A solicitor who represented Hamas has argued his phone cannot be searched by police because of legal professional privilege.
Fahad Ansari, currently at London firm Duncan Lewis Solicitors who previously filed a challenge to Hamas' proscription when he was director and principal solicitor at Riverway Law solicitors, was returning from a holiday with his family in Ireland in August when he was stopped at Holyhead by North Wales Police and detained under the Terrorism Act 2000.
Police decided to seize, download, copy, retain and examine his work mobile phone, a decision which Ansari is challenging in the High Court, arguing that ‘due to the pervasive nature of the privileged material on the device, a sift is neither reasonably practicable nor “possible”’.
In a written argument, Hugh Southey KC said: ‘It is essential to have clear, detailed rules on a sift engaging privileged material. The lack of procedural guarantees relating concretely to the protection of LPP here falls short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8(2) of the Convention.
‘In the absence of interim relief, there is a real risk that sensitive, confidential and legally privileged material will be processed and passed on the defendants’, Southey added.
Appearing before Mr Justice Chamberlain in a hearing yesterday, Southey said the police were going to use ‘search terms’ to sift through the mobile phone data, because of the volume of information spanning 15 years and involving ‘significant communications’ with past, current and proposed clients.
‘We want to know enough about those search terms to make representations about them’, Southey said. The claimant’s argument was the police had refused to meaningfully engage with him on any proposed process to search his device.
Georgina Wolfe, for the police, said it had been wrongly suggested the police had been targeting legally privileged material on Ansari’s work device. ‘There has been no such targeting of such information. On the contrary, extensive and considered steps are being taken to protect properly legally privileged material.’
Wolfe told the court: ‘What cannot be right is for any solicitor to have a cast iron defence to protect their electronic device from ever being searched, which is the effect of the claimant’s argument.’
Southey responded that the claimant’s case was merely that the police’s ‘protocol in place is insufficient to protect legal professional privilege’.
The case, which moved into a closed hearing, continues.
