Search & seizure: protecting confidential material

• Examines the law relating to the seizure of confidential material following execution of a search warrant.
• Discusses the case of R (on the application of LXP) v Central Criminal Court [2023] EWHC 2824, involving the seizure of journalistic material and culminating in judicial review.
• Highlights the challenge faced by those subjected to searches in seeking to protect confidential material that the investigator had no power to seize.

The law relating to confidential material seized during the execution of a search warrant is likely to interest financial crime lawyers as much their colleagues at the coalface, given the increasing use of searches by the Serious Fraud Office (“SFO”) – more in the past six months than in the previous director’s entire tenure.

A judgment towards the end of last year examined a number of thorny issues arising from the execution of a search warrant in relation to a person whose property should have been subject to additional protections by virtue of their status as journalist. It sheds light on what happens when the police, or any authority, seize property that should have been protected from seizure, and how the courts resolve how that material should be dealt with.

Warrants and protected material    

Search warrants empower investigators to enter premises and search for, and seize, specified materials. However, these powers of seizure are not unfettered: some types of material are subject to additional safeguards because of their legal status. For the purposes of this article, the relevant example is “journalistic material”.

Journalistic material is defined by section 13 of the Police and Criminal Evidence Act 1984 (“PACE”) as “material acquired or created for the purposes of journalism in the possession of a person who acquired or created it for the purposes of journalism”. Case law has confirmed that this definition should be narrowly interpreted to include only material held for the immediate object of journalistic purposes (Sugar v BBC [2012] UKSC 1 WLR 439 [67] and [106]). Journalistic material can fall into one of two legal categories:

1. “Special procedure material” i.e. general journalistic material; or
2. “Excluded material” which is held subject to an undertaking or obligation of confidence, for instance, material that was acquired by a journalist from a confidential source or that may reveal the identity of a confidential source.

Where material of this type might be on the premises to be searched, then an application for a search warrant must be made under Schedule 1 of PACE.

For “special procedure material” a judge will issue a warrant if there are reasonable grounds for believing that:

(i)  an indictable offence has been committed;

(ii) there is special procedure material on the premises;

(iii) the material is likely to be of substantial value to the investigation in connection with which the application is made;

(iv) the material is likely to be relevant evidence; and

(v) an order is in the public interest. (Schedule 1, paragraph 2).

For “excluded material” there must be reasonable grounds for believing that:

(a) there is excluded material on the premises;

(b) but for the limitation on search warrants for excluded material, a search warrant could have been authorised by the issue of a warrant under other legislation; and

(c) the issue of such a warrant would have been appropriate (Schedule 1, paragraph 3 PACE).

Thus, special procedure material requires the court to evaluate the value of the material to the investigation and the case overall. Excluded material requires a specific legislative provision permitting seizure and a decision about whether it is appropriate to seize it (taking into account the countervailing public policy considerations in support of the investigation and the reason why the material has excluded status). In practice, in relation to confidentially held journalistic material, the only such pre-PACE legislation permitting seizure is section 9 of the Official Secrets Act 1911 (“OSA 1911”).

This is where the story started in the case of R (on the application of LXP) v Central Criminal Court [2023] EWHC 2824. On 8 July 2022 the Metropolitan Police Service (“MPS”) made an ex parte application to a judge for warrants pursuant to s.9 OSA 1911. The police wrongly believed that the subject of their investigation was not a journalist but that his partner was. Accordingly, their application did not request authorisation to seize journalistic material, instead explaining that they would not seize such material (that was journalistic by virtue of LXP’s partner’s use of it). The warrants were executed at LXP’s residential and work premises and material, including electronic devices, was seized.

LXP’s solicitors threatened to apply for a judicial review on the grounds that the warrant had been sought on the wrong basis and that journalistic material had been seized because LXP was a journalist. Where property is erroneously seized, the police can remedy the situation by making an application under section 59(6) and (7) of the Criminal Justice and Police Act 2001, requesting authority to retain material. Although the MPS could have adopted this approach rather than defending the warrant via a judicial review, it maintained that it did not have to make such an application as its seizure was lawful. Nonetheless the MPS took the middle ground of making an application under a related section, s.59(5), effectively asking the court to sanction their plans to review the material (and thus implicitly sanction the legality of the warrant).

