At Leveson today, Rupert Murdoch, somewhat surprisingly, denied knowing that Burton Copeland could not disclose the fruits of their investigation because their clients (NI/NGN) had not waived professional privilege. Surprising because he had a very clear grasp of what he thought the other lawyers had done wrong when instructed by his company and, in particular, he very succinctly and astutely managed to put across what might have been problematic about a former Harbottle and Lewis’ partner’s conduct of their investigation into emails when Clive Goodman threatened a claim for his summary dismissal.
I’m left wondering how long this particular claim of privilege will be maintained. I thought I read a hint in Mr Murdoch’s answers that they might reconsider, but more important, perhaps, is whether there is the potential of Leveson applying the crime fraud exception and saying there is no legal professional privilege in the information given to, or advice received from, Burton Copeland. After all, Mr Murdoch has admitted that there was a cover up. It is not necessary for Burton Copeland to have had an intention to assist in wrongdoing. Nor is it necessary for NIs “fraud” to be criminal in nature. Nor does there need to be personal or commercial gain from underhand behaviour. If Burton Copeland’s investigation was used as part of NIs cover up, then it may well fall within the crime fraud exception. There may be one more legal smoking gun in the Hacking saga.
Update: There is some very interesting context in the Guardian report on this.