Before : |
Sir Timothy Le Cocq, Bailiff, sitting alone. |
IN THE MATTER OF AN APPLICATION FOR A PRODUCTION ORDER
AGAINST A COMPANY
AND
IN THE MATTER OF ARTICLE 16 AND SCHEDULE 2 OF THE POLICE PROCEDURES AND CRIMINAL EVIDENCE (JERSEY) LAW 2003
Advocate S. C. Brown for the States of Jersey Police
Advocate [redacted] for the Company
PURSUANT TO PARAGRAPH 6, SCHEDULE 2 OF THE POLICE PROCEDURES AND CRIMINAL EVIDENCE (JERSEY) LAW THIS APPLICATION WAS HEARD IN CHAMBERS. THE PROCEEDINGS REMAIN CONFIDENTIAL AND PRIVATE UNTIL FURTHER ORDER OF THE COURT. THE COURT DIRECTED THEREFORE ABRIDGMENT AND REDACTION OF THIS JUDGMENT IN ORDER TO ENSURE THAT THE CONFIDENTILIATY OF THESE PROCEEDINGS IS PRESERVED.
judgment (In chambers)
the bailiff:
1. This is an application by the States of Jersey Police (the "SOJP" or the "Applicant") for a Production Order pursuant to Article 16 and Schedule 2 paragraph 3 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law") requiring the Company to produce electronic devices, specifically mobile telephones and tablets, and access codes for those devices in possession of certain named Jersey employees and officers.
2. The application is part of a criminal investigation. The application is supported by an affidavit sworn by an officer of the SOJP of 8 February 2023.
3. The Company resists the application on a number of bases, which I summarise in the following terms;
(i) There is no suggestion or evidence that any attempt has been made by the SOJP to obtain directly the information sought in the application from the individuals named in it;
(ii) The application deals with a number of devices that are not within the Company's possession and which it could not guarantee that it could produce within the required timescale or at all. Some of the individuals named are not current employees of the Company;
(iii) A Production Order is a measure of last resort and the Company has made a reasonable offer for the provision of information but the SOJP has refused to accept those offers or engage with the Company in that regard;
(iv) The Court should approach any application with considerable circumspection;
(v) The application does not properly address the access conditions, a number of which are not met, to make an order under Article 16 of the 2003 Law and more detailed information should be provided by the SOJP to assist the Court;
(vi) The application is, in consequence, excessive in scope and represents a "fishing expedition". There is no basis for the Court to conclude the information held by some of the named individuals is of substantial value to the criminal investigation; and
(vii) The SOJP should not be permitted, by applying for an order against the Company, to bypass the necessity of providing the information that would be required to justify the making of such an Order personally against any of the named individuals.
4. The Company's offer mentioned above to provide the information without the necessity of a Production Order, is to have a third party extract the data from those devices in question that it is able to obtain, under the supervision of an officer of the SOJP. Once the extraction has taken place, the Company's legal advisors would review the material in order to provide the SOJP with any material that satisfies the access conditions under the 2003 Law.
5. The SOJP say that they cannot accept that offer as a matter of principle as, in effect, the investigation is the responsibility of the SOJP and it cannot permit third parties, let alone the legal advisors of the subject of the proposed Order, to determine the relevance of the material sought in it. A further and subsidiary point is made that, should any prosecutions follow at a later date, it would be impossible for the Crown to be able to say that it had discharged its disclosure obligations as it will not know what, in the exercise of its own judgment, the Company's legal advisors had determined not to disclose.
6. For its part, the SOJP confirms that on the delivery up of the devices, those devices will be downloaded and copied by the specialist department dealing with such matters (the States of Jersey Police Digital Forensic Unit ("DFU")) and then would be reviewed by an independent counsel, instructed by the Attorney General, to remove reference to any matters in respect of which legal professional privilege ("LPP") might be claimed before the remaining product of the download is provided to SOJP investigating officers. It is accepted that the offer made by the Company is not intended in any way to frustrate the investigation and nor is it suggested that the Company is operating in anything other than good faith.
