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What to do if you're raided!

14 August 17

Latest criminal cases, including recovery of privileged documents; vulnerable witnesses; driving disqualification; sentencing; missing CCTV evidence

by Frank Crowe

CRIMINAL COURT

FRANK CROWE, SHERIFF AT EDINBURGH
RECOVERY OF PRIVILEGED DOCUMENTS
 
Increasingly it is necessary for the authorities to seek to recover documents held by solicitors. Sometimes the exercise has been initiated by the solicitors themselves reporting matters under money laundering legislation; at the other end of the spectrum, however, there may be suspicion that an agent has colluded with a client to carry out an illicit transaction. Solicitors require to take certain steps in light of this important decision.
At long last the Appeal Court has released a much heralded but hitherto unreported judgment about warrants to search and recover documents from solicitors’ offices. Publication of this opinion was delayed pending the outcome of the ill-fated Craig Whyte prosecution, but why such an important judgment was not issued 18 months ago as an anonymised opinion is not clear. The opinion in Holman Fenwick Willan LLP v Procurator Fiscal, Glasgow [2017] HCJAC 38 (5 February 2016) was referred to in an opinion issued by Lord Brodie in Clyde & Co (Scotland) LLP v Procurator Fiscal, Edinburgh [2016] HCJAC 93 (22 July 2016; published 14 October 2016): see this column, Journal, December 2016, 28.
Holman is of crucial importance to solicitors, and while it clarifies many matters it leaves important aspects of procedure outstanding which may require to be clarified by Act of Adjournal. Holmans are London solicitors who were instructed by the second complainers, a firm of auditors, to act in a civil action following the purchase of Rangers FC by Craig Whyte in May 2011. Holmans ingathered documents for those proceedings and the Crown sought their recovery by a warrant granted in August 2013. Negotiations about the status of these documents continued for some time as legal privilege was raised, though no formal legal challenge was taken. Subsequently Whyte and others appeared on petition in November 2014, Whyte and four others appeared on a second petition in September 2015, and the accused were served with an indictment on 2 December 2015. 
Meantime, the second complainers had instructed a different firm of solicitors and police then sought a second warrant which was granted on 4 December 2015. Notwithstanding prior communings with the Crown, the warrant was enforced without warning. The application did not mention the High Court indictments. Despite the background, the circumstances justifying the warrant were only described to the sheriff by a detective sergeant. Immediately after the warrant was granted, appeals were taken complaining that it contained no exclusion clause for legally protected material and no independent scrutiny of its execution. Since the documents were recovered in London the warrant was endorsed by London magistrates; application was made by the complainers to the Queen’s Bench and an injunction obtained prohibiting the police from examining the documents pending further orders.
Commissioners appointed sorted 47 boxes of documents. The original bundle prepared by the solicitors had consisted of 23 lever arch files; a revised bundle only 11 such files. From the excluded material, three lever arch files had been created. At the Appeal Court there were various criticisms of the warrant – that its terms were unduly wide as it sought documents already recovered and not simply additional material; that the solicitor involved in compiling the documents had been said to have adversely affected progress in the case whereas the firm had been co-operating with the Crown; that the sheriff had not been informed of the background; and that the application encapsulated large quantities of legally privileged material and the police officer had failed in his duty to make a full and frank disclosure of the circumstances. Furthermore it was necessary to set up safeguards in the execution of the warrant to avoid oppression. It was accepted that the right to assert legal privilege lay with the client and not the solicitors. Similarly argument highlighted the issue of article 8 rights and whether they should have been given due consideration by the sheriff who granted the warrant. 
The Crown conceded the terms of the warrant had been unnecessarily wide, but said the application had been made under the common law and s 134 of the Criminal Procedure (Scotland) Act 1995, which made no distinction about categories of material excluded. It was up to the complainers to raise proceedings by bill of suspension to assert legal privilege.
The Appeal Court confirmed that legal privilege could not be asserted by solicitors; it was a matter for the client. In the present case, the solicitors had raised the bill of suspension in their name before bringing in the clients. The court was critical that ongoing High Court proceedings had not been mentioned when applying for the warrant, as properly application should have been made to a High Court judge. Had the sheriff been properly informed he could have made appropriate orders covering legal privilege. Due caution had to be used when considering applications of this type, especially when the warrant was being granted for endorsement outwith Scotland. While legal privilege could be asserted in a bill of suspension, the court indicated that changes in procedure and practice were necessary. As the terms of the warrant were too wide, the court passed the bill and suspended the warrant.
I am advised that since this case and Clyde & Co, where Lord Brodie suspended a warrant granted on incorrect information, the Crown has issued guidance to fiscals when seeking warrants for solicitors’ premises. I have to say, however, that recent personal experience suggests a lack of knowledge on the part of fiscals seeking such warrants.
Where the warrant is being sought to regularise the recovery of documents the solicitor is prepared to hand over, an opportunity should be given to raise any issues before the sheriff before the warrant application is considered by the sheriff. The sheriff will ask whether legally privileged material may be involved, in which case orders should be made to secure the material for independent inspection.
I suggest solicitors require to review their procedures to be able to indicate whether legal privilege is asserted over the material sought. This involves having specific instructions from the client. It is unlikely to be possible to seek instructions from the client during a search, but any subsequent instructions will require an early application to seek to suspend the warrant. It is for the profession to consider how confidential communications can be protected until the circumstances are considered, either by the judge asked to grant a search warrant or after material asserted as legally privileged has been seized and sealed for later independent consideration.
 
