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.

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.

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