7. The Company query whether or not such a process is lawful.
8. I can well understand, as submitted to me by the SOJP, that to adopt the Company's proposed system would be fraught with a number of difficulties and would, from the SOJP's point of view, be an unsatisfactory exercise. It would inevitably, so it seems to me, delay the investigation and issues could well frequently arise over the course of the exercise that challenge the judgments made by the Company's legal advisors and lead to further dispute. In my view, it is not incumbent upon the SOJP to accept the offer made by the Company and I do not think that it is unreasonable for them to refuse to do so.
9. The Company appears to have a de jure control of some of the devices but no certainty that they could enforce the delivery up of them. It is argued that issues of legal professional privilege will potentially arise and it may well be that individuals who have an obligation in contractual terms to deliver up certain items and devices will decline on the grounds of legal professional privilege or, alternatively, the privilege against self-incrimination. Whether these concerns are real and give rise to any actual difficulties of course remains to be seen, but the Company point to these concerns as indicating that the Company may simply not be able to obtain and produce any or all of the devices in question.
10. It seems to me that at this stage, these concerns are far from determinative of whether an Order should be made. Firstly, it is clear that devices over which the Company have no de jure or de facto control (either because the devices do not belong to the Company and/or the individuals named are not and have never been employees of the Company) should be removed from the scope of the proposed Order. To the extent, however, that the proposed Order would refer to devices in the possession of individuals who are employed by the Company or who are its officers and in respect of which the Company, because it has issued those devices and retained ownership of them, might be said to have de jure control, then there is no difficulty with those names remaining. If an Order is granted in respect of those individuals, it will be a matter for those individuals whether they accede to the legal request of the Company to provide the devices in question or they do not. If they do not, then, without commenting on the contractual consequences for them of a refusal, it may be open to the SOJP to apply for a Production Order against the individuals themselves. Any grounds for refusal could then be tested and adjudicated upon.
11. If the Company make a bona fide attempt and take all reasonable steps to discharge the Production Order, then its failure to do so because there is a practical impossibility will not attract any adverse consequences. The Company will not be asked to do what is simply not possible.
12. The application is made under Article 16 and Schedule 2 of the 2003 Law. Article 16, so far is relevant provides:
"16 Special provisions as to access
(1) A police officer may obtain access to material to which this Article applies for the purposes of a criminal investigation by making an application under Schedule 2 and in accordance with that Schedule.
(1A) This Article applies to -
(a) excluded material;
(b) special procedure material; and
(c) material stored on a computer or stored on a device that is remotely accessible via the internet and accessible by the person who stored it but not to users of the internet generally."
13. Schedule 2 of the 2003 Law under the heading "Access to certain material - making of orders by the Bailiff" is in the following terms:
"1 If, on an application made by a police officer, the Bailiff is satisfied that one or other of the sets of access conditions in paragraph 2 is fulfilled, the Bailiff may make an order under paragraph 3.
2 (1) The first set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing -
(i) that a serious offence has been committed,
(ii) that there is material to which Article 16 applies that is in the possession or control of a person, or on premises, specified in the application,
(iii) that the material is likely to be of substantial value, whether by itself or together with other material, to the investigation in connection with which the application is made, and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail; and
(c) it is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained and to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.
(2) The second set of access conditions is fulfilled if -
...
3 An order under this paragraph is an order that the person who appears to the Bailiff to be in possession or control of the material to which the application relates shall produce it to a police officer for the officer to take away or give a police officer access to it, not later than the end of the period of 7 days from the date of the order or the end of any longer period that the order may specify.
4 Where the material consists of information contained in a computer -
(a) an order to produce to a police officer shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
(b) an order to give a police officer access shall have effect as an order to give a police officer access to the material in a form in which it is visible and legible.
5 For the purposes of Articles 22 and 23 material produced in pursuance of an order under paragraph 3 shall be treated as if it were material seized by a police officer.
Notices of applications for orders
6 An application for an order under paragraph 3 shall be made inter partes and in chambers.
7 ...
10 Where notice of an application has been served on a person, he or she shall not conceal, destroy, alter or dispose of the material to which the application relates except with the leave of the Bailiff or with the written permission of an officer of the Force of at least the rank of inspector, until the application is dismissed or abandoned or the person has complied with an order under paragraph 3 made on the application.
