Confusion remains for crime, fraud and iniquity in search warrant applications

On first glance, it may be difficult to understand why the Law Commission of England & Wales’ report on search warrants [1] published on 7 October 2020 runs to 587 pages. After all, search warrants are a simple exercise whereby a police officer or other investigator presents evidence as to why the necessary conditions are made out, and if a court is satisfied, the warrant is issued. What aspect of their reform could possibly require such verbiage?

This is, of course, a vast oversimplification. As identified by the Report, there are some 176 provisions relating to the issue of search warrants across 138 pieces of legislation. Furthermore, beyond the application procedure itself, search warrants give rise to an array of issues that frequently result in satellite litigation alongside the substantive criminal investigation or prosecution. These challenges arise because, although search and seizure may be the most basic and necessary tools required by an investigator, the issue warrant represents something much more significant: the state-sanctioned override of the right to privacy of property and information.

Given the deceptive complexity of the law on search warrants, it is unsurprising that in at least one aspect, the Law Commission has found itself unable to make any recommendation as to how it might be improved and clarified. That issue can be summarised in a question: in what circumstances should material that would be usually be protected from search and seizure be denied that protection, on that basis that it was, or is suspected to have been, created or held for criminal, fraudulent or otherwise iniquitous purposes?

This situation is commonly referred to as the ‘crime-fraud exception’ (‘CFE’), and is most commonly encountered in the context of Legal Professional Privilege (‘LPP’ – see the recent judgment in Addlesee v Dentons [2] for a helpful explanation of the circumstances in which CFE arises, and why its application is not limited to crime and fraud).

Its relevant to search warrants is that LPP is one category of material, alongside Excluded Material and Special Procedure Material, which cannot be the subject of a search warrant, unless (and only in the case of Special Procedure Material) additional conditions are fulfilled.

As identified by the Law Commission report, the application and effect of CFE varies between these three forms of protected material:

1. For LPP, common law (as summarised in Addlesee) provides that, where CFE is established, the material lacks the confidentiality necessary to attract LPP, which in turn voids any protection against a search warrant. This approach is imperfectly codified at s10 Police & Criminal Evidence Act 1984, which provides that ‘Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.’ but does not consider the broader circumstances where iniquity (not necessarily criminality) may defeat LPP.

16. For Excluded Material [3], it is only recently (see R v Norman [2016] EWCA Crim 1564, [2017] 4 WLR 16.) that the Court of Appeal has held that, given the effect of CFE is to void confidentiality, this defeats the protection of Excluded Material in the same manner as LPP.

• For Special Procedure material, the effect of Norman is to segregate the two categories of material which might claim protection:

1. Material created in the course of a business, trade or profession and held in confidence, but which is not Excluded Material (e.g. because it does not consist of ‘personal records’). In this case, the effect of Norman is to negate the necessary confidentiality.

1. Journalistic material not held in confidence. On the face of it, Norman has no effect on such material, and so it would retain it Special Procedure status even if it were proven to have been produced for an iniquitous purpose.

However, the Law Commission’s report identifies that this apparent loophole is addressed  in both the Investigatory Powers Act 2017 and the Crime (Oversea Production) Act 2019, which in summary provide that:

(1) Material/electronic data is not to be regarded as (having been) created or acquired for the purposes of journalism if it is (or was) created or acquired with the intention of furthering a criminal purpose, and

(2) Material/electronic data which a person intends to be used to further such a purpose is not to be regarded as intended to be used for the purposes of journalism. [4]

As such, the Law Commission concludes that material to which CFE applies has no protection against being the subject of a search warrant, irrespective of a claim to LPP, Excluded or Special Procedure status.

Whilst the Law Commission are to be commended for unpicking the law on this topic, it cannot be satisfactory for the application of such an important principle to be scattered across common law and statutory provisions, none of which purport to provide definitive guidance as to when CFE applies to a search warrant application, and what should be the effect. This is particularly so given such applications concern the search and seizure of property which is not only private, but may be legally privileged, reveal a journalistic source or otherwise contain personal information held in professional confidentiality.

In considering recommendations for reform, the Law Commission will not have been assisted by the conflicting responses to its consultation. Those respondents representing media organisations were opposed to journalistic material being subject to search and seizure in any circumstances, and warned that statutory regime which specifically suggests that such material might not be protected would be open to abuse from speculative applications. Conversely, investigative agencies were keen that the existing law be clarified and codified, although not necessarily extended. However, it is interesting to note that both the National Crime Agency and the Crown Prosecution Service responded on the basis that, contrary to the Law Commission’s conclusions, Special Procedure Material does not necessarily lose its protected status as a result of criminality.

Unfortunately for future applicants and respondents, the Law Commission’s only recommendation is not for any substantive change, but rather than the Government should ‘consider whether reform is whether the law relating to iniquitous material in the context of criminal investigations ought to be reformed.’

The Report cannot be criticised for being unable, during this exercise at least, to make sensible suggestions for reform of such a piecemeal issue. However, the Law Commission should itself consider whether its deference is helpful in communicating the pressing need for further work. By suggesting that the Government ought to consider whether reform is necessary, the Law Commission fails to acknowledge the obvious conclusion of its own work; that significant reform is needed, and soon.

[1] https://www.lawcom.gov.uk/project/search-warrants/

[2] https://www.corkerbinning.com/crime-fraud-iniquity-wrongdoing-legal-professional-privilege/

[3] In summary, (i) personal records created or acquired in the course of a business, trade, profession or office, (ii) human fluid or tissue or (iii) journalistic material, where any of these is held in confidence

[4] See Report p252 – 253