Barristers Attending Searches as Independent Counsel to Advise Upon Legal Professional Privilege
1. Warrants to permit the search of premises are frequently obtained from the criminal courts by a variety of UK law enforcement agencies including the Police, Serious Organised Crime Agency, Serious Fraud Office, Financial Services Authority, Office of Fair Trading, Department for Business, Innovation and Skills, and Department for the Environment, Food and Rural Affairs.
2. The power to seize property during such a search does not extend to material that is subject to legal professional privilege – whether ‘advice’ or ‘litigation’ privilege. In order to ensure that the seizure of property is lawful investigating authorities have adopted the practice of instructing their officers to carry out an inspection of documents to determine whether they appear to fall within the scope of the warrant. Where a document comes within its scope and where there is any suggestion or indication that it might be subject to legal professional privilege (“LPP”), “independent counsel” may be asked by the investigating authority to give an opinion as to whether a document contains material that may be subject to (“LPP”). In this way any properly claimed privilege is not lost.
3. The instruction of independent counsel by investigating agencies has therefore become increasingly common, particularly in relation to the search of solicitors’ offices. Counsel will be instructed either to be available at the time of the search or to be otherwise available in order to provide the opinion sought.
4. This process has been sanctioned by the courts, see R. v. HMCE, ex parte Popely & Anr [1999] STC 1016, DC1 .
5. Independent counsel does not, and must not, actively participate in the search, but upon the request of those who instruct him, provides his opinion as to whether a document contains material that is, or may be, capable of being subject to LPP.
6. Counsel should be aware that the occupier of the premises (if present), or a legal representative instructed on the occupier’s behalf, might raise a claim to LPP. Any such claim should be made to those conducting the search and not made directly to independent counsel. Only if those who instruct independent counsel ask him to consider material should he inspect it. Independent counsel should not involve himself in any disputes that may arise between those carrying out the search and those subject to it, for example in relation to the scope of the warrant or as to what material should or should not be provided to him. Independent counsel is instructed to provide advice to the law enforcement agency and not to ‘arbitrate’ in disputes between it and the occupier of the premises.
7. Independent counsel may be asked by those who instruct him to advise in relation to whether a claim of LPP may be overridden upon the principles set out in R. v. Cox & Railton (1884) 14 Q.B.D. 1532. The Bar Council takes the view that independent counsel can only provide an opinion as to whether a document contains material that is, or may be, capable of being subject to LPP. To go beyond this is to stray into the area of advising the law enforcement agency generally. Disputes as between the investigating authority and the occupier of the premises or any other party are not for independent counsel to ‘arbitrate’ upon: such disputes should be resolved by the parties before the appropriate court.
8. Independent counsel must also not advise upon other issues in relation to the search, for example whether the seizure of any item would comply with the warrant.
9. Where independent counsel is asked to be present at the search he will usually be asked to give his advice orally. However counsel may also be asked to examine material after a search has taken place, for example electronic documents stored upon a hard drive. Such material is usually referred to as having been “blue bagged”, due to the colour-coded, opaque, plastic sacks that the seized material is typically sealed and stored in. In such circumstances independent counsel may be asked to give an opinion in writing. While at the scene, in so far as reasonably practicable, counsel should make his own independent note of both the material he is asked to view, and the opinions he has expressed on that material.
10. Independent counsel remains at risk of being called as a witness by either party to the search in the event that the conduct of it becomes contentious. Despite this, instructions to act as independent counsel during or after a search do not offend paragraph 603(d)3 of the Code of Conduct (the prohibition upon appearing in a matter where counsel may become a witness) which is aimed at the acceptance of instructions in matters in which counsel has already had some involvement and is likely to result in his being called as a witness.
11. Whilst the differing agencies have their own approach to the instruction of independent counsel certain matters should be consistently applied. Where it is proposed that independent counsel is to be used, the investigating agency should bring this to the attention of the court being asked to issue the warrant. Where it is proposed that independent counsel should enter the premises being searched, the warrant should expressly authorise this. Where there is any potential safety issue for those being part of the search, the agency’s risk assessment must include consideration of the role of independent counsel.
12. Counsel may also be instructed to act as independent counsel to advise in relation to the results of Production Orders, where suspected LPP material may, possibly inadvertently, have been included.
13. Counsel instructed as independent counsel need to bear in mind the following issues and if necessary insist, before accepting instructions, on formal confirmation of matters which protect their position as independent legal advisers under the Code of Conduct:
(a) Counsel should ensure that he is competent to advise on the doctrine and caselaw on LPP as it applies to search warrants (Code 603(a)).
(b) Counsel should ensure that he is are provided with the fullest possible written instructions and that these only invite counsel to advise impartially upon the issue of LPP and make clear whether or not counsel’s advice is to be disclosed to the owner, occupier or defendant in due course.
(c) Counsel’s professional client is the law enforcement agency that instructs him. Counsel owes duties of confidentiality to the client in respect of the instructions (Code 702),4 but counsel should bear in mind that those instructing may choose to waive their privilege in the event of a later dispute over the warrant.
(d) Counsel should insist on being provided with a copy of the warrant in advance of acting.
(e) If Counsel is expected to enter premises (for example to view electronic material), the warrant must expressly provide for this and preferably he should if possible be named on the warrant or receive very clear (preferably written) permission to enter from the owner or occupier.
(f) Counsel should consider requiring an indemnity in the instructions against any damages arising out of the lawfulness of the warrant or the search.
(g) Counsel is, and must remain, entirely independent of the case concerned, i.e. he must not accept any other instructions to act in relation to the search or the investigation. Counsel should bear in mind that he may be at risk of being a witness in relation to the conduct of the search.
(h) Counsel should take no active part in the search. Counsel’s role should be confined to providing advice to those who instruct him as to whether, in his opinion, material brought to his attention by those who instruct him is, or may be, capable of being subject to LPP and he should not perform any other task or give any other advice either to the searching authority or the occupier of the searched premises.
(i) If Counsel is unsure of the status of the material inspected, he should insist that the material be “blue bagged” for later inspection and consideration.
Professional Practice Committee
The General Council of the Bar
1 See also the guidance in R. (Miller Gardner Solicitors) v. Minshull Street Crown Court [2002] EWHC 3077 (Admin), DC.
2 LPP does not extend to communications which are made for the purpose of obtaining advice on the commission of a future crime, or which are themselves part of a crime.
3 “603. A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(a) if he lacks sufficient experience or competence to handle the matter;
…
(d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;”
4 “702. Whether or not the relation of counsel and client continues a barrister must preserve the confidentiality of the lay client's affairs and must not without the prior consent of the lay client or as permitted by law lend or reveal the contents of the papers in any instructions to or communicate to any third person (other than another barrister, a pupil, in the case of a Registered European Lawyer, the person with whom he is acting in conjunction for the purposes of paragraph 5(3) of the Registered European Lawyers Rules or any other person who needs to know it for the performance of their duties) information which has been entrusted to him in confidence or use such information to the lay client's detriment or to his own or another client's advantage.”
