McKenzie, R (On the Application Of) v Director of the Serious Fraud Office

A public authority that lawfully possesses bulk material which may contain legally privileged material must operate a system reasonably expected to prevent the investigative team reading it before an independent lawyer reviews the material. The law does not require the initial electronic or manual sift to be outsourced to third-party contractors. The strict Bolkiah test, developed for a solicitor’s continuing duty to a former client, does not apply directly to a criminal investigating authority exercising coercive statutory powers. Internal technical staff may isolate potentially privileged material where they are independent of the investigation and investigators have no access to it. The claim was dismissed.

The claimant challenged the Serious Fraud Office’s procedure for handling material potentially subject to legal professional privilege in electronic devices seized under the Police and Criminal Evidence Act 1984 or produced under the Criminal Justice Act 1987. The SFO’s system uploaded material to its digital review system, used search terms applied by technical staff outside the investigation team to isolate potentially privileged material, and then referred it to an independent lawyer.

The claimant argued that both the Attorney General’s Supplementary Guidelines on Digitally Stored Material and the common law required the initial sift to be conducted by independent external contractors. The central issues were the meaning of the Guidelines, the relevance of Prince Jefri Bolkiah v KPMG, and the effect of R (Rawlinson and Hunter Trustees) v Central Criminal Court.

1. Disposition. Permission to apply for judicial review was granted, but the claim was dismissed. The SFO’s procedure for isolating potentially privileged material for review by an independent lawyer was lawful.
2. The Attorney General’s Guidelines and their supplementary annex did not require the initial sift to be carried out by persons independent of the prosecuting authority. The distinction was between the independent lawyer who determines whether privilege exists and the person who applies electronic filters to identify material potentially attracting privilege. The latter had to be independent of, and unconnected with, the investigation. The Guidelines were not a statement of law or a binding policy, in any event.
3. Prince Jefri Bolkiah v KPMG concerned the protection of confidential information within a former solicitor-client relationship. Its requirement that the court be satisfied that there was no real risk of disclosure did not apply to a criminal investigating authority exercising statutory powers. The authority was required to devise and operate a system reasonably expected to ensure that potentially privileged material would not be read by investigators before independent legal review. This imposed rigorous protection without reversing the ordinary burden in judicial review.
4. The statutory scheme in the Criminal Justice and Police Act 2001 supported preliminary examination and return of material by the seizing authority, and did not require outsourcing. Section 61 safeguards concerning material determined to be privileged did not directly resolve the position pending legal review.
5. R (Rawlinson and Hunter Trustees) v Central Criminal Court established that an in-house SFO lawyer could not act as the independent lawyer deciding substantive privilege claims during a search. It did not decide who might identify material as potentially privileged before that review. The distinction between substantive legal assessment and a technical sift meant that the claimant’s reliance on that case failed.
6. The evidence showed no real risk that investigators would read privileged material under the SFO system. The system controlled investigator access, quarantined potentially privileged material, and provided for recording and responding to inadvertent access. No assumption of bad faith was justified.