TAMOSIUS v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant, Mr Alwin Tamosius, is a United States national, born in 1951 and living in the United Kingdom. He is represented before the Court by Mr Lockley, a lawyer practising in the Sheffield. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a lawyer and partner of the firm Tamosius & Partners, based in offices in London. Since about 1996, one of his clients, Mr Frestadius, had been under investigation by the Inland Revenue. On 20 July 1998, the Inland Revenue sought to execute a search warrant on the applicant’s offices. The applicant claimed legal professional privilege in relation to the files which they wished to examine and seize. The Inland Revenue agreed not to examine or seize any of them. On 10 August 1999, Mr Frestadius was committed for trial on two counts of cheating the revenue of tax payable. It was alleged that he had taken part in a scheme to evade tax by diverting commission offshore. On 21 September 1999 the Inland Revenue obtained from the Crown Court an ex parte search warrant in order to search the applicant’s premises for documents evidencing offences of serious tax fraud, suspected to have been perpetrated by one or more of the applicant’s clients. The Inland Revenue also suspected that the applicant might himself have committed such offences, in particular that he had been involved in the arrangements for the diversion of commission offshore and assisted in concealing those arrangements from the Inland Revenue. The wording of the warrant was as follows; ‘any officer who enters under the authority of this warrant may; (a) take with him such other persons as appear to him to be necessary; (b) seize and remove any things whatsoever relating to or appearing to relate to serious tax fraud in relation to Corporation Tax, Income Tax and other obligations touching upon them and which he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned above and; (c) search or cause to be searched any person found on the premises whom he has reasonable cause to believe to be in possession of any such things; but no person shall be searched except by a person of the same sex. No item may be taken from the premises which is subject to legal privilege (as defined in section 10 of the Police and Criminal Evidence Act 1984) (‘PACE 1984’)’. The warrant was executed on 29 September 1999, but no property was initially examined or seized. Discussions took place between the parties to agree the resolution of issues of legal professional privilege, but no resolution was reached. The same day solicitors on behalf of the applicant applied for leave to judicially review the grant of the warrant. On 30 September 1999, leave was granted subject to the Inland Revenue giving an undertaking that any material removed from the premises would be sealed in opaque bags and not inspected until the full hearing. The first warrant was due to expire on 30 September and the Inland Revenue obtained a second ex parte warrant with identical wording apart from the following addition; ‘...obligations touching upon them, in relation to the persons named in the attached schedule, which he has reasonable cause...’ The attached schedule contained the names of 35 companies and persons involved in the arrangements which the Inland Revenue alleged were designed to cheat. On 1 October 1999, the second search warrant was then executed. Some 69 documents, files and books were examined and seized. The procedure was as follows. Officers searched for relevant material. Once relevance had been decided, material was then reviewed by the counsel nominated by the Attorney-General and instructed by the Inland Revenue for the purposes of advising whether any document or other thing shown to him (a) was subject to legal professional privilege, (b) was not subject to legal professional privilege, (c) would have been subject to legal professional privilege but for the fraud/crime exception set out in section 10(2) of PACE 1984. Any document found to be subject to legal professional privilege was handed back to solicitors for the applicant. All the documents seen by counsel were listed, with counsel’s opinion as to each. On 5 November1999, the Divisional Court took the view that neither warrant was unlawful. It rejected the applicant’s arguments that the warrant failed to give adequate particulars of the materials which could be seized, holding that the there was nothing in the statute which required the particularity for which he contended. The validity of the warrant depended not upon its particularity but upon there being reasonable suspicion that an offence of serious fraud had been committed and there being reasonable ground for suspecting that evidence was to be found on the premises. “The fallacy in the applicant’s argument lies in the content that greater particularity will provide greater protection against the seizure and removal of things which are irrelevant to the investigation or which are subject to legal professional privilege. ... The protection against the seizure and removal of irrelevant or privileged material lies in sub-section 4. Even if the warrant had been more specific it would provided no greater protection. Greater particularity of the kind for which the applicant contended would and could not have prevented officers of the revenue seizing and removing that which they were permitted to take by virtue of sub-section 3.” As regarded the