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Handling Mass Data – High Court Adopts a Modern Interpretation

Search and seizure operations carried out in the course of criminal investigations are governed by rules that date back more than 15 years, to a time when the problems posed by the handling of mass data could hardly have been imagined. However, a guideline High Court decision will help to maintain the law’s fitness for purpose.

The case concerned three companies and an individual who were the subjects of a fraud investigation by a trading standards authority. After warrants were issued, various premises were raided by the police pursuant to powers conferred by the Criminal Justice and Police Act 2001. Computers and other data storage devices, with a capacity of 53 terabytes, were seized.

More than 200 million documents, including about 770,000 audio recordings of telephone calls, were copied onto the investigating authority’s servers before the devices were returned to the suspects. In those circumstances, the suspects applied to a judge under Section 59 of the Act for the return of seized property that did not properly fall within the scope of the warrants. The judge directed the return of physical property, but refused to make any directions in respect of the copied data.

In ruling on the suspects’ challenge to the latter ruling, the Court found that the duty of seizing authorities does extend beyond restoration of physical property. On a pragmatic and purposive interpretation of the Act, the Court had the power to order the return or deletion of copied data that fell outside the ambit of the warrants. Such an interpretation was consistent with Parliament’s intent that a careful balance be struck between the ability of investigators to perform their roles in the public interest and the safeguarding of individuals against the exercise of intrusive powers.

However, in dismissing the appeal, the Court noted that the Act provides an exception where it is not reasonably practicable to separate property that falls within the scope of a warrant and that which does not. Although such a sifting exercise might have been physically and technically possible in the particular case, it could only have been achieved by deploying enormous amounts of manpower and other resources. No criticism could be made of the judge’s conclusion that such an exercise would not be reasonably practicable.

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