Category of search materials

In the previous edition I discussed the special powers to obtain material or to search premises under Section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984. Under that section, and all others relating to search powers,the category of material that is legally privileged may not be obtained. In this edition I will examine this category of material.

Items subject to legal privilege (S.10 Police and Criminal Evidence Act 1984)

Since this material is most often to be found in the possession of members of the legal profession one may expect disputes as to whether the material sought is legally privileged material. If it is not, the material is likely to be held in confidence and therefore special procedure material and subject to different procedures. If it is, there is no lawful procedure in English law by which a person can be compelled to produce or give access to the material and it cannot be seized during a search of premises. The common law of evidence has long recognised a privilege against the compulsory disclosure of a party`s legal advice in both civil and criminal proceedings.

The 1984 Act extends this protection to the pre-trial investigative stage and clarified the common law. As regards warrants issued by virtue of the 1984 Act, the exemption for legally privileged material is simply stated (S.8(1) (d)). As regards warrants issued under statutory provisions which pre-date the 1984 Act, the same result is achieved by a more obscure route. Section 9(2) nullifies all such provisions as regards legally privileged, excluded and special procedure material. Schedule 1 provides a procedure under which access to special procedure material and, exceptionally, excluded material may be obtained but makes no such provision for legally privileged material. As regards statutory provisions which post-date the 1984 Act they are not subject to the nullification process of S.9(2) unless the statute providing the warrant power incorporates S.9(2), eg the Cinemas Act 1985 does, the Public Order Act 1986 does not. The definition which follows has a wider relevance since the privilege applies to limit the general powers of seizure set out in S.19.

Definition of legal privilege

The definition of legal privilege in S.10 follows that of the 16th Report of the Law Reform Committee (para 17), which in turn sought to reflect the common law. Legal privilege attaches to the following items when in the possession of a person who is entitled to possession of them.

First, communications between a professional legal adviser and his client, or any person representing his client, made in connection with the giving of legal advice to the client. This advice need not be related to any legal proceedings.

Second, communications between a professional legal adviser and his client, or any person representing his client or between any of these three and a third person, made in connection with or in contemplation of and for the purposes of legal proceedings.

Third, privilege attaches to items enclosed with or referred to in either of the above communications, and made in connection with the giving of legal advice or in connection with or in contemplation of and for the purposes of legal proceedings. It must be emphasised that the privilege is that of the client, not the legal adviser. It follows that if a document is not privileged in the hands of the client, it is not privileged in the hands of the solicitor. Like any privilege it can be waived but only by the client whose privilege it is.

The relationship of lawyer/client may be seen as creating a circle around the parties. It is only communications arising within the circle created by the relationship and which are made for the purposes of giving legal advice or which are made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings that are privileged.

Similarly, items enclosed with such communications are only privileged if they are made within th