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Joint Committee on Human Rights First Report

G. Part 3 of the Bill: Powers of seizure

67. Clauses 51 to 71 contain complex provisions extending the powers of seizure of people who are lawfully on premises and are authorised to make seizures. Previously, the police could seize only material which they had reasonable grounds to suspect (or believe) were evidence of an offence, or within the scope of a power of seizure, and which they had no reasonable grounds to believe contained or consisted of items subject to legal privilege.[92] This presented the police (and other investigative bodies) with difficulties where they were faced by a large mass of material, not all of which was relevant, and some of which consisted wholly or partly of items subject to legal privilege. The judges have held that powers to seize evidence did not give power to seize material and take it away in order to sift it to see whether or not it was evidence.[93] The only course of action open to them would be to conduct a sift on the premises, which might be very inconvenient for them and for the occupier. On the other hand, seizing a vast amount of material on the off-chance could effectively bring a business which depends on those records to a halt, and interfere with the interests of its clients.

68. The requirements of Article 8 of the ECHR in respect of privacy apply to business records and business communications, not least because many people entrust personal information to businesses which may be subject to searches and seizures.[94] In R. v. Chesterfield JJ, ex parte Bramley[95] Kennedy LJ said:

'To put the matter in terms which would meet the requirements of the Convention it seems to me that if in a democratic society it is necessary for the prevention of crime to invade privacy to a greater extent than is spelt out in the [Police and Criminal Evidence] Act of 1984, then the limits of the invasion must be spelt out in the statute or in some regulations or code made thereunder, and there must be a convenient forum available for dealing with disputes...'

69. The scheme of the provisions in Part III of the Bill is to allow seizure (from premises or from a person) of a wide range of material (including items subject to legal privilege) where it is not reasonably practicable to separate the seizable property from other property on the premises.[96] In the light of the pre-legislative concerns expressed by the Law Society and the Society of Editors in their submissions to the Home Office about items subject to legal professional privilege and journalistic material,[97] it is significant that the Bill provides certain safeguards. These include: a duty to give notice of seizures (clause 53); provisions as to the manner in which sifting is to take place after seizure (clause 54); an obligation to return items found to be subject to legal privilege if they can practicably be separated from other material which the police are entitled to retain (clause 55); an obligation to return 'excluded material' and 'special procedure material', which have special protection under the Police and Criminal Evidence Act 1984, section 9 and Schedule 1, if the material can practicably be separated from other material and the police have no power to retain it (clause 56); provisions governing retention of seized material equivalent to those under the Police and Criminal Evidence Act 1984, sections 19 and 20 (clauses 57 and 58); and provision for disputes to be resolved by a judge, and for the disputed material to be secured pending the hearing (clauses 60 to 63). It would have been desirable to include express provision for the person from whom the material was seized to be able to inspect or obtain copies of the material while it is retained by the police, but it is likely that a duty on the police to permit this would be implied by the courts, in the absence of strong reasons to the contrary.

70. These provisions seem to have been drafted carefully in the light of the requirements of the ECHR.

92   See, for example, Police and Criminal Evidence Act 1984, ss. 19 and 20. Back

93   Reynolds v. Commissioner of Police of the Metropolis [1985] QB 881 (a decision on the common law applicable before the Police and Criminal Evidence Act 1998); R. v. Southwark Crown Court, ex parte Gross (unreported), 24 July 1998, DC; R. v. Chesterfield JJ and Chief Constable of Derbyshire, ex parte Bramley [2000] QB 576, [2000] 1 All ER 411, DC. Back

94   See, e.g., Niemietz v. Germany (1992) 16 EHRR 97, Eur. Ct. HR; Amann v. Switzerland (2000) 30 EHRR 843. Back

95   [2000] 2 WLR 409 at 418. Back

96   Clauses 52(2)-(4) and 53(2)-(4). The factors to be taken into account in deciding whether it is practicable to sort the material on the premises are exhaustively listed in clauses 52(3) and 53(3). Back

97   The submission of the Law Society is reprinted in our First Special Report at pp. 35-38, and that of the Society of Editors at pp. 38-41 of our First Special Report. Back

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