A Law Firm and Estate of The Deceased v Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 20 March 2018
• Date: 20 March 2018
• Docket Number: Civil Jurisdiction 2017 No 479
• Court: Supreme Court (Bermuda)

[2018] Bda LR 27

In The Supreme Court of Bermuda

Civil Jurisdiction 2017 No 479

Between

A Law Firm

and

Estate of the Deceased

Applicants

and

Commissioner of Police

Respondent

Mr J Lynch QC for the Applicants

Mr B Adamson for the Respondent

The following cases were referred to in the judgment

Kimathi v Attorney General (Security for Costs) [2017] Bda LR 114

Application for judicial review — Legal professional privilege — Seizure of documents by the Bermuda Police Service — Examination by independent counsel — Costs

RULING of Subair Williams AJ

Introduction and Summary of Facts

1. This matter first came before the Court on an urgent ex parte application for injunctive relief against the retention by the Bermuda Police Service (BPS) of various electronic devices which were originally seized from the residence of the Deceased to whom the 2^nd Applicant relates.

2. Two of the three electronic items which were seized, namely a cell phone and a laptop computer, belonged to the 1^st Applicant, a law firm where the Deceased was employed as a practicing attorney immediately prior to his death. The third item seized was another laptop computer which belonged to the Deceased personally.

3. No real issue of contention arises out of the original seizure of the items from the residence (“the original seizure”) which was controlled by the BPS unit referred to as the Criminal Investigation Department (CID). It is common ground that the original seizures were made in furtherance of the CID investigation (“the CID investigation”).

4. Once the CID investigation was confirmed as closed, instead of returning the items to the Applicants, another unit of the BPS, namely the Organised and Economic Crime Department of the Crime Division (OECD), sought to retain police control over the seized articles under section 19 of the Police and Criminal Evidence Act 2006 (PACE). By affidavit evidence filed on behalf of the Respondent, the Court was made aware that the OECD had been investigating the Deceased in relation to offence(s) unrelated to the CID investigation. The head of the OECD is the same officer who attended the residence of the Deceased as an on-call Senior Officer during the original seizure arising out of the CID investigation. Hereinafter, I refer to that officer as “the DCI”.

5. The 1^st Applicant opposed police retention of the seized devices on the basis that the data stored on such items contained information subject to legal professional privilege. Having learned of BPS' intention to retain the exhibits, the 1^st Applicant initiated Court proceedings which eventually resulted in an order of directions for the examination of the seized data by an independent Counsel, subject to the approval of the Court. (Although Counsel for the 1^st Applicant initially appeared on behalf of both Applicants, a procedural issue has arisen as to whether the 2^nd Applicant has been properly joined to these proceedings. This point was not argued by Counsel and need not be determined at this juncture.)

6. The matter is now before the Court for the determination of the suitability of the process proposed in aid of the independent Counsel's review.

Background on Court Proceedings

7. On 27 June 2017 before the learned Justice Stephen Hellman, the first Court appearance in this matter was heard on an urgent ex parte application. The application was heard absent the filing of any formal Court documents. In lieu of supporting affidavit evidence, the Court heard vive voce evidence from the Director of the 1^st Applicant (“the Director” or “the 1^st Applicant”) in pursuit of relief in the following terms

• i. The quashing of the second seizure by the Respondent of a telephone and two laptop computers (electronic property) belonging to the 1^st and 2^nd Applicants from the home of the deceased; and

• ii. Delivery of the electronic property to the Court.

8. Having found that there was a strong probability that the seized material included items containing information subject to legal professional privilege and that there was a real risk that the Respondent might inadvertently read such information upon the review of the seized material, an order and direction of the Court was made for the appointment of an independent lawyer to review the seized material by a procedural means acceptable to the Court.

9. A return date for an inter partes hearing was fixed for Friday 30 June 2017, before which time the Applicants were to file a Form 86A at the direction of the Court, together with an ex parte summons and a short affidavit attaching a transcript note of the live evidence heard. (The ex parte summons, described on its face to be filed in the matter of an application for judicial review, was filed on 4 July 2017 and formalized by the Acting Registrar who issued the return date for the hearing previously held before Hellman J on 26 June 2017.) Notwithstanding the Court's direction for the filing of a short affidavit prior to the 30 June 2017 hearing, the Applicants filed no further evidence at this stage of the proceedings.

