House of Lords
| Date | 01 May 1989 |
| Published date | 01 May 1989 |
| DOI | 10.1177/002201838905300203 |
| Subject Matter | House of Lords |
HOUSE
OF
LORDS
ITEMS EXCLUDED FROM LEGAL PRIVILEGE
R. v.
c.c.c.,
ex p. Francis
and
Francis
The powers of the police to demand the production of "special
procedure material" under the Police and Criminal Evidence Act
1984 are limited to "material, other than items subject to legal
privilege
...
" (s. 14) and their power to seize material is limited
by the provision, in section 19(6), that no power of seizure under
the Act is to be taken to authorise the seizure of material where
the constable has reasonable grounds for believing it to be subject
to legal privilege. Items subject to legal privilege are those defined
in section 10. In R. v.
c.c.c.,
ex p. Francis
and
Francis
[1988]
2
W.L.R. 627, the Divisional Court held that any material is excluded
from this exception if it is held with the intention of furthering a
criminal purpose and it is immaterial whether the relevant intention
is that of the person holding the material or of his client or of that
of a third party. That decision has now been upheld in the House
of Lords, but by a majority of only three to two. Lord Bridge and
Lord Oliver were of the opinion that the impugned intention must
be shown to be that of the holder of the material, but the majority
decided that the intention referred to in the Act is that of any
person, including the holder: see
[1988]
3W.L.R. 989.
For the majority, Lord Brandon stated that the words of the
Act could grammatically be given either of these meanings and
that this ambiguity should be resolved by looking at this purpose
of the Act. Part II is for the purpose of authorising the police to
search for material likely to be of evidential value in relation to a
serious offence. That purpose is served if, and only if, the police
have the power to seize material where the holder's client or any
other person has the intention of furthering a criminal purpose,
whether or not the holder also has that intention.
If
this were not
so, the principle of legal privilege would be used to protect the
perpetration of serious crime. Lord Griffiths gave the example of
a drug dealer who runs an apparently lawful business and who
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