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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> O Ltd v Z [2005] EWHC 238 (Ch) (23 February 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2005/238.html
Cite as: [2005] EWHC 238 (Ch)
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| O Ltd |
Claimant |
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| - and - |
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| Z |
Defendant |
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Nathalie Lieven (instructed by the Treasury Solicitor) for the Secretary of State for the oHome Department as Intervener
Hearing dates: 2nd and 3rd February 2005
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Crown Copyright ©
- This case gives rise to serious questions as to "one of the inveterate principles of English law" the privilege against self-incrimination and the exercise of a Search Order obtained, as they are, with only one side being heard. In outline the facts are these: the Claimant, an employer, believing (rightly, as it transpired) that its former employee, the Defendant, had taken with him computer and other recorded material that belonged to it and which could be used by him to its disadvantage in its business, obtained a Search Order ex parte authorising a search to be made of the Defendant's home and of the computers and other recorded material at his home. In the course of the search, material was handed by the Defendant to the Computer Expert engaged in the search. When, later, the material was examined by the Expert, it was found (as no one except, if anyone, the Defendant, had any reason to expect) to include material completely irrelevant to the Claimant's claim, paedophile pornography of a serious nature. So serious is it that its mere possession can be a crime. The Expert invited the Court to give permission for that material to be handed to the relevant Prosecuting Authority. But the Defendant had never been told of the privilege against self-incrimination either by the words of the Search Order or by the Supervising Solicitor or how to exercise it and, in that the only privilege that was explained to him was a quite different one, he might well have thought that the privilege against self-incrimination was not open to him even had he otherwise been aware of it as a possibility. Moreover, to permit the use of the offensive material against the Defendant would be to allow the fruits of a Search Order made for one purpose the fair protection of the Claimant's intellectual property rights to be used for a quite different purpose, the incrimination of the Defendant. I have no reason to think this is the case here but what a weapon the Search Order could become in the hands of, say, a vindictive employer, even in cases where the crime was far less serious than here. In a sense, too, the Search Order could be said to have been excessive because, as it turned out, it required the disclosure of material that had nothing whatsoever to do with the Claimant's claims. In such circumstances what directions should the Court give to the Computer Expert, who wishes to give the offensive material to the Police?
- I first heard argument in March 2004 and delivered a provisional judgment ("the 2004 Judgment") in private. I held, for the reasons I then gave, that the offensive material was not at that stage to be disclosed to the Police but I described my judgment as provisional as I had heard no-one but the Advocate to the Court on the subject. The Claimant, by then, had gained as much as it was ever likely to do in its action against the Defendant and understandably had no wish to spend more on being represented in an argument as to issues which no longer concerned it. The Defendant did not choose to appear at all. The Police had not been invited to. However, as part of my provisional 2004 Judgment I made arrangements for the relevant Prosecuting Authority to be asked whether, in the light of my provisional view, it wished to intervene. The first indication was that it did so wish but, after taking Counsel's advice, it then indicated that it did not wish to intervene. However, a while later it was indicated that the Home Office itself might wish to intervene and, later still, I was told that the Home Office did wish to do so and I gave leave to that end. I have thus heard a much fuller argument now than I heard in 2004. Miss Lieven has appeared for the Secretary of State for the Home Department as Intervener and Mr Caddick as Advocate to the Court; I am very grateful to both. With only marginal differences between them they have both argued that the offensive material should be disclosed to the Police.
- It may be that all this is of no practical significance. Although I cannot be sure where the Defendant now is, the best indications are that he has long since left the premises which were searched and, indeed, is out of the country. Moreover, the Search Order was made some 2 years or so ago. Even if the offensive material is handed to the Prosecuting Authority, there must be doubts as to whether any prosecution at all or at any rate any prosecution with a practical prospect of success could now be launched. However, as serious questions have arisen and as they may arise in other cases, I shall deal with the argument accordingly. Further, although both the 2004 and the present hearings have been in private, because of the seriousness of the issues raised I have thought it right that this present judgment should be made public in the anonymised form in which it is cast.
- I shall first turn to the facts.
- The Claimant, O Ltd, a company whose business is concerned with the development and sale of computer software, believed that its former employee, the Defendant, Z, had, on leaving its employ, wrongfully acquired or retained access to programs and other material the unlicensed use of which might seriously harm its business. It applied ex parte for, and obtained, a Search Order. The Order provided in the conventional way for the appointment of a Supervising Solicitor and that the Defendant was entitled to have the Supervising Solicitor explain to him what the order meant in everyday language. As computers were to be searched a computer expert ("the Expert") from an experienced firm of Consultants was amongst the persons authorised by the Order to take part in the search. Because the search was to be for intellectual property, the Search Order, whilst making, as will appear, general provision for the Defendant gathering together any documents he might believe to be privileged and for his handing them to the Supervising Solicitor in order that that Solicitor might assess whether or not they were privileged, made no express reference to the privilege against self-incrimination as such or to any ability of the Defendant to gather together documents which he might believe to be self-incriminating. The words to that effect in the approved full form of Search Order at 25 PD 14 page 587 in the 2003 White Book were omitted, as the Note to that form suggests they should be. The full form, R 2 of September 2002, reads as follows:-
- Section 72 provides as follows:-
- Unfortunately the practice direction fails to recognise that an intellectual property case Search Order might nonetheless incriminate in ways uncovered by section 72.
- The Search Order, just over 10 pages long, included the following:-
- The "Listed Items" were specified in a Schedule; they consisted exclusively of items which either belonged to O Ltd or concerned its business.
- The Supervising Solicitor gave undertakings which included the following:-
- The Expert's undertakings included:-
- The search, which was at the Defendant's house, took several hours. At the very beginning, at about 9.30 a.m., the Supervising Solicitor said to the Defendant that he would explain the order to him clearly before the Search itself began and in as everyday language as was possible:-
- The Supervising Solicitor asked the Defendant if he had any questions but the Defendant had none and indicated that he had understood the order and what he had been told. The Defendant then read the papers that had been served on him and at about 10.10 a.m. said he wanted to seek legal advice. He did so. He spoke on the telephone to a Solicitor. The Solicitor was not going to be free until the afternoon but the Defendant wanted the search completed that day and did not want, he said, to delay matters. At about 10.50 the Supervising Solicitor advised the Defendant to review the affidavits served on him in more detail and at 11.05 a.m. the Defendant indicated he was content that the search should begin, as it then did. Amongst others, the Expert then entered the Defendant's house. Questions relating to computer software which had been authorised to be put to the Defendant by the Order were then answered orally by the Defendant.
- There were several computers in the house; the Defendant had one, his wife had one, as had his son and daughter. There were 58 second-hand computers in the garage. By 11.45 a.m. the Expert had formed the view that the necessary imaging and the subsequent deletion of material not relating to the Claimant's cause of action could take a significant time given the capacity of the computers that were required to be searched. The Defendant's own computer had, he said, a capacity of 40-50 gigabytes. The Expert suggested removing the computers to the Expert's firm's premises but the Defendant opposed that as he needed at least one computer, he said, for his own business purposes. However, the Defendant was content to let the Expert prepare an image of his PCs and even assisted in the process. Imaging started at about 1.40 p.m.. An Assistant Expert was, with the Defendant's agreement, also brought in to speed up the task.
- At about 2.0 p.m. the Supervising Solicitor again spoke to the Defendant about his obtaining legal advice; he said he thought it would be advisable for the Defendant to obtain his own legal advice and, said the Supervising Solicitor, it would assist if the Solicitor to whom the Defendant had spoken would attend at the premises.
- The Defendant had, by about 2.47 p.m., indicated that his computer might contain some items covered by the Search Order. There was a discussion about how such items were to be handled. The Supervising Solicitor explains:-
- Shortly after 3.0 p.m. the Expert said that the necessary imaging and subsequent deletion would take until after 6.0 p.m.. The Defendant said he did not want his computers to be taken away and wanted the search to be completed that day even if everyone had to work through until dawn the next day. He was adamant that no matter how long it took he wanted the search completed that day. As the search had by that time uncovered material relative to the Claimant's cause of action the Claimant's Solicitor invited the Defendant to reconsider the oral answers that he had earlier given. Again the Defendant sought legal advice over the telephone from his Solicitor and responded, after he had taken that advice, that he did not wish to amend his previous answers. He reiterated that he wanted the search completed that day. During the search a large number of floppy disks and CDs had been located and the Defendant agreed that these could be examined using a laptop. That task began. By 6.25 p.m. the Expert indicated that the imaging of the computers had been completed but also that subsequent deletion of material not concerned with the Claimant's case would take many hours. The Defendant did not wish the computers to be taken from his premises. Yet more floppy disks and CDs were found. The Defendant agreed that these items could be listed with generic descriptions. As the search had proceeded the Defendant had on occasions referred to the Supervising Solicitor about items which he thought might be commercially sensitive and had given them to the Supervising Solicitor, who reviewed them to ensure that no legally professionally privileged document was included. None was.
- Of the 58 computers found in the Defendant's garage, 3 were taken as a sample and removed from the premises. Hand-written lists of all the materials found were drawn up. The Supervising Solicitor explained to the Defendant that the Expert's work was intended to be complete within two working days unless the Court extended the time period or the Defendant agreed in writing to its extension. The Expert indicated that a two-day period would not be feasible. Hence an order of priority for the examination of material was agreed. The search ended at about 11.00 p.m.. The Supervising Solicitor asked the Defendant whether he had any comments or complaints regarding the manner in which the order had been executed and the Defendant confirmed that he had no complaints. The Expert left bearing image copies of 4 hard disks housed in the main computer used by the Defendant and took also, amongst other items, a bag containing CD-ROMs and floppy disks and another bag containing floppy disks and DATs, all found at the Defendant's house.
