R (on the application of Colin McKenzie) v Director of the Serious Fraud Office saw an unsuccessful attempt to judicially review the SFO’s currently in-use procedure for dealing with material that it has seized, and which may contain content subject to legal professional privilege (“LPP”).
This ‘procedure’, set out in the SFO’s Operational Handbook, provides for the SFO to use its in-house technical staff to initiate an electronic search of material the SFO has seized by reference to search terms, to isolate content that may be subject to LPP for subsequent review by independent counsel.
While the Handbook is no longer available on the SFO’s website, the relevant part of the procedure is set out in the judgment here.[I]
The claimant sought leave to review the first part of this procedure, being the SFO’s use of its in-house technical staff to initiate an electronic search and sift for LPP content in material already in its possession, by reference to agreed search terms. The claimant argued that the correct approach should be for this sifting exercise to be contracted to independent IT specialists, and that no documents suspected to be subject to LPP should be made available to the seizing body until this had been done.
In the run up to the application, the claimant first had various devices seized from him, under powers the police have when arresting and detaining persons (section 54 of the Police and Criminal Evidence Act 1984). Six days later the SFO served a Notice under section 2(3) of the Criminal Justice Act 1987, which required the claimant to produce further items. [ii]
In response to this Notice, the claimant produced various pieces of computer equipment including an iPhone.
Notably, neither the claimant nor its solicitors alerted the SFO to the fact that the SFO were taking into its possession anything that could contain content subject to LPP. It was the SFO who subsequently notified the claimant that the iPhone might contain LPP content and that it wanted to apply its sifting procedure to it. The claimant resisted this on the basis it was unlawful, and subsequently sought leave to challenge the process.
Having considered the matter the court decided that “there is a world of difference between determining whether something is protected by LPP, which involves close consideration of the content and context…and identifying a document…as potentially attracting LPP”,
and finally concluded that,
“the procedures set out in the SFO’s Handbook for isolating material potentially subject to LPP for the purpose of making it available to an independent lawyer for review, is lawful.”
Why the judgment is not all too surprising to us is that we read it as an endorsement that the SFO’s procedures, as set out in the Handbook, accommodates the ‘Seize and Sift Exception’.
The Criminal Police and Justice Act 2001 allows enforcement authorities, in certain circumstances, to seize material from premises or persons which may contain documents protected by LPP (“the Seize and Sift Exception”).[iii] This Seize and Sift Exception applies only to certain specified search and seizure powers granted through statute to enforcement authorities.[iv]
This ‘Seize and Sift Exception’ anticipates that there will be circumstances where it will be difficult for an enforcement authority conducting a seizure to physically separate content it is not entitled to (for example content subject to LPP) from material the authority is authorised to seize, that it may be impracticable to perform the separation during the actual seizure, and that the purpose of the search may be frustrated if the documents cannot be seized immediately.
The court considered and acknowledged this Exception in its judgment stating “even had it been the case that the police or SFO had reasonable grounds to suspect that the seized devices contained LPP material their seizure would have been authorised by Section 51 of the Criminal Justice and Police Act 2001”.
We obviously agree with the general proposition that this Section 51 (part of the Seize and Sift Exception) allows enforcement authorities to seize material that may have content subject to LPP in certain circumstances and when exercising excepted search and seizure powers.
However, two things strike us.
The first is that we do not believe that the Seize and Sift Exception applies to material seized by police from a detainee. This may be academic in this case given what was to be sifted by the SFO did not seem to include the police seized material.
The second, and more prominent for us, is that the iPhone that potentially contained LPP content, which was the whole subject matter of the case and was to be sifted through, was in our view not seized by the SFO using an excepted power, but produced to the SFO by the claimant following receipt of a Section 2(3) Notice.
When first becoming aware of the basic facts of this case we were curious to see if there had been any consideration of whether the SFO’s sifting procedure as set out in its Operational Handbook should extend only to documents seized by the SFO, and not to documents produced to the SFO. There is a particular technique used by the SFO, which highlights the importance of understanding the distinction, where the SFO deploys its Section 2(3) powers, on a “here and now” basis, to require immediate production of documents to SFO personnel hand-serving a Section 2(3) Notice.
While not considered in this case we suggest that the SFO’s use of its internal procedure to separate material should ordinarily only be open to the SFO in cases where it has lawfully seized the material to be sifted, and not where it has compelled production of material under its Section 2(3) powers.
[i] It has been withdrawn from the SFO website with the disclaimer “The handbook chapters are being redacted in line with Freedom of Information principles, to avoid compromising our operations, and will be published as soon as possible”.
[ii] Section 2(3) gives the Director of the SFO the power to require any person under the SFO’s investigation to produce specified documents without the need to obtain a production order through the courts.
[iii] Section 50 and 51 of the Criminal Justice and Police Act 2001
[iv] Including the search and seizure powers under Part 2 and 3 of the Police and Criminal Evidence Act.