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Asserting privilege in police seizures: M Ravi v AG [2020] SGHC 221
- Can privilege be asserted in respect of documents seized by the police? Justice Ang Cheng Hock (in obiter) says yes.
- In this case, the applicant solicitor's electronic devices were seized by the police for investigation into offences allegedly committed by him. The applicant sought a prohibiting order to prohibit the AG and police from reviewing the contents of the seized items until such time that the Court ruled on the question of whether the documents were protected from disclosure.
- Unfortunately, the applicant did not cooperate with the police or the Court in identifying which documents within the seized devices were privileged. As such, Ang J held that the applicant failed at the first stage of the judicial review process (i.e. in showing a prima facie case of reasonable suspicion) by failing to show that the contents of the seized items were privileged.
- There is no presumption in Singapore that applies to cloak the seized items with privilege simply because the seized items belong to a lawyer. Not all communications between a lawyer and his client are ipso facto subject to legal professional privilege. This stands in contrast with the UK position where the UK police cannot seize material which they reasonably suspect to be legally privileged by application of the Police and Criminal Evidence Act.
- Further and in all events, the applicant did not have standing to assert privilege since the privilege belonged to his client, and not him. As such, Ang J dismissed the application.
- However, Ang J provided some useful comments in obiter about how privilege can be asserted in the context of police seizures.
- It is incumbent on any person affected by a police seizure to identify for the AGC which items in the seized devices are privileged. If he cannot remember, he can work out a "supervised access" mechanism to look through the seized material. That would obviate any risk of the AGC and police examining material which they are not interested in for their investigation and which are legally privileged. See [21] and [83].
- If this occurs, an AGC "privilege team" will carry out an initial review of the claims of privilege. This team should not be made out of officers from AGC's Civil Division and not the Crime Division or any other team handling prosecutorial work. This will ensure that sufficiently independent officers of the AGC are tasked to review the claims of privilege, and will assist the Court in narrowing down the scope of any dispute on privilege before it is turned over to the Court for determination. See [78] - [81].
- Proper records must be kept of this process, setting out how the seized material has been handled and those who have had access to it, as well as decisions taken in relation to the material. See [82].
- If the AGC "privilege team" disputes the claim of privilege, then the affected person may have to commence legal proceedings to prohibit the authorities from using the privileged material. In such a situation, the documents in dispute should not be handed to the investigation or prosecutorial team until after the challenge has been disputed by the court. See [78]
- Ang J stressed that it is in the AG's interest to ensure that it jealously guards against any risk of infringing on legal professional privilege; particularly since it is the guardian of the public interest. If the AGC privilege team uncovers potentially incriminating material, it cannot under any circumstance divulge that incriminating material to anyone, especially the relevant prosecutors or investigating authorities. If such privileged material is transferred - whether intentionally or inadvertently - to the prosecution team and is then relied on by the prosecution, then the affected person can object to the admission of such evidence on the ground of privilege. See [90].
Member at Hemmant's List, & Level 16 Inns of Court
3 年Recent Queensland District Court case where existence of legal professional privilege in communications stored on a telephone was sufficient excuse not to comply with a police directive to handover telephone in Queensland. The QDC is an “inferior court of record”, but in Queensland it is a very capable court with appellate jurisdiction from the Magistrates Court. See link to case. https://www.queenslandjudgments.com.au/case/id/343872?mview=legal|professional|privilege|telephone|&u=