Criminal Law Week

Can a phone, rather than the content on it, be the proper subject of a search warrant, even where legally privileged material may be found?

Dec 6, 2017

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in criminal law. Published 46 times a year, each issue summarises important cases and legislation, keeping you on top of the latest developments regarding offences, police powers, the rules of procedure and evidence, and more. Incisive commentary is also provided by James Richardson Q.C., the editor of Archbold. Our online service gives you access to all Criminal Law Week issues, from 1997 to today. These are pulled together in a fully-searchable database, complemented by annotated key criminal legislation. For more information about Criminal Law Week, or to sign up for a free trial of our online service, please visit www.criminal-law.co.uk or call 01483 414 599. Can a phone, rather than the content on it, be the proper subject of a search warrant, even where legally privileged material may be found? Yes said the Divisional Court in R (A and another) v Central Criminal Court and another; R (C and others) v Same (CLW/17/37/3). On May 20, 2016, the chief constable of West Midlands Police applied for and obtained search warrants pursuant to section 9 of, and paragraph 12 of Schedule 1 to, the Police and Criminal Evidence Act 1984 (PACE), from a judge at the Central Criminal Court. The warrants were sought as part of investigations into two underlying offences. First, conspiracy to pervert the course of justice – essentially going to efforts allegedly made by telephone calls and text messages, including with a prisoner remanded in custody, designed to procure a change in a witness’s evidence in a trial for conspiracy to murder. Secondly, conspiracy to transmit or cause to be transmitted any image, sound or information from inside a prison by electronic communications for simultaneous reception outside the prison, contrary to section 40D of the Prison Act 1952 – essentially going to telephone calls and text messages allegedly exchanged with a prisoner, remanded in custody, illegally using a mobile telephone in a prison. Section 9 of PACE provides that a constable may obtain access to “excluded material” or “special procedure material” by making an application under and in accordance with Schedule 1. Such material does not include items subject to legal privilege. Paragraph 12 of Schedule 1 concerns the conditions that must be satisfied for a judge to grant a warrant to enter and search premises. The warrants authorised any constable of the West Midlands Police or the West Yorkshire Police to enter and search the premises of a number of the claimants, at the addresses set out therein, and to “seize and retain material (which does not consist of items subject to legal privilege) which is likely to be of substantial value to the investigation”. The material sought was said to consist “only of the mobile phone and Sim card which relates to” the mobile phones of which the numbers were given, registered to the claimants in question. On May 21, 2016, officers obtained entry to each of the premises in question. The claimants were all arrested. In every case, they handed over the phones sought by the police and specified in the warrants, which were then seized by the police. On July 13, 2016, an injunction was granted by a High Court judge prohibiting the police from “examination or download of the devices” pending the determination of judicial review proceedings brought by the claimants. The claim raised a number of issues, in particular in relation to legally privileged material on the phones, including what is to be done when an investigation legitimately targets material contained on a mobile phone or computer, but there are reasonable grounds for believing that privileged material is also to be found on that phone or computer. Further, in such circumstances, how search warrants are to be drafted, both with a view to satisfying Schedule 1 to, and compl

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