Bill Of Suspension By Clyde And Co (scotland) Llp Against The Procurator Fiscal, Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2016] HCJAC 93 |
| Published date | 14 October 2016 |
| Date | 22 July 2016 |
| Docket Number | HCA/2016-24 |
| Court | High Court of Justiciary |
| Year | 2016 |
HIGH COURT OF JUSTICIARY
[2016] HCJAC 93
HCA/2016-24/XJ
NOTE BY
LORD BRODIE
in
BILL OF SUSPENSION
by
CLYDE AND CO (SCOTLAND) LLP
Complainers;
against
THE PROCURATOR FISCAL, EDINBURGH
Respondent:
Complainers: Smith QC; Clyde & Co
Respondent: No appearance
22 July 2016
[1] The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 1537 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 1700 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 1700 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed.
[2] The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor Advocate, a partner in the complainers, are as follows.
[3] A client of the complainers is S. The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L. These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice... which advice and information being disclosed was privileged.” As I understood matters, the complainers retain in their possession documents and files, both paper and digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege.
[4] On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken. She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought.
[5] On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the Sheriff Clerk in Edinburgh requesting that the Sheriff Clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from [S].” No reply has been received to that letter.
[6] Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers.
[7] At about 1000 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms:
“to any Constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other Officer of Law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and 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.”
Insofar as material to the issues raised in the bill, the averments in the petition were as follows:
“[S] have provided copies of documents referring to a code of conduct for staff … a punishment book, lists … statements, including what purports to be a statement taken from [a named person] and signed by her …
[S] have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality.
The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.
“There are reasonable grounds for believing that evidence material to the investigation … is found within the documents being withheld by the solicitor. The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to [L].”
As Mr Smith explained, these averments were inaccurate in certain respects or at least framed in terms that were likely to mislead the sheriff when considering the petition. The tenor of the averments is such as to suggest that what is sought to be recovered are the originals of the specified documents (ie the code of conduct etc) which have already been provided by S (albeit that the crave of the warrant is in much wider terms) and that was because the complainers were only prepared to provide copies. Moreover, while there is reference to “reasons of client confidentiality” (which makes no sense if it is the respondent’s position that the police already have copies of the documents) there is no reference to the separate assertion of legal privilege by S..
[8] The assertion of legal privilege in the face of a search warrant has recently been considered by the court in its opinion, dated 5 February 2016, in the bill of suspension at the instance of parties whom I will refer to as H Complainers. This opinion has not been published because the proceedings to which it relates have not been concluded but will have been issued to parties, one of whom is the Lord Advocate. I had been unaware of this opinion until Mr Smith brought it to my attention and the sheriff who granted the search warrant is also unlikely to have been aware of it. On the other hand, I would expect the respondent, as a representative of the Crown, which in the person of the Lord Advocate was party to H Complainers, to have been aware of the decision and the terms of the opinion of the court and particularly those parts of that opinion which prescribe what ought to be done when the Crown applies for and then has executed a warrant for search and seizure of material in respect of which legal privilege may be asserted.
[9] H Complainers does not innovate upon the existing law but clearly states it and highlights the consequences for practice. It is prescriptive as to what should be done by the Crown when seeking to recover clients’ files from solicitors. It is convenient to quote the following paragraphs from the opinion of the court, as delivered by the Lord Justice‑General:
“[26] A police officer seeking a warrant from a sheriff must not provide information which he knows to be inaccurate or misleading. He should provide all the relevant information. The reference to “full disclosure” in McDonagh v Pattison 2008 JC 125 (at paras [11] and [12]) should be understood in that context. The duty includes one to disclose the fact that the havers are a firm of solicitors who are maintaining a plea of legal privilege. It was submitted that the...
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