Legally Privileged, excluded and special procedure material Flashcards
Q: What is legally privileged material?
Material which falls under s10 PACE 1984 is subject to legal privilege which means it cannot be searched for or seized.
(a) communications between professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client
(b) items enclosed with or referred to in such communications and made in connection with the giving of legal advice and legal proceedings
when they are in the possession of a person who is entitled to possession of them
Summary- it is lawyer-client communications.
Q: When is legally privileged material not subject to this rule?
When it is possessed by neither the lawyer or client or someone who is entitled to possess it.
Professional legal advisors are qualified lawyers etc.. The privilege does not apply to people who are not professional legal advisors or legally qualified.
Q: When can legally privileged material be seized?
Under the crime fraud exception.
Material that is held with the intention of furthering fraudulent or a criminal purpose (s10(2)).
When making an application for a warrant to search for and seize such material the production procedure under section 9 or schedule 1 should be used.
This is rare and would include instances where a solicitor’s firm is the subject of a criminal investigation (Leeds Crown Court 1991).
Q: What happens if legally privileged material is inadvertently seized during the execution of a warrant?
This will not render the entire search unlawful.
Q: What is excluded material?
s11(1) PACE
(a) Personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence.
(b) Human issue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence.
(c) Journalistic material which a person holds in confidence, and which consists of documents or office records other than documents.
What does subsection (2) mean?
Subsection (2) a person holds material in ‘confidence’ for the purposes of this section if he holds it subject to an express or implied undertaking to hold it in confidence or if he holds it subject to a restriction on its disclosure or an obligation of secrecy that is contained in any law.
When is journalistic material held in confidence?
Journalistic material is held in confidence if a person holds it subject to such an undertaking, restriction or obligation and it has been continuously held by one or more persons in such a way since it was first acquired or created for the purposes of journalism.
Q: What are examples of excluded material?
Dental and medical records, as well as records made by religious advisors.
Q: What is special procedure material?
This is confidential material which doesn’t fall strictly into the categories above but is in the possession of any person who acquired or created it in the course of trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence.
