West Yorkshire Police v Lincoln Crown Court & Anor

A Crown Court judge’s power to regulate evidence and related matters is ordinarily confined to the duration and purposes of the proceedings. Once the trial has concluded, that power is spent and the judge cannot control an independent statutory investigation by imposing a continuing prohibition on examination of evidence. That conclusion does not diminish continuing legal professional privilege. Investigators remain under an absolute obligation not to listen to or disclose privileged communications without waiver. Examination may therefore proceed where it can be conducted without violating, or creating a material risk of inadvertently violating, that privilege.

Following a criminal trial at Lincoln Crown Court, the trial judge had ordered that tapes containing, or potentially containing, legally privileged solicitor-client conversations should not be disclosed. After the trial, the Independent Police Complaints Commission appointed West Yorkshire Police to investigate alleged illicit surveillance. The police sought to examine the tapes technically, without listening to their contents, to determine whether privileged conversations had been recorded accidentally or deliberately.

The judge refused permission by correspondence. The Chief Constable sought judicial review, arguing that the judge had no post-trial jurisdiction to control the tapes and that the proposed examination would not infringe privilege. The interested party argued that the order remained binding against the world and that inadvertent overhearing could not be excluded.

1. The application was allowed. The court made a declaration that West Yorkshire Police could subject the tapes in their possession to appropriate examination for the purposes of the IPCC investigation, provided that legal professional privilege was not violated.
2. The trial judge’s order was valid and binding for the duration and purposes of the trial. After conclusion of the criminal process, however, the judge’s power to regulate the use of the tapes was spent. The judge therefore had no surviving jurisdiction to determine what was to be done with them: R v Lushington ex parte Otto [1894] 1 QB 420, per Wright J at 423–424.
3. The judge’s later letters were not decisions of the Crown Court capable of being quashed. The claimant had understandably invited a post-trial ruling, and it would have been unwise and disrespectful for the police simply to ignore the judge’s responses. Nevertheless, those responses lacked the character of orders made by a court with continuing jurisdiction.
4. The expiry of the Crown Court’s control did not give the police or the IPCC unrestricted freedom. Legal professional privilege remained absolute unless waived by the client. The court accepted the principle reflected in R v Derby Magistrates' Court ex parte B [1996] AC 487, and considered that the proposed technical analysis could be undertaken without listening to the tapes.
5. The independent IPCC investigation was not pre-empted by the trial judge’s ruling. The ruling was not res judicata on whether the surveillance had been inadvertent or deliberate. The possibility that the investigation might reach a different conclusion was a consequence of the statutory scheme which the interested party had to accept.

Leave to apply for judicial review was granted by Moses J. The Administrative Court reviewed the post-trial correspondence of the Lincoln Crown Court judge and allowed the application by granting declaratory relief.