Confidentiality re: Criminal Matters
Criminal solicitors to notify ICO under Data Protection Act
The Society continues to receive enquiries, especially from criminal practitioners, about whether they should have notified the Information Commissioner’s Office (ICO) under the Data Protection Act.
All solicitors should notify the ICO and risk a substantial fine if they do not. In particular, taking up the new Crown Office disclosure procedures – by electronic means called Pendrive – means it is essential for a solicitor’s practice to notify.
The ICO is targeting unregistered solicitors' and accountants' firms on a regional basis and has contacted legal firms across Scotland. The ICO has previously stated that as many as one third of solicitors' firms may still be unregistered. Letters have been sent to advise firms that they are not registered. If there is no response within three weeks, a second letter warns that failure to reply within a further 14 days will result in details being passed on to the investigations team.
The annual fee for notification is £35. Plain language guide and link to the leaflet “Notification handbook – A complete guide to notification”.
Changes in June 2009 to the Guideline on Confidentiality
The Professional Practice Committee made changes in June 2009 to the Guideline on Confidentiality to the section headed "3. Criminal Matters" these changes are shown in bold.
3. Criminal Matters
The Professional Practice Department regularly receive calls from solicitors who have been asked to give a statement either to the police or the Procurator Fiscal. The authorities on confidentiality were reviewed in the reported case of Micosta v. Shetland Islands Council 1983 SLT 483 where Lord President Emslie giving the opinion of the court stated the general rule, that communications passing between a party and his law agent are confidential. He then went on to say, “So far as we can discover from the authorities the only circumstances in which the general rule will be superseded are where fraud or some other illegal act is alleged against a party and where his law agent has been directly concerned in the carrying out of the very transaction which is the subject matter of enquiry”. In the particular case the court refused a motion to open up a confidential envelope which had been recovered by specification in a civil action.
The principle was taken slightly further by Lord Macfadyen in the case of Conoco v. The Commercial Law Practice in 1996. In that case the Commercial Law Practice had been consulted by a client who had asked them to write to Conoco without mentioning his name but advising them that he was aware of circumstances in which they had made substantial overpayments on a contract which he would be willing to provide further information about in return for a proportion of what was recovered.
Instead of responding positively to this invitation, Conoco brought a Petition under the Administration of Justice Act to require the solicitors to disclose their clients name and address, which was granted. Lord Macfadyen stated “The public policy consideration which underlies the fraud exception may be capable of extension to a situation in which a party and his solicitor, not themselves either guilty of fraud or involved in carrying out a fraudulent transaction, are involved in a transaction the purpose of which is to derive for the client benefit from his knowledge of a fraud committed by another party”.
If you are presented with a Production Order by the police you should pay close attention to what is called for in such an order and only deliver that. If asked to give a statement simply confirming that this is the file/these are the papers called for in the Order you should do so.
If you are asked to give a statement to the Police or the Procurator Fiscal in relation to a matter where the information sought is not already in the public domain (for instance having been disclosed in open court, or published in a public register) but is actually confidential, the Professional Practice Committee view is that you should offer to be precognosced on oath before the sheriff. If you answer a question on the direction of the court you would not be subject to a complaint of breach of confidentiality, as the matter is fundamentally one of law not of practice. In 1999 The High Court of Justiciary refused a Bill of Suspension in the case of Kelly and Sarwar where the solicitor appealed against a citation to give a precognition on oath.
You should not hand over your file or papers to the Police or the Fiscal unless they have obtained a warrant or a Production Order. If the authorities complain about the difficulty in obtaining an order, then a fortiori you should not hand over your papers voluntarily.
If you are cited to give evidence at a trial you must appear but again should follow the judge’s directions. If you are required to answer a question you should do so. Whether the evidence is admissible is a matter for the court to determine and might form grounds of appeal.
