England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		15 November 2004

1. LORD JUSTICE ROSE: It is common ground, at least in the written submissions before the court, that the issue in this case is whether the information sought on the application before the learned judge was exempted from disclosure by reason of legal professional privilege.
2. These proceedings, brought with leave of the single judge, seek the quashing of a decision of HHJ Fabyan-Evans at Middlesex Guildhall Crown Court on 17 June 2004. He made a Production Order under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984.
3. The facts were these. On 4 September 2003 a man called Patel was arrested in Barking and charged with possession with intent to supply of 55 grams of cocaine, possession of a stun gun and other driving offences. His trial at Snaresbrook Crown Court has at present been adjourned for further directions until Friday of this week, pending the outcome of the present proceedings.
4. On 19 April 2004 the police received information from the employers of a woman called Mary King that she was involved in a conspiracy to pervert the course of justice, arising from the arrest and charge of Patel for the offences to which we have referred. The investigations carried out by the police seemed to indicate that a woman called Emma McCreight, who was a junior clerk in a barrister's chambers, had participated in the conspiracy. The police found evidence which suggested that, contrary to that which it appeared she was proposing to say, Mary King had been at her place of work on 4 September 2003, which was the date, as will be recalled, when Patel had been arrested and when, as it appeared, Mary King was preparing to say that she had been present at his arrest.
5. The details of the evidence in relation to King and her place of work are immaterial for present purposes, but they include material supporting a clear inference that she had made a false entry in a computer diary in relation to where she was. The police also obtained correspondence between Mary King and Emma McCreight. From that, it appears that Mary King had been guided by Emma McCreight in the preparation of a draft statement. It furthermore appeared that McCreight fully appreciated that what Mary King was saying was false, in particular there was an e-mail from McCreight to King in which appears the following:

"How do you know the coppers won't know you weren't there?"

The burden of the evidence which Mary King appeared to be preparing to give was that she saw the police effectively planting the cocaine on Patel.

6. On 24 May, Patel, King and McCreight were arrested on suspicion of conspiracy to pervert the course of justice. In interview they declined to answer questions. The police found a folder at Mary King's workplace, which had within it correspondence from the present claimants, who are Patel's solicitors, apparently revealing that they had taken the contents of Mary King's draft statement and converted it into a section 9 witness statement, the unsigned version of which was in Mary King's folder. It is right that I stress that no one suggests that the claimants have in any way behaved improperly. On the contrary, Mr Mitchell QC, on behalf of the Crown Prosecution Service who appear before us as interested parties, accepts that they were innocent of wrongdoing.
7. The police, on the day that they interviewed the three defendants to whom we have referred, sought from the claimant's solicitors disclosure of material which was prima facie privileged. They refused, and on 8 June the prosecution made an inter partes application to HHJ Fabyan-Evans for a Production Order under the statutory provisions to which, in a moment, I shall come. It was disclosed to the judge, on the hearing of the application, that the purpose for which the documents were sought was to determine whether there had been any fingerprints upon them which would link suspects to them or any details of the senders of faxes or e-mails that would assist the police in discovering who may have been involved in the conspiracy which was alleged. The material sought related to Mary King and includes:

" ... all material held in connection with the case R v Safraaz Patel that pertains to Mary King. Specifically any draft or drafts of a statement by Mary King. Statement(s) by Mary King in section 9 format whether signed or unsigned, original or facsimile. In addition any written material relating to the making of any such statement including attendance note(s), any written record of how Mary King became known no Mr Lowry-Mullins and computer held information relating to Mary King (in hard copy/form)."

8. In the light of the material before him and the submissions made to him, the learned judge concluded at page 22 of his ruling in the following terms:

"I find that there are reasonable grounds for believing that a serious arrestable offence of conspiracy to pervert the course of justice has been committed, that the material requested, if it exists, is likely to be relevant evidence and that it was held by the solicitors with the intention of the arrested parties to further a criminal purpose. As such it cannot be subject to legal privilege."

