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HIGH COURT OF JUSTICIARY

[2016] HCJAC 93

HCA/2016-24/XJ

 

NOTE BY

LORD BRODIE

in

BILL OF SUSPENSION

by

CLYDE AND CO (SCOTLAND) LLP

Complainers;

against

THE PROCURATOR FISCAL, EDINBURGH

Respondent:

Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance

22 July 2016

[1]        The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 1537 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 1700 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr  Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 1700 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed.

[2]        The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor Advocate, a partner in the complainers, are as follows.

[3]        A client of the complainers is S.  The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L.  These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice... which advice and information being disclosed was privileged.” As I understood matters, the complainers retain in their possession documents and files, both paper and digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege.

[4]        On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken.  She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought.

[5]        On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the Sheriff Clerk in Edinburgh requesting that the Sheriff Clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from [S].” No reply has been received to that letter.

[6]        Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers.

[7]        At about 1000 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms:

“to any Constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other Officer of Law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and any other evidence which may be material to the investigation into the alleged abuse at L held by said Clyde & Co, whether in a computer system or otherwise.”

 

Insofar as material to the issues raised in the bill, the averments in the petition were as follows:

“[S] have provided copies of documents referring to a code of conduct for staff … a punishment book, lists … statements, including what purports to be a statement taken from [a named person] and signed by her …

 

[S] have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality.

 

The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.

 

 

“There are reasonable grounds for believing that evidence material to the investigation … is found within the documents being withheld by the solicitor.  The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to [L].”

 

As Mr Smith explained, these averments were inaccurate in certain respects or at least framed in terms that were likely to mislead the sheriff when considering the petition. The tenor of the averments is such as to suggest that what is sought to be recovered are the originals of the specified documents (ie the code of conduct etc) which have already been provided by S (albeit that the crave of the warrant is in much wider terms) and that was because the complainers were only prepared to provide copies. Moreover, while there is reference to “reasons of client confidentiality” (which makes no sense if it is the respondent’s position that the police already have copies of the documents) there is no reference to the separate assertion of legal privilege by S..

[8]        The assertion of legal privilege in the face of a search warrant has recently been considered by the court in its opinion, dated 5 February 2016, in the bill of suspension at the instance of parties whom I will refer to as H Complainers. This opinion has not been published because the proceedings to which it relates have not been concluded but will have been issued to parties, one of whom is the Lord Advocate. I had been unaware of this opinion until Mr Smith brought it to my attention and the sheriff who granted the search warrant is also unlikely to have been aware of it. On the other hand, I would expect the respondent, as a representative of the Crown, which in the person of the Lord Advocate was party to H Complainers, to have been aware of the decision and the terms of the opinion of the court and particularly those parts of that opinion which prescribe what ought to be done when the Crown applies for and then has executed a warrant for search and seizure of material in respect of which legal privilege may be asserted.

[9]        H Complainers does not innovate upon the existing law but clearly states it and highlights the consequences for practice. It is prescriptive as to what should be done by the Crown when seeking to recover clients’ files from solicitors. It is convenient to quote the following paragraphs from the opinion of the court, as delivered by the Lord Justice‑General:

“[26]    A police officer seeking a warrant from a sheriff must not provide information which he knows to be inaccurate or misleading.  He should provide all the relevant information.  The reference to “full disclosure” in McDonagh v Pattison 2008 JC 125 (at paras [11] and [12]) should be understood in that context.  The duty includes one to disclose the fact that the havers are a firm of solicitors who are maintaining a plea of legal privilege.  It was submitted that the information in the petition and given by the police officer on oath to the sheriff, in particular in relation to the likely application of legal privilege, had been inaccurate.  This contention was not contained in the original Bill, upon which alone the sheriff has reported.  It is a reasonable one, in so far as it is based upon the sheriff’s first report.  That report states that there was no suggestion that legal privilege should apply.  However, it appears to be contradicted by the second report. 

