Joint Committee On Human Rights Minutes of Evidence


Annex H

Letter from Kingsley Napley, Solicitors to M Fowler, Criminal Law Committee of the Law Society

THE CRIMINAL JUSTICE AND POLICE BILL—LEGAL PROFESSIONAL PRIVILEGE

  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 anyone—even a court—without 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[10], in which the Divisional Court held that the combined effect of sections 9 and 14, together with Schedule 1 of PACE[11], 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 by Gross.

  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[12] 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 BILL'S PROPOSALS

  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 material—he 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 seizure—unless 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 by him;

    —  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 excluded material);

    —  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 58);

    —  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.

THE LAW SOCIETY'S CONCERNS

  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 adviser—recently emphasised by the House of Lords in R v Derby Magistrates ex parte B.[13] It is instructive to recall Lord Taylor's statement in his leading speech:

    "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 dangerous.

  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 circumstances, copied.

  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 third party.


A SOLUTION

  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 worked.

  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 whom—the 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 proportionality—the 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.

Christopher Murray

1 February 2001


10   (Unreported) CO/1759/98, July 24, 1998, QBD. Back

11   Police and Criminal Evidence Act 1984. Back

12   R v Chesterfield Justices v The Chief Constable of Derbyshire ex parte Bramley 5 Nov 1999. Back

13   (1995 4 All ER 526). Back


 
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