Crown criticised for ‘oppressive’ conduct in seeking warrant to search solicitors’ offices
that an application for a warrant might be made, Clyde & Co wrote to the sheriff clerk in Edinburgh on 11 July 2016 requesting they be contacted in that event, with a view to S being represented at any hearing, as it would be “oppressive and prejudicial” for a warrant to be granted a warrant without their client being heard.
However, neither the police nor any representative of the Crown contacted Clyde & Co again and a warrant was sought and obtained on 21 July 2016.
But counsel for the complainers submitted that the petition was “inaccurate” or at least framed in terms that were “likely to mislead” the sheriff when considering the petition, as it suggested that what was sought were the originals of the specified documents which had already been provided by S when in the crave of the warrant was in much wider terms.
While the application stated that the solicitors had refused to release the documents due to “reasons of client confidentiality”, there was no reference to the separate assertion of legal privilege by S.
Lord Brodie observed that the Crown would have been aware of a High Court decision in H, Complainers, 5 February 2016, not yet published due to proceedings continuing, which prescribed what should be done by the Crown when seeking to recover clients’ files from solicitors, including providing “all relevant information” to the sheriff, such as disclosing whether the havers are a firm of solicitors who are maintaining legal privilege, and if privilege is capable of being asserted, “the seizure process must have within it clear, detailed rules on how that assertion can effectively be raised and determined”.
The judge added that he thought it would be incompetent for a single judge to suspend a warrant, suspension being for a quorum of the High Court, but considered that he could competently grant an application for interim suspension in order to preserve the status quo “in the face of a threatened wrong”.
In a written note, Lord Brodie said: “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.
“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.
“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…to make sure of his facts.
“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 held by said Clyde & Co, whether in a computer system or otherwise’…”
“Moreover,” he continued, “in disobedience to what is prescribed by the Lord Justice-General at paragraph 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.”
The judge added: “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 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.”