 

[27]      The court will proceed on the basis that the sheriff was aware of the claim of legal privilege.  He certainly ought to have been so aware, given that the havers were a firm of solicitors. …

 

[28]      What is important to note is that the warrant was obtained for material over which there was an ongoing dispute about legal privilege.  That dispute was taking place between the Crown, notably the advocate depute, and a firm of … solicitors, namely the first complainers.  There is no suggestion that the first complainers were involved in any form of illegality.  There was no averment that, in the context of the ongoing dispute, the first complainers would be likely to destroy, or conceal, the relevant material.  Indeed the existence of this material had been flagged up in the two chronological bundles …  In these circumstances, an application to a sheriff for a warrant to search the first complainers’ premises to recover this material, without intimation, was oppressive.  If the course selected by the Crown were to have validity, it was incumbent upon them to have intimated the application for a warrant to the first (and/or second) complainers, so that they could make representations to the sheriff about legal privilege.  The sheriff could then have made such appropriate orders, as he deemed fit, to secure proper compliance with the law of privilege in respect of the recovery of the solicitors’ files.

 

[29]      The courts must be careful to protect the important right of legal privilege which generally attaches to communications between a client and his solicitor (Narden Services v Inverness Retail and Business Park 2008 SLT 621 at para [11]).  It is essential therefore that due caution is observed when a court is granting an order for the recovery of solicitors’ files.  The need for such caution is even greater when a warrant is being granted with a view to its endorsation for execution outwith Scotland.

 

[30]      There is no reason for a warrant to state expressly that materials, ostensibly covered by its terms, are excluded where legal privilege exists.  Such privilege may or may not be asserted.  If it is capable of being asserted, however, the seizure process must have within it clear, detailed rules on how that assertion can effectively be raised and determined.  That is a matter which was stressed in the mid-nineteenth century Scottish cases cited (Bell v Black (1865) 5 Irv 57, LJC (Inglis) at 64; Nelson v Black & Morrison (1866) 4 M 328, LP (McNeill) and Lord Deas at 331, Lord Ardmillan at 332; Lord Wood at 237).  It is now reflected in the European jurisprudence (Sallinen v Finland (2007) 44 EHRR 18 at paras 90 and 92; Niemietz v Germany (1992) 16 EHRR 97 at para 37).  In a case, such as this one, where it is clear that what is to be searched is a solicitors’ office and that legal privilege is being asserted, any warrant ought either to have provided for independent supervision of the police search by a Commissioner appointed by the court or to have contained a requirement that any material seized should be sealed unread and delivered to the court to enable the sheriff to adjudicate upon the issue (see Wieser v Austria (2008) 46 EHRR 54 at para 57).  The ability to raise a Bill in the High Court of Justiciary, designed to suspend the warrant itself, is a procedure for review by an appellate court which, whilst competent, is not straightforward.  It does not supply the necessary effective remedy at first instance.  If this necessitates a change of practice in connection with the recovery of solicitors’ files, such a change requires to take place.”

 

[10]      As will be apparent, what was done by the respondent in the present case failed in a number of respects to comply with what the Lord Justice-General prescribed in H Complainers. The complainers do not aver bad faith or an attempt to mislead on the part of the police and I see no basis upon which that could be inferred. The averments in the respondent’s petition may reflect DC Gow’s understanding of matters but these are the respondent’s averments and by presenting them to the court in a petition signed by one of his deputes the respondent took responsibility for their accuracy insofar as the accuracy of averments can reasonably be ascertained. As I have indicated, the averments were not accurate. They were not comprehensive. They were misleading. There was no urgency in the matter, as the passage of time between 7 and 21 July 2016 demonstrates. There was no averment in the petition that the complainers would be likely to destroy or conceal the relevant material or that they were in any way involved in wrongdoing. The respondent chose not to contact the complainers to confirm the facts prior to preparing his petition, although, as the Lord Justice-General observes at para [27] of H Complainers in relation to the sheriff, the respondent ought to have been aware that issues of legal privilege would arise where he was seeking to seize documents generated in the course of solicitors acting for clients faced with the prospect of litigation.  There is nothing in the crave of the warrant to restrict its execution to circumstances where there is independent supervision of police officers or requiring any material in respect of which privilege is claimed to be sealed unread and delivered to the court. The respondent chose not to intimate the application for the search warrant to the complainers and so give the complainers the opportunity to make representations to the sheriff about legal privilege.