9. It is at that point convenient to refer to the relevant statutory provisions in the Police and Criminal Evidence Act 1984. Section 9(1) provides:

"A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 ... "

10. Section 14(1) provides:

"In this Act 'special procedure material' means --

(a) material to which subsection (2) below applies ...

(2) Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege ... "

11. The procedure for making an application to a circuit judge is set out in Schedule 1 of the Act and provides that if a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 that the person who appears to be in possession of the material shall produce it to a constable or give a constable access to it.
12. Paragraph 2 of Schedule 1 identifies the first set of access conditions, which are the ones presently relevant. Those conditions are fulfilled if there are reasonable grounds for believing a serious arrestable offence has been committed, that the material consisting of special procedure material does not also include excluded material, that the material is likely to be of substantial value to the investigation, and that it is likely to be relevant evidence. It also has to be shown that other methods of obtaining the material have been tried without success and that it is in the public interest, having regard to the benefit likely to accrue to the investigation and to the circumstances under which the person in possession of the material holds it, that the material should be produced or access given to it.
13. Section 10 defines the meaning of "items subject to legal privilege". By virtue of subsection (1), this definition embraces communications between a legal adviser and his client, or any person representing his client, in connection with the giving of legal advice, and communications between a legal adviser and his client or any person representing his client, and any other person in contemplation of legal proceedings. Section 10(2) provides:

"Items held with the intention of furthering a criminal purpose are not items subject to legal privilege."

14. In the course of submissions to this court, we, like the Crown Court Judge, have been referred to a number of authorities. They include Cox and Railton [1884] 14 QBD 153, which it is common ground is the common law origin for section 10(2); R v Snaresbrook Crown Court, ex parte DPP [1988] QB 532; and R v Central Criminal Court ex parte Francis and Francis [1989] 1 AC 346.
15. On behalf of the claimant, Mr Kane draws attention to the headnote in Cox and Railton, part of which is in these terms:

"Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure."

16. In that respect, Mr Kane is critical of that part of the Crown Court Judge's ruling where he refers to the conspiracy to pervert justice having already taken place. It is to be noted, as it seems to me, that conspiracy may be, and often is, a continuing offence capable, certainly in the case of conspiracy to pervert justice, of being "improved" by assistance from legal advice. It is also to be noted that Cox and Railton were seeking to defeat a judgment obtained against them and sought advice to that end. In the present case, as I have indicated, there is some evidence of a conspiracy to pervert the course of justice and an inference is certainly capable of being drawn from the e-mail which I have specifically quoted, that there was a determination on the part of those accused to "improve" the conspiracy.
17. Mr Kane relies upon a passage in the judgment of Stephen J in Cox and Railton at page 175, that the court should determine:

" ... whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it."

At page 176 Stephens J referred to the power to order disclosure as being "used with the greatest care not to hamper prisoners in making their defence".

18. Mr Kane also invited the court's attention to a passage at the conclusion of the speech of Lord Goff in Francis and Francis at page 397 D-F where he was commenting on the judgment of Glidewell LJ in the Snaresbrook case. Lord Goff said:

"I have to recognise that, as I have already indicated, my conclusion in the present case undermines part of the reasoning of Glidewell L.J. in R v Snaresbrook Crown Court, ex parte Director of Public Prosecutions [1988] QB 532, 538-539. But it does not necessarily undermine the conclusion of the Divisional Court in that case. This is because I am inclined to agree with Glidewell LJ that the common law principle of legal professional privilege cannot be excluded, by the exception established in R v Cox and Railton 14 QBD 153, in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because [my emphasis] such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings."