VULNERABLE WITNESS APPLICATIONS
In HM Advocate v Cordiner and McKenzie [2017] HCJAC 53 (15 February 2017) the sheriff’s decision refusing vulnerable witness applications lodged late (due to a bad administrative oversight) was overturned by the High Court. The complainer, who was the alleged victim
of a vicious assault, had moved from the North of Scotland to England and the application was made to hear his evidence by CCTV link.
There had been a long delay in seeking the application although the Crown had been aware of the complainer’s move, but the sheriff was held not to have carried out a proper exercise of balancing the Crown’s ineptitude against the needs of the witness, prejudice (if any) to the defence, and the interests of the administration of justice. No actual prejudice to the accused had been drawn to the court’s attention.
 
LIFETIME DISQUALIFICATION FROM DRIVING
This is rarely imposed, but in Laidlaw v Procurator Fiscal, Livingston [2017] SAC (Crim) 8 the Sheriff Appeal Court refused an appeal against disqualification for life in respect of the appellant who pled guilty to two complaints containing charges of driving while disqualified, which on the second occasion was accompanied by dangerous driving at an excessive speed and on the wrong side of the road. Custodial sentences of eight months’ imprisonment were not appealed. The appellant was only 26 but had been disqualified from driving on 10 occasions over the last 10 years and four of these disqualifications were still extant. Defence counsel conceded that a ban in excess of 10 years would have been appropriate, but due to the appellant’s record the court said there comes a time when enough is enough and upheld the ban.
 
SENTENCING GUIDELINES: 
DRUG TRAFFICKING
In Connelly and Corkindale v HM Advocate [2017] HCJAC 42 (30 May 2017) sentences of imprisonment were reduced on appeal. Connelly’s case involved £370,044 of drugs said to be part of a well organised operation. He was an addict who supplied to others; he had minor non-drug-related convictions and had been in employment. His prison sentence was reduced from six years four months to four years.
Corkindale’s case was different in that he had a serious conviction for trafficking in amphetamine, cocaine and cannabis resin and admitted being concerned in the supply of £370,440 of diazepam, £12,490 of amphetamine and herbal cannabis worth between £8,000 and £19,000. The appellant’s car was found to contain tick lists, phones etc., and a further £1,000 worth of amphetamine was found in his fridge. His sentence of eight years’ imprisonment was reduced to six years four months.
 
SENTENCING GUIDELINES: 
BENEFIT FRAUD
The guidelines for benefit fraud sentences set in Gill v Procurator Fiscal, Glasgow [2010] HCJAC 99 were revisited in Cook v HM Advocate [2017] HCJAC 41 (30 May 2017). A sentence of 18 months’ imprisonment was imposed in respect of a fraud involving £35,000. This sentence was quashed and a two-year community payback order with 250 hours of unpaid work was substituted. Insufficient weight had been given that the appellant was of previously good character; was unable to read and write, which suggested a lack of premeditation; had expressed real remorse; there was no risk of reoffending, he was in poor health and his family had repaid the whole sum.
 
MISSING CCTV EVIDENCE
A by-product of the plethora of CCTV systems in operation is that CCTV footage is said to feature as evidence in many criminal cases. Often its disclosure leads to rapid settlement of the case, but frequently this potentially crucial piece of evidence is often the last item to be disclosed. In some instances by the time CCTV is requested it has been destroyed or lost. 
In Henderson v HM Advocate [2017] HCJAC 43 (25 May 2017) the appellant had been convicted at trial of a breach of the peace in a public house involving the brandishing of a knife. He had been arrested at the time and appeared on petition the following day in December 2014. The following day his solicitor wrote requesting disclosure including any recorded media. A further defence request was made in May 2015 after statements had become available. A third letter was sent on 29 August 2015 after the indictment had been served in early July 2015. Matters were not assisted by the appellant dismissing his solicitors on two occasions. It would appear CCTV footage had been viewed but was deemed of poor quality and deleted. Trial took place with the appellant conducting his own defence. The appellant pled self-defence and gave evidence, but was convicted. 
The Crown contended at the appeal that there had been no unfairness as other evidence was available and the issue about deleted CCTV was not raised at trial. Application could have been made for an order to seek the images, failing which witnesses could have been cross-examined about what they had seen. In the event the jury had material to consider from the appellant and the other witnesses and the appeal was refused. 
 
 
 

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