Page 228 - Law and the Media

Protection of Journalistic Sources
11.3.3 Legal privilege, excluded material and special procedure
material

Legal privilege
Material that is subject to legal privilege is effectively off limits to the police. Legal privilege,
or legal professional privilege as it is better known, attaches to:

Communications between a lawyer and his client or his client’s representative for the
purpose of giving legal advice or in connection with, and for the purpose of, legal
proceedings
Communications between either a lawyer, his client or his client’s representative on
the one side and other persons on the other side in connection with, or in
contemplation of, legal proceedings and for the purposes of such proceedings.

With one exception, items that are subject to legal professional privilege are totally exempt
from police powers of search and seizure. The exception is if the relevant material is held ‘with
the intention of furthering a criminal purpose’.

Excluded material
Excluded material means:

Personal records that a person has acquired or created in the course of any trade,
business, profession or office and which he or she holds in confidence
Human tissue or tissue fluid samples held under a duty of confidence for medical
purposes
‘Journalistic material’ consisting of documents or records, which is, and since its
acquisition or creation has always been, held under an ‘undertaking, restriction or
obligation of confidence’ – in other words, confidential material.
Section 13 PACE defines ‘journalistic material’ as ‘material acquired or created for the
purposes of journalism’ and in the possession of the person who acquired or created it for those
purposes.

Special procedure material
Special procedure material is either of the following:

Business or professional records, but not personal records which come within
excluded material, held under a duty of confidence
‘Journalistic material’ other than ‘excluded material’ which is in the possession
of the person who acquired or created it for journalistic purposes – in other words,
non-confidential material.

11.3.4 Schedule 1 Police and Criminal Evidence Act 1984
If the circuit judge is satisfied that one of the ‘sets of access conditions’ concerning excluded
material or special procedure material set out in Schedule 1 PACE exists, he may make an
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