14. Article 16 (1A)(c) of the 2003 Law was an amendment introduced by the Cybercrime (Jersey) Law 2019. It is perhaps significant to note that the English statutory equivalent to the 2019 Law does not have the same amendment and to an extent, therefore, some authorities under the English Statute may be of limited assistance.
15. There is no definition of "computer" in either the Cybercrime (Jersey) Law 2019, the 2003 Law or the Interpretation (Jersey) Law 1954.
16. This lack of statutory definition affords a potentially wide understanding of what may constitute a computer and I have no doubt that, in the modern world, that definition embraces a smart phone or a tablet. The computing power of such devices is considerable and indeed far advanced, as I understand it, over devices that were more ordinarily referred to as computers some decades ago. I hold that such devices, smart phones and tablets, are computers within the meaning of the 2003 Law.
17. The challenge to the potential Order made by the Company is that the access conditions specified in the Schedule have not been met and, indeed, the contents of the phones or tablets in question will, in some cases, contain material that is subject to legal professional privilege. I will deal with those matters hereunder.
18. In terms of general approach, the SOJP puts before me the case of R (River East Supplies Limited) v Crown Court at Nottingham [2017] 4 WLR 135 in which at paragraph 106, Simon LJ said:
"In this branch of the law there is a recognised, overarching necessity, grounded in public policy, not only for fairness, but importantly for simplicity, expedition and efficiency...It seems to us at first sight that the existence of a discretion of the kind envisaged could well put at risk the achievement of these important public policy objectives. On a contested application the Circuit Judge would be likely to be confronted with rival contentions, supported by potentially voluminous material and legal authority, and might well have to immerse himself in the merits of the underlying criminal investigation or inquiry to an extent that Parliament was unlikely to have intended. This would also have serious cost and resource implications and the potential for unacceptable delay is obvious. That is even without having regard to the potential for judicial review claims in this court."
19. In re Production Orders directed towards X, Y and Z (an unreported judgment dated 6 June 2012) (Sir Michael Birt presiding) at paragraph 41, the Court said this:
""I am concerned with a criminal investigation, not a prosecution. It would be a very strong thing for a judge, merely at the investigatory stage, to conclude that it would be wrong or unfair for even an investigation to take place and according to refuse to lend his assistance to that investigation by refusing to grant a production order despite being satisfied that the access conditions are fulfilled..."."
20. The Applicant also argues that there is nothing wrong in principle with a broad Order, particularly where there is a broad investigation and again cites re Production Orders at paragraph 37 when Sir Michael Birt said:
"It is entirely reasonable that the JFCU should wish to ensure that it has obtained all relevant material so that a proper and fair decision can be taken as to whether to institute a prosecution."
21. The Applicant also argues that the proposed Orders being sought are investigatory and they do not determine any issue in substantive proceedings. The dicta of Beloff QC in Larsen v Comptroller of Taxes and Another [2015] (2) JLR 209 at paragraph 4 is cited in the following terms (albeit in the contexts of Notices issued under the Investigation of Fraud (Jersey) Law 1991):
"...it must also be borne in mind that the notices are simply machinery to assist in a process of investigation...which, if Mr Larsen or anyone else investigated is guilty of neither non-payment of taxes properly due nor of evasion of such payment, will have no adverse consequences other than those intrinsic to the investigation process itself, the disruption and expense involved in compliance with the notices, and, if the material provided is transmitted, the exposure to scrutiny of otherwise private documents for specific and limited purposes and subject itself to obligations of confidentiality...This is not a case in which Mr Larsen, a fortiori Volaw and other recipients of the notices, are threatened with loss of liberty or deprivation of property or the imposition of some sanction or burden. The sending of notices is a stage in a process which may -but also may not - ultimately lead to such outcome..."
[Redacted]
22. I turn now to the access conditions set out in the Schedule. The first such is "reasonable grounds for believing that a serious offence has been committed".