10. The 30 June 2017 fixture resulted in an order by Hellman J waiving the requirement for the Applicant to file and serve the Form 86A and supporting affidavit. The waiver is likely explained by the application for judicial review also being adjourned sine die with liberty to restore.

11. By summons dated 17 November 2017 the Respondent sought further directions which were subsequently agreed by Consent Order dated 24 November 2017 providing for the exchange of further affidavit evidence and a fixture for the hearing of the arguments with which I am presently concerned.

The Evidence

12. The first affidavit filed in these proceedings was that of the DCI which was sworn on 6 November 2017 and filed on behalf of the Respondent. This affidavit was filed in support of the Respondent's summons for directions and seemingly in reply to the 26 June 2017 vive voce evidence heard ex parte by the Court.

13. It was not until 12 January 2018 that the 1^st Applicant filed affidavit evidence. On 25 January 2018, the Respondent filed the second affidavit from the DCI, sworn on 24 January 2018. The DCI's affidavit is accompanied by an exhibit of a transcript note of the first Court appearance on 26 June 2017.

14. There were some divergences in the evidence between the parties' accounts of the verbal exchanges which transpired between the DCI and the Director. At the 26 June 2017 hearing, the 1^st Applicant stated the following

“… My Lord at that point um I had indicated to (the DCI) to the best of my recollection that the phone and his computer and indeed his office, his home office may contain files, information and communications that related to the law firm's practice.” In describing the DCI's response, the 1^st Applicant said, “Yeah he indicated that they would be held as they were sensitive to that umm and that you know the investigation was about related to the cause of his death and information around the circumstances and the background to his death.”

15. Counsel for the Applicants, asked the 1^st Applicant about the case matters for which the Deceased had responsibility. He replied: “…there are a number of them…probably individually and jointly as a firm he was working on various matters maybe 40.” The 1^st Applicant told the Court that the Deceased relied on electronic devices in addition to handwritten and hardcopy methods in carrying out his case preparation from his home: “a lot of emails, a lot of text, a lot of apps and a lot of longhand stuff as well, we both did… we all worked from home, we all have home offices, so direct to call us at home, work from home…I learnt later that there were a few (legal files) he had in his home office….there were a number of criminal cases which are before the criminal court which just as a matter of principle of privilege could be a concern without various instructions on it.” When asked by the learned judge if he was referring to case files that would have been seized, the 1^st Applicant replied, “There would have been electronic communications and electronic attachments and files My Lord that would have been on his devices, yes. At this stage, most, at (least) one client of his actually resides overseas so there is a lot of communications backwards and forwards and we print things off as you do or review them on the screen, we did all that…”

16. The 1^st Applicant also specified in his live evidence that the Deceased had also been working on some files of particular sensitivity which included the provision of legal services to a medical patient. In his evidence before the Court the 1^st Applicant further stated

“…well My Lord I had indicated to them that the computer and the phone so on were the property of (the law firm) and that when they were done with them we would like to get them back and they indicated to me that it wasn't going to be a problem, they just had to download some of the videos and things…Well those officers actually came to see me today on request and two came to see me, … today and indicated that (the DCI) had seized from them the computer and telephone…”

17. At paragraphs 3–5 of the 1^st Applicant's 12 January 2018 affidavit he stated:

“3…During this conversation, (the DCI) gave me an undertaking that BPS seizure of (the) telephone would only be used to investigate the circumstances surrounding (the) death.

4. Based on the undertaking (the DCI) gave me, I was comfortable (the law firm) did not need to seek a protective court order to safeguard the privileged and confidential information belonging to its clients. Had I known (the DCI) seized papers belonging to (the deceased) at the scene in connection with the Organised and Economic Crime Department Investigation (“the OECD Investigation), and that despite the undertaking, an attempt would be made to review all of the information on the phone, I would have made an application to the Supreme Court of...