Letter from Kingsley Napley, Solicitors
to M Fowler, Criminal Law Committee of the Law Society
The proposed new powers of seizure contained
in Part III of the Criminal Justice and Police Bill, unless redrafted,
threaten to have serious repercussions for lawyer/client confidentiality
in general and legal professional privilege (LPP) in particular.
As a basic rule, communications between a client
and his/her lawyer for the purpose of seeking legal advice are
confidential and cannot be disclosed to anyoneeven a courtwithout
the authority of the client. They are, in court proceedings, privileged
from disclosure, hence the expression legal professional privilege.
As you are aware, the Criminal Law Committee
of the Law Society has been closely involved over the past two
years in assisting the Government to find a solution to the practical
problem faced by police and other investigating agencies who,
when seeking to exercise their search and seizure powers, discover
that the material they are lawfully entitled to seize is part
of another body of material, either physically, or for instance,
on a computer disk, to which they are not entitled.
Historically, in order to protect the sanctity
of LPP material, a practice developed, by agreement between the
police and lawyers present at a search, to isolate confidential
material which might attract a claim of privilege and place it
in sealed bags uninspected by the investigators. These bags were
removed and kept in secure conditions and opened only in the presence
of the lawyer acting for the client whose privilege was at risk,
to enable an inspection of the material and, if appropriate, to
make a privilege claim. This practice was used extensively for
instance in the Maxwell case, to the satisfaction of all parties.
Judicial doubt was first expressed upon the
legality of this "sensible" approach in Gross v The
Crown Court at Southwark,
in which the Divisional Court held that the combined effect of
sections 9 and 14, together with Schedule 1 of PACE,
made it clear that the removal of LPP material from premises which
are the subject of the warrant is not permitted.
The problems caused by the Gross decision
affected both investigating agencies and defence practitioners,
the Divisional Court frowning judicially upon a practical "bagging
up" procedure that had been developed over the years by investigators
and lawyers to their joint satisfaction.
There is a very strong argument that any new
scheme introduced should mirror as closely as possible the "bagging
up" procedure, for it clearly worked.
You will recall that I was asked by the previous
Attorney General to a meeting with Rosalind Wright, Director of
the SFO to discuss a possible solution to the difficulties caused
Liaison took place thereafter between the Law
Society and the SFO in an effort to find a remedy, culminating
in an intervention by the Law Society and (at our suggestion)
the Law Officers in the case of Bramley
aimed at obtaining clear guidelines from the Divisional Court.
Bramley effectively made confusion worse
confounded. The Divisional Court confirmed that the police had
no power to remove material to see if it fell within the scope
of a warrant, even if they reasonably believed it did not contain
LPP material. The only remedy, it was suggested, lay in legislation.
In view of the previous liaison between the
Law Society and the SFO and the Law Officers, it had been anticipated
that we would be consulted at an early stage of any drafting process.
Unfortunately this did not happen. We were not contacted until
at a very late stage we received a copy of the Home Office document
purporting to be a Consultation paper by which time it is clear,
the provisions had already been drafted. This is most unfortunate
for the current provisions demonstrate an ignorance of the practicalities
of protecting LPP which could have been avoided had the earlier
joint approach continued.
The new provisions seek to resolve the problem
faced by investigators when it is impracticable to decide at the
time of search what material can be seized and what cannot, due
either to its size or its nature (eg material held on disk) by
giving them powers to remove material in order to examine it elsewhere.
The major proposals of particular relevance
to LPP are as follows:
where an investigator is unable,
due to the amount of material, to determine whether something
for which he is entitled to search (either at premises or on the
person being searched) is contained in that material, or, where
he is unable to separate it out from the other materialhe
may remove all the material if it is not "reasonably practicable"
at the location of the search to carry out the determination or
separation. (clause 49(1), (2), (3), clause 50);
if the officer cannot separate out
the item he is entitled to seize from other material, even if
he has reasonable grounds to believe that that other material
includes privileged items (eg if they are both on a computer disk)
he may seize both items (clause 49 (4));
an officer exercising these powers
must give the relevant person notice of what has been taken and
the grounds for removal together with information on how application
can be made to a judge for their return (clause 51);
once the material has been removed
the officer has a duty to examine it and only retain what could
have been retained had examination taken place at the time of
seizureunless it is "inextricably linked" in
which event all of the material may be retained. An interested
party may be present or represented at the examination. (clause
52). There is nothing in the provisions to prevent the officer
at this stage from examining and copying any LPP material removed
LPP material once identified must
be returned "as soon as reasonably practicable" (whatever
that means [one's experience of police returning irrelevant material
following seizure gives me no confidence that LPP material will
be returned quickly]) unless it is inextricably linked to other
seizable material in which event it may be retained (clause 53).
