Barrister failed to discharge onus of establishing that legal privilege attached to materials seized from him

Judicial review – challenge to the seizure of certain items by An Garda Síochána pursuant to search warrants – barrister claims that the items seized are subject to legal privilege, thus exempt from seizure – police attended at the barrister’s family home - no challenge to the validity of the warrant - items were seized - informed a Garda present that he was a barrister and that the items above referred to contained information which was subject to legal privilege as it related to his current clients as well as documentation relating to other cases he had retained from his practice as a devil – police also attended his business premises and seized items there – barrister asked for the immediate return of the seized materials - confidential communications - providing legal advice and also documentation relating to applications in immigration matters - in none of his affidavits does he identify a single client or any solicitor who instructed him on behalf of such client - general assertions - no information as to the nature of the legal advice he gave - does not suggest that any advice allegedly given related to litigation – Gardai investigation into so called “marriages of convenience” - 24 different companies and business names registered at the barrister’s address - extremely diverse activities from immigration services to currency exchange to fast food – barrister made no effort to identify the privileged documents in this case - simply stated that all documents are privileged - independent documentary counsel retained to give an opinion as to whether or not they might be subject to privilege - completed the assessment – barrister invited to identify privileged documents – assessment identified a number of categories - one of which includes material which is subject to legal privilege – Gardai argue that the crime/fraud exception may apply to this category - Section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001 - issuing of search warrants – power to seize material other than items subject to legal privilege – argued that even though some of the material seized is not subject to legal privilege, the fact that it is mixed or intermingled with material that is privileged means that none can be retained, it being impermissible for the Gardaí to seek to differentiate between privileged and non-privileged material - onus of proof as to legal professional privilege is on the person claiming privilege to establish that the documents are privileged - once the party claiming privilege has discharged this onus, it then falls on the party impugning the claim of privilege to do so by evidence – privilege lost in circumstances where the communication in issue is criminal or fraudulent in itself or intended to further any criminal or fraudulent purpose - for the crime-fraud exception to apply it is not necessary that the lawyer concerned should be party to or even aware of the criminal or fraudulent purpose to which his client intends to put the communication between them - by his own admission is providing a service to “clients” without the intervention of a solicitor - outside the ethical parameters of the profession of which he is a member - extraordinary if a barrister could not recall the identity of any solicitor who briefed him and thereby seek information from such solicitor which would assist him in identifying the relevant clients - has not discharged the onus of establishing that legal privilege attaches to any of the seized material.