The MPS argued that the material seized did not contain journalistic material within the meaning of PACE for two reasons: (i) the material could not be “journalistic” if it was stolen; alternatively, (ii) LXP had not conceded that he had received material with the intention that it would be used for journalistic purposes. Thus, no application under s.59(6) or (7) was required. The material did not contain special procedure or excluded material and had been appropriately seized. The judge hearing the application agreed with the MPS and found there was “a clear distinction made between true journalistic material and material that has been stolen” (para 26).  He provided directions that might have protected any truly journalistic material to the effect that Independent Counsel should review the material based on instructions provided by LXP including the nature and location of any special procedure (journalistic) or excluded (confidential journalistic) material.  This process would take place alongside the MPS’s review of the material.

LXP applied for a judicial review of this decision on five grounds which all largely turned on whether the judge misdirected himself in holding that stolen material was not journalistic. The judicial review succeeded on all grounds: handing down judgment in November 2023, Lady Justice Macur held that the judge had erred in distinguishing between “true journalistic material and material that had been stolen”. This finding was not supported by the authorities which held there cannot be an unequivocal bright line test. There was a tension where the person claiming journalistic material did not want to incriminate themselves by accepting the material’s provenance whilst seeking to avail themselves of the protection of Article 10 ECHR. The Court determining whether journalistic material could be reviewed was entitled to take into consideration the source’s conduct (i.e. the theft), but that was merely one factor to be considered in carrying out the balancing exercise.

Broader significance

The case highlights the challenge faced by those subjected to searches in seeking to protect confidential material that the investigator had no power to seize.

Firstly, the judgment recognises that steps taken by police at the earliest stage of an investigation can have a profound impact on the investigation as a whole, and where an error is made the prejudice caused to the person searched cannot easily be remedied. Criticising the judge’s original directions that the MPS apply search terms to identify journalistic material, Macur LJ said: “If the stable door is opened by the police conducting the search, the horse named “journalistic protection” has already bolted, before the judge has considered where the balance of public interest lies.” Quite rightly, she recognised that an abuse of process application or an application to exclude evidence from trial pursuant to s.78 PACE was inadequate relief.

Secondly, the procedure under s.59 effectively gives the police a second bite of the cherry at a time when they are often better placed to take it. Where material is seized that is outside the permission granted by the warrant, or if the warrant should not have been granted, the position is easily regularised by police provided that a warrant could now be granted. The court will evaluate the position at the time of the remedial s.59(6) or (7) application, not the position as understood at the time of the original application. At the point of making the application for the continued retention of the material, sometime after the warrant was executed, investigators can be in a better position because of material they have seen during and since the application for the warrant.

Therefore, it is essential that investigators are notified immediately of any potential application for judicial review or for application under s.59(5) and requested to desist from review pending the court’s decision in an attempt to avoid them improving a second application by reference to improperly seized material.

Ironically, the MPS could arguably have avoided the litigation entirely. Where a suspect is arrested an officer can seize anything, except for legally privileged material, which might be relevant evidence (ss.8 and 18 of PACE). Also, where an officer is lawfully on a premises (s)/he can “seize anything other than legally privileged material which they have reasonable grounds for believing to be evidence of an offence or obtained in consequence of the commission of an offence, and to be in danger of loss or destruction” (ss.19 and 20). The scope of what can be seized post arrest is “relevant evidence”, a narrower test than “material likely to be of substantial value to the investigation” which can be sought under a warrant, and there are no protections for special procedure or excluded procedure material. The whole hoopla described above might have been avoided had the MPS arrested LXP and used their resultant powers.

This anomaly was explored by the Law Commission in its 2014 report on Search Warrants. Consultees were wildly divided about whether protections afforded to special procedure and excluded material should extend to other PACE search powers. Notably, the SFO and Competition and Markets Authority (“CMA”) reportedly found the ability to request that a police officer make an arrest was helpful where they might need to seize otherwise protected material. The Law Commission concluded that it was beyond the scope of its report to propose reform, thus missing an important opportunity to close the gaping loophole. It cannot be right that the scheme in Schedule 1 of PACE and the Criminal Justice and Police Act 2001 (“CJPA”), laid out by Parliament to provide important protections to certain categories of material, can be overridden so easily. A simple fix would be to require that police treat protected material (whether special procedure or excluded material) in the same way they treat material subject to legal professional privilege. It could be bagged for later review and legal argument. For now, the loophole remains and the Schedule 1 protections can be completely avoided where grounds for arrest can be made out.

Search warrants are back in the spotlight, following Nick Ephgrave’s appointment as Director of the SFO, but they are a routine part of investigations for many other agencies. Cases like LXP demonstrate the care that must be taken when considering whether a search warrant application was properly made and whether law enforcement’s handling of the material post search is appropriate. To extend the analogy used by Macur LJ, it can be worth taking the time to ensure the horse – and the information that should remain confidential – remains securely shut away.

This article was first published in New Law journal on 20 September 2024.