- Two days later the Expert began looking through some of the floppy disks and CD-ROMs which had been removed from the Defendant's premises. They had not been examined prior to their removal and the Expert's objective was to sift out any material not relating to the Claimant's cause of action. The Expert says:-
- The next day the Expert called in a colleague to examine the CD-ROMs and explained the Expert's concern over the nature of one of the video clips that had been found. Both the Expert and the colleague had had wide experience of investigating computers in relation to illegal images. The colleague very quickly identified in excess of 200 indecent images of children in a folder named "kpics". Further such images were found on another CD. The Expert and another colleague began a search of the 4 disks from the Defendant's computer. Indecent images of children were found on the first two disks which were examined. Because of expertise gained by the Expert when acting in other matters the Expert was aware of a categorisation of 1-5 used by the Sentencing Advisory Board, a categorisation in which 5 was the most offensive material. It was the Expert's view that the images seen fell within those categories.
- The Expert explained to the Claimant's Solicitors that evidence of criminal activity had been found on the search of material from the main computer and from some of the CD-ROMs and that there was concern that the Expert would be committing an offence under the Protection of Children Act 1978 if, complying with the Court order, these were to be returned to the Defendant. The questionable material was sealed in evidence bags and placed in blocked storage with restricted access. The Expert's firm was concerned in three ways; to possess the material could be a crime but if the material was returned to the Defendant then might not the firm be guilty of distribution under section 2 of the Protection of Children Act 1978 (the provisions of which I shall come on to)? If, alternatively, the firm was to delete the material, then might it not be guilty of an offence of destroying evidence of a crime? A letter explaining such concerns was written to a Judge of this Division.
- Because of the unusual developments in the matter the initial return date was put back. When it did occur, Z appeared or was represented. He indicated or it was indicated on his behalf for the first time that he wished to assert the privilege against self-incrimination. The Learned Judge indicated that he intended to write to the Attorney-General requesting the appointment of an Advocate to the Court to assist the Court in the determination of the questions which had arisen. In the meantime, within a month of the search order, the Defendant had agreed the terms of an injunction to run until judgment or further order and costs had been reserved. Later a Summary Judgment was given against Z. The pornographic material that has been found is completely irrelevant to the Claimant's causes of action. Drawing on their experience when acting in other matters, the Expert's firm is of the view that the paedophile material is, on the scale of 1-5, at level 4. The Expert wishes to disclose it to the Police.
- At the hearing before me the Claimant, although represented very briefly in 2004, took no active part and then withdrew from the hearing. The Defendant took no part at all. I was then told that he had moved his address, that his family have moved to a quite different part of the country than where the search took place and that he may even have left the country. Later indications are that he has left the jurisdiction, indeed has left the United Kingdom, but that he is still in the European Community.
- No one had foreseen or had any reason to foresee that Z held offensive material of the kind that he did or that in any way (outside section 72) he may have committed any crimes that would have been relevant to the search. The Supervising Solicitor who had explained the Search Order to the Defendant had explained legal professional privilege to him but had no reason to, and did not, touch upon self-incrimination. To the extent that the Claimant and the Supervising Solicitor had self-incrimination in mind, they would have had in mind only such privilege as would have been denied to the Defendant by section 72 of the Supreme Court Act 1981 supra which, broadly speaking, as will have been seen, withdraws the privilege against self-incrimination as to, but only as to, certain claims in intellectual property cases. Nothing had suggested to the Claimant or the Supervising Solicitor even during the course of the search that any material relating to any crime falling outside section 72 would be likely to be encountered in the course of the search. The explanation of privilege given to the Defendant was thus, as I have mentioned, exclusively on the subject of legal professional privilege. Nothing had been said (as I have verified) about self-incrimination at all, either by the Supervising Solicitor or, in his hearing, by the Claimant's Solicitors or the Defendant. At no stage had the Defendant told the Supervising Solicitor that he had any concerns with regard to the privilege against self-incrimination or that he was seeking to exercise or was willing to waive any rights he might have in that regard. It is not known whether the Defendant's own Solicitor advised him on the subject of self-incrimination but there is no reason to suppose that he was asked to or did. Indeed, if he had advised the Defendant on the subject one could expect the Defendant to have raised it with the Supervising Solicitor, which he did not. With this as the factual background I now turn to the law.
- Under section 1 of the Protection of Children Act 1978 it is an offence for a person to have in his possession indecent photographs of children with a view to their being distributed or shown by himself or others section 1 (1) (c) or to distribute or show such photographs section (1) (b). Possession of itself is not an offence under this Act. It is a defence if the defendant himself has not seen the photographs and did not know nor have any cause to suspect them to be indecent section 1 (4) (b). For this purpose children are persons under 16. Where there is a reasonable ground for suspecting that an indecent photograph of a child is on premises a Justice of the Peace may issue a warrant authorising any constable to enter the premises, if need be by force, to seize the indecent material section 4. Offences under the Act are punishable either on conviction on indictment (for a term of imprisonment of not more than 10 years or a fine or both) or on summary conviction (up to six months in prison and a fine or both) section 6. Photographs are defined to include data stored on a computer disk or by other electronic means section 7 (4).
- Under section 160 (1) of the Criminal Justice Act 1988 it is an offence for a person to have any indecent photograph of a child in his possession. Under this Act possession alone does suffice. The maximum term of imprisonment is here 5 years but there may be a fine in addition section 160 (2A). It is, again, a defence if the person charged has not seen the photograph and did not know or have cause to suspect it to be indecent section 160 (2) (b). The definition of photographs in the 1978 Act is used for the purposes of the 1988 Act.
- Whilst the facts I have outlined amount, as it seems to me, to a very compelling prima facie case that the Defendant is guilty of an offence, at least under the 1988 Act and possibly under both Acts, it is far from clear that he could have no defence. If he had, for example, acquired his computer or the other material second-hand it could be that the paedophile images were someone else's collection of which he had no knowledge. That might be thought a little unlikely but it is to be remembered that the 58 computers in his garage had been acquired second-hand. Another more technical question may arise; insofar (if at all) as it was within his computer rather than in CD form, it may be that the Defendant had deleted the offending material from his own computer. It might not follow from the fact that the material was recoverable by the Expert, using, perhaps, better equipment and superior skills, that the material had been still available to the Defendant, at all events on the equipment which he then had. Difficult questions could arise as to whether one can be in possession of that to which one has no access. However in connection, at the very least, with the CDs uplifted from his home, for the purposes of this judgment I shall assume the Defendant to be very vulnerable to enquiries were they to be made by the Police or by some Prosecuting Authority.
- The High Court has jurisdiction to grant an injunction when it appears to the Court to be just and convenient to do so Supreme Court Act 1981, section 37 (1). Orders may be made for the preservation of evidence Civil Procedure Act 1997, section 7 and see also CPR 25.1 (1) (a) and 1 (h) in respect of which the privilege against self-incrimination is expressly preserved section 7 (7). Indeed, the privilege is generally preserved under section 14 of the Civil Evidence Act 1968 in cases where the refusal is to answer questions or to produce any document or thing which "would tend to expose that person to proceedings for an offence or for the recovery of a penalty" under UK law (my emphasis). Specific inroads into the privilege have been statutorily created, for example, under section 72 of the 1981 Act supra, in the Theft Act and, as I shall later refer to, the Children Act but in each of those provisions the withdrawal of the privilege is carefully limited to the areas to which the provision is addressed. There is no reason to suppose that the privilege has been abrogated or diminished in relation to proceedings as to paedophile pornography.
- Although I have set out several passages from the Search Order made in this case and have referred to the current forms for such orders it would not be right to discuss the privilege against self-incrimination in the context of such orders without mention of some of the doubts, caveats and even distaste which such orders have from time to time engendered. Such judicial reactions to the Orders could become relevant if some balancing exercise falls to be conducted between, say, the intrusiveness of the Orders and a public interest in the detection of crime. I shall mention, too, their rather haphazard development, as that may be relevant to consideration of Article 8.
- The orders, for a time called "Anton Piller" Orders, were first made in 1974. They were first considered by the Court of Appeal in Anton Piller KG v- Manufacturing Processes Ltd [1976] 1 All ER 779 where, at 782-783 Lord Denning, speaking at a time before section 72 was enacted, said:-
- The Court then sanctioned the use of Search Orders where essential preconditions applied. Of the liberty to a respondent, upon his learning of the ex parte order, to move to set it aside, Scott J in Columbia Pictures Industry Inc and Others v- Robinson and Others [1986] 3All E.R. 338 at p. 367 said:-
- Scott J explained at p. 368 the peril in which a respondent wishing to set aside an ex parte Search Order finds himself. At p.369a he spoke of the traumatic effect and the sense of outrage which "an invasion of the home territory in the execution of an Anton Piller order" was likely to cause. At p.371e he added:-
- In 1989 Hoffmann J in Lock International plc v- Beswick and Others [1989] 1 WLR 1268 at 1281 said, α propos Search Orders :-
- For all the cautious and sparing use of such orders which such comments should have led to, their use, especially in the intellectual property context, burgeoned but the subject of privilege (self-incrimination or legal professional) was by no means always in mind as fit to be mentioned in the orders. Privilege is not, for example, mentioned in the 1986 edition of Atkin's Court Forms Form 21, the 1990 edition Volume 12 Form 4, the 1991 edition Volume 22 Form 12 (although by then there was comment on privilege in the text) or the 1996 edition Volume 22 (1) Form 12. The better practice , though, at least from 1994 at the latest when IBM infra was reported, was, however, specifically to refer to an ability to claim privilege.
