An authorised person7 in a public authority must notify a senior
official8 before using a factor to select any section 8(4) material for
examination, where this will, or is likely to, result in the acquisition of
legally privileged communications. The notification must address the
same considerations as described in paragraph 4.9. The senior official,
who must not be a member of the public authority to whom the
section 8(4) warrant is addressed, must in any case where the intention
is to acquire communications subject to legal privilege, apply the same
tests and considerations as described in paragraph 4.10 and 4.11. The
authorised person is prohibited from accessing the material until he or
she has received approval from the senior official authorising the
selection of communications subject to legal privilege.
4.14.
4.15. In the event that privileged communications are inadvertently
and unexpectedly selected for examination (and where the enhanced
procedure in paragraph 4.14 has consequently not been followed), any
material so obtained must be handled strictly in accordance with the
provisions of this chapter. No further privileged communications
may be selected for examination by reference to that factor unless
approved by the senior official as set out in paragraph 4.14.
Lawyers’ communications
4.16. Where a lawyer is the subject of an interception under a section
8(1) warrant or selected for examination in accordance with section
16, it is possible that a substantial proportion of the communications
which will be intercepted or selected will be between the lawyer and
his or her client(s) and will be subject to legal privilege. Therefore,
and for the avoidance of doubt, in any case where a lawyer is the
subject of an interception or selection for examination, the application
or notification must be made on the basis that it is intended to acquire
communications subject to legal privilege and the provisions in
paragraphs 4.10, 4.11 and 4.14 will apply, as relevant.
7 See chapter 6.
8 Senior official is defined in section 81 of RIPA.
19