Singapore: High Court sets out how potentially privileged materials seized by investigative authorities should be dealt with

Comments

As there are no statutory provisions or legal precedents in the local context which provides any guidance on how a claim of legal privilege over documents lawfully seized by the police should be handled before the present judgment, this is a welcomed decision. There is now guidance on the roles and duties of all relevant stakeholders (the investigation and prosecutorial authorities, and lawyers) on the process for asserting LPP and dealing with legally privileged documents seized during investigation are now in the process.

In more depth

Background

This case was brought in the context of an application for leave to commence judicial review. The plaintiff, Mr Ravi s/o Madaswamy, an advocate and solicitor of Singapore who applied to the court for leave to commence judicial review so that he may be granted a prohibiting order to prohibit the Attorney-General (“AG”) and the police from reviewing the contents of electronic devices that were seized from the plaintiff’s law firm. The electronic devices were seized in the course of an investigation against the plaintiff, but the plaintiff claimed that the seized items were confidential to his client and protected by LPP. In applying for leave to commence judicial review, the plaintiff asked the court to prohibit the AGC and the police from reviewing the seized items before the court made a determination on whether the seized items were protected by LPP.

Main issues before the High Court

In deciding whether to grant leave, the High Court held that the actions of the police and the AGC were susceptible to judicial review, but to determine if the plaintiff had the requisite standing and whether there was any prima facie case of reasonable suspicion that the plaintiff might succeed in obtaining the prohibiting order, the Court had to consider, inter alia:

1. if there was a prima facie case of reasonable suspicion that the seized items contained identified material that was protected by LPP belonging to the plaintiff’s clients; and
2. if the answer to the above is yes, whether there was a prima facie case of reasonable suspicion that the plaintiff would succeed in obtaining a prohibiting order pending the ruling by a Court of the “lawfulness, nature and extent” of the alleged LPP.

Was there a prima facie case of reasonable suspicion that the plaintiff would succeed in the main application, i.e. that the plaintiff should be granted a prohibiting order against the police and the AG?

The Court held that the text of sections 128 and 131 of the Evidence Act (Cap. 97) do not state that legally privileged material cannot be seized and reviewed by the police under section 35 of the Criminal Procedure Code (Cap. 68) (“CPC”), which gives the police powers to seize property in certain circumstances. The CPC also does not contain any provision which prohibits seizure and review of legally privileged material, in contrast to the position in the UK. The Court proceeded to observe that the prohibiting order sought by the plaintiff only sought to prohibit the AG and the police from reviewing the contents of the seized items until the Court decides on the existence and scope of the alleged LPP over the seized items. Hence, the plaintiff has to first establish a prima facie case of reasonable suspicion that there was material in the seized items that was legally privileged.

Was there a prima facie case of reasonable suspicion that the contents of the seized items were privileged?

The Court held that the plaintiff did not establish this. In reaching its decision, the Court explained the stages which should generally take place when documents are seized by the investigating authorities from an advocate and solicitor:

• The immediate question to be dealt with is whether there is any claim that the seized material contains allegedly legally privileged material of the lawyer’s clients.
• If so, the investigating or prosecutorial authorities will have to determine whether they accept or dispute the claim of LPP. If they dispute the claim of privilege, they should inform the lawyer and/or his client as soon as possible.
• If the affected client is nonetheless prepared to allow the authorities to use the material in their investigations or prosecution, then no issue arises.
• However, if the affected client insists that the material in question is legally privileged, and he does not waive such privilege, the client will have to decide whether he wishes to commence legal proceedings to prohibit the authorities from using the material that has been identified and is the subject of dispute over the question of legal privilege.

The Court emphasised that it was the lawyer’s duty to his client at the very first stage of the process after seizure of the material to specifically identify the allegedly privileged material to the authorities – the plaintiff by failing to do so has no basis to even begin the proceedings.

Was there a prima facie case of reasonable suspicion that the police and the AG should be prohibited from reviewing the contents of the seized items?

Although not strictly necessary given that the Court was able to dispose of the plaintiff’s application based on its decision on the earlier point, it proceeded to consider whether it was for the court or an AGC “privilege team”, as argued by the respondent, to conduct the review of seized materials for privilege.

After reviewing the practices of other jurisdictions – the US, England and Wales, Australia and New Zealand, and taking into consideration the different contexts that applied in those jurisdictions – the Court held that the AGC, rather than the court, should be the party to conduct a review of seized materials for LPP, if the lawyer and/or his clients’ claim to LPP was not accepted by the AGC at face value, or if there was a reasonable basis to think that legally privileged material would be encountered in a review of seized material even if there was no specific claim of legal privilege. This review should be conducted by a team of AGC officers who are not, and will not be, involved in the underlying investigation. This has the benefit of efficiency and cost-effectiveness, ensuring that the court would not be inundated with copious amounts of seized material which it would have to sieve through to examine the claim of privilege.

The Court also inserted additional safeguards in order to assuage potential concerns of perceived unfairness or injustice as the prosecuting authority and the body entrusted to perform the review of the seized materials both come from the AGC. The Court set out four different possible situations under which a claim of privilege could be raised over materials lawfully seized by the police from a relevant person:

1. where the relevant person is a lawyer involved in criminal defence work, such as the present case;
2. where the relevant person is a lawyer not involved in criminal defence work;
3. where the relevant person is not a lawyer but is or was involved in other criminal investigations; and
4. where the relevant person is not a lawyer but claims that some of the seized material includes documents protected by LPP because these documents involve civil lawsuits that the relevant person was involved.

In situations (a) and (c), once the relevant person has specifically highlighted to the investigating authority or the AGC that the seized materials contain privileged documents relating to criminal cases, the AGC privilege team should not be made up of officers from the AGC’s Crime Division (or any other team handling prosecutorial work).

In situations (b) and (d), this restriction against prosecutors being part of the AGC privilege team does not apply.

In all four situations, if the relevant person claims that some of the seized material includes documents protected by LPP because they involve civil lawsuits that the relevant person is or was involved in, whether in his own personal capacity or as counsel for a client, and which the AGC is or was a party to, then the AGC privilege team should not be made up of officers from the AGC’s Civil Division (or any other equivalent team who is involved in the conduct of the government’s civil lawsuits).

These safeguards will ensure that sufficiently independent officers of the AGC are tasked with the review of the claims of privilege by the relevant person.

The proper procedure for handling legally privileged material that has been seized

After holding that the review of seized materials to examine any claim of privilege should be done by the AGC privilege team, the High Court reiterated the process by which legally privileged material that has been seized should be dealt with, providing guidance to the AGC, investigating authorities and lawyers alike (see paragraphs 83 to 91 of the judgment). The Court added that if the holder of the privilege subsequently applies to the Court to challenge the AGC privilege team’s determination that certain documents are not privileged, the documents in dispute should not be handed to the investigation or prosecutorial team until after the challenge has been determined by the Court.

Further, if the relevant person or his lawyer refuses to cooperate with the AGC privilege team at the first stage by identifying the specific documents that he claims are privileged, the AGC privilege team may proceed to review the entirety of the contents of the seized materials to determine if privilege exists over any of the seized materials. However, under no circumstances should a prosecutor or investigating officer who is involved in the underlying investigation conduct the privilege review.