- By 1992 the practice of having a Supervising Solicitor, already, even then, used in the better considered cases, became virtually universal following the observations of Sir Donald Nicholls V-C in Universal Thermosensors Ltd v- Hibben [1992]1 WLR 840 at 861. Perhaps because of the added protection that the presence of a Supervising Solicitor conferred, the earlier recommended approach namely that a Search Order should not be made at all where its making might in practice preclude the defendant from raising the privilege before the order executed was to some extent weakened in the face of the attractions to a claimant and the frequent justice of the making of Search Orders compare Tate Access Floors Inc and Another v- Boswell and Others [1991] Ch 512 at 527-530, per Sir Nicholas Browne-Wilkinson V-C. There he had held:-
- More recently the practice, encouraged, no doubt, by the present CPR Forms to which I have referred, is to make the order expressly referring, other than in section 72 cases, to the subject of self-incrimination but leaving it entirely to the defendant to claim the privilege, the burden, as it always has been see e.g. Tate Access supra 531e-f being on the defendant to show that he is being asked to incriminate himself. No doubt, where, at the outset, it can be seen that a truly unavoidable consequence of the execution of a Search Order would be to override the unremoved privilege, it would still be right for the Court to refuse to make the order at all but until this case and since the enactment of section 72 it was thought that:-
- The novelty of this case is that it illustrates the hitherto unforeseen; even in a section 72 intellectual property context, the risk of self-incrimination can arise and has arisen, without conspiracy being raised. Here the possible crime emerging from the Search Order material has been as to pornography but it could equally have been, say, as to tax or Customs and Excise offences or fraud. The novelty and seriousness of the facts of this case should not lead one to forget the very intrusive nature of Search Orders when executed at a home and the powerful comments which I have cited on the subject, an intrusiveness which, if anything, should, in my judgment, incline me to preserving rather than overriding the privilege if that is a course open to me.
- This was not dealt with at all in the 2004 hearing but I invited Counsel to consider it at this one. The Article provides, under the heading "Right to respect for private and family life" as follows:-
- I did not, of course, have in mind any possibility that respect for private life and home meant that a home laden with paedophile pornography was inviolable. Nor, given the reference to the prevention of crime, the protection of morals and the protection of the rights and freedom of others (the children photographed and recorded), did I see the case as falling outside the permitted derogations. Rather my concern was that so discretionary or amorphous and so judge-made (as opposed to legislative) in origin are the considerations that regulate Search Orders that the use of material gained by an entry into a home authorised for one declared purpose (the Claimant's action) for a quite different purpose (the investigation or prosecution of crime) might represent an interference not "in accordance with the law" given the meaning of that phrase as indicated in, for example, Khan v- United Kingdom (2001) 31 EHRR 45 paragraphs 26-27. However, in Chappell v- United Kingdom (1989) EHRR 1 the European Court of Human Rights considered Search Orders in some detail and held that, for the purposes of the expression "in accordance with the law" the Court was entitled to have regard not merely to statute law but to unwritten or common law paragraphs 52-57. The Court did not consider the unusual circumstance before me namely that, whilst the Search Order in question referred to legal professional privilege, it did not refer to the privilege which has transpired to be the important one, namely against self-incrimination. However in Chappell the Court was able to overlook the significant weakness in the Search Order in that case in that it had not contained any undertaking that the Respondent should be informed of his right to obtain legal advice see paragraph 53 (d). I would expect that, similarly, the Court would be untroubled by the failure of the Order in Z's case to mention the privilege against self-incrimination, especially since it was wholly unforeseeable that it should become relevant. In that circumstance I would not expect Article 8 to assist Z.
- My reasoning in the 2004 Judgment was as follows. Article 6 (1) of Schedule 1 Part I of the Human Rights Act 1998, headed "Right to a fair trial", begins by providing that in the determination, inter alia, of " any criminal charge against him everyone is entitled to a fair . hearing." There is no express reference there to any privilege against self-incrimination nor in Article 6 (3), which speaks of rights to be enjoyed by those charged with a criminal offence. The references twice over to "charges" suggests that the rights are enjoyed only once a charge is laid. There have, moreover, been cases in the ECHR which again suggest that the Article is concerned with occasions when a charge has already been laid. Thus in Serves v- France (1999) 28 EHRR 265 what was in issue was compulsion to procure a man's answer to questions put to him as a witness in a criminal prosecution. The compulsion was held to be in breach of Article 6 because he was, in a related matter, himself the subject of a "charge" for the purposes of Article 6 (1). Whilst the Court paragraph 46 of the judgment reiterated that the right of any "person charged" not to incriminate himself was generally recognised as an international standard which lay at the heart of the notion of fair procedure under Article 6, that right, it held, was a right accorded, it would seem, only to a "person charged". The discussion in Serves as to what amounted to a "charge" and as to whether the man had or had not himself already been charged would have been quite unnecessary had the privilege been applicable under Article 6 even against compulsory disclosure, for example, during an investigatory process, before any charge had been laid.
- So also in IJL, GMR and AKP v- The United Kingdom (2001) 33 EHRR 11 the Court looked at the use of compulsory powers to obtain information (my emphasis) "from the standpoint of the use made of that information at the trial" p. 251. By then, of course, charges had been made. The argument that even at the earlier interview stage the Inspectors appointed by the Department of Trade and Industry in the Guinness affair were determining a criminal charge so as to confer on those questioned the rights laid down by Article 6 was firmly rejected; p. 251. The Court in its paragraph 101 conspicuously avoided the question of whether the Article 6 guarantees should have attached even at the earlier stage before charges were laid. It was also emphasised in the earlier case Saunders v- UK [1997] 23 EHRR 313 that it was use of material at trial that was in issue as a Human Right rather than its use at an investigatory stage paragraph 67.
- I have no reason to believe that the Police are currently even considering any possibility of charges against, or of embarking on any investigation of the conduct of, the Defendant. Given the particularly clandestine nature of the potential offences, it is unlikely that anyone will have any such knowledge as would be likely to lead him or her, unprompted, to go to the Police with complaints about the Defendant. Unless the Expert takes the offensive material to the Police the overwhelming likelihood is that nothing further will be done against him. There is, for the purposes of Article 6, nothing akin to a criminal charge yet in being.
- Given my reasoning on other issues in the 2004 judgment, I then said nothing more than, firstly, that I had real doubts as to whether Z could then rely on Article 6 and, secondly, that because of that other reasoning I had no need to come to a firm conclusion. Now I do need to come to such a conclusion; I now move from real doubts as to whether Article 6 could yet assist Z to a firm conclusion that it does not. Both Miss Lieven and Mr Caddick accept that the reasoning in the 2004 Judgment leads to Article 6 being of no assistance to Z and I have now learned that the conclusion I had then laboured towards could have been more readily reached by citation from Attorney-General's Reference (No. 7 of 2000) [2001] 1 WLR 1879 paragraphs 58-62; Reg v- Herts C.C., Ex parte Green Industries Ltd [2000] 2 AC 412 at 423 f and Reg v- Kearns [2002] 1 WLR 2815 CA at 2829 paragraphs 51, 52 and 53. I shall thus proceed on the basis that as yet Article 6 confers no protection on Z and nor does Article 17 (which was only very briefly touched on by Counsel). However, that is not to say that there is no protection available to him under wholly domestic provisions, a question to which I now turn.
- I do not read the English authorities as describing a privilege which arises only once a criminal charge has been made. Thus in Triplex Safety Glass Co. v- Lancegay Safety Glass (1934) Ltd [1939] 2 K.B. 395 at 403 Du Parcq L.J., reading the judgment of the Court, said at p. 403:-
- In Rank Film Distributors Ltd and Others v- Video Information Centre and Others [1982] A.C. 380 Lord Wilberforce spoke of the privilege inevitably attaching even to material the supply of which would (my emphasis) tend to expose the respondents to a charge of conspiracy to defraud. He regarded the privilege as too long established in our law as a basic liberty of the subject to be denied p. 442c. He added that it had been given modern recognition in section 14 of the Civil Evidence Act 1968. The width of the privilege was only, if anything, enlarged when at p. 443 he said:-
- Lord Fraser of Tullybelton, the only other of their Lordships to give a full reasoned judgment in Rank, also referred to the privilege as being well established in English law p. 446b. The case, which, like the one before me, concerned a search order in the intellectual property context, attracted this suggestion from Lord Russell of Killowen in his speech delivered on 8th April 1981; at p. 448 he said:-
- Whilst the availability of the privilege in civil proceedings has had its critics see A.T. & T. Istel Ltd v- Tully [1993] A.C. 45 at 53 b-c per Lord Templeman - His Lordship had to recognise that to the extent that information gathered under compulsion under civil proceedings would provide evidence against a defendant in a criminal trial, the privilege, not having been generally abolished by Parliament but merely withdrawn in a piecemeal fashion, was available to protect the Defendant p. 53 g; p. 55 f. The privilege, said Lord Griffiths, was deeply embedded in English law p. 57. Lord Ackner was content to assume, whilst not deciding, that the privilege could be used to prevent a process being set in train which might lead to incrimination or the discovery of real evidence of an incriminating character p. 63 d-e. Lord Lowrie said:-
- In Den Norske Bank SA v- Antonatos [1999] QB 271 C.A. Waller L.J., giving a judgment with which Chadwick L.J. and Millett L.J. agreed, and speaking of what it was that would trigger an ability to invoke the privilege said that:-
- In some cases, even in our domestic Common Law context, it can be relevant to distinguish between an obligation to disclose existing material (for example, material created earlier, before criminal charges were in contemplation, but nevertheless created under compulsion) and an obligation to create and then disclose new material (for example, by answering new questions or completing new forms requiring information once the possible criminality of the defendant was in mind). That distinction can be important because, unlike legal professional privilege, the privilege against self-incrimination is not absolute; it can be, as it has been, undone or qualified in particular contexts by statute. In several authorities there has thus been relatively little concern, where information has earlier been required by legislation to be given by an informant not then under the shadow of criminality, as to later permitting the deployment of that information against him once criminality had been raised see e.g. Reg v- Kearns supra; A-G's Reference (No.7 of 2000) supra; Thomson Newspapers Limited and Others v- Director of Investigations and Research and Others (1990) 67 DLR (4th) 161 at 25, 255 et seq.. The distinction may not necessarily always be easy to draw but it would be one thing to override the wide Common Law privilege where an intention to do so in some circumstances could fairly be inferred from legislation; it would be quite another to do so where no legislation required it. Thus, for immediate purposes, there is, as it seems to me, no material distinction between Z being obliged to answer questions under the compulsion of the Court and his being obliged by a Search Order to produce documents, including computer disks, CD-ROMs and tapes, or, at any rate, none that makes it easier to deny the privilege to Z in the latter case. Moreover, given the serving of the Search Order on him and the warning given to him as to the probable consequences of failure to comply with it, the material disclosed by the search at Z's premises is, in my judgment, fairly to be described as produced by him under the compulsion of the Court; the ability to set the Order aside is see paragraph 31 above - of so little value that it cannot fairly be thought sufficient to undo the compulsion which the Order, by its language, imposes.
