Ing documents should be attempted before the issue of a warrant

(R. v. Billericay Justices ex parte Harris (1991)), previous co-operation

by the occupier would normally destroy the basis of the application

(R. v. Reading Justices ex parte South West Meat Ltd (1992)). When the

magistrates should not have been satisfied that the material sought was

not covered by legal privilege or that the above grounds for a warrant

were established, the warrant is bad and can be quashed on appeal

(R. v. Guildhall Magistrates ex parte Primlaks (1990)).

There are three types of confidential material, which because of their

sensitivity are treated differently by PACE. The statutory provisions

538 General Principles of Constitutional and Administrative Law

are detailed and complex and, within the confines of this chapter, only

a brief examination is possible. A magistrate cannot issue a warrant

for these types of material and the police must instead apply to a

circuit judge. In some instances even the judge cannot grant a search

warrant.

Legal privilege

Firstly, s. 10 aims to preserve the confidentiality of communications

between client and lawyer. Included within legal privilege are com-

munications (usually written, but could be taped or perhaps email)

between professional legal adviser and client, provided they are made in

connection with the provision of legal advice. A conveyance, for

example, is not clothed with privilege, whereas correspondence offering

advice appertaining to the transaction would be (R. v. Crown Court

at Inner London Sessions ex parte Baines and Baines (1988)). Coverage

extends also to communications with a third party (for example,

medical and forensic reports), provided that the material relates to

actual or pending legal proceedings. In addition, items lawfully in the

possession of any person (for example, handwriting samples, blood

specimens and accounts) which are enclosed with (or referred to in)

exempt communications, are also immune.

Items subject to legal privilege are, except as regards items held

‘with the intention of furthering a criminal purpose’ (s. 10 (2)), wholly

exempt from search and seizure (s. 9 (2)). Items seized which are

discovered to be privileged must be returned as soon as is reasonably

practicable. The wording of s. 10 (2) has been widely construed. The

majority of the House of Lords in Francis and Francis v. Central

Criminal Court (1988) decided that it is not necessary that the adviser

have any criminal intention, and that the state of mind of a client can

suffice. The provision also extends to offences which have been com-

mitted (e.g. a bank robber concealing the proceeds of crime). The onus

of proof lies with the police, but even if the criminal intention is

established the items are still likely to be special procedure material

(see below) because they will be held in confidence.

Excluded and special procedure material

These two categories are not completely protected but seizure requires

an application to a circuit judge. However, an officer can seize excluded

and special procedure material during a search under post-arrest

powers (see ss. 18, 32 above) or any other lawful search (s. 19). This

goes some way to explaining the noticeable decline in the number of

539

Police Powers of Arrest and Search in the Investigation of Crime

warrant applications made to a circuit judge for these types of material.

It also circumvents the associated safeguards imposed by PACE.

Excluded material is regarded as the most sensitive, and is immune

unless there is a pre-existing statutory right to gain access to it (e.g.

under the Theft Act 1968). This restriction does not apply to special

procedure material. Excluded material is defined in s. 11 as embracing

personal records which are held in confidence and have been acquired

in the course of any trade, business, profession or other occupation or

for the purposes of any paid or unpaid office. The meaning of ‘per-

sonal records’ is given in s. 12 and refers to documentary and other

records which identify an individual and relate to specified matters:

that is, physical and mental health; and spiritual or personal welfare

counselling or assistance. This would include, for example, medical and

psychiatric reports; records held by personnel officers, social workers,

educational institutions and advice agencies; and information held by

religious bodies. Also expressly included within s. 11 are human tissue

and tissue fluid taken for the purpose of diagnosis or medical treatment,

and journalistic materials, which are, in all cases, held in confidence.

Special procedure material constitutes confidential material (e.g.

bank accounts, correspondence, minutes of meetings and book-

keepers’ files) which does not fall within either the legally privileged

or excluded categories (s. 14). In addition to having a confidential

nature, it is necessary that the material be acquired or created in the

course of any trade, business, profession or other occupation or paid

or unpaid office.

An application to a circuit judge is relevant where the police wish to

gain access to excluded or special procedure material for the purposes

of a criminal investigation. In conjunction with schedule 1, s. 9 offers

the means by which, in certain circumstances, the police may obtain an

order so as to gain possession of such confidential documentary and

other material. This may comprise a production order (see above) or a

search warrant. In all cases, the safeguard is that the judge exercises his

powers and discretion properly.

A search warrant (or a production order) may be issued by a circuit

judge in strictly limited circumstances. Unlike a production order, the

application for a warrant will normally be ex parte because the holder

of the documents will often be under investigation (R. v. Leeds Crown

Court ex parte Switalski (1991)). The Act provides two sets of ‘access

conditions’ which are relevant to this matter (schedule 1, paras 2, 3).

The first set applies to special procedure material, whereas the second

relates also to excluded material. It will be appreciated that major

differences exist between the two sets.