Excluded material

In this and the next edition I will discuss the frequently controversial area of excluded material (S.11-13 Police and Criminal Evidence Act 1984).

Sections 11 to 13 contain the definition of excluded material. The material covered may, with the exception of ‘journalistic material’, be described as personal and confidential material.

Such material will rarely be of evidential value; but even when it is, and even when a most serious crime is under investigation, the legislature decided that the proper balance between the public interest in the detection of crime and the privacy of the individual lay in excluding access to such material, except where a warrant could previously have been issued authorising the search for and seizure of such material.

Excluded material consists of three sub-categories:

(1)Personal records.

(2)Human tissue or tissue fluid taken for the purpose of diagnosis or medical treatment.

(3)Journalistic material (S.11).

Two preliminary points may be noted.

(i)There is a degree of overlapping in these provisions. For example, a doctor’s records of a patient can fall within S.11(1)(a) or (b); those held by a social worker could fall within any of the categories in S.12.

(ii)A common theme in S.11 is the element of confidentiality required before material can be regarded as ‘excluded’. The law on confidence is uncertain and embryonic. Confidentiality may be express, eg. an undertaking signed by a counselling agency before advice is given. More often it will arise by implication, eg. a doctor’s relationship with a patient imports confidentiality by custom rather than any express undertaking. ‘Implication’ may mean that a third party can be subject to a confidence if he knows or ought to know that the relevant information is confidential, eg. a marriage counsellor or priest who is passed documents by X relating to Y (Seager v Copydex (1967); Coco v Clark (1969)).

The degree to which the general law of confidence applies to S.11 is unclear. If it does, it has been held that a confidence cannot attach to information which is already in the public domain, but it can if the information can only be discovered after considerable research (Schering Chemicals Ltd v Falkman Ltd (1981)).

Thus, a journalist who thoroughly researches for an article on the financial operations of a company could claim that his material is held in confidence even though that material could be discovered by any diligent research of published statistics and articles.

Again, if the general law of confidence applies, a principle of that law is that there is no ‘confidence in iniquity’, eg. a criminal pursuit, and therefore one party to such a confidence cannot sue if the other discloses it (Gartside v Outram (1856); Initial Services Ltd v Putterill (1968); R v Leeds Magistrates’ Court, ex p Dumbleton (1993)). This would enable the police to nullify in large measure the scope of S.11 by simply arguing that the relevant material concerns an indictable offence under investigation, is not confidential in the first place, and therefore the material is not protected from search and seizure and may, with the exception of journalistic material, be the subject of a warrant under S.8.

Unlike the other material referred to, journalistic material which is not held in confidence, though not excluded material, is special procedure material and is subject to the Sch 1 procedure.

(1) Personal records (S.11(1)(a), 12).

This covers personal records which a person has acquired or created in the course of any trade, business, profession or any other occupation or for the purpose of any paid or unpaid office and which he holds in confidence.

Section 12 defines ‘personal records’ as documentary and other (eg. computerised) records concerning an individual (whether living or dead) who can be identified from them and relating:

(a)To his physical or mental health.

(b)To spiritual counselling or