- From the various passages I have cited I draw this: the privilege is available to be claimed even in civil proceedings. It is available as well before as after criminal proceedings have been launched. It can be used successfully to resist disclosure not only of that which, apart from the privilege, would definitely be admissible in criminal proceedings against the Defendant but also paragraphs 45- 48 above - that which the prosecution might wish to rely upon and that which would be likely to set in train enquiries as to whether there had or had not been a criminal offence by, or should be proceedings against, a defendant.
- On the facts as I have described them I must assume that if the Expert took the offensive material to the Police they would, at the very lowest, be likely to set in train enquiries into whether he had committed offences under the 1978 and 1988 Acts supra. Because of the clandestine nature of the offences under the Acts and the fact that there are no victims demanding justice, those enquiries, if made, would be of a kind which it is likely the Police would have had no reason to embark on but for having had the Expert's disclosure to them. Given his and his family's moves away from the house which was searched, it may be unlikely that this will occur but, if it was not for such moves, it may be that a warrant for entry upon the Defendant's premises could have been obtained, again a consequence unlikely but for the Expert's disclosure. Once the material is in the hands of the Police it is impossible to see how, by way of some order made in civil proceedings, it could be rendered inadmissible in criminal proceedings against him; no civil court has the power to oblige the Judge of a criminal trial to rule that the material would be inadmissible Rank supra per Lord Wilberforce at 442 g; per Lord Fraser at 446 b. Whether the information would actually be admitted would thus become a matter for the discretion of the trial judge. But leaving the use of the material against the Defendant merely to a discretion in the criminal Court would so substantially weaken the privilege (where it is otherwise available) that such weakening ought not to be countenanced Rank supra at 442 g-h and 446 f.
- The privilege can be lost if the prosecuting authority expressly or impliedly binds itself not to use the material disclosed and to proceed, if at all, entirely independently of it Istel supra but, of course, there is nothing of that nature in the case before me, where I have no reason to believe that the Police or any prosecuting authority has yet any inkling of the Defendant's vulnerability to criminal proceedings. Indeed (although this is a technical question on which I received no evidence) it may be that, even if the Police received the material on the basis that it could not be used in evidence against the Defendant, the Police, alerted by the disclosure to the Defendant's propensities, could prove offences by him under the 1978 or 1988 Act by means other than by use of the disclosed material itself, by, for example, making searches they would not otherwise have made into internet server records relating to the Defendant.
- Had the argument stopped here I would have had to allow Z the protection of the privilege. In terms of practical steps I would have given directions based on those I gave provisionally in the 2004 Judgment, which, in summary, I add as a Schedule to this judgment. Those directions would have involved Expert's firm and, in turn, O Ltd, in further expense which I can now see would have been likely to be irrecoverable. Z is not only out of the jurisdiction but insolvent. I would therefore have had to tailor the directions afresh to meet that situation; it could be that I would simply have required the totality of the retained material to be handed over to the Court. But all this is on the footing that the argument had stopped there. It did not. I must now consider, against fuller argument than previously, whether, assuming or even holding that Z had been entitled to assert the privilege when the search began, he had lost it before he first asserted it paragraph 22 above long after the material was already in the hands of the Expert.
- Z was handed an Order some 10 pages long. It was of the essence of the search that it was a surprise to Z as the six persons prepared to cross his threshold. He would likely to have been as bemused as were the respondents in IBM United Kingdom v- Prima Data International Ltd [1994] 1 WLR 719 at 730e. The Order, inevitably and as will have been seen, was a document of some considerable complication if not even of internal conflict. It bore a peremptory penal notice whilst also indicating that application might, at some risk (see paragraphs 12, 31 and 32 above), be made to set it aside. Plainly that would also involve expense. Whilst the Order mentioned privilege, when that came to be orally explained to him, the only privilege referred to (and, in the unusual circumstances, this is no criticism whatsoever of the Supervising Solicitor) was that of legal professional privilege. If, before that oral explanation, Z had even been aware of the privilege against self-incrimination, he would surely have been likely, after it, to have thought that legal professional privilege was the only privilege open to him. He did raise questions as to legal professional privilege. He said nothing about self-incrimination. It is not known whether his own solicitor advised him on the subject of self-incrimination but there is no reason to suppose that he was asked to or did. Indeed, if he had advised Z on the subject one could reasonably expect Z to have raised it with the Supervising Solicitor, which he did not.
- Z would have seen that the Order did not stop at the disclosure of matters that were relevant to O Ltd's action. For example, the hard disks of any computer or other data storage medium on the premises had to be permitted to be searched. He would have recognised (or should, I think, at least be taken to have recognised) that, given the evidence, he was, in practical terms, unable, if he wished to avoid a search of some such form of data storage, successfully to assert, in order to avoid it, "That's entirely private; it's nothing to do with O Ltd's complaint". The search would have investigated the material regardless of any such assertion. Moreover Z might have seen some ground for believing that the surrender of material to the Supervising Solicitor would not, of itself, involve an abandonment of privilege. In respect of the only privilege explained to him, it plainly was not the intent that legal professional privilege would be so lost clause 3.4 and Schedule E (2) of the Order. He also had some reason to believe that he would soon get back that which he had handed over but which had proved to be irrelevant to the Claimant's action. He had grounds for believing, too, that material that was irrelevant to the Claimant's action would be kept entirely confidential - Schedule F (7).
- I have what I hope is a reasonable doubt as to whether one can normally and fairly be taken to have waived something that one was not likely to be conscious of having. Where the matter in question is a privilege very probably of the utmost importance not only to an ability to keep secret something that was both criminal and deeply shameful but also, in Z's case, something likely to have a substantial effect on his domestic life and even upon his liberty, such considerations could only strengthen doubts about assuming a waiver. Indeed, before I was taken to the argument and authority to which I shall refer below I would have been likely to hold that, save where a defendant has expressly abandoned the privilege against self-incrimination or, where, he having been told of it or otherwise being taken to have known of it, the facts were such that he could, by reason of his conduct, be fairly taken impliedly to have waived the privilege, that he should not be taken to have lost it unless and until the material in question came into the hands of some person who was free to use it to his disadvantage without needing any leave from the Court. The 2004 Judgment proceeded with such considerations in mind. However, there is a powerful argument to the contrary to which I must turn.
- It is this and it is partly as to fact, partly as to law. As to fact, Z was told by the Order itself and by the Supervising Solicitor that he was free to move to set the Order aside. He was told he could consult his own solicitors. He could procure a delay for such a purpose. He was told he could separate out some documents from the general run and hand them to the Supervising Solicitor. He was told he could claim privilege and did so (as to legal professional privilege). He sought legal advice from his own solicitors, in private, at 10.10 a.m.. He was reminded at 2.0 p.m. of the wisdom of his seeking his own legal advice. He spoke to his solicitors at 2.50 p.m. and again, later, after 3.0 p.m.. At no stage before the material came to the hands of the Expert did he claim the privilege against self-incrimination in relation to such material or even that he wished time in order that he might consider further whether such a privilege should or could be claimed. None of the material in respect of which he claimed legal professional privilege is material to which a claim in respect of self-incrimination of the kind now before me exists. There is nothing unfair, says Miss Lieven, in Z being taken, in such circumstances, to have lost the privilege he had never claimed. It is mere speculation, she adds, that he did not obtain advice as to the privilege from his own Solicitor. It is against that background that I turn to look at the authorities drawn to my attention as to the ease with which the privilege of self-incrimination may be lost.
- The privilege can, of course, be deliberately not asserted by a party. That is not proven to be the case here. The privilege can also be lost simply by reason of its not being claimed. There is somewhat harsh as it may seem on some sets of facts no willingness in the Courts to inquire into whether, had he known of it, a person might have asserted it. That, it has been held, would be to "involve a plain rule in endless confusion" and:-
- The privilege has clearly to be claimed so that the Court can rule on whether the claim has a reasonable basis, on whether the privilege is being abused; it has never been the case that it suffices for a person merely to assert the risk of self-incrimination without his showing, albeit in some necessarily broad way that does not itself incriminate, that there is, indeed, the risk that is claimed consider Westinghouse Uranium [1978] A.C. 547 C.A., 579-580 affirmed in the House of Lords and see Tate Access at paragraph 36 above.