19. Mr Kane submits that the Crown Court Judge misapplied section 10(2) and the common law. He says communications between a defendant and his solicitor for the purpose of his being defended cannot be exempted from privilege on the basis that they may contain untruths that may amount to an attempt to pervert the course of justice or, if given, may amount to perjury.
20. He submits that, if the learned judge's order in the present case is to be upheld, the defendant Patel will, in the words of Stephen J in Cox and Railton, be hampered in making his defence, in that he will be deprived of legal assistance of his own choosing contrary to Article 6 of the European Convention, and his discretion in relation to the witnesses which he calls will be fettered. So, he submits, privilege in this case ought to be maintained.
21. On behalf of the Crown Prosecution Service, Mr Mitchell submits that, whereas no police officer can obtain or hope to obtain a Production Order on the back of a hunch in relation to the contents of a solicitor's files, if an officer has prima facie freestanding evidence that crime is afoot, it would be wrong to prevent him obtaining a special procedure warrant. Legal privilege, submits Mr Mitchell, does not apply in relation to that which is here sought.
22. As to alibi cases, an example canvassed in the course of argument on both sides, Mr Mitchell submitted that it is unlikely until the trial has taken place that there would be material sufficient to justify an application for a Special Procedure Order. But where, as here, there is freestanding independent material, the police in pursuance of their general duty in relation to the prevention of crime cannot be expected to stand by.
23. He submits that if something is done, such as the forging of a document between a client and another party, and the forged document is then given to the solicitor acting for the client, it is appropriate that the police should investigate and an order should be made. No criticism is made of the judge's exercise of discretion if he was correct in concluding that legal privilege did not attach to this material.
24. Mr Kane in his reply submitted that the proper approach for the court is to consider whether the documents are subject to legal privilege. If they are, then one simply does not reach the stage of considering the access provisions.
25. It is a truism that whether material is legally privileged depends on the circumstances of the particular case. In order to defeat a claim to legal professional privilege, it will not be appropriate, for example in a case where an alibi has been raised, to seek to analyse the issues which are likely to arise in the criminal investigation or trial which gives rise to the initial privilege. To do so, as it seems to me, would be to put the cart, in the form of analysis of the issues, before the horse, that is the trial. Where, however, there is evidence of specific agreement to pervert the course of justice, which is freestanding and independent, in the sense that it does not require any judgment to be reached in relation to the issues to be tried, the court may well be in a position to evaluate whether what has occurred falls within or outwith the protection of legal professional privilege as explained in Cox and Railton.
26. In the present case, as it seems to me, the judge was fully entitled to conclude that the material here sought had reached the entirely innocent claimants from his client and/or others, whose intention, it could be inferred, was to further their continuing purpose of perverting the course of justice.
27. In those circumstances, as it seems to me, the claimant's application fails.
28. MR JUSTICE LEVESON: I agree.
29. MR MITCHELL: No application for costs, my Lord.
30. LORD JUSTICE ROSE: Yes, Mr Kane.
31. MR KANE: My Lords were invited by the claimant to consider the dicta of Lord Goff in the superior court of the House of Lords in the Francis and Francis case. For that reason, my Lord, and for that reason alone, I have drafted a question which I would invite your Lordships to consider under section 1 of the Administration of Justice Act. I wonder whether I might hand that up. My learned friend has seen this.
32. LORD JUSTICE ROSE: Yes, Mr Kane, we have read the question.
33. MR KANE: My Lord, in the circumstances, I would invite this court to certify this as a question of general public importance for the purposes of section 1 of the Administration of Justice Act. I appreciate that, if I may venture so bold, the purport of my Lords' judgment is that one must look at the question whether there is freestanding evidence as opposed to it being part of the (inaudible) issue between the Crown and the offence on the indictment. It is nevertheless my submission that your Lordship's ruling is a different approach to the dicta of Lord Goff, upon which I rely and which I submit represents the full evolution of the common law to date.
34. LORD JUSTICE ROSE: Mr Kane, we think, as is apparent from the issue in this case which I sought to enunciate at the beginning of my judgment, this point of law does not arise and we decline to certify it.
35. MR KANE: So be it, My Lord.