TAMOSIUS v. THE UNITED KINGDOM

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62002/00
by Alwin TAMOSIUS
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 19 September 2002 as a Chamber composed of

MrC.L. Rozakis, President,
MrsF. Tulkens,
SirNicolas Bratza,
MrG. Bonello,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,

Having regard to the above application lodged on 19 June 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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.

A.  The circumstances of the case

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.

B.  Relevant domestic law and practice

Statutory provision concerning the search

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.”

Legal professional privilege

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.”

COMPLAINTS

The applicant complains under Article 8 of the Convention that the issue and execution of the warrants were in breach of the applicant’s right to respect for his private life, and his correspondence. The applicant complains in particular that the scope of the search warrant dated 21 September 1999 was not restricted to information relating to named persons only; that the statutory definition of legal privilege was too narrow; and that supervising counsel was not genuinely independent.

The applicant complains under Article 13 of the Convention that he was denied an effective remedy, in particular that the Human Rights Act 1998 had not come into force at the time of the judicial review proceedings and the court could not, therefore, consider whether the interference with his rights was proportionate in line with the case law of this Court.

THE LAW

1.  The applicant complains about the search of his office and the seizure of documents, invoking Article 8 of the Convention which provides as relevant:

“1.  Everyone has the right to respect for his private ...life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Submissions of the parties

The Government accepted that the searches of the applicant’s business premises constituted an interference with his rights under Article 8. However, it was in accordance with the law and pursued the legitimate aim of preventing crime (large scale tax fraud) and protecting the economic well-being of the country. They denied that the searches were in any way disproportionate or lacking in procedural safeguards. No claim had ever been made that there had been any infringement of the applicant’s rights as regarded the documents seized and it would have been open to assert any abuse before a court. The warrant to enter could only be issued by a circuit judge, not a magistrate, who had to be satisfied that there was reasonable ground for suspecting that the commission of a tax fraud and that evidence of it is to be found in the premises sought to be searched. The courts also retained their full powers of supervision of judicial and executive action. A high degree of protection was furthermore given to the confidentiality of lawyer-client relations (legal professional privilege) as the seizure and removal of any documents with respect to which such a claim of privilege could be maintained was prohibited.

As regards the breadth of the warrant, the Government submitted that greater particularity in the warrant would not have provided any greater protection against the seizure and removal of things which were irrelevant to the investigation or subject to legal professional privilege. The scope of legal professional privilege was favourable to the person being searched as an objective test was applied, the belief reasonable or otherwise of the person removing the documents being irrelevant. Furthermore the counsel who supervised the search was not part of the search team but present to give independent advice and to act independently in assessing whether an item attracted legal professional privilege. No complaint was made as to bias of counsel in this case or allegation that he erred in categorising documents, the applicant’s counsel accepting that he had acted thoroughly and with integrity. No document could have been used until any challenge brought by the applicant in the courts against removal of any document had been resolved.

The applicant submitted that the interference with his rights was disproportionate. Substantial numbers of documents were removed and his practice harmed. His primary submission was that it was necessary to examine the overall sufficiency of the safeguards against infringement of his rights that would result from an abuse of power of search. These were not adequate however. The warrant for the search was granted ex parte in the absence of the lawyer (unlike the procedure under the Police and Criminal Evidence Act 1984) and the fact that a judge authorised the search was not sufficient safeguard in the Niemitz case (Niemietz v. Germany judgment of 16 December 1992, Series A no. 251) and in any event there was a concern that the judge in this type of case was not sufficiently senior.

Furthermore, any judicial supervision after the event would take place too late since the material would already have been removed and read. The individual would anyway often not be in a position to assess whether a challenge to removal of any items was possible. It could only provide a remedy against abuse, not prevent abuse. It was not accepted that none of the documents removed from the officer were irrelevant or privileged, such concession being made by the applicant’s previous representatives to simplify the issues before the domestic courts. At the time of the judicial review, he did not have access to the seized materials and was unable to identify those that were privileged. As regarded the warrants, restrictions on their scope provided protection as it enabled the person being searched to make an informed decision about whether the search had exceeded its scope and if there was any concern about sensitive material being disclosed, a judicial figure could make the decision as to what was included. As regarded legal professional privilege, it was narrow and did not cover the wider class of documents which might prima facie be covered. While since April 2000, the applicant had obtained access to the seized documents and litigation could be brought to assert legal privilege, this was of limited value since the Revenue had been able to view them meanwhile. As regarded the counsel instructed by the Revenue, his independence was doubtful - he was not jointly instructed by both parties. He also had to rely on the information given by the investigators as the relevance of materials to the investigation and was under written guidance which placed him at liberty to consult the investigators, while no mention was made of asking questions of the person subject to the search.

