Privileged material, procedure on seizure of
151 Privileged material, procedure on seizure of
In this section —
court means the Magistrates Court;
privileged means privileged because of either or both —
legal professional privilege;
public interest privilege.
If a record is seized or, under an order to produce a business record issued under section 53, a business record is produced and —
a person entitled to possession of the record claims that all or some of the information in it is privileged; or
the officer seizing the record or to whom it is produced reasonably suspects that all or some of the information in it is privileged,
the record must be dealt with in accordance with this section.
The record must be secured in a manner —
that prevents it from being concealed, disturbed or lost; and
that preserves its evidentiary value; and
that prevents access to the information in it by any person who would not be entitled to access to the information if it were privileged.
The officer in charge of the investigation must apply to the court to decide whether the information is privileged and must deliver the record into the custody of the court.
The application must be made in accordance with rules of court and must be served on the person entitled to possession of the record or, if the identity or whereabouts of the person is unknown, on any person directed by the court to be served.
The application may, if the court thinks fit, be heard in private.
The applicant and any person entitled to possession of the record are entitled to be heard on the application.
For the purpose of deciding the application the court may have access to all of the information in the record.
If the court decides that all of the information is not privileged, the court must make the record available to be collected by the applicant.
If the court decides that all of the information is privileged, the court must make the record available to be collected by the person from whom it was seized.
If the court decides that some of the information is privileged, the court must make orders to enable the applicant to have access to the information in the record that is not privileged.
If —
the court decides that all or some of the information is privileged; and
the applicant has applied to be permitted to do a forensic examination on the record,
the court must make orders that enable the forensic examination to be done on the record and to ensure that any information in it that is privileged remains privileged.
After making a decision, the court may make any orders it thinks fit —
as to costs;
as to securing the record, or suspending the operation of any orders made under this section, until an appeal against the determination is commenced and dealt with.
Proceedings under this section are part of the court’s criminal jurisdiction.
Subject to the Criminal Appeals Act 2004 Part 2, an appeal lies against a decision made by the court under this section.
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