23. In Ashbolt v Revenue and Customs Commissioners [2020] EWHC 1588, at paragraph 14, the Court said:
"The test of 'reasonable grounds for believing' in the first set of access conditions means just that. It does not require proof that any criminal offence has in fact been committed. At the end of the investigation, there may be an innocent explanation for what has happened..."
[Redacted]
24. In my judgment, the first access condition is met.
25. The second access condition is that there are reasonable grounds for believing that there is material to which Article 16 applies that it is the possession or control of a person or on premises specified in the application.
26. It seems to me that there are very good grounds for thinking that there would be communications sent through the devices
27. The Company argues that disclosure of devices relating to individuals cannot be obtained under a broad-brush application without specifying what information it may be supposed is in the possession of each individual. I do not agree. It seems to me that the SOJP is entitled and indeed has a duty to establish what the nature of communications was between all of the potentially relevant individuals concerned. It seems to me that there are reasonable grounds for believing that there is material that is in the possession or control of the persons specified in the application and accordingly, the second access condition has been met.
28. Turning to the third access condition, the value of the material, it is apparent from the wording of the Schedule itself that individual items of data do not fall to be considered alone but rather whether, together with other material, they are likely to be of substantial value.
29. I remind myself, however, that this is at the investigatory stage and that the Applicant is seeking to obtain a full evidentiary picture. It may be that in the event it turns out that there is little of value to the investigation in some of the material disclosed. However, in my judgment, there are reasonable grounds for believing that the material will be of substantial value either of itself or when combined with other information. In my view, this access condition is met as well.
30. The fourth access condition is that there are reasonable grounds for believing that the material is likely to be relevant evidence.
31. The Company argue that, following R (BBC) v Newcastle Crown Court [2019] EWHC 2756 in which the Court at paragraph 36 said:
"It is the BBC's case that, to fulfil the access condition, it is not enough that material should merely be contingently admissible in this way; and that to constitute "relevant evidence" the material must be immediately admissible in evidence without more".
I must be satisfied by relevant admissible evidence.
32. That case involved consideration of the principles in R v Derby Magistrate's Court Ex Parte B [1996] AC 487 which itself involved the admissibility of a statement made, which would only be admissible at trial if an individual gave evidence inconsistent with it.
33. Material downloaded from mobile telephones and tablets is adduced in evidence in criminal proceedings on a regular basis and there is no reason to suppose that such evidence would not be admissible without more.
34. In my judgment, there are reasonable grounds for believing in the context of what has been set out above and in the affidavit of the SOJP, that the material is likely to be relevant evidence. Accordingly, the fourth access condition is also met.
35. The fifth access condition requires me to be satisfied that other methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail.
36. In Ashbolt (above), the Court said:
"b) In relation to the access condition in paragraph 2(b) (ii) (other methods of obtaining the material not tried because "it appeared that they were bound to fail") the circuit judge must be satisfied that the reason for not trying to obtain the material by other means was that it appeared to the officer making the application for the warrant that such other means were bound to fail. In other words, what matters is the belief of the officer making the application at the time the application is made. This involves a question of judgment for the officer, based on his or her knowledge of the investigation so far and the evidence available. There must be cogent grounds for the belief; a bare assertion will not do. If the officer has explained the reasons for believing that other methods were bound to fail, in terms that are reasonable and compelling, he or she will have fulfilled the requirement: see R(S) v Chief Constable at [34] and Newcastle United FC at [92] and [93]"
37. In R(S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin), the Court said:
"The second requirement to the first 'access condition' is that other methods of obtaining the material either have been tried without success; or have not been tried because 'it appeared that they were bound to fail'. As to the second part of that requirement, this must mean that the judge has to be satisfied of two things: first, that other methods of obtaining the material have not, in fact, been tried. Secondly, that the reason for not trying to obtain the material by other means was that it appeared to the constable making the application for the warrant that such other means 'were bound to fail'."
