A judge has criticised the Crown for presenting an "inaccurate and misleading" petition for a warrant to search a solicitors' offices where legal professional privilege was in issue and the Crown failed to follow the practice laid down in an earlier High Court decision.
Lord Brodie granted interim suspension of a warrant granted in relation to a corporate client, referred to only as S, of the firm Clyde & Co, which was under investigation in relation to a criminal matter. Clyde & Co had acte for S in relation to damages claims, and retained documents containing information and advice in relatoin to which S claimed legal privilege.
In July 2016 a detective contacted Clyde & Co seeking certain documents and a discussion took place as to what might be made available. Anticipating an application for a warrant, Clyde & Co wrote to the sheriff clerk requesting they be contacted in that event, as it would be oppressive and prejudicial to grant a warrant without S being heard. However a warrant was sought and obtained 10 days later without further communication with Clyde & Co. The petition for the warrant was misleading in that it suggested that what was sought were originals of documents already held by the police, and in not stating that S was asserting legal privilege.
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 laid down what should be done by the Crown when seeking to recover clients’ files from solicitors. This included providing all relevant information to the sheriff, including disclosing that the havers were solicitors who were maintaining legal professional privilege, and if privilege was capable of being asserted, "the seizure process must have within it clear, detailed rules on how that assertion can effectively be raised and determined".
He further noted that there had been no urgency, and no suggestion that relevant material might be destroyed or concealed.
The judge added that he thought it incompetent for a single judge to suspend a warrant, suspension being for a quorum of the High Court, but that he could competently grant interim suspension in order to preserve the status quo and prevent a threatened wrong.
Lord Brodie was satisfied that the Crown's actings had been oppressive. "As I have attempted to explain, the petition was misleading, if not simply inaccurate", he stated. "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 reason to believe that the complainers would act improperly. An obvious and easy step would have been to contact them directly in order to discover what was in fact in issue. 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 200 years... to make sure of his facts."
He continued: "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 at [L] held by said Clyde & Co, whether in a computer system or otherwise”... Moreover, 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 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."