The Court’s assessment

The Court observes that it is not disputed that the search of the applicant’s offices constituted an interference with his rights under Article 8 of the Convention (see, in particular, the Niemietz v. Germany judgment cited above, pp. 33-35, §§ 29-33, where search of a lawyer’s office was regarded as interfering with private life and correspondence and, potentially home, in the wider sense implied by the French text which uses the term “domicile”; and more recently, Stes Colas Est and Others v. France, no. 37971/97, judgment of 16 April 1992, §§ 40-42, where searches carried out on the applicant companies’ offices were found to fall within the scope of the term).

It remains to determine whether the interference complied with the requirements of the second paragraph.

It is not disputed that the search was carried out “in accordance with the law” and that it pursued the aims of the prevention of crime and disorder, as well as the economic well-being of the country. The main dispute between the parties is whether the measure can be regarded as “necessary in a democratic society” in pursuit of those aims, in particular whether it was proportionate to those aims and whether there were sufficient procedural safeguards attaching to the procedure to prevent any abuse or arbitrariness. In that context, it must be noted that the search of a lawyer’s office impinges, or threatens to impinge, on professional secrecy and may have repercussions on the proper administration of justice, and hence on the rights guaranteed by Article 6 of the Convention (see Niemietz, cited above, p. 36, § 37).

In the present case, the Court notes that the search was carried out under a warrant issued by a judge, who was required by law to be satisfied that there was reasonable ground for suspecting that the commission of a tax fraud had occurred and that evidence might be found at the premises to be searched. While the applicant complains that the granting of the warrant was obtained in an ex parte procedure, whereas in other statutory contexts inter partes procedures are provided for, the Court would note that there may be good reason not to give forewarning of a proposed search. The scrutiny given by a judge, even in an ex parte procedure, is nonetheless an important safeguard against abuse (see, e.g., the Funke v. France judgment of 25 February 1993, Series A no. 256-A, p. 25, § 57; see also the Chappell v. the United Kingdom judgment of 30 March 1989, Series A no. 152-A, p. 25, §§ 59-61, concerning the grant ex parte of an Anton Piller order). It does not consider any strong objection arises from the fact that it was a circuit judge in this case, rather than a more senior judge. It would note that in domestic law it is often a magistrate who provides the police with warrants for criminal investigations.

The applicant has also complained about the breadth of the warrant granted, in particular that it did not give specific detail of the articles or persons which were the subject of the search. The Court recalls that the first warrant related to any items relating to serious tax fraud. However, a second warrant was issued, which included a schedule of 35 companies and individuals listed as being under investigation. It was this warrant that was executed, although the domestic courts gave the opinion that both were equally lawful. The Court is not persuaded that in these circumstances the applicant was denied sufficient indication of the purpose of the search to enable him to assess whether the investigation team acted unlawfully or exceeded their powers.

The Court also recalls that the search was carried out under the supervision of counsel, whose task was to identify which documents were covered by legal professional privilege and should not be removed. Though the applicant has denied that this provided any substantial safeguard, the Court notes that the counsel, nominated by the Attorney General, was under instructions to act independently from the investigation team and to give independent advice. The applicant has not claimed, in any domestic proceedings, that the counsel erred in the exercise of his judgment.  The Court sees nothing sinister in the inclusion in counsel’s instructions of a reference to consulting the investigation team where necessary to clarify the alleged relevance of an item to the investigation. It would appear only logical that the investigation team be required to justify why they wish to remove certain items.

Nor does the Court consider that the approach taken to legal professional privilege provides too narrow a protection as alleged by the applicant. Having regard to the definition of privilege in domestic law, a prohibition on removing documents in respect of which such privilege can be maintained provides a concrete safeguard against interference with professional secrecy and the administration of justice, bearing in mind in addition that the removal of any documents to which privilege in fact attached would have rendered the Inland Revenue liable to legal challenge and, potentially, to pay damages. The Court is not persuaded that it can be required, in order to prevent any possibility of error, that all documents to which privilege could prima facie attach should be covered.

The Court concludes that the search as carried out in this case was not disproportionate to the legitimate aims pursued and that adequate safeguards attached to the procedure. The interference can accordingly be regarded as “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.

It follows that the applicant’s complaints must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complained that he did not have an effective remedy in respect of the search and seizure, invoking Article 13 which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that the applicant could have brought any complaint against the seizure of documents before a competent court. If a document was found to be privileged it could not have been used and the Inland Revenue would have been open to a claim in damages. The scope of the courts’ review was therefore effective.

The applicant argued that the Divisional Court was limited to considering whether the search was in accordance with statutory provisions and domestic law and did not give consideration to whether there were overall sufficient safeguards against abuse and proportionality.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s complaints under Article 8 are manifestly ill-founded. For similar reasons, the applicant does not have an “arguable claim” and Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik FriberghChristos L. Rozakis
RegistrarPresident

Full & Egal Universal Law Academy