Information Note on the Court’s case-law 45

August-September 2002

Tamosius v. the United Kingdom (dec.) - 62002/00

Decision 19.9.2002 [Section I]

Article 8

Article 8-1

Respect for private life

Search of lawyer’s premises and removal of materials in the context of a tax fraud investigation: inadmissible

The applicant is a lawyer. The tax authorities, suspected that certain of his clients were involved in tax f raud, obtained an ex parte search warrant to search his premises. The procedure involved the instruction by the tax authorities of counsel nominated by the Attorney-General, whose task was to advise officers whether any of the material they intended to rem ove was subject to legal professional privilege. Any such material was handed back to the applicant’s solicitors. A number of documents, files and books were removed. The applicant challenged the lawfulness of the warrant, arguing that it was not specific enough as to the materials to be seized. The Divisional Court upheld the warrant. Regarding the role of independent counsel, it did not consider that his presence tainted the lawfulness of the seizure and removal. It underlined that only the courts could d etermine whether material was subject to legal professional privilege. They could restrain a revenue official from removing material protected by privilege and, if officials acted unlawfully, the tax authorities could be liable in damages.

Inadmissible und er Article 8: There had been an interference with the applicant’s rights under this provision. The interference was in accordance with the law and pursued the legitimate aims of prevention of crime and disorder, as well as the economic well-being of the co untry. As to the necessity of the interference in a democratic society, although the warrant was issued in ex parte proceedings, there may be good reason not to give forewarning of a search and the scrutiny by a judge is nonetheless an important safeguard. As to the alleged lack of detail as to the article or persons subject to the search, the Court was not persuaded that in the circumstances the applicant was denied sufficient indication of the purpose of the search to enable him to assess whether the inve stigation team had acted unlawfully or exceede their powers. As for the supervision by counsel, counsel was under instructions to act independently from the investigating team and to give independent advice and the applicant had not claimed that counsel ha d erred in the exercise of his judgment. Finally, a prohibition on the removal of documents covered by legal professional privilege provided a concrete safeguard against interference with professional secrecy and the administration of justice, bearing in m ind that removal of such documents was open to legal challenge and potentially the recovery of damages. The search was therefore not disproportionate to the legitimate aims pursued:  manifestly ill-founded.

Inadmissible under Article 13: The applicant’s co mplaint under Article 8 having been rejected as manifestly ill-founded, he had no arguable claim for the purposes of Article 13: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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