‘Do you have a moment, Aubrey?’
Aubrey looked up to see Ben leaning against the door frame, one leg crossed in front of the other.
‘Come in, Ben,’ he replied. ‘I thought you were all going to the Dev for a pint?’
‘I told the others I’d follow them.’
Ben closed the door and walked across to Aubrey’s desk. Aubrey waved him into a chair.
‘What can I do for you?’
‘I’d like some assurance that I still have some control over my case,’ Ben said.
Aubrey smiled.
‘Ben, you’ve been around too long to believe that any of us has any control over our cases,’ he replied. ‘We do our best, but at the end of the day the result usually depends on forces outside our control.’
‘Perhaps so. But I prefer to know what those forces are. I don’t like them working behind the scenes, behind my back, where I can’t see them.’
‘Whatever I may have done can only benefit your client,’ Aubrey said.
‘I think I should be the judge of that,’ Ben insisted, ‘but I can’t because I’m in the dark. I don’t know what’s been going on. I know something’s going on, because Conrad Rainer knows that I’m about to apply to admit some evidence, and he didn’t hear that from me. I’d like to know how that happened. I’d like to know exactly what you’ve told him.’
‘I told him nothing that could do Henry Lang any harm.’
‘I’m representing Henry Lang on a charge of murder, Aubrey. If he’s convicted, he’s facing a mandatory life sentence. You don’t know the details of the case I’m presenting, so you don’t know what might do him harm. This case is my responsibility. I want to know what’s going on behind my back.’
Aubrey nodded.
‘Fine. All that happened was that Harriet came to see me to explain the dilemma she was in. She was privy to a privileged conversation which might support Henry Lang’s defence. She could have hidden behind the privilege and said nothing, but her conscience wouldn’t let her do that. I looked into the question, and I concluded that there was a good legal argument for overriding the privilege and letting the evidence in. I told Harriet that, but I also warned her that she was playing a dangerous game. If Conrad didn’t agree with her, she and her solicitor could get into a lot of trouble. She decided to go ahead anyway. I did what I could behind the scenes to protect her.’
‘You mean you asked Rainer to let the evidence in?’
‘No. I didn’t ask him that, as a matter of fact. I asked him to make sure that Harriet didn’t get into trouble. I said I didn’t care how he did it.’
Ben shook his head.
‘That’s the same thing, isn’t it? The only way to be sure of keeping Harriet out of trouble is to override the privilege and let the evidence in.’
Aubrey smiled.
‘Yes, you’re probably right, and I did take the opportunity of telling him what I thought the law should be. For what it’s worth, I think he agrees with me, but that’s not because of what I think. Conrad is more than capable of deciding the law for himself, and now that Jess has come up with an even better argument than mine, I would say you’re on pretty safe ground.’
‘What else have you said to him?’
‘About the case? Nothing.’
Ben nodded slowly and got to his feet to leave.
‘And you don’t want to tell me why Rainer is acting so strangely in court – especially when someone mentions the name of Daniel Cleary?’
Aubrey closed his eyes.
‘Sit down for a minute, Ben, would you?’
Ben resumed his seat.
‘Have you ever thought about what privileges are?’ Aubrey asked.
‘What they are?’
‘Yes. I mean, forget about this case for a moment, and think about privileges as a concept. Have you ever asked yourself what purpose they serve?’
‘There’s nothing complicated about that, is there?’ Ben replied. ‘A privilege is just a legal device for protecting information from disclosure.’
‘Yes,’ Aubrey agreed. ‘Exactly. It’s a legal device, and that’s all it is. The privilege isn’t what’s important; it’s the information it protects that matters. But what kind of information does it protect, Ben? Privileges protect information given by one person to another in confidence – secrets, if you will.’
‘The law doesn’t like secrets,’ Ben said. ‘They make the work of the court more difficult. They make it harder to get to the truth.’
‘Quite so. That’s why the law takes the view that the court should have access to all relevant information unless there’s a good reason why someone should be allowed to withhold it. Privileges are the exceptions to the general rule.’
‘Yes, and surely that’s how it should be?’
‘I don’t know, Ben. Yes, we have to make sure the court has the information it needs to deal with a case. But I sometimes wonder why we have to take such a narrow view of privileges.’
‘What do you mean?’
‘The only privileged conversations you can have in English law are with your lawyer or your spouse. That’s pretty narrow, don’t you think?’
‘As opposed to what?’
‘Well, in America, for example, they protect communications with other professionals – clergymen, doctors, therapists. But what I’m saying, Ben, is that in this country, we don’t show much respect for confidentiality. We don’t encourage people to confide in others – in a friend for example – even though the need to confide is something we all feel from time to time.’
Ben nodded.
‘Speaking for myself,’ Aubrey continued, ‘my friends have always been a very important part of my life, and I don’t know what the point of friendship is unless you can tell your friends things you wouldn’t want repeated elsewhere.’
‘Where are you going with this?’ Ben asked.
Aubrey stood and leaned on the chair behind his desk.
‘You asked me whether I knew what might be ailing Conrad – why he doesn’t seem to be concentrating on the case as much as he should.’
‘I think I have every right to be concerned about that,’ Ben said.
‘I agree. All I’m saying is that there may be things Conrad has told me in confidence, things I’m not at liberty to share with you. I’ve known Conrad almost all my life. He’s one of a small circle of my very closest friends. And while I agree that not all information can be privileged, I think we lose a good deal of the quality of our lives if we can’t show some basic loyalty to our friends. That’s something we all need from our friends at some point in our lives.’
Ben stood.
‘Aubrey, the only question I have is whether Conrad Rainer can hold himself together long enough to finish my case. Selfish as it may seem, that’s my only concern. I don’t want to impose upon your friendship with him, and I don’t want to interfere with his confiding in you. I don’t need to know, and I’m not sure I want to know all the details. I just want to know whether Henry Lang is in safe hands.’
‘As far as I can judge,’ Aubrey replied, ‘he’s in perfectly safe hands.’