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Covid-19 and Search Warrants – The police/ regulator is conducting a search of my client’s premises but my team and I can’t attend because we are self-isolating. What can we do? by Jamas Hodivala
The use of video-conferencing technology has become essential for lawyers since the COVID-19 pandemic. If your client wishes you to attend rather than provide advice over the telephone when required, you will be better prepared if you have taken the advance steps set out below.
You should encourage existing clients to download videoconferencing facilities onto their smartphones now, before any issues arise. They should try and keep their phone battery well-charged, particularly overnight. Clients may need your advice urgently and you may need to see documents quickly in order to provide that advice. Offer your clients a “test call” using this video-conferencing technology to ensure that, if they ever need to use it, they are familiar with the procedure for getting in contact with you.
If you are required to advise a client during a search, the best advice is to use this technology to be “present” as far as possible during the search, and at the outset to make clear to the officer in charge of the search the limitations involved in you advising your client whilst you are self-isolating.
Your possible options can be divided into two types of cases:
- Those where there is no LPP material on site
- Those where LPP material is, or may be, on site
Where there is no LPP material on site
Your absence is no bar to the search proceeding but if you are notified of a search at a client’s premises, ask to immediately speak to the officer in charge of the search and:
- State that you are to be treated as if you were present during the search, albeit some adjustments may have to be made as a result of your self-isolation;
- provide the officer with your email address and take their email address (unless it is a terrorism investigation or the officer believes that providing their details will put them in danger). If they provide their email address, immediately send them a test email so that there is an incontrovertible record of when you spoke to them;
- request 20 minutes to set up the video-conferencing facilities with your client so that you can advise your client before the search commences;
- if appropriate, request to see a copy of the warrant or authority to conduct the search using your video-conferencing facilities to check its legality and the scope of the search. Alternatively request that an image of the warrant or authority is emailed to you;
- state that you require an image of the search record including the list of seized items to be emailed to you at the conclusion of the search, or that a hard copy of this is provided to your client;
- state that no questions are to be asked of your client unless you are able to record the question and advise your client;
- ask whether you client has been reminded of his right to have a third party physically present on the premises during the search;
- make a record of whether the police are seeking to rely on their powers pursuant to s.50-51 of the Criminal Justice and Police Act 2001 and ask for an image of the s.52 Notice to be emailed to you or physically left with your client.
Where LPP material is, or may be, on site
The procedure should be followed as above, save that when you have your initial contact with the officer in charge of the search you should also:
- Notify the officer that it is anticipated that there is LPP on site but that you are unable to attend because you are self-isolating;
- Request to speak to any independent lawyer brought to the site to check if there is one, and take their details;
- If no independent lawyer is present and the officer intends to proceed with the search, request that all potential LPP material is blue-bagged for subsequent review by an independent lawyer.
This Q&A was first published on Lexis®PSL.