Search and Seizure ; Roger Sahota Writes for Law Society Gazette
Roger Sahota's guide for solicitors who are made subject to a police raid features in the Law Society Gazette's "Practice Points" section. The article follows Roger's recent instruction in a high profile judicial review of a search warrant before the QBD.
Roger Sahota and his co-aurthor Rupert Bowers of Doughty Street acted in the case of F; and Rupert Bowers in S and in AB. Read the article here or below.
As law enforcement agencies appear to be increasingly willing to conduct searches of solicitor offices where legal professional privilege (LPP) material may be present, every practitioner should understand their basic rights and the safeguards that apply.
Lawyers will face a dilemma when confronted with a police officer bearing a search warrant to enter offices where confidential material is present. Rule 4 of the SRA Code of Conduct requires practitioners to keep all information concerning the affairs of clients and former clients confidential ‘except where disclosure is required or permitted by law’, or the client or former client consents.
However, deciding when ‘disclosure is required by law’ is not straightforward. Although solicitors have no choice but to co-operate with the authorities at the point the warrant is executed, as rule 5 mandates compliance with a court order, subsequently a judicial review challenge may be justified.
In our experience, warrants for the search and seizure of LPP material are frequently vulnerable to legal challenge. In a number of recent decisions of the Divisional Court, search warrants have been quashed because on their face they reach to LPP material or other material that may not be seized. Many other cases have settled before any substantive hearing.
Below are practical steps solicitors should consider in the event of a police raid, and the procedures that should be contemplated when drafting a practice crisis management plan.
SRA Guidance and PACE 1984
Rule 4 sets out the duties of a solicitor when handling confidential client material. Not all client communications will meet the definition of LPP. Rule 4 stipulates that LPP material can only be disclosed in certain circumstances. No search warrant may authorise the seizure of material subject to LPP, but documents created in furtherance of crime will be covered by the crime exemption to privilege and may be seized (see section 10 of the Police and Criminal Evidence Act 1984 (PACE)). There is often dispute over what material is covered by privilege.
Excluded material as defined in section 11 of PACE (for example, medical reports often found in litigation files) also cannot be seized. ‘Special procedure material’ as defined in section 14(2) of PACE (broadly, anything held in confidence in the course of a trade or profession that is not LPP or excluded material) may be taken only if the warrant has been obtained from a Crown court judge under section 9 and schedule 1 of PACE, rather than the more common section 8 process before the magistrates’ court.
Execution of the search
The officer conducting the search is obliged to identify themselves and provide a copy of the warrant to the occupier. Law Society guidance recommends that practitioners carefully scrutinise the terms and scope of the warrant to ascertain the statutory power to which it relates, the date of issue, the location specified, who may enter the premises, what material is covered and if LPP material is sought. Any concerns as to the validity of the warrant should be recorded and brought to the officers attention.
Practitioners may wish to ask the police to wait while they instruct external lawyers, though they have no right to delay a search.
Where the search of a solicitor’s premises (or any premises where LPP or excluded material may be present) is envisaged, the investigators should be accompanied by independent counsel, normally a barrister in private practice unconnected to the investigation. Counsel’s remit is limited (see the guidance issued by the Bar Council). Counsel cannot advise on any wider issues such as the scope of the warrant, its lawfulness or whether any given item comes within it. Interestingly, the guidance from the Bar Council only relates to LPP material and so there is no guidance as to whether independent counsel can sift out excluded material or, if the warrant was obtained under section 8 of PACE, special procedure material.
Procedures should be adopted to minimise the risk that privileged material is seen or seized by an investigator or lawyer associated with the authorities. The methodology chosen should ensure that when the officers locate a file or group of documents that may fall within the terms of the warrant, it should be inspected by counsel for a decision as to whether any of the documents attract LPP. Counsel can only provide his opinion as to whether an item should or should not be inspected on grounds it is privileged; the final decision lies with the investigating agency. If there is doubt, the material may be seized, and bagged and sealed, for later consideration if privilege is asserted.
During the search a senior member of the practice should be identified as the point of contact for staff and police. Staff or external advisers should shadow the investigators and keep a full note of their conduct and the items taken, and ensure they do not examine material or enter parts of the premises not mentioned in the warrant. Before leaving the premises a list of all items seized should be obtained. Be wary of videos or photographs taken of the search. Currently the law is uncertain as to whether this is permissible.
Powers exist under sections 50-51 of the Criminal Justice and Police Act 2001 for the police to remove from the premises potentially privileged material, or irrelevant material, which may not be separated from material that may be seized because of how it is stored or its volume (computers and hard drives are obvious receptacles of such ‘mixed’ material). A notice should be left with the occupier if either of these powers has been used, listing the items taken and their rights to challenge the seizure and attend an initial examination of the material taken.
Challenging the warrant
Immediate steps should be taken to contact a suitably qualified legal adviser. An application to the court may be necessary to stop the authorities from inspecting any of the items seized before the warrant can be reviewed. Appropriate steps to ensure any reputational damage is minimised should be considered. Advice on whether to file a suspicious activity report and how to manage your relationship with the client will be essential.
Deciding if a search warrant is lawful or has been properly executed in this technical area will require specialist advice. The decisions in recent cases – such as R (Rawlinson and Hunter) v CCC and SFO [2013] 1 WLR 1634; R (on the application of S) v Chief Constable of the British Transport Police [2014] 1 WLR 1647; R (on the application of AB) v Huddersfield Magistrates’ Court [2014] EWHC 1089 (Admin); and most recently R (on the application of F) v Blackfriars Crown Court [2014] EWHC 1541 (Admin) – illustrate the problems the authorities face when raiding lawyer premises. This is a complex and challenging area of law and the investigating agencies have frequently shown little understanding of the correct procedures to follow.
Lord Hoffman famously described LPP as ‘a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled legal advice about the law.’ Solicitors would be well advised to be vigilant in upholding and protecting it.
Roger Sahota and Rupert Bowers QC of Doughty Street acted in the case of F; and Rupert Bowers in S and in AB