1. Application for a Search Warrant on a Solicitor’s Premises
1.1 The application for a search warrant on a solicitor’s premises must be made to a magistrate, unless the warrant must be made to a Supreme Court judge under section 150(3) or (4) of the PPRA.
1.2 If the application includes an order requiring a person to give a police officer stated documents under section 153 PPRA, the application must include the name or position description of the person, a description of the documents and information about breaching such an order as set out in section 156(3) PPRA.
1.3 If the application includes an order for access information, accessing a storage device and copying stored information under section 154 PPRA, 11 the warrant must include such an order and information about breaching such an order as set out in section156(3) PPRA.
1.4 When the search warrant relates to documents and/or stored information, the police officer must provide the magistrate with information on the method that will be applied by the police officers executing the warrant12 to 8 Police Powers and Responsibilities Act 2000 (Qld), s 150AA. 9 Section 150 Police Powers and Responsibilities Act 2000 (Qld) does not specify that the warrant application must be made to a magistrate. However, the powers in s 153 and s 154 of Police Powers and Responsibilities Act 2000 (Qld) are limited to when the issuer of the warrant, is a magistrate or judge. It will be necessary to include orders under these sections when it is envisaged that the warrant evidence or property will include documents and/or access information for storage devices and stored information. 10 This complies with s 3(4)(a)-(b) Police Powers and Responsibilities Regulation 2012 (Qld). 11 If the search warrant does not include an order under s 154 Police Powers and Responsibilities Act 2000 (Qld) and the storage device can only be accessed by using the access information the police officer cannot exercise the powers under s 154. 12 Sections 612 and 613 provide for assistance in exercising powers under the Police Powers and Responsibilities Act 2000 (Qld) including the power to assist in a search. 6 Draft Search Warrant Guidelines between Queensland Law Society and Queensland Police Service – Search Warrants Executed on Solicitors’ Premises. determine whether there is a reasonable suspicion that the thing (eg document or stored information) may be warrant evidence or property.13
1.5 When applying for a search warrant the police officer must provide the magistrate with information on the process that will be implemented to ensure, that as far as possible, documents that may be legally privileged and/or irrelevant documents will not be forensically copied, with other warrant evidence or property. Example A specific police officer will be appointed to liaise with the solicitor over issues relating to legally privileged material. The police officer will provide information on the search and seizure of hardcopy documents and the forensic copying process. This will include information on whether it is feasible to implement partial forensic copying.
2. Execution of a Search Warrant on a Solicitor’s Premises Upon execution of a search warrant on a solicitor’s premises the police officer in charge of executing the search warrant (executing officer) should:
2.1 If no solicitor is in attendance at the premises, ensure that any electronic material is secured and protected before sealing the premises. The execution of the warrant should be deferred for a reasonable period consistent with the prevailing circumstances to allow attendance of a solicitor.
2.2 Identify him/herself, and members of the search team.14 A copy of the search warrant guidelines should be provided to the solicitor.
2.3 Provide a copy of the search warrant and a statement in the approved form summarising the occupier’s rights and obligations under the warrant.
2.4 Explain the purpose of the search, including where possible, information about who is suspected of involvement.
2.5 A reasonable time should be given to allow the solicitor to consult with his/her client and/or to obtain legal advice. 13 The term ‘reasonably suspects’ is defined in Schedule 6 of the Police Powers and Responsibilities Act 2000 (Qld) ‘reasonably suspects means suspects on grounds that are reasonable in the circumstances’. George v Rockett (1990) 170 CLR 104, 115-116. 14 Section 637 of the Police Powers and Responsibilities Act 2000 sets out the information that must be provided by a police officer. 15 See s 158 Police Powers and Responsibilities Act 2000 (Qld). 7 Draft Search Warrant Guidelines between Queensland Law Society and Queensland Police Service – Search Warrants Executed on Solicitors’ Premises.
2.6. It is preferable that the forensic copy should be limited to warrant evidence or property. In the case of forensic copies, the executing officer or a person appointed to liaise with the solicitor on LPP issues will provide the solicitor with written information on the process to be used to determine whether stored information is warrant evidence or property and information on the copying process to be used in relation to documents that are subject to a claim of LPP.
2.7 Material that is seized under the warrant must be taken to a police property point and processed by a property officer in accordance with the Police Powers and Responsibilities Regulation 2012, Schedule 9, Responsibilities Code, section 56. 3. Claims of Legal Professional Privilege A solicitor has a duty to assert a client’s claim of privilege, unless the client has clearly waived their right to claim privilege.16 The onus rests on the party asserting the privilege to show that the claim is a proper claim. Any claim for privilege must be specific.