- At p. 181 in McNicol the author adds:-
- The author cites from Clyne supra referring to Coote supra, per Street L.J. at p. 747 supra:-
- At that point the authors point out that the standard form of Search Order does mention self-incrimination but without noting see paragraph 5 above that in intellectual property cases the mention is omitted. Phipson continues:-
- The footnote refers to IBM United Kingdom Ltd v- Prima Data International Ltd supra, a case where the privilege would seem to have been lost in that challenged paragraphs of the Search Order were not struck out, but it is fair to add it was a case where the risk of self-incrimination was mentioned in the Search Order, was carefully explained to the person concerned and was held (after exactly the sort of inquiry said in Coote to be likely to lead to endless confusion) to have been adequately understood by that person. However, I cannot read IBM as authority for the proposition that only where such warning, such explanation and such adequate understanding is proved will the privilege be lost if not claimed as that would be to take IBM to be overriding the earlier cases, which it could not have done and did not purport to do. It is not the case that only where a person has been told of the privilege and that it may be appropriate to claim it or where he is warned to guard against a disclosure he might rue that the privilege is lost. As Mr Caddick points out, if that were so there would be no need to warn witnesses and others in the conventional way; see also Den Norske supra at p.287 b, where Waller L.J. says:-
- The better view of the authorities, taken as a whole and, again, as can be harsh on some facts, is that whether he knows of the privilege and whether or not it is mentioned or explained to him, he will be taken to have lost the privilege if he is not heard to claim it before (as the case might be) he answers the questions or produces the documents in issue.
- But that, in this case, raises the question: produces the documents to whom? The Order here, as I have already mentioned in paragraph 8 (v) above, contemplated it being open to Z to gather together documents he believed to be privileged and for him to hand them to the Supervising Solicitor for him to assess whether they were privileged or not. If the Supervising Solicitor was in doubt, he was to exclude them from the Search and retain them in his possession pending further order of the Court. I have already referred also paragraph 11 - to undertakings given by the Expert. An argument can surely be raised that supply of documents to a Supervising Solicitor or to a person in the position of the Expert should not represent a loss of privilege. After all, an unusual feature of Search Orders is that it is almost inevitable that they stray into a search of material that has nothing to do with the claimant's case. Ex hypothesi the defendant is a person who may, given the opportunity, destroy evidence that could be used against him and is a person whose honesty is likely to be in issue. As I have already suggested paragraph 55 - an assertion by such a person that there is nothing in that computer, that cupboard, that file or that room that could possibly be relevant to the claimant's case is likely not to be believed. The search often goes into areas that transpire to have been unnecessarily intrusive; the orders in that respect have to be excessive in order to be sufficient. In such a circumstance there could have been room for an argument for some form of a neutral repository as to self-incriminatory documents much as there is for legal professional privilege. However, two things stand in the way of that.
- Firstly, as I have already noted, the privilege against self-incrimination does not have the absolute character ascribed to legal professional privilege. Inroads into it can be made and the whole privilege sometimes attracts judicial hostility, more often at least "the language of reluctance", to use Lord Wilberforce's phrase see Rank supra 441 f.
- Secondly, there are authorities against the privilege surviving delivery of the documents in issue to a third party, at any rate when, by the moment of delivery , it had not been expressly claimed. Thus in Den Norske Bank supra the Court discussed, in relation to a Search Order, whether delivery to the Supervising Solicitor provided protection to the defendant in the sense of preserving his privilege against self-incrimination. At page 285 Waller LJ said:-
- If, therefore, supply of a document to a supervising solicitor can represent a loss of the privilege, at any rate if it is not then expressly claimed then, if anything, supply to the Expert was even more likely to cause a loss of the privilege as the Expert was not described in the Order as a repository for documents in respect of which privilege might be claimable and, for all that the Expert gave undertakings, the Expert's basic position was that of an expert whose services were to be paid for by the Claimants and who, rightly, feared that either possessing the offensive material or handing it back to Z could involve the commission of a crime. The Expert, even more than the Supervising Solicitor, who was at least contemplated by the Order as a proper retainer of documents, was a person who was likely to wish to pass the material on to some other.
- Let it be supposed, though, that I am not bound by the Den Norske view and that I was thus free to adopt the earlier reasoning of Wilcox J in Warman International Ltd and Others v- Envirotech Australia Pty Ltd and Others (1986) 57 ALR 253 at 266 where he said, of a prospective production of documents under a subpoena:-
- In the event, it is not that I conclude that the privilege has been lost by way of my conducting some balancing exercise for example between the intrusiveness of a Search Order (see the observations in paragraphs 31-33 and 35 above) and the gravity of the possible, even probable, crime. The privilege is not one that can be denied at the discretion of a civil Court. The inclination of which I spoke in paragraph 37 is thus, in the event, irrelevant. The privilege, I hold, was lost by way of an objective look at Z's behaviour; he handed the offensive material to the third party without claiming the privilege.
- I thus accede to Miss Lieven's argument, which was supported by Mr Caddick, that in the events which happened Z had already lost the privilege against self-incrimination before he first claimed it and that his late claim confers no retrospective protection. However, that Z is not able to claim the privilege does not of itself answer the Expert's question as to whether the offensive material may be handed to the Police. That is because of the implied undertaking, to which I now turn.
- The speech of Lord Oliver in Crest Homes plc v- Marks [1987] 1 A.C. 829 illustrates both the implied undertaking which I must now consider and its susceptibility to being released. At pp. 853-854 he said:-
- At p. 860 he made the further point that whereas, in disclosure cases generally, a function of the implied undertaking is to encourage full and candid disclosure, that factor played little part in relation to the Search Orders:-
- What then, are the factors to have in mind where the use contemplated for the disclosed material involves a risk to the defendant of his criminality being investigated where otherwise it would be likely to have remained secret? Similar issues were discussed in Re: C (a minor) (Care Proceedings: Disclosure) [1997] Fam 76 C.A.. The Court was looking at a context section 98 of the Children Act 1989 which removed the privilege against self-incrimination much as does section 72 supra. At pp. 85-86 Swinton Thomas LJ, with whose judgment Rose and Henry LJJ concurred, collected relevant factors from other authorities and set out 10 factors under introductory words as follows:-
- Of the 10 factors Swinton Thomas LJ mentioned 5 or 6 seem to me highly relevant to the case before me. Thus the welfare and interests of children generally (factor no. 2 in Swinton Thomas LJ's list) is, as it seems to me, material to Z's case. Although the issue arises here in a different manner to that which was relevant in Re: C., it must be in the interests of children generally that paedophilia is investigated. Factor 5 was:-
- Factor 6 was as follows:-
- Factor 7 was:-
- Swinton Thomas LJ's factor 8 was:-
- Factor 9 included reference to:-
- The Court of Appeal, reversing Wall J., ordered disclosure to the Police of the material there in issue. It did so despite a powerful argument that policy considerations relating to the encouragement of cooperation between the various responsible bodies concerning children were so strong and so important that the Judge should not have ordered any disclosure and despite, also, an argument that as a matter of public policy such discretion ought never to be exercised where the statements by way of admission sought to be disclosed were governed by section 98. That reaction to section 98 (2) of the Children Act 1989 suggests a corresponding view should be taken of section 72 cases; there is, in other words, nothing inherent in them such that the implied obligation cannot be released.
- Having regard to the factors identified by Swinton Thomas LJ, the factors that Z was able to and did consult his own Solicitors privately and that there was no abuse of power on the part either of the Court or the search party and the seriousness of the prima facie case appearing against Z, I must in my judgment, as pressed to do by Miss Lieven and Mr Caddick, release the Expert from the implied obligation and permit release of the offensive material to the Police. The inclination of which I spoke in paragraph 37 above is more than offset by the factors which Re C requires me to consider. Such a release to the Prosecuting Authority would accord with the view of Lord Fraser in Rank supra where, at p. 447 f he said:-
- My conclusion to the contrary in the 2004 Judgment was based on my not having then concluded that the privilege against self-incrimination had been lost. Once it is seen that the privilege was lost by Z and, in turn, that the implied obligation is thus merely against the use of disclosed material in other proceedings than those in which they were disclosed, the way is open to a disclosure to the Police.
- In the 2004 Judgment I was troubled by a passage from the judgment of Sir Nicholas Browne-Wilkinson V-C in EMI Records v- Spillane [1986] 1 WLR 967 where, dealing with a case in which fiscal crimes were the issue, he said, at p. 977:-
- Even if the offensive material is so released it is far from obvious that it could be deployed against Z at any trial. Quite apart from Article 6 then engaging see paragraphs 40-43 above - there are wholly domestic provisions which will come into play. Thus section 78 of the Police and Criminal Evidence Act 1984 gives the Court a discretion to refuse evidence:-
- Given the circumstances in which the offensive material was obtained from Z there may be an analogy to be drawn with an admission obtained from an accused who had not been duly cautioned. Whilst the failure to caution is bound to be significant in most circumstances see Blackstone's Criminal Practice 2005 p. 2164 and Pall (1992) 156 JP 424 it does not appear necessarily to be conclusive against the reception of the admission into evidence Hoyte [1994] Crim LR 215 cited in Blackstone on the same page. Equally, an analogy with a seizure under a Search Warrant that had been granted for one purpose widening into seizure of material relevant to some other purpose, even if the analogy is applicable, does not necessarily bar the seizure for that other purpose see the references to "any other offence" in section 19 (3) (a) and (4) (a) of PACE and the express exclusion as to legal professional privilege in section 19 (6) of PACE which, by implication, suggests that the privilege against self-incrimination is no necessary bar. However, neither of the Counsel before me nor I would be comfortable in enlarging on analogies drawn with the practice of the Criminal Courts so I leave this subject saying no more than that there will plainly be difficulties (I do not say necessarily insurmountable ones) in the way of the Prosecuting Authority were it, at trial, to seek to introduce evidence of Z's possession of offensive material gained by way of the Search Order.