38. In R (Newcastle United FC Ltd) v Revenue and Customs [2017] 4 WLR 187, the Court said this:
"... whether a less intrusive measure would, or would not, be "bound to fail" must in the end be a matter of judgment for the investigator, based on his or her knowledge of the investigation so far and the evidence available. It must, in our judgment, be understood to mean that the investigator believes on the basis of the evidence that there is no lesser measure available which is likely to be effective in securing the relevant documents. Plainly, the investigator must have cogent grounds for his belief. In the context of an application for a warrant, where no notice will be given in advance of execution, the belief is likely to be based on the investigator's suspicion that the relevant material will be disposed of or hidden if advance warning is given, and for that reason, any lesser measure (which would mean that the target is put on notice of the investigation) would be an ineffective means of pursuing the investigation. But, as is clearly stated in R (S), at paras 62-64 and 95-97, a bare assertion of such a belief is insufficient if the basis of that belief is not adequately explained in a focussed application dealing with the actual facts of the case. If the investigator has explained the reasons for so suspecting, in terms that are reasonable and compelling, he or she will have fulfilled the requirement in paragraph 2."
39. At paragraph 37 of the SOJP affidavit it says this:
"Other methods of obtaining the material have been tried without the success or have not been tried because it appeared that they were bound to fail. The Company will not consent voluntarily to the devices being supplied nor appropriate access given to the data on any devices specified."
40. It is clear on the evidence before me that the Company has indeed refused to give access in the form sought in the proposed Order and I have already set out my finding that it is reasonable for the SOJP to refuse the Company's offer to provide information in the way that they have proposed.
41. Given that the Company has refused, it seems to me that another method has been tried and it is the view of the SOJP that an order is required in order to obtain the material. Is it necessary for the SOJP to go to each of the individuals named and request them voluntarily to hand over their devices to be met in some or if not in all cases with the likelihood of resistance and the necessity to obtain specific Production Orders? I think it is not.
42. In my judgment, this access condition has been met as well.
43. The final access condition is whether it is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained and to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.
44. I am satisfied that this access condition is also met.
45. Accordingly, I am satisfied that all of the access conditions set out in the Schedule have been satisfied in this case. The Company puts before me the case of Attorney General of Jamaica v Williams [1998] AC 351 in which, as Lord Hoffman said, dealing with the matter of general principle:
"The purpose of the requirement that a warrant be issued by a justice is to interpose the protection of a judicial decision between the citizen and the power of the state. If the legislature has decided in the public interest that in particular circumstances it is right to authorise a policeman or other executive officer of the state to enter on a person's premises, search his belongings and seize his goods, the function of the justice is to satisfy himself that the prescribed circumstances exist. This is a duty of high constitutional importance. The law relies on the independent scrutiny of the judiciary to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter on private property have been met."
46. In R (Bright) v Central Criminal Court [2001] 1 WLR 662, Judge LJ stated:
"A successful application results in an order by the judge which is directed to the person who appears to be in possession of the relevant material. Entry to his premises is not immediately authorised. The order imposes a personal obligation on the individual to whom it is addressed. Very precise statutory provisions deal with practical problems (for example, where it is impracticable to communicate with the person entitled to grant entry to the relevant premises). For present purposes however the significant feature is that failure to comply with the order exposes the person to whom it is addressed to process, and penalty, "as if he had committed a contempt of... court" (paragraph 15). Similar provisions are found in section 20(2) of the Juries Act 1974 and section 6(5) of the Bail Act 1976. Therefore, no doubt as it should be, non-compliance with the order of the circuit judge is regarded as a very serious matter, which may have major consequences, including an order of imprisonment. On this basis alone it therefore behoves a judge to act with great circumspection before making an order." (emphasis added)
47. I do not in the slightest demur from the principles set out in the preceding two cases. Careful scrutiny of any application is required. As I have indicated, in the circumstances of this case, a bona fide attempt by the Company being met by refusal on the part of the named individuals would not give rise to any adverse consequences for the Company. The Company can only deliver up that over which it has de facto control and it would not be expected that the Company would take steps before the Court to procure the delivery up of devices over which they had de jure control without the possibility of further reference to this Court to reconsider the terms of the Order. Indeed, it was conceded in argument before me on the part of the SOJP that, if the Company is simply unable to deliver up the devices for the reasons to which I have already made reference, then it will be for the Applicant to consider whether steps should be taken against the named individuals.
