A High Court Judge in Scotland has recently criticised the basis upon which the Crown Prosecution Service obtained and sought to enforce a warrant to recover papers and documents held by a law firm's office in Edinburgh.

The firm had previously acted in defending previous civil claims for a corporate client who was also under criminal investigation. In doing so the firm had come into possession of various documents to which they asserted legal privilege and confidentiality. Communication had taken place between the police and the firm as to what extent any of the documentation held by them could or should be released. Notwithstanding that, without advising the firm, the Crown applied for and were granted a warrant that entitled them to recover a wide range of papers or other evidence material to the investigation and which was potentially held by the firm.

When the law firm were visited by police officers who were proposing to execute the warrant, they persuaded the police officers to delay proceeding with that and they were able to make an emergency application to the court. In setting out his reasons for suspending the warrant the High Court Judge relied upon earlier guidelines that had been laid down in an unpublished decision earlier this year. The following comments taken from both decisions are therefore useful as future guidelines:-

  1. A police officer seeking a warrant to search premises and to recover evidence must not provide information which he knows to be inaccurate or misleading and he should provide all relevant information. This would include the duty to disclose the fact that the entity against whom the warrant is intended to be enforced are a firm of solicitors who are maintaining a plea of legal privilege.
  2. Where there is no suggestion that the solicitors are involved in any form of illegality nor that they would be likely to destroy or conceal any relevant material, an application for a warrant to search their premises to recover such material without providing them with prior intimation of the application would be oppressive.
  3. The courts must be careful to protect the important right of legal privilege which generally attaches to communications between a client and their solicitor and therefore it is essential that due caution is observed when a Court is granting an order for the recovery of solicitors files.
  4. Where a warrant for searching a solicitor's office is authorised in a situation that legal privilege is being asserted then there ought to be a provision of independent supervision of the police search by a commissioner appointed by the Court or alternatively a condition attached that requires any material seized to be sealed unread and delivered to the Court to enable it to adjudicate upon the issue of confidentiality.

This is a useful reminder that many commercial disputes could have a potential criminal aspect but clients' interests will be given proper protection against inappropriate actions of the prosecuting authority under the historical principles of client confidentiality and legal privilege.