- It is not possible to leave this case without reflecting on what the position might have been if only the circumstances had been a little different. What, for example, if Z had expressly claimed the privilege against self-incrimination and had handed over nothing that included the offensive material but had himself raised the issue of self-incrimination with the Court? What if he had asked the Court itself to judge whether the material was incriminating, as was done in Warman International supra? Would the Court have had to allow him to keep secret his criminality, however uneasy it might have been at its rτle in concealment of a crime? Would it have had to do so even if the possible crime was murder or some terrorist atrocity? What if handing material to the Supervising Solicitor did (contrary to Den Norske supra) preserve the privilege; would the Court, invited by the Supervising Solicitor to give directions, have been bound, despite such unease, to order a return of the offensive material to Z? Looking in another direction, would it not remove a good deal of potential unfairness if the possibility of a claim by a defendant to the privilege against self-incrimination was expressly mentioned in all Search Orders? There are, as it seems to me, serious questions both for the legislature and for the Civil Procedure Rule Committee ("the Committee").
- As for the legislature, it is only the legislature that can establish or abridge the privilege see e.g. Istel Ltd v- Tully [1993] A.C. 45 at 57 and 62. There have been repeated calls for over 20 years for Parliament to consider extending the formula used in section 31 of the Theft Act (and section 72 supra and section 98 of the Children Act) to all criminal offences emerging by way of Search Orders see Lord Russell in Rank supra at p. 448, see paragraph 46 above; Den Norske supra at p. 284 b-e.
- As for the Committee, it may, in the light of this case, wish to consider a number of questions, although, of course, it may find itself circumscribed depending on any reaction or lack of it by the legislature on the subject. But some questions arise as follows:-
- However, to revert to matters immediately before me, for the reasons I have given I direct that the Expert is to hand over to the relevant Prosecuting Authority a copy of the offensive material received from Z. The Treasury Solicitor can give the necessary details to the Expert. In the light of the undertakings given in the Search Order I think it right that the originals should remain under the control of the Court and that it is accordingly only a copy of the offensive material which should pass to the Prosecuting Authority, accompanied by a Statutory Declaration from the Expert identifying the copy and explaining from what material it was made, that it is a true copy and how, when and where the originals came to the Expert's hands.
- I have not heard the Home Office on this subject and I may need to discuss this with Counsel but I have so far seen no reason why the making of the copy and of the Statutory Declaration should not be at the expense of the Home Office or Prosecuting Authority (in the absence and impecuniousity of Z) or why the Expert should not be entitled to be assured that the firm's reasonable copying and other costs of compliance would be met before making the copy and handing it over. Once the copy has been made and so delivered, the Expert is to hand the originals of the material (the disks, CD-Roms and tapes including the offensive material) into the custody of the Court in exercise of that jurisdiction which I described in the 2004 judgment and which is described in the Schedule hereto. I also give liberty to the Claimant, the Defendant, the Supervising Solicitor, the Expert and the Home Office to seek further directions.
Mr Justice Lindsay:
The facts
"11. Before permitting entry to the premises by any person other than the Supervising Solicitor, the Respondent may, for a short time (not to exceed two hours, unless the Supervising Solicitor agrees to a longer period), gather together any documents he believes may be [incriminating or] privileged and hand them to the Supervising Solicitor for him to assess whether they are [incriminating or] privileged as claimed. If the Supervising Solicitor decides that any of the documents may be [incriminating or] privileged or is in any doubt as to their status, he will exclude them from the search and retain them in his possession pending further order of the court.
12. If the Respondent wishes to take legal advice and gather documents as permitted, he must first inform the Supervising Solicitor and keep him informed of the steps being taken."
The Note referring to intellectual property cases reads:-
"References to incriminating documents should be omitted from orders made in intellectual property proceedings, where the privilege against self-incrimination does not apply see paragraph 8.4 of the practice direction."
That practice direction reads:-
"8.4 There is no privilege against self-incrimination in Intellectual Property cases (see the Supreme Court Act 1981, section 72) therefore in those cases any references to incrimination in the Search Order should be removed."
"72. (1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person, or his or her spouse, to proceedings for a related offence for the recovery of a related penalty
(a) from answering any question put to that person in the first-mentioned proceedings;
(b) from complying with any order made in those proceedings.
(2) Subsection (1) applies to the following civil proceedings in High Court, namely
(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;
(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and
(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.
(3) Subject to subsection (4), no statement or admission made by a person
(a) in answering a question put to him in any proceedings to which subsection (1) applies; or
(b) in complying with any order made in any such proceedings,
shall, in proceedings for any related offence or for any the recovery of any related penalty, be admissible in evidence against that person (unless they married after the making of the statement or admission) against the spouse of that person.
(4) Nothing in subsection (3) shall render any statement or admission made by a person as there mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court.
(5) In this section
"intellectual property" means any patent, trade mark, copyright, design rights, registered design, technical or commercial information or other intellectual property;
"related offence", in relation to any proceedings to which subsection (1) applies, means
(a) the case of proceedings within subsection (2) (a) or (b) -
(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or
(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;
(b) in the case of proceedings within subsection (2) (c), any offence revealed by the facts on which the plaintiff relies in those proceedings;
"related penalty", in relation to any proceedings to which subsection (1) applies means
(a) in the case of proceedings within subsection (2) (a) or (b), any penalty incurred in respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate;
(b) in the case of proceedings within subsection (2) (c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings.
(6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising in the High Court of that description."
(i) "Penal Notice
If you [Z] disobey this Order you may be held in contempt of Court and may be imprisoned, fined or have your assets seized."
(ii) "1.2 This Order was made at a hearing without notice to the Respondent. The Respondent has the right to apply to the court to vary or discharge the Order see paragraph 9 below."
(iii) "2.1 The Respondent must permit the following persons
(a) [the Supervising Solicitor]
(b) [O Ltd's Solicitor]
(c) [A senior manager of O Ltd]
(d) [A computer expert]
(e) [up to 2 others, either trainee Solicitors or employees of O Ltd]
.. to enter the premises so that they can search for, inspect, photograph or photocopy, and deliver into the safekeeping of the Applicant's solicitors all the documents and articles which are listed in Schedule B to this Order ("the listed items") or which the Supervising Solicitor considers to be listed items."
(iv) "3.3 The Respondent is entitled to seek legal advice and to ask the court to vary or discharge this Order. Whilst doing so, he may ask the Supervising Solicitor to delay starting the search for up to 2 hours or such other longer period as the Supervising Solicitor may permit. However, the Respondent must
(a) comply with the terms of paragraph 9 below;
(b) not disturb or remove any listed items; and
(c) permit the Supervising Solicitor to enter, but not start to search."
(v) "3.4 Before permitting entry to the premises by any person other than the Supervising Solicitor, the Respondent may, for a short time (not to exceed two hours, unless the Supervising Solicitor agrees to a longer period), gather together any documents he believes may be privileged and hand them to the Supervising Solicitor for him to assess whether they are privileged as claimed. If the Supervising Solicitor decides that any of the documents may be privileged or is in any doubt as to their status, he will exclude them from the search and retain them in his possession pending further order of the court."
(vi) "3.5 If the Respondent wishes to take legal advice and gather documents as permitted, he must first inform the Supervising Solicitor and keep him informed of the steps being taken."
(vii) "4.3 The Respondent must immediately give the search party effective access to the computers or any other data storage medium on the premises, with all necessary passwords, to enable the hard disk of any computer and any other data storage medium to be searched and imaged and (after imaging has been completed) to enable the Applicant's Computer Specialists to delete permanently from the hard disk of any software listed in paragraphs 2 or 3 of the listed items in Schedule B or any copy of the whole or any part of any such software."
(viii) "4.5 The Respondent must permit the representative(s) of the Applicant's Computer Specialists to image the hard disk of any computer or other data storage medium on the premises, in the following manner:
(1) .
(2) If, in the opinion of [the Expert], all necessary imaging and subsequent deletion will take substantially longer than the time available on the day when this Order is served, then the Respondent must permit the Applicant's Computer Specialists to remove the computers and other data storage media to enable the imaging process and subsequent deletion to be undertaken at their premises.
Anyone served with or notified of this Order may apply to the court at any time to vary or discharge this Order (or so much of it as affects that person), but they must first inform the Applicant's solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant's solicitors in advance.
"SCHEDULE E
.
(2) The Supervising Solicitor will offer to explain to the person served with the Order its meaning and effect fairly and in everyday language, and to inform him of his right to take legal advice (such advice to include an explanation that the Respondent may be entitled to avail himself of legal professional privilege) and apply to vary or discharge this Order as mentioned in paragraph 9 above.
(3) The Supervising Solicitor will retain in the safe keeping of his firm all items retained by him as a result of this Order until the court directs otherwise."
"SCHEDULE F
..
(4) If [the Expert's firm or the Expert] are permitted to remove any of the Respondent's computer systems or other data storage media, all reasonable endeavours will be used to carry out the necessary imaging and permanent deletion from the hard disk of any computer and any other data storage medium of the Respondent of any of the software listed in paragraphs 2 or 3 of the listed items in Schedule B or any copy of the whole or any part of any such software, and to return to the Respondent all such computer systems and other data storage media within 2 working days, unless the Court extends that time period or the Respondent agrees in writing to an extension of that time period.
(6) All materials, including hard copies, disk images or files extracted therefrom which have been obtained during the execution of this Order or from subsequent inspection of materials obtained during the execution of this Order, will be held in strict confidence.