48. It is asserted by the Company that some of the devices are likely to contain information over which there is a legitimate claim of legal professional privilege ("LPP").
49. As I have already indicated, the Attorney General (who is, of course, independent of the Applicant in this case) has instructed an independent counsel who will review any material which will not then be released to the Applicant's investigating officers until anything subject to LPP has been removed. That process will include engagement with the Company.
50. Although putting such a regime in place, the Applicant also argues that there is nothing within the power under Article 16 1 (1A) (c) which prevents, if an order is granted by the Court under Schedule 2 paragraph 3, the production of material to a police officer, of devices which may contain on them material that is subject to LPP.
51. Article 15 of the 2003 Law puts in an express qualification on the power of entry and search for evidence which, at Article 15(1)(a)(iii), "does not consist of or include items subject to legal privilege, excluded material or special procedure material".
52. The Applicant argues that such material is often seized in England and Wales under Part 2 of the Criminal Justice and Police Act 2001 (which has no equivalent in Jersey) or, at common law, as referred to in R v Chesterfield Justices and Another Ex Parte Bramley [2000] QB 576.
53. In Bramley at paragraph 10, Kennedy LJ turned to consider the circumstances in which legally privileged material was seized. The judgment is in the following terms:
"I turn now to consider relevant material which is or maybe subject to legal professional privilege, as qualified by section 10(2). Here the position is, as it seems to me, relatively straightforward. Section 8(2) entitles a constable to seize material which is within the scope of a properly drawn warrant which has been properly obtained unless he has reasonable grounds for believing the item in question to be subject to legal professional privilege. Whether or not he has such grounds at the time of seizure must be a question of fact, to be decided in the context of any given case. Obviously it will help to avoid difficulties later if agreement can be reached at the time of the search as to what is and what is not subject to legal professional privilege. If that is not possible the constable who is conducting the search would be wise to package separately for later examination items which are relevant, but which he believes may be subject to legal professional privilege. If his state of mind is such that he believes the items to be subject to legal professional privilege then he must not seize them - section 19(6) - but a constable is not bound to accept at face value a claim to legal professional privilege, whether it is raised by an owner or by an owner's lawyer. In some rare cases, for example when a search is being made of the office of a lawyer who is not himself suspected of any criminality, if legal professional privilege is claimed the constable may have reasonable grounds for accepting the claim without further inquiry, but in almost any other case the constable will have to examine the item to some extent to test the claim, and of course if no claim is made the constable will have to examine the item before he can possibly have reasonable grounds for believing it to be subject to legal professional privilege. If as a result of later examination after seizure, or perhaps as a result of legal advice, a constable obtains reasonable grounds for believing an item to be subject to legal professional privilege he must return the item forthwith without further examination, but his seizure of it will not have been illegal because at the time of seizure he had no reasonable grounds for believing the item to be subject to legal professional privilege. This is where, with respect, like the Divisional Court in Reg. v. Customs and Excise Commissioners, Ex parte Popely [1999] S.T.C. 1016, I venture to differ from the decision in Ex parte Gross, 24 July 1998, where it was said that "removal of legally privileged material from the premises which are the subject of the warrant is not permitted." In that case the warrant was obtained under section 9 of and Schedule 1 to the Act of 1984, but nothing seems to turn on that.
That leaves the problem of what is to be done if a difference of opinion persists as to whether an item seized was relevant (i.e. within the warrant) or was subject to legal professional privilege (as qualified by section 10(2)) and, if so, whether at the time of seizure the constable had reasonable grounds for believing the item to be subject to legal professional privilege. In my judgment as the law stands those issues can only be ventilated by means of an action for trespass to goods, or perhaps in some cases by means of proceedings for judicial review. The latter course is not usually satisfactory, and either course may tend to slow up a criminal investigation which should be proceeding as quickly as possible. So there would seem to be a need for a special inter partes procedure to bring the matter speedily before a circuit judge. Protocols of the type shown to us in draft could have a valuable role to play, not least in preserving the material in a suitable state until it has been adjudicated upon, but in the end they cannot provide a quick solution where there is a dispute."
