘Yes, but I tilted as counsel on behalf of others, Harriet, not as a potential witness.’
‘You sailed close to the wind once or twice when you thought you were right – and you were right.’
‘Talk to Conrad first,’ Aubrey advised. ‘If he says no, let’s think about whether there’s a way to go to the Court of Appeal. I will represent the two of you there and perhaps we can have a second bite of the cherry.’
‘Thank you, Aubrey. That means a lot to me –’
‘But if we lose in the Court of Appeal, you have to promise me that it will end there. I can’t live with watching my star pupil get disbarred after all the efforts I made to get her taken on in chambers.’
‘I have no intention of letting myself get disbarred – if I can help it,’ Harriet replied. ‘I need to think this through, and I need to talk to Val.’
‘You need to talk to Conrad,’ Aubrey said. ‘And take Cross with you. There’s no rule at present that the privilege must yield if it may affect the question of guilt or innocence in a criminal trial, but unless I’m misreading him, Cross thinks there should be. Perhaps it will persuade Conrad to go out on a limb.’
Aubrey’s phone rang as Harriet was leaving.
‘I have Mr Phillips QC on the line from Crown Office Row, sir,’ Merlin said.
‘Thank you, Merlin. Put him through.’
‘Aubrey, how are you?’
‘I’m very well, Stephen. I hope you are too.’
‘Yes. Thank you. Aubrey, look, I don’t want to stick my nose in where I shouldn’t, but my clerk tells me you’ve asked for a confidential meeting with three members of my chambers, and I must admit I’m a bit curious as to why. You and Gareth are not trying to lure anyone away to Two Wessex Buildings, are you?’
Aubrey laughed.
‘No, Stephen, certainly not. You’re quite right. I’ve asked to see Frank Reilly, Jonathan Weatherall, and Martin Cohn, and your clerk suggested Thursday afternoon, after court. But I can assure you that neither Gareth nor I have any improper designs on them.’
There was a silence on the line.
‘As I say, Aubrey, I don’t want to pry, but you must admit, it is a bit irregular to see members of another set of chambers in this way without asking first. I am their head of chambers after all, and if only as a matter of courtesy –’
‘I apologise, Stephen. All I can tell you over the phone is that it’s a very sensitive matter.’
‘Have they done something wrong that I ought to know about?’
‘No, not at all.’
Aubrey thought for some moments.
‘Look, Stephen, if you’re concerned, why don’t you join us on Thursday? You’d have to be involved eventually, whatever happens, so there’s no reason why not. Please, just keep it confidential for now. I think you’ll understand why once you know what it’s about.’
Another silence.
‘All right,’ Stephen replied. ‘We can meet in my room. We won’t be disturbed there. But I must say, Aubrey, I still find it all rather extraordinary.’
‘Extraordinary doesn’t begin to cover it,’ Aubrey replied.