(7) Any material found during the execution of this Order or from subsequent inspection of materials obtained during the execution of this Order which appears to be irrelevant to this dispute will not be disclosed to anyone except the Respondent or his solicitors and counsel, without the leave of the Court."
Then there was the oddly-framed undertaking:-
"(8) Except for material which appears to be irrelevant to this dispute, any information found during the execution of this Order or from subsequent inspection of materials obtained during the execution of this Order, will not be disclosed to any person other than for the purposes of these proceedings."
" .. but that he should be aware at the outset that the order contained a Penal Notice, which meant that, if he disobeyed it, he may [be] in contempt of Court and may be liable to imprisonment, a fine or having his assets seized."
The Defendant was told, before anyone had entered the house, that he had a right to seek legal advice and could apply to vary or discharge the order. The Supervising Solicitor was then let into the house and he explained the order to the Defendant as he had said he would. He reiterated the Defendant's entitlement to seek legal advice and variation or discharge of the order and continued:-
" I also indicated that he would be entitled to gather together any documents which may be privileged (having explained the meaning of privilege in this context) and hand them to me to assess whether they were such documents. If they were, they would be excluded from the search. The Defendant indicated that there were no such documents."
There was no reference to self-incrimination; that reference to privilege was exclusively to legal professional privilege.
"The Defendant indicated that, provided the hard disk had been imaged, so that items could be reinstalled if they were later found not to be covered by the terms of the order, he was happy for any disputed items to be deleted and reinstalled subsequently, if appropriate."
At about 2.50 p.m. the Solicitor whom the Defendant had contacted telephoned and spoke to the Defendant in private. After the call the Defendant confirmed that he was happy for the search to continue and that his Solicitor would not be attending.
"Several of the CDs were labelled with marker pen as "archive". I selected one of the disks and viewed the contents. It contained a large number of video clips and I selected one at random to view. The clip was of a pornographic nature and featured a girl who appeared to me to be a young teenager. I looked at two further disks, one of which contained programs and another which contained, amongst other data items, an extensive collection of pornographic images. I did not at this stage identify any illegal material and the next morning I resumed my examination .."
The criminal legislation
Statutory provisions as to search orders
Search Orders; Comments and Practices
"Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, "Get out". That was established in the leading case of Entick v- Carrington (1765) 2 Wils 275, [1558-1774] All ER Rep 41. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs' solicitors or anyone else to enter the defendants' premises against their will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the defendants. The plaintiffs must get the defendant's permission. But it does do this: it brings pressure on the defendants to give permission. It does more. It actually orders them to give permission with, I suppose, the result that if they do not give permission, they are guilty of contempt of court. This may seem to be a search warrant in disguise."
"But, in relation to any Anton Piller order, the liberty to apply to have it discharged is of little, if any, value to the respondent. He does not know the order has been made until it has been served on him. At the same time as the order is served, the respondent comes under an immediate obligation to consent to the entry onto and search of his premises and the removal of material from his premises specified by the order. If he does not consent, he is at risk of committal to prison for contempt of court. This is so even if the reason for his refusal to consent is his intention to apply to have the order discharged."
"The draconian and essentially unfair nature of Anton Piller orders from the point of view of respondents against whom they are made requires, in my view, that they be so drawn as to extend no further than the minimum extent necessary to achieve the purpose for which they are granted, namely the preservation of documents or articles which might otherwise be destroyed or concealed. Anything beyond that is, in my judgment, impossible to justify. For example, I do not understand how an order can be justified that allows the plaintiffs' solicitors to take and retain all relevant documentary material and correspondence. Once the plaintiffs' solicitors have satisfied themselves what material exists and have had an opportunity to take copies thereof, the material ought, in my opinion, to be returned to its owner. The material need be retained no more than a relatively short period of time for that purpose."
And a little later (p. 371h):-
"Thirdly, no material should, in my judgment, be taken from the respondent's premises by the executing solicitors unless it is clearly covered by the terms of the order. In particular, I find it wholly unacceptable that a practice should have grown up whereby the respondent to the order is procured by the executing solicitors to give consent to additional material being removed. In view of the circumstances in which Anton Piller orders are customarily executed (the execution is often aptly called 'a raid'), I would not, for my part, be prepared to accept that an apparent consent by a respondent had been freely and effectively given unless the respondent's solicitor has been present to confirm and ensure that the consent was a free and informed one."
"The more intrusive orders allowing searches of premises or vehicles require a careful balancing of, on the one hand, the plaintiff's right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff. The absolute extremity of the court's powers is to permit a search of a defendant's dwelling house, with the humiliation and family distress which that frequently involves."
"Therefore, in my judgment I am bound to hold that where the defendant's privilege against self-incrimination may arise the making of an ex parte order for the seizure of documents from that defendant's premises is improper. That accords with my own sense of justice: if a man is entitled to refuse to produce documents, it would be strange if the law permitted an order to be made which forces him to admit others to his house for the purpose of seizing those documents."
"The position has therefore been reached where the right to resist discovery on the ground of self-incrimination only now applies where there is a serious risk of prosecution for conspiracy."
- see Tate Access supra at p. 527 h.
Article 8
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Human Rights: Article 6
The privilege against self-incrimination under Common Law
"The law is well settled. It is a general rule that "no one is bound to criminate himself", in the sense that he is not to be compelled to say anything which "may tend to bring him into the peril and possibility of being convicted as a criminal": per Field J. in Lamb v- Munster 10 Q.B. 110. 111. We are here concerned with the rule in its relation to discovery, which Bowen L.J. stated as follows: "It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure": Redfern v- Redfern [1891] P 139 at 147. To the rule so stated there is no real exception, so far at least as far as discovery is concerned, and it is the paramount duty of the Court to uphold it."
"Moreover, whatever direct use may or may not be made of the information given, or material disclosed, under the compulsion of the Court, it must not be overlooked that, quite apart from that, its provisional disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character. In the present case this cannot be discounted as unlikely: it is not only a possible but probably the intended result. The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences."
"In as much as the application of the privilege in question can go a long way in this and other analogous fields to deprive the owner of his just rights to the protection of his property, I would welcome legislation somewhat on the lines of section 31 of the Theft Act 1968: the aim of such legislation should be to remove the privilege while at the same time preventing the use in criminal proceedings of statements which otherwise have been privileged."
However, as already noted, when it emerged, section 72 of the Supreme Court Act 1981, whilst withdrawing the privilege in specific intellectual property cases, left the privilege intact in cases in which, in the course of the intellectual property case, an offence unrelated to the intellectual property proceedings should come to light.
"It is, however, important to consider the reason why a party or witness is excused from making an incriminating disclosure. I refer again to Cross on Evidence page 418 where the statement of Goddard L.J. in Blunt v- Park Lane Hotel Ltd. [1942] 2K.B. 253, 257 is cited:
"The rule is that no-one is bound to answer any question if the answer thereto would, in the opinion of the Judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the Judge regards as reasonably likely to be preferred or sued."
The principle, as Goddard L.J. there stated, applies to oral evidence, interrogatories and discovery of documents."
"Thus, it is not simply the risk of prosecution. A witness is entitled to claim the privilege in relation to any piece of information or evidence on which the prosecution might wish to rely in establishing guilt. And, as it seems to me, it also applies to any piece of information or evidence on which the prosecution would wish to rely in making its decision whether to prosecute or not."
Waller L.J. also adopted a passage from the judgment of Kirby P. in Accident Insurance Mutual Holdings Ltd. v- McFadden (1993) 31 N.S.W.L.R. 412 in the course of which Kirby P. had said that the rule protected a person from answering: -
" . Not only the direct question whether he did what was illegal, but also every question, fairly appearing to be put with a view of drawing from him an answer containing nothing to affect him except as it is one link in a chain of proof that is to affect him I have looked into all the cases; and I find the distinctions between questions, supposed to have a tendency to criminate, and questions, to which it is supposed answers may be given, as having no connection with the other questions, so very nice, that I can only say, the strong inclination of my mind is to protect the party against answering any question, not only that has a direct tendency to incriminate him but that forms one step towards it ."
The Learned President was there adopting a passage from Paxton v- Douglas (1812) 19 Ves. Jun 225, 227-228.
Had Z lost the privilege before he claimed it?
"Their Lordships see no reason to introduce, with reference to this subject, an exception to the rule, recognised as essential to the administration of the Criminal Law, "Ignorantia juris non excusat"
see Queen v- Edward Coote (1873) 4 JCPC 599 at 607-608; see also R v- Clyne [1985] 2 NSWLR 740 at 746, 747. The textbooks are of the same view; McNicol on the Law of Privilege, 1982 says at p. 180 (with my emphasis):-
"At common law if the witness has not claimed the privilege (and presumably the Judge has not warned the witness of his right) the witness has no alternative but to suffer the consequences; no retrospectivity of protection is available."
"In short, if a claim [to the privilege] is not made, the privilege is deemed to have been waived, the answers given are deemed to be voluntary and will therefore be admissible in the criminal proceedings."
"It is plain on the authority of this decision of the Privy Council that evidence given by a witness is ordinarily admissible, albeit that it may be incriminating, unless he has claimed privilege on the ground of avoiding self-incrimination and been denied that privilege by the presiding Judicial Officer. The mere fact that a witness in the witness box is ordinarily obliged to answer questions does not make those answers involuntary in the sense that is relevant if those answers are later sought to be used against the witness in criminal proceedings."
Phipson on Evidence, 15th Edn, 2000 at paragraph 21-28 adds:-
"Where information is sought pursuant to a .. search order the first question is whether the risk of incrimination is such that this should prevent the order being made at all. This will rarely be the case, although it particularly needs to be considered in search orders. The next point is whether the order made without notice should make express reference to the possible right to claim the privilege."
"If the point is taken it must be raised before the evidence is supplied or it will be too late."
