Supreme Court ruling sought on extent of LPP

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A claim that the Serious Fraud Office (SFO) and other investigatory bodies are acting unlawfully in the way they handle seized electronic devices containing material subject to legal professional privilege (LPP) could go to the Supreme Court.

Solicitors acting for the subject of an investigation involving the seizure of phones and computer memories have applied for leave to appeal a High Court ruling which last month dismissed a claim for judicial review over procedures in the SFO’s operational handbook.

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At issue is whether steps to isolate material potentially subject to legal professional privilege should be carried out in-house or by independent technical experts.  

The case involved a man arrested at Heathrow Airport last year in connection with an alleged offence under the Bribery Act 2010. No charges have been made.

Four devices were seized. Six days later, the SFO served a notice requiring the claimant to produce further items, including an iPhone.

The SFO then notified the arrested man’s solicitors, Cardiff firm de Maid Solicitors and Advocates, that the iPhone was being quarantined because it was believed to contain privileged material.

The solicitors were asked to provide a list of search terms to enable such material to be identified and separated. The solicitors refused to provide search terms on the basis that the SFO’s procedure for dealing with the material was unlawful.

In The Queen (on the application of Colin McKenzie) v Director of the Serious Fraud Office the High Court held that the SFO’s use of in-house experts to isolate material potentially subject to LPP was lawful. The SFO said that the judgment was significant for other law enforcement bodies.

Solicitor-advocate Simon Evenden of de Maid Solicitors and Advocates said that the decision raises questions about the absolute nature of LPP which should be considered by the Supreme Court.

Readers' comments (3)

  • I think they should abolish the whole concept, put the Claims Handling (Law) Society to bed and amalgamate the 'work' (loosely defined' they are supposed to be doing into other proper professional bodies.

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  • Well now Raynor from 22 February 2016 09:16 am (often read and agreed with by many others!).
    The toothless Law Society?
    Regarding the SRA, be very careful of just what is being wished for?
    Only if the other ‘so-called’ regulators (FCA & PRA) often thought the 'natural fits' for the SRA to be amalgamated into were not so badly operating against the public's best interests, then one for all may possibly work?
    The FCA remains as the FSA was and is terribly influenced to ‘light touch’ and most often ignore the most obvious and longstanding wrongdoings directly connected with so many SRA regulated Firms and their associates and clients!
    Many within FCA regulated markets know how for too many years (since inception?) the 'published' objectives of the FCA (FSA before) have not ever effectively protected markets or consumers!
    Most any person aware of the conduct within transatlantic regulated markets recall the example of just how profitable it has remained to clean up Mexican Drug Cartel cash?
    Regardless of all the laws, regulations and regulators the SRA, the FCA along with the PRA and US equals all facilitated the vastly profitable laundering of $6bn of Mexican drug cartel funds to cover all and any fines as a ‘cost of sale’.
    Retaining $2bn in profits (from $6bn of product cleaned up) without any single authorised or other for that matter of fact, person ever facing any sanctions whatsoever where even the individual with overall regulatory responsibility and liability received a place in the seat of UK government must be genius?
    Perhaps many a solicitor should consider emulating these and so many other now common examples which remain regarded by most any regulators as just part of the larger regulated Firms' international business successes?
    Better business for solicitors effectively cleaning cash for those harming and killing the public (Mexican) than the now basically outlawed fees within regulated markets to represent injured members of the public?

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  • Fair point.

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