(There are similar provisions relating to special procedure and
anyone with a "relevant interest"
in seized property may apply to an "appropriate judicial
authority" (in most cases a Crown Court Judge for the return
of property on various grounds, one of which is that the seized
property is subject to LPP. The court may order return of the
LPP material unless it is inextricably linked with other non-LPP
material in which event the LPP material will be retained (clause
pending the hearing of such an application
the investigator will have a duty to secure the seized material,
(clause 59). The explanatory note to the Bill states "this
means that the person from whom the material is seized can, by
making such an application prevent the police or others looking
at any material . . . pending the hearing before the judge;
there are no provisions relating
to who should bear the costs of such applications;
when material is secured pending
a hearing, it can neither be copied nor examined (clause 60);
inextricably linked material should
not be examined, copied or used for any purpose other than "facilitating
the use in any proceedings of property to which it is inextricably
linked" (clause 61). This implies that LPP material can be
examined, copied and used if it would facilitate the use in proceedings
of the other material with which it is inextricably linked.
Our basic concern, and it is a very real one,
is the threat posed to lawyer/client confidentiality and in particular
to LPP. At the heart of this age-old problem is the conflict between
the needs of the investigator to investigate and prevent crime,
and the fundamental rights of the citizen to consult confidentially
with his legal adviserrecently emphasised by the House
of Lords in R v Derby Magistrates ex parte B.
It is instructive to recall Lord Taylor's statement in his leading
"The principle which runs through all these
cases . . . is that a man must be able to consult his lawyer in
confidence, since otherwise he might hold back half the truth.
The client must be sure that what he tells his lawyer in confidence
will never be revealed without his consent. Legal professional
privilege is thus much more than an ordinary rule of evidence,
limited in its application to the facts of a particular case.
It is a fundamental condition on which the administration of justice
as a whole rests . . . Legal professional privilege is a fundamental
human right protected by the European Convention for the Protection
of Human Rights and Fundamental Freedoms".
The privilege is one against disclosure in legal
proceedings and is at its most dramatic when police seek to seize
material comprising communications between a client and his lawyer,
protected as it is from disclosure by LPP.
The proposals in their current form would permit
police to seize, inspect and copy (unchallenged ) material removed
from a lawyer's office relating not only to the suspect they are
investigating but to the confidential affairs of wholly unconnected
clients, concepts which are wholly unacceptable and extremely
For instance, police may suspect A of having
committed a fraud by misleading his solicitors in a particular
transaction. On seeking the solicitor's files (which because the
client used his solicitor for a criminal purpose lose their privileged
status) they find they are contained on the solicitor's computer
network intermingled not only with client A's defence documents
in relation to a wholly unrelated criminal matter, but also with
the files of many other clients relating to criminal, family and
commercial matters totally unconnected to the fraud enquiry. Under
the proposals all these files can be seized, examined and in certain
The privilege against disclosure becomes illusory
if the police are to be judges of whether material attracts LPP.
Such a process strikes at the very heart of the fundamental right
to which Lord Taylor referred. It is facile to think that a police
officer can put from his mind confidential information gleaned
by him from an inspection of privileged material carried out to
see whether the material is indeed privileged and therefore should
be returned. This is not a criticism of the police, but a fact.