[11]      Having read and copied the search warrant Mr Watson requested the police officers who were seeking to execute it not to do so before he was able to consider further action. The police officers agreed to delay in executing the warrant. They remained in or about the complainers’ office during the course of the day and were only to leave it at about 1730 hours following communications between my clerk and representatives of the respondent, to which I will refer later in this note. Mr Watson consulted with Mr Smith who telephoned Crown Office with a view to discussing matters with an advocate depute. He spoke to an advocate depute who advised him that this was a matter under the direction of the National Sexual Crimes Unit and referred Mr Smith accordingly. At about 1347 hours Mr Smith had a telephone conversation with a named official of the Unit. He attempted to convey his concern that an application for the warrant had been made without intimating the intention to do so to the complainers and to contrast this with what had been said by the Lord Justice-General in H Complainers. The official was unsympathetic to Mr Smith’s representations and disinclined to enter into discussion. She indicated that she was aware of the decision in H Complainers but, although she had not read it, she considered it particular to its facts which included the involvement of English solicitors and English procedures. She stated “I have been doing it this way for 20 years”, from which Mr Smith understood that she did not propose to allow what was said in H Complainers to inform her established practice. Mr Watson also spoke with the official. She described the efforts on the part of the complainers to protect their clients’ legal privilege as a “serious matter of obstructing justice”. In the face of what Mr Smith characterised to me in submission as “this intransigence”, the bill of suspension was drafted and presented.

[12]      As I have already explained, Mr Smith and Mr Watson came before me in chambers, at little before 1700 hours on 22 July 2016. I was assisted by Mr MacPherson DCJ. Having regard to the criticisms levelled by Mr Smith against the respondent and those acting in his name I adjourned the hearing in order that Mr MacPherson might alert Crown Office of what was taking place and to invite representation of the respondent if so advised. Mr MacPherson was able to speak to a member of staff of the Crown Office and Procurator Fiscal Service who involved others including the official with whom Mr Smith had spoken. By this time it was after 1700 hours on what was a Friday evening. The offer to hear any representations through an advocate depute was not taken up but Mr MacPherson was led to understand that a “guarantee” had been given “to stand down the police”.

[13]      What Mr MacPherson had learned was reported to me in the presence of Mr Smith and Mr Watson and the hearing resumed. Mr Smith renewed his motion for interim suspension of the search warrant. While perhaps explicable by reason of the lateness of the hour, the shortness of notice and the absence of necessary personnel, the respondent had not availed himself of the opportunity to be represented, to make any explanation or to put forward any undertaking or other proposal in precise terms. While the “guarantee” reported by Mr MacPherson could be interpreted as an undertaking not to execute the search warrant that day it was unclear whether it went beyond that. It was also unclear who it was who was giving the undertaking. Mr Smith’s conversation with the named official, whom he understood to be responsible for this investigation, had not given him confidence that she understood the importance of legal privilege or what the Lord Justice-General had recently said about the need to put in place procedural mechanisms effectively to protect it.

[14]      I was not addressed (I had not asked to be addressed) on the competency of a single judge of the High Court of Justiciary suspending a warrant. I would suppose that it would not be competent for him to do so, suspension being a matter for a quorum of the Court: cf Stewart v Harvie 2016 SCCR 1 at para 3. However, I would see granting an application for interim suspension at the stage of first orders to be different. It is of the nature of remedies for preserving the status quo in the face of a threatened wrong that they be available quickly and on summary application. As here there will be circumstances where a complainer seeks suspension of a warrant before it is executed on the grounds that execution would be wrongful and damaging to the interests of the complainer. In practical terms, if interim suspension cannot be granted by a single judge then a remedy will not be available. Moreover, I observe that in Morton v Mcleod 1981 SCCR 159 Lord Cameron, sitting alone, entertained an application for interim suspension of sheriff court summary proceedings, albeit that he concluded that suspension was not competent before trial.

[15]      Of course, having a power and being justified in exercising it are very different things. Suspension of a warrant, even ad interim, is not something to be done lightly. What is being sought to be set aside is a decision of the sheriff who has primary jurisdiction and whose duty it is to grant a warrant only when he is satisfied that it is lawful to do so.