applicant’s complaints against the scrutiny of counsel instructed by the Inland Revenue, the court stated: “The prohibition under subsection (4) is absolute. If a document is the subject of professional privilege it cannot be seized or removed. If therefore, an officer does seize and remove documents which are properly the subject matter of professional privilege, he acts unlawfully and can be prevented from so doing by the court. The court would also order him to return such documents. Moreover if the officer has acted unlawfully, the revenue may be liable in damages. Thus if it subsequently turns out that counsel was wrong, his presence will not assist the revenue to resist any action taken by the court in an attempt to remedy the unlawful seizure and removal of documents subject to professional privilege. It is for the court to determine whether the documents in fact seized and removed were subject to such privilege. The fragility of professional privilege is to be protected, under the statutory regime, by the processes of and the sanctions imposed by the courts. It is only when they are found wanting that one can see that the rights to privacy and access to lawyers have been infringed. Therein lies a difficulty for this applicant. The complaint as to infringement of its rights would be easier to assess in the context of a complaint that professionally privileged documents were, in fact, seized and removed; That issue, possibly, remains to be litigated, but, as yet, there is no evidence that any of the documents seized and removed was privileged. In the meantime it was open to the revenue in seeking to protect itself against unlawful seizure and removal to obtain the assistance of counsel nominated by the Attorney General. Such presence also protected the applicant... the lawfulness of the seizure and removal was not tainted by the presence of counsel. Indeed, I would have thought that his presence, in cases such as these, was to be encouraged, so long as it is understood that his presence should not inhibit a solicitor who wishes to assert a genuine claim to legal professional privilege from making his assertion as speedily as he can before the courts.” The applicant petitioned the House of Lords for leave to appeal and was refused on 17 April 2000. On a date unspecified, some two years later, a decision was taken not to prosecute the applicant. Section 20C of the Taxes Management Act 1970 (as amended) provides: “(1) If the appropriate judicial officer is satisfied on information given on oath given by an officer of the board that – (a) there is reasonable ground for suspecting that an offence involving serious fraud in connection with, or in relation to, tax is being, has been or is about to be committed and that evidence of it is to be found on premises specified in the information; and (b) in applying under this section, the officer acts with the approval of the board given in relation to the particular case, the authority may issue a warrant in writing authorising an officer of the board to enter the premises, if necessary by force, at any time within 14 days from the time of issue of the warrant and search them. ... (3) An officer who enters ... may (a) take with him such other persons as appear to him to be necessary; (b) seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence. (4) Nothing in sub-section (3) above authorises the seizure and removal of documents in the possession of a barrister, advocate or solicitor with respect to which a claim to professional privilege could be maintained.” Role of the counsel instructed to review the materials removed during the search According to the instructions issued to counsel nominated by the Attorney-General to act on such searches, counsel’s role was to advise in relation to any document or thing over which a claim of legal professional privilege (LPP) is or could be made to decide whether it was: (a) subject to LPP and the fraud/crime exception does not apply; (b) relevant and not subject to LPP; or (c) relevant, LPP would ordinarily apply but the fraud/crime exception defeats the claim of LPP. Counsel was told: “1.4 You are not part of the search team but there to give independent advice. You must not allow yourself to become part of the evidential trail as to the discovery of items during the search. Once they have been discovered by an officer who could give evidence about it if the matter proceeded to trial, it is your task to examine them for the specific purpose set out in these instructions. ... 2.1 In the event of a claim of LPP being made in relation to any item or in the event that any officer uncovers an item which may attract LPP, it will be your responsibility to assess the validity of that claim. Although you received your instructions to attend from the Revenue, you are there to act independently in assessing whether the item attracts LPP.” Section 10 of the Police and Criminal Evidence Act 1984 provides: (1) Subject to subsection (2) below, in this Act, “items subject to legal privilege” means- (a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; (b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings; and (c) items enclosed with or referred to in such communication and made- (i) in connection with the giving of legal advice; or (ii) in connection with or in the contemplation of legal proceedings and for the purposes of such proceedings... (2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.”