"One witness may not perceive such a risk. Unless the judicial officer presiding intervenes, the question will be answered and the privilege lost."
"Of course, I accept that putting documents in the hands of a supervising solicitor lessens the risk of prosecuting authorities becoming aware of the information. But, if a prosecuting authority heard of what was happening, and if it sought an order for the handing over of the information in the possession of the supervising solicitor, it is difficult to see how the High Court would have any power to prevent the same."
At p. 290 he added:-
"Once again I emphasise that the expedient of ordering a defendant to place incriminating information in the hands of a supervising solicitor does not seem to me to provide adequate protection."
See also p. 291C. That was a case where the defendant had in terms claimed the privilege but had been overborne by the judge below having ruled against him. The passages I have cited may be obiter but the Court of Appeal was careful to express and, indeed, to repeat its view and it was a view to which another constitution, without any form of questioning of it, referred as being "a considered view which followed from the principle of the [Den Norske] decision" see per Robert Walker LJ in Memory Corporation plc v- Sidhu [2000] 1 WLR 1443 at 1451h, 1459b. I thus take myself to be bound to hold that delivery to the Supervising Solicitor of the offensive material without any prior claim to the privilege would have caused Z to lose the privilege against self-incrimination.
"Production is to the Court. Unless and until the contents of the documents is made known to a person who is reasonably likely to use those documents for the purpose of a criminal prosecution, no self-incrimination can occur."
It may be that his comments were obiter as, on examining the relevant documents himself, he found that they did not suggest the commission of any criminal offence p. 267 but, leaving that aside, and leaving aside also that production under a subpoena is very much more production to the Court and under its control than is production under a Search Order, it is to be noted, as Miss Lieven points out, that there the privilege had been expressly claimed before the subpoena was worked through, before any relevant document had been handed to anyone. Indeed Miss Lieven does not need to go as far as to say and does not say that the privilege was necessarily lost on the supply of the offensive material to the Expert; it was lost on the supply to the Expert without any prior or simultaneous claim to the privilege being asserted.
The Implied Undertaking
"It is clearly established and has recently been affirmed in this House that a solicitor who, in the course of discovery in an action, obtains possession of copies of documents belonging to his client's adversary gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of that action on behalf of his client: see Home Office v- Harman [1983] 1 A.C. 280. It must not be used for any "collateral or ulterior" purpose, to use the words of Jenkins J. in Alterskye v- Scott [1948] 1 All ER 469, approved and adopted by Lord Diplock in Harman's case, p. 302. Thus, for instance, to use a document obtained on discovery in one action as the foundation for a claim in a different and wholly unrelated proceeding would be a clear breach of the implied undertaking: see Riddick v- Thames Board Mills Ltd [1977] QB 881. It has recently been held by Scott J. in Sybron Corporation v- Barclays Bank Plc [1985] Ch 299 and this must, in my judgment, clearly be right that the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind. But the implied undertaking is one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can, in appropriate circumstances, be released or modified by the court."
" .. the whole purpose of which is to gain possession of material evidence without giving the defendant the opportunity of considering whether or not he shall make any disclosure at all."
Lord Oliver summed up the cases cited to their Lordships' House as to the use of material gained by Search Orders in proceedings other than those in which the order was made by saying:-
" . they are no more than examples and they illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery."
He added that each case turned on its own individual facts p. 860 b-c.
"In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case."
"The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice."
"The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the Police which is relevant to a criminal trial. In many cases this is likely to be a very important factor."
I see this as an important factor in this case. Moreover, the possible crimes which the offensive material may suggest may include, as Miss Lieven points out, crimes by others than Z.
"The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or trial, this will militate against a disclosure order."
The offence in respect of which Z stands to be investigated was indeed a grave one and the material now in the Expert's hands is plainly of great relevance to that possible or even probable offence.
"The desirability of cooperation between the various agencies concerned with the welfare of children, including the Social Services Departments, the Police Service, Medical Practitioners, Health Visitors, schools etc.. This is particularly important in cases concerning children."
"Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations."
"If a defendant's answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he had first obtained leave from the Court which ordered the interrogatories, and probably without such leave."
and see Den Norske as at paragraph 67 above.
"So long as documents are held solely as the result of discovery, particularly discovery under compulsion under a [Search Order], in my judgment, it would be quite wrong to authorise their use in criminal proceedings brought under fiscal laws and having no connection with the original cause of action."
I took the view that the reference to fiscal crimes was simply because that was the type of crime at issue in that case. However, both Mr Caddick and Miss Lieven urge that the Vice-Chancellor meant to separate fiscal crimes from others. I have failed to see what could justify such a separation; no reason is given for that separation and it is not as if fiscal crimes cannot be serious. However, the Vice-Chancellor added as his reason for his observation that if the implied obligation were not honoured, full and candid discovery would not be given and the administration of justice would suffer. That, though, is not a reason applicable to Search Orders see paragraph 73 above and to that extent the citation from EMI supra can be put to one side even if the dictum is not confined to fiscal crimes.
" . if it appears to the Court that having that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it."
Possible considerations for others
(i) Should not the standard form of Search Order be modified to make reference to the privilege against self-incrimination even in section 72 cases, although, of course, distinguishing between section 72 matters and the possibility, as Z's case illustrates, of matters arising outside section 72?(ii) Should the Supervising Solicitor be obliged, even in section 72 cases, to explain the privilege against self-incrimination? Indeed, to ensure clarity and uniformity and to avoid disputes as to what was said or heard, would it not be prudent for a standard printed sheet to be handed over explaining in outline both that privilege and legal professional privilege?
(iii) Would it not be just to provide, if such can be done merely as a matter of rule making, that a defendant should not be taken by implication from his conduct in response to a Search Order to have waived or to have lost his privilege against self-incrimination unless the privilege has been explained to him, at any rate save where it was plain that he knew of it and had intended not to exercise it?
(iv) Would it not be fair to point out to persons that evidence collected under a privilege-less provision such as section 72 (or section 31 of the Theft Act or section 98 (2) of the Children Act) may, at a Judge's discretion, be used in other proceedings, as Swinton Thomas L.J. mentioned in In re C supra at p. 85a?
(v) Given that the Supervising Solicitor is not such a person Den Norske supra is there a need for what I called a neutral repository a place or person to which or to whom possibly incriminating material could assuredly be delivered by a defendant to a Search Order who claims or might wish to claim the privilege but without the privilege being lost by such delivery and without the material becoming susceptible to use by a prosecuting authority? The problem is at its sharpest where both material that is relevant and that is irrelevant to the claimant's claims are intermingled and where, as within a computer, it is commonly not possible to be sure that all that is relevant has been disclosed without viewing also that which is irrelevant.
(vi) There may, in the future, be similar cases but where the privilege against self-incrimination is not lost but is duly claimed. The question will arise as to what is to be done with the material that is uncovered? I posed the special problems in relation to goods the possession of which may be criminal and suggested a possible (though barely satisfactory) solution in the part of the 2004 Judgment, which I have summarised in the Schedule to this one. I have no doubt but that the Committee, unless it considers the problem too esoteric to require notice, could improve on the solution I suggested.
(vii) Would it be right for the Committee to add its voice to those listed in Den Norske as inviting, indeed almost beseeching, Parliament to look generally at the question of self-incrimination and Search Orders?
Conclusion
Possible directions had the privilege against self-incrimination been preserved
[It would have been inexcusable to order the return of the offensive material to the Defendant. It would also be wrong to inflict continuing possession of it on the Expert's firm or on the Supervising Solicitor. Nor, as I see it, could the material be ordered to be destroyed; were its existence to become known by uncontentious and independent means, it could become evidence in serious criminal proceedings.] There is, though, a possible solution. The ability to order a lodging with and detention by the Court exists in relation not only to money but as to goods see, for example, Velati & Co. v- Braham & Co. (1877) 46 L.J.C.P. 415 and Ridpath & Ridpath v- Zachner (1893) 9 T.L.R. 538, both of which cases were concerned with the deposit with the Court of jewellery. Accordingly the following directions could have been given to the Expert's firm:
(i) That it should disclose the paedophile material or its existence to no-one;(ii) That it was to make an accurate and careful copy of the whole of each computer disk, CD-ROM, and tape collected during the Search Order which is found to include any paedophile material;
(iii) The firm would then delete beyond any recoverability the paedophile material from those copies ;
(iv) The copies so made should then suffer a further deletion of the kind provided for, in relation to their relevant intellectual property content, in the Search Order;
(v) The copies so made, having suffered, therefore, a double deletion, would then be returned to the Defendant as the search order had contemplated in respect of the originals;
(vi) The originals would then be delivered up into the custody of the Court.
Should the Defendant wish to have the originals still bearing the paedophile material delivered to him he would have been at liberty so to apply to the Court but it is not easy to contemplate circumstances which would make such delivery up appropriate.
Should the Claimant wish to have the offensive material disclosed to it, that, too, could have been the subject of application to the Court but, as with disclosure to the Defendant, it is difficult to see in what circumstances such disclosure would be proper, even were it to be sought.
I am conscious that provision in the CPR as to the detention and preservation of evidence is for the purposes of existing or proposed proceedings section 7 (1) Civil Procedure Act 1997. No proceedings can be described as yet "proposed" in relation to the paedophile material. As for the Claimant's proceedings, summary judgment has been given against the Defendant but the proceedings still exist in that there are some issues as yet unresolved as to which liberty to apply has been given. Albeit with a degree of artificiality, but to preserve a jurisdiction in relation to a continuing detention of the original material, I would, in order to keep the existing proceedings alive, have given an added further liberty to the Claimant, the Defendant, the Supervising Solicitor and the Expert to seek directions.