The importance of that duty and its conscientious performance was stressed by Lord Justice‑General Rodger in Birse v MacNeill 2000 JC 503 at 507A by quoting what had been said by Lord Justice-General Clyde in Hay v HMA 1968 JC 40 at 46:

“Although the accused is not present nor legally represented at the hearing where the magistrate grants the warrant to examine or to search, the interposition of an independent judicial officer affords the basis for a fair reconciliation of the interests of the public in the suppression of crime and of the individual, who is entitled not to have the liberty of his person or his premises unduly jeopardised. A warrant of this limited kind will, however, only be granted in special circumstances. The hearing before the magistrate is by no means a formality, and he must be satisfied that the circumstances justify the taking of this unusual course, and that the warrant asked for is not too wide or oppressive. For he is the safeguard against the grant of too general a warrant.”

 

However, in determining whether a warrant should be suspended this court is not only concerned with the decision-making of the sheriff or other magistrate; it is also concerned with the actions of the party (here the respondent) who has applied for the warrant. Where these actions are oppressive the warrant will be suspended.

[16]      I consider that the actions of the respondent in applying for the search warrant on the basis of his petition to have been oppressive. As I have attempted to explain, the petition was misleading, if not simply inaccurate. High standards of accuracy are always required of a party seeking a remedy ex parte. Separately from that, the very highest standards are always expected of the Crown. Were it otherwise our criminal practice would be different. Here the requisite standards were not met. If it be the case that the respondent proceeded on a police report which simply reflected the detective constable’s understanding of the issues, that was not good enough. The respondent was obliged to ensure the accuracy of his averments insofar as that was practical. There was no question of urgency. The respondent was aware that he was seeking to recover clients’ files held by solicitors and therefore was on notice that privilege as well as confidentiality was likely to be in issue. There was no reason to believe that the complainers would act improperly. An obvious and easy step would have been to contact them directly in order to discover what was in fact in issue. It is true that it might have been better had the complainers’ letter of 11 July 2016 been addressed to the respondent rather than to the Sheriff Clerk, but the onus was on the respondent who as a public authority was proposing to interfere with article 8 rights as well as rights which have been explicitly and repeatedly recognised in Scotland for more than two hundred years (Executors of Lady Bath v Johnston Fac Coll 12 November 1811, noted by Lord Wood in McCowan v Wright (1852) 15 D 229 at 237) to make sure of his facts.

[17]      Not only is what is averred in the respondent’s petition inaccurate, it does not support the very wide terms of the crave for a warrant which extend, without any limitation of time whatsoever, to “any other evidence which may be material to the investigation into the alleged abuse at [L] held by said Clyde & Co, whether in a computer system or otherwise”. It will be recollected that the averments relate only to supposed originals (presumably in paper) of documents already provided as copies. Moreover, in disobedience to what is prescribed by the Lord Justice-General at paragraph [30] in H Complainers, no provision is made in the petition for either independent supervision of the police search by a commissioner appointed by the court or the inclusion of a requirement that any material seized should be sealed unread and delivered to the court to enable the sheriff to adjudicate upon the issue.

[18]      The oppressive conduct of the respondent was not limited to the presentation of an inaccurate and misleading petition, the averments in which bore little or no relationship to the crave and which omitted provision for the independent supervision of any police search. He failed to give intimation of his intention to apply for the search warrant. Again that is in direct disobedience to what the Lord Justice-General prescribed at paragraph [28] of H Complainers. On the basis of this failure alone I consider that it was oppressive to apply for the search warrant, but the various culpable deficiencies in the petition put the matter beyond doubt. I have accordingly been satisfied that the complainers have put forward a sufficient basis for suspension ad interim, subject only to consideration of what is to be made of the “guarantee” given to Mr MacPherson. 