54. The process set out above, however, proceeds on the assumption that LPP material has fallen into the hands of the police, who did not have reasonable grounds for believing that the item in question was subject to LPP. It is clear from earlier in the report of the case that, if the police have reasonable grounds for believing that some of the contents of a computer have LPP, then that cannot be seized and information not subject to LPP must be extracted.
55. The Court at page 585 of the judgment Kennedy LJ said this:
"The restriction may well apply to material held on a computer. The constable may have reasonable grounds for believing that some of it is subject to legal professional privilege. If so he cannot seize the computer or the disk, or any "image" of it but he can require all other relevant information to be produced in a form in which it can be taken away, and in which it is visible and legible. And of course, depending on the circumstances, a simple claim to legal professional privilege may well not constitute reasonable grounds for believing any of the computer information to be subject to legal professional privilege."
56. The context of that judgment, however, is Section 19(6) of the Police and Criminal Evidence Act 1984, which is in the following terms:
"No power of seizure conferred on a constable under any enactment (including an enactment contained in an act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege."
57. That is analogous to Article 15(1)(a)(iii) of the 2003 Law set out above.
58. No such restriction, however, appears under Article 16 insofar at least as it relates to the production of materials stored on a computer or stored on a device. There is reference to legal privilege in Article 16(2), which so far as is relevant, is in the following terms:
"(2) Subject to paragraph (3), any enactment passed before this Law under which a search of premises for the purposes of a criminal investigation could be authorized by the issue of a warrant to a police officer shall cease to have effect so far as it relates to the authorization of searches -
(a) for items subject to legal privilege;
(b) ..."
59. There is a power under Article 16(3) for the States to make Regulations to disapply paragraph 2.
60. Article 16(2) refers in its terms to the "search of premises" and not to the making of a Production Order with which this application is concerned. There is no specific qualification contained in the statute for the exclusion of LPP material in the instant case.
61. In the case of R (Cabot Global Limited and Others) v Barkingside Magistrates' Court and Another [2015] EWHC 1458, the Court there was concerned with a search warrant granted by the Magistrates' Court which authorised the police to enter premises to search for "computer equipment, mobile phones...and cash representing the proceeds of criminal activity".
62. The Court at paragraph 39 and 40 of the judgment said this:
"39. In a similar vein, Mr Jones has previously advanced a broader argument that computers and mobile telephones should not be seized in these circumstances. This general contention was directly addressed by this court in R. (Hoque) v City of London Magistrates' Court and Commissioners of HM Revenue and Customs [2013] EWHC 725 (Admin) as follows in the judgment of Pitchford LJ:
"15. The claimants' second ground of claim is that no justice of the peace could properly have concluded that 'mobile telephone communications, including handsets, SIM cards, computer processing equipment, including portable storage records and media records' were likely to have been 'relevant evidence' for the purpose of section 8(1)(c) and [4] of the Act . This court has recognised in R (Faisaltex Ltd) v Preston Crown Court & Anor [2009] 1 WLR 1689 (Admin) that computers, if likely to contain relevant evidence, are likely also to contain evidence not relevant to an investigation. That does not mean that the constable enforcing the warrant is bound only to seize that which is relevant, since data stored on a computer is for practical purposes indivisible until it is examined and separated. The claimants contend that HMRC was not required by the justices during the application for the warrant to justify its application to recover electronic material, and it follows that the issue of relevance was not properly addressed. I do not accept these contentions. It seems to me to be obvious from the contents of the information that the HMRC investigation embraced not only the business records of the claimants and their companies but also communications between the claimants themselves and between the claimants respectively and their senior employees. HMRC had cause to believe that the claimants were not merely acting coincidentally in their efforts to cheat the Revenue but were acting in concert. That being the case, computer and telephone equipment was likely to reveal the association between the two men and the coordination of their activities. I do not consider for these reasons that ground 2 is made out."
40. The same considerations apply in this case, in that the investigating authorities would have been interested not only in any records relating to the transactions, but they would equally have been concerned to establish the timings, the pattern and the content of any communications between the suspects. The evidence relied on by DC Jones was clearly sufficient to justify these search warrants, and it was open to the court in this case to issue warrants pursuant to s.8 for computer equipment, mobile phones, and cash representing the proceeds of criminal activity."
