What stops you from invoking §19.6 if a police officer attempts to seize your mobile phone?

Question

Section 19 of PACE (the Police and Criminal Evidence Act 1984) states:

(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing—

• (a) that it is evidence in relation to an offence which he is investigating or any other offence; and

• (b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.

It has been suggested by officers on YouTube videos that the person recording the video has evidence of a crime on their mobile, that they've recorded; thus they're seizing their phone under PACE. But section 19.6 states:

(6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.

So my question is: what stops someone about to have their mobile seized from telling the police officer that there is legally privileged information on their phone? They could even keep an email from a solicitor on it, which would fulfil the requirement.

Would this legally prevent them from seizing the phone?

Answer 1

I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general.

Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea.

And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications.

The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved.

In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K.

The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality.

Answer 2

I am not very familiar with UK statutory law, however I read the the statute a bit differently. The operative terms are reasonable grounds for believing to be subject to legal privilege.

Reasonable grounds does not mean that the perpetrator says there are privileged materials on the phone. It means independent grounds, like finding a letter with the letterhead of a lawyer; if a constable see's this letterhead and they are seizing all documents from a premises, that would need to be left behind. Even in the event the constable believes there are, for instance, emails that are privileged on the phone, but also has reasonable grounds to believe the phone contains crucial evidence, they can just not seize the privileged materials.

So, sticking with the attorney-client privilege for the purposes of the answer (despite there being others), the constable would not be able to view those communications, but would be able to view, say photographs, if there was information that there were photographs of stolen goods or a drug lab on the phone. Seizure of a thing can occur without seizure of the entire thing.

Answer 3

This is a rushed answer to fix a lot of misunderstanding.

After relying upon Section 19 Paragraph 6 of PACE myself, and speaking to a solicitor in London, at one of the biggest solicitor firms in the United Kingdom, I can partially answer this based on my understanding.

The good news, is using that through a solicitor increases scrutiny on whether the police need access in the first place, it makes things harder for the police, and sometimes the police simply give up as it is not worth the effort. If they get past those hurdles, then there is a collaboration between both sides to make sure only specific items are looked at, provided there is justifiable reason, and anything subject to Legal Priv is excluded. Trust me, it is a horrible process which can delay a case by years. It is amazing criminals do not use it more frequently to tie up resources!

Now for the bad news and to fix some misunderstandings.

The bad news is, unless it is entirely subject to Legal Privilege, such as a letter from your solicitor, things get complicated. If at the time of seizure the police suspected that a mobile phone had both legally privileged material and other material not subject to legal privilege, then they are allowed to seize it anyway because it was not reasonable to separate it at the time of seizure.

This is already covered in existing law, where for example the police raid a house and the items they want are stored inside of a safe. They will take the entire safe, along with items inside of it which are not related to the seizure, because at the time it was not reasonable to separate them.

College of Policing guidance on search and seizure:

If legally privileged material is mixed with other material, and if it is not possible to separate the material on the premises, officers are lawfully entitled to seize it under CJPA section 50. This may be where privileged and non-privileged material are mixed together on a computer hard drive. In this case, the examination and separation of the material should be undertaken by independent legal counsel.

Criminal Justice and Police Act 2001:

Search for content on legal privilege.

Section 50 of Criminal Justice and Police Act:

that person’s powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it.