Faisaltex Ltd & Others v Chief Constable of Lancashire Constabulary & Anor

A seizure of material protected by legal professional privilege does not automatically make the whole search unlawful or justify an injunction restraining access to all seized material. Under sections 16(8) and 19(6) of the Police and Criminal Evidence Act 1984, the legality of the search depends on what the individual officer was seeking when executing the warrant. Where mixed questions of fact must determine whether particular material was excessively seized, damages and trial are ordinarily the appropriate remedy. An injunction may nevertheless be available in principle, but it should be refused where an independent-counsel procedure and supervision under section 59 of the Criminal Justice and Police Act 2001 provide a reasonably effective means of protecting privilege. The public interest in allowing a criminal investigation to proceed is an important consideration.

The claimants sought an injunction restraining the police and HMRC from reading, copying or using material seized under warrants issued under section 8 of the Police and Criminal Evidence Act 1984. The warrants had been upheld in relation to the claimants’ premises in earlier judicial review proceedings, although the warrant concerning their solicitors’ premises had been quashed. The claimants had subsequently issued civil proceedings alleging excessive seizure, including seizure of computers containing legally privileged material.

The present application concerned whether the alleged seizure of privileged or other material outside the warrants justified interim relief, and whether the proposed procedure for identifying legally privileged material was inadequate. The central questions were whether the alleged breach made the whole search and seizure unlawful, and whether an injunction was necessary pending trial.

1. Application refused. The claimants established a serious triable issue as to whether damages might be available if an officer seized a computer known to contain legally privileged material together with material within the warrant. That issue did not justify the broad injunction sought.
2. The court rejected the submission that seizure of privileged material automatically meant that the whole search, seizure and entry were unlawful. Section 16(8) of the Police and Criminal Evidence Act 1984 focuses on the extent of the search required for the purpose for which the warrant was issued. If the individual officer was searching for material within the warrant, the search could remain within the warrant even if privileged material was also seized. Section 19(6) might give rise to liability for the particular seizure without invalidating the whole search.
3. The court preferred the approach in R v Chesterfield Justices, ex parte Bramley [2000] QB 576 to the material reasoning in R v Chief Constable of Warwickshire, ex parte Fitzpatrick [1999] 1 WLR 564, which had been expressly disapproved in Bramley. Whether particular officers were searching for material outside the warrant was a fact-sensitive question that could not be resolved on the present evidence.
4. The proposed safeguards were reasonably capable of protecting legal professional privilege. They included separate storage of suspected privileged material, review by independent counsel, representations by the claimants and possible determination by a circuit judge under section 59 of the Criminal Justice and Police Act 2001. The process should be allowed to develop, with practical problems addressed pragmatically if they arose.
5. The delay since the searches, the absence of any completed analysis, and the strong public interest in enabling the authorities to investigate suspected serious criminal conduct weighed against the injunction. The relief sought was excessive and unnecessary pending trial.

• Divisional Court: In earlier judicial review proceedings, the warrant concerning the solicitors’ premises was quashed, while the challenges to the other warrants were unsuccessful. The decision is cited as [2008] EWHC 2832 (Admin).
• High Court (Queen’s Bench Division): The present interim injunction application was refused.