R (McKenzie) v Director of the Serious Fraud Office

The Divisional Court has laid down the scope of the legal duty upon law enforcement bodies to formulate procedures for protecting legal professional privilege (“LPP”) when dealing with seized material.  In the McKenzie case, the Serious Fraud Office (“SFO”) had seized from the Claimant a number of electronic devices and computers containing a large number of electronic documents.  After the seizure, the Claimant asserted that each of those devices contained documents over which he was entitled to claim LPP.  The SFO proposed to deal with this, in accordance with its policy, by agreeing search terms with the Claimant which would then be applied to the documents by the SFO’s in-house information technology teams, so as to enable the isolation of a pool of potential LPP documents which could then go to independent counsel for review.  In a claim for judicial review, the Claimant argued that this procedure was unlawful, because there was an obligation upon the SFO to engage an independent third party even at the stage of agreeing and applying the search terms.  The Divisional Court (Burnett LJ and Irwin J) dismissed the claim, ruling that there was no such obligation and that the SFO’s policy was lawful.  In a significant development of the law, the Divisional Court held that the “no real risk” test laid down in by the House of Lords in Bolkiah v KPMG [1999] 2 AC 222 was inapplicable since it was “…inappropriate to equate a public body exercising statutory powers in connection with suspected crime with a solicitor who proposes to act against his former client”.  The scope of the duty upon a seizing authority was instead “to devise and operate a system to isolate potential LPP material from bulk material lawfully in its possession, which can reasonably be expected to ensure that such material will not be read by members of the investigative team before it has been reviewed by an independent lawyer to establish whether privilege exists”.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2016/102.html 

James Segan acted as junior counsel for the SFO.