Despite robust objections from the legal profession
at the Bill stage of the Criminal Procedure and Investigations
Act 1996, the initial decision on whether material held by the
police was relevant to the defence and should be disclosed was
returned (by the Act) to the police. Their inability since the
Act to judge "relevance" has proved these early objections
to have been well founded and necessitated a radical review. The
profession can have even less confidence in the ability of police
to identify LPP material, which can often involve highly technical
areas of law. We as a profession must oppose with all our might
any proposal that the police be entitled to remove and retain
LPP (or special procedure material and excluded material) and
thereafter to inspect it to ascertain its status of confidentiality.
The strength and depth of our concern can best
be appreciated if one considers the same conflict but from the
opposite view point.
Prosecutors and investigators frequently seek
to protect the confidentiality of material held by them by claiming
that it would not be in the public interest for it to be disclosed
to the defence (PII). This protection is achieved by applying
in private before a judge to seek a ruling against disclosure.
Why should defence material be treated any differently? Any suggestion
that the defence be allowed to inspect or even sift through the
PII material in order to ascertain its status would be met with
derision. Yet whilst the principles are the same, under the Bill
there will exist an inequality of treatment which can impact seriously
upon the rights of the citizen.
If it is accepted that in PII applications there
is a role for the judge to protect the public interest, it is
axiomatic that a similar role should be adopted by the judge at
the outset to protect the rights and interests of the citizen,
whether he be a suspect, a potential defendant or an innocent
I suggested at a meeting with the Home Office
in December that there should be an automatic prohibition preventing
the police from inspecting any material to which LPP might apply
for a short period after seizure during which time it should be
secured pending application to the court for relief. This would
go some way towards addressing our concern and protecting the
fundamental rights of those affected.
Whilst there might be a concern that such a
delay could prejudice such an investigation, the voluntary development
of the bagging up procedure arose from the fact that the primary
purpose of seizure was to secure the material lest it be removed
or destroyed. Police/investigators were, in my experience, happy
to use this bagging up procedure as it avoided precisely the problems
caused by Gross and Bramley. To a very large extent the old system
The proposals as currently drafted, whilst recognising
the need for judicial intervention (as suggested in Bramley) remove
the protection from disclosure and inspection in the intervening
period before application is made to the court. Indeed the proposed
power of seizure is wide open to abuse: it would permit the unscrupulous
investigator dishonestly to purport to exercise the power and
to seize material to which he knows he is not entitled in order
to copy and inspect it prior to returning it. There is a grave
danger in relation to computer disks of random seizure. One can
foresee it becoming standard practice for police automatically
to seize hard discs uttering what will becoming the mantra "it's
inextricably linked". Any objections that the disk contains
LPP material whether it relates to the suspect or totally unconnected
persons will be brushed aside.
One can foresee (indeed, the explanatory note
indicates as much) that where the proposals to be enacted as drafted,
it will become standard practice for defence lawyers to make an
immediate application to the court whenever police remove confidential
material. This could have severe costs implications both in terms
of representation and delay to investigations.
On the question of Crown Court costs, how is
it envisaged that those wishing to make representations to a Judge
will be able to fund such applications? Search and seizure normally
takes place prior to charge when legal aid in real terms is unavailable
as there are no proceedings in which to grant it. Is it envisaged
that indigent applicants should receive some form of legal aid?
Will a successful applicant be awarded his costs? If so, from
whomthe prosecutor, Central Funds or some other source?
Will solicitors be given rights of audience before the Judge on
such applications or will it only be through counsel with consequent
costs implications? Will they be heard in private in the absence
of the prosecution?
Are innocent third parties whose LPP material
is seized, to be forced to pay the costs of protecting their own
confidentiality by applying to the Crown Court for the return
of their material?
Finally, and of equal concern, is the view that
these proposals are in clear breach of Article 8 ECHR (and the
first protocol). There is no acceptance in the Bill of proportionalitythe
power is exercisable arbitrarily. We have, as you know, already
received an opinion from Ben Emmerson, QC on the interplay between
Articles 6 and 8 with LPP and I suggest we should urgently enrol
his assistance once more.
1 February 2001
10 (Unreported) CO/1759/98, July 24, 1998, QBD. Back
Police and Criminal Evidence Act 1984. Back
R v Chesterfield Justices v The Chief Constable of Derbyshire
ex parte Bramley 5 Nov 1999. Back
(1995 4 All ER 526). Back