On 27 January 2016, the High Court upheld the legality of the SFO’s procedure for dealing with potentially privileged documents that are saved on seized electronic devices.
The judgment dealt with a claim for judicial review brought by Mr Colin McKenzie, who had electronic devices seized during his arrest for a Bribery Act 2010 offence.
On discovery of potentially privileged material, the SFO’s procedure (as set out in its Operational Handbook) is to:
- notify the defendant’s solicitors of the existence of potentially privileged material; and
- . request that the solicitors provide search terms to enable their in-house technical experts to identify and isolate potentially privileged material for review by an independent lawyer.
Mr McKenzie’s solicitors argued that the SFO’s procedure was unlawful, and that the SFO was obliged to engage an independent third party to carry out both the isolation and review of potentially privileged material.
The Court dismissed Mr McKenzie’s case. In particular, the Court rejected the argument that the SFO should be required to satisfy the same test as a solicitor acting against a former client (i.e. that there is “no real risk” of disclosure of privileged material). It stated that it was “inappropriate” to apply such a test to the SFO, given the obvious differences between the relationship of solicitor and client, and that of investigating body and suspect.
Instead, the only obligation on the SFO is to have a system that could “reasonably be expected” to ensure that its investigators do not review material before an independent third party has established whether privilege exists. The Court was satisfied that the SFO’s procedures met this threshold.