63. The Applicant argues from this that it is clear that the devices themselves are treated as separate and there is no prohibition on the production of those devices merely because some may contain material subject to LPP. It is under Article 16, which contains no prohibition or restriction on the disclosure of such material, that the Production Order can be granted in the terms sought provided that I am satisfied that suitable arrangements are in place to preserve LPP.
64. In addition to Bramley, which as I have said concerns a statutory regime which contains an express prohibition on the seizure of LPP material, the Company cited the case of R (HM) v Home Secretary [2022] 1 WLR 5030 which itself cited the case of R (A) in the following terms:
"In R (A) v Central Criminal Court [2017] WLR 3567, the Divisional Court was concerned with warrants that purported to authorise the seizure of mobile phones and SIM cards but which specifically excluded the seizure and retention of items subject to legal privilege. The court held that a mobile phone was a single object or thing which could properly be the subject of a search warrant under PACE; and that this was so even where material subject to legal privilege might be found on the phone, provided that the wording of the warrant clearly excluded any such material from that which could be sought or seized."
65. It appears to me that the above cases, albeit decided under a different statutory regime, provide authority for the proposition that the mobile phones and the devices which could properly be the subject of a warrant even where LPP may be found on the phone.
66. In my view, that is the case with the current application and it is permissible, particularly in the context of Article 16 (1A) (c) for a Production Order to refer specifically to devices and to encompass devices that may contain material that is subject to LPP, subject to the Court being satisfied that the independent counsel procedure is in place.
67. LPP is, of course, an important protection and any court will be astute to uphold it to its full extent. In my judgment, however, the mechanism set out in the SOJP's affidavit and explained by Counsel for the Applicant suffices to protect LPP in this case.
68. The investigating officers will not have access to any of the downloaded material until it has been considered by independent LPP counsel (instructed for that purpose by the Attorney General and not by the Applicant) and only then to the extent that counsel has determined that LPP does not apply to that material. In doing that exercise, the Company will be consulted.
69. For the reasons set out herein, the access conditions provided for in the Schedule have been met and, in my view, it is appropriate that I grant the Production Order subject to certain amendments and safeguards.
70. Firstly, it is clear that the Production Order is, in its current form, too broad. I will consider favourably a Production Order with the names of any individuals removed who are not current or past employees of the Company and/or over whose devices the Company has no de jure or de facto control.
71. Secondly, as mentioned to Counsel during the course of the hearing before me, paragraphs 23 and 24 of the draft Production Order will need amendment.
72. As suggested in the affidavit of the SOJP, no more than [redacted] devices need be surrendered at any one time. The preservation of the material, of course, remains separately governed.
73. I would accordingly expect to receive a revised Production Order and should there be any dispute as to its terms in the light of this judgment, then I will sit at short notice to determine any outstanding matters.
Authorities
Police Procedures and Criminal Evidence (Jersey) Law 2003.
Cybercrime (Jersey) Law 2019.
Interpretation (Jersey) Law 1954.
R (River East Supplies Limited) v Crown Court at Nottingham [2017] 4 WLR 135.
Production Orders directed towards X, Y and Z [unreported] dated 6 June 2012].
Larsen v Comptroller of Taxes and Another [2015] (2) JLR 209.
Investigation of Fraud (Jersey) Law 1991.
Ashbolt v Revenue and Customs Commissioners [2020] EWHC 1588.
R (BBC) v Newcastle Crown Court [2019] EWHC 2756.
R v Derby Magistrate's Court Ex Parte B [1996] AC 487.
R (Newcastle United FC Ltd) v Revenue and Customs [2017] 4 WLR 187.
R(S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin)
Attorney General of Jamaica v Williams [1998] AC 351.
R (Bright) v Central Criminal Court [2001] 1 WLR 662.
Criminal Justice and Police Act 2001.
R v Chesterfield Justices and Another Ex Parte Bramley [2000] QB 576.
Police and Criminal Evidence Act 1984.
R (Cabot Global Limited and Others) v Barkingside Magistrates' Court and Another [2015] EWHC 1458.