[19]      Before turning to the “guarantee”, I should indicate that had it been necessary to do so I would have held that sufficient had been put before me to suggest that the sheriff had erred in granting the warrant in the terms he did to such an extent as to render the warrant unlawful. It is true that the petition did not provide the sheriff with the assistance that he was entitled to expect from the respondent, but there was enough that should have been regarded as anomalous in this application to have put the sheriff on notice that further inquiry was required before granting the warrant. I have already mentioned these points when considering the respondent’s actions but in summary they are as follows: (1) the averment of refusal to release documents on reasons of client confidentiality when copies of the documents have already been provided to the police is so illogical as to require explanation; (2) the width of the crave which is not supported by averments and therefore had no basis upon which it could properly be granted; (3) the mere fact that the havers of the documents were solicitors should have been enough to make a sheriff aware that legal privilege was a likely issue (H Complainers at para 27) and required to be protected; and (4) the failure to intimate the application to the complainers and the giving to them of an opportunity to be heard in the absence of averments of (i) urgency, (ii) risk of destruction or concealment or (iii) any wrongful or improper behaviour whatsoever on the part of the complainers. In my opinion by granting the search warrant in the terms that he did it can only be inferred that the sheriff, for whatever reason, failed to give the petition the degree of scrutiny required of an application for search and seizure, as explained in Hay v HMA.

[20]      I return to the question of the “guarantee”. Suspension is a discretionary remedy and in deciding whether to suspend ad interim regard is to be had to the interests of justice and with them the practicalities of the matter. The question of necessity comes into that. It might be said that there is no need to suspend a warrant if it is not intended to enforce it. The “guarantee” reported by Mr MacPherson suggested that there was no current intention on the part of the respondent or those acting in his name to enforce the search warrant. However, in the absence of any representative of the respondent before me with the authority to give a precise undertaking I was left in doubt as to precisely what was being “guaranteed” and who, and with what authority, was giving the guarantee. The history of the matter, at least as presented ex parte, did not suggest that the respondent had a very secure understanding of his obligation to give accurate and complete information to the court, to follow the guidance provided by H Complainers or otherwise to protect individual rights. An expression of willingness to negotiate on the part of the official from the Sexual Crime Unit earlier in the afternoon might have put a different complexion on matters. There was something unsatisfactory in the apparent immediate collapse of the position taken on behalf of the respondent when an opportunity was given to defend the warrant, albeit that the lateness of the hour may have contributed to that. Then there is the question of accountability. I heard what I consider to be quite serious criticisms of representatives of the Crown but I did not hear from the respondent in reply. It is appropriate that the respondent is given the opportunity, which a further hearing would afford, to explain, provide any other relevant information and to correct any misapprehensions or errors in fact or law on my part. I accordingly decided to suspend the search warrant ad interim, to grant warrant for service and to continue matters to a hearing to be fixed. A copy of this note will be provided to the respondent as well as to the complainers.

[21]      By way of post script I would add that subsequent to the issue to parties of a Note in terms of the previous 20 paragraphs, I have had the opportunity of considering a report prepared by the sheriff who granted the warrant.  The sheriff prepared that report in light of what is averred in the Bill of Suspension.  The sheriff’s report is dated 1 August 2016.  It gives no indication that the sheriff has had sight of my Note as issued to parties.

[22]      The sheriff reports that the warrant was granted by him on 21 July 2016 on what was a second application, the Crown having originally sought a warrant in wider terms which the sheriff had not been prepared to grant.  The sheriff further reports that he was informed by the respondent’s depute that the complainers had refused to release documents, other than originals of the documents already seen by the police.  I would observe that while this may be what the respondent meant by the averment: “The solicitor has indicated that they will provide the originals of the documents already provided in copy format only”, that would appear to be contradicted by the immediately preceding averment: “[S] have indicated that the originals of [previously provided documents] are held by their legal representatives, Clyde & Co …the solicitor has refused to release these documents, citing reasons of client confidentiality.”  The sheriff goes on to report that he was not informed that the complainers had made any offer to cooperate, or that they had written to the court to request such notification.  The sheriff explains that had he known of any willingness to release selected new material, he would have continued the application pending voluntary production by the complainer, to ascertain whether production could take place without the need for a warrant.  Had he known of any written request such as that which the complainers had directed to the Sheriff Clerk, the sheriff explains that he would have continued the application for a hearing at which the complainers could be represented