When a defendant absconds, suspicion can quickly turn on the lawyers left behind. What did they know? Are they still in contact with the defendant? Why will they not help the authorities find them?
Those questions must not obscure a basic principle. Representing a defendant who has broken the law is not the same as helping him to do so.
That distinction lies at the heart of R (Bark Solicitors Company Ltd) v Worcester Crown Court [2026] EWHC 2026 (Admin). The defendant had gone abroad while on bail awaiting trial for conspiracy to import cocaine. Worcester Crown Court (pictured) ordered his solicitors to disclose his address, telephone numbers, email and IP addresses from which he had contacted them.
The purpose was to help the authorities locate and arrest the defendant. The order did not seek the advice given or the substance of the communications. It sought the means by which the defendant remained in contact with his lawyers.
Mr Justice Bennathan held that those details were protected by legal professional privilege while the proceedings remained current. His reasoning was practical. A telephone number, email or IP address may reveal where its user is located. If contacting a solicitor exposes a client’s whereabouts, he may stop seeking advice. Privilege would offer little protection if it covered only the conversation but not the means of having it. It is not a reward for good behaviour, nor does it depend upon whether a judge considers the client deserving of its protection.
For defence practitioners, however, the most troubling feature of the case was the treatment of the solicitors. The Crown court judge appeared to suggest that they had facilitated the defendant’s absence, were complicit in a cover-up and had brought the proceedings into disrepute by continuing to act. Bennathan J found those criticisms completely unjustified. Faced with an unexpected situation caused by the client’s unlawful conduct, the solicitor had sought advice and notified the prosecution and the court within two days.
Those of us who practise in criminal defence are not guarantors of our clients’ behaviour. We must not assist an offence, mislead the court or allow ourselves to become instruments of wrongdoing. Continuing to represent a client who has absconded does none of those things. Representation may, in fact, allow the trial to proceed more effectively. Lawyers can agree facts, test the prosecution case and ensure that an absent defendant’s interests are properly represented. Their continued involvement does not make them complicit in the defendant’s absence.
A defence solicitor is not part of the prosecution team. Nor should the solicitor become an investigator for the court when the ordinary means of tracing a defendant have failed. Requiring disclosure of a privileged channel of communication crosses that boundary.
The decision does not place an absconder beyond the reach of the law. The police remain free to trace and arrest him. The prosecution may seek his extradition and, where appropriate, the trial may proceed in his absence. The judgment also confirms that judicial case management has limits. The Criminal Procedure Rules cannot alter substantive law or displace legal professional privilege, however useful the information might be to the court or the prosecution.
Criminal defence lawyers perform a vital constitutional role. That role becomes harder when a client behaves unlawfully, but it does not change. The criminal justice system is entitled to expect honesty and professional integrity from defence lawyers. It is not entitled to conscript them.
Edward Grange is a partner at Corker Binning, London
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