C Plc v P & Anor

The Facts

The matter first came before the court on the 2nd February 2006 on the application of W, seeking directions from the court as to what he should do with the offending material which continued to be in his possession. In due course Evans-Lombe J decided after hearing counsel for W, P, the Home Secretary and further counsel as an Advocate to the Court and after considering written submissions made on behalf of the Attorney General that the offending material should be handed to the police but on P’s application he stayed that order pending an appeal for which he gave permission. At the hearing below P had the benefit of legal aid but his certificate has now been discharged and we were told that P had become bankrupt. In the light of the importance of the matter, his counsel below, Mr David Casement, has continued to act pro bono in the appeal. He has been led by Mr Edward Bartley Jones QC who is also acting pro bono. The court is greatly indebted to both of them and their solicitors who are also so acting for their public spiritedness. The only other party to the appeal now is the Attorney-General, who is represented by Mr Philip Sales QC.

Prior to the hearing below, the claimants indicated that they wished to play no part in these proceedings, in the result of which they had no interest, but they did assist, through their representatives, in the preparation of a statement of facts. Neither C Plc nor W, who have also assisted in the preparation of that statement, have played any active part in the proceedings but W retained the offending material as a result of the order of the judge.

It is important to emphasise at the outset that P does not accept that he was responsible for the presence of any offending material on the computers produced as a result of the search and he asserts that he was at all material times unaware of its presence. He asserts that he has a good defence to any charges brought against him as a result.

The search order was in common form but it is necessary to set out the salient paragraphs. It made provision for the search and appointed the Supervising Solicitor and the independent computer experts who have employed W. Under the heading “restrictions on search”, it then provided as follows:-

“9

The defendant 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 two hours or such other longer period as the Supervising Solicitor may permit. However the defendant [P] must

(a)

. . . .

(b)

Not disturb or remove any listed items; and

(c)

Permit the Supervising Solicitor to enter but not start to search.

10

Before permitting entry to the premises by any person other than the Supervising Solicitor the defendant 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.

11

If the defendant 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.”

Then under the heading “Delivery up of articles/documents” the order continues at paragraph 15:-

“15

The defendant must immediately

(a)

Hand over to the claimant’s solicitors the claimant’s computer, mobile phone and printer which are presently located at [left blank] together with any necessary passwords and

(b)

Hand over to the claimant’s solicitors any of the listed items which are in his possession power custody or under his control, and

(c)

Enable the contents of any computers, mobile telephones, memory cards, USB drives, printers, PDAs or any other memory storage devices or any hard disc integral to any such device at any of the premises (other than those devices already referred to at (a) which are to be handed over to the claimant’s solicitors aforesaid) to be imaged by the Independent Computer Specialist and must provide all such assistance (including the provision of passwords) as may be necessary to enable such imaging to be performed. . .”

At schedule E the order specified undertakings to be given by the Supervising Solicitor to the court as follows:-

“(1)

[undertakings with relation to service on the defendant] . . .

(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 defendant may be entitled to avail himself of legal professional privilege and to apply to vary or discharge this order as mentioned in paragraph 23 above.) The Supervising Solicitor will retain in the safekeeping of his firm all items retained by him as a result of this order until the court directs otherwise.

(4)

[An undertaking to report to the parties and the court]”

Schedule (F) of the order provides for undertakings to the court by the Independent Computer Specialist as follows:-

“(1)

[an undertaking not to damage the defendant’s computers in the course of imaging]

(2)

The independent computer specialist will not publish or disclose the images made to any one other than the claimant without permission of the defendant or the court.

(3)

The independent computer specialist will not disclose any materials obtained as a result of the search to any employees of the claimant other than Mr F save with the permission of (a) the Supervising Solicitor, or (b) the defendant, or (c) the Court.”

The order contained the usual penal notice indicating the consequences of failure to comply with it. It will be noted that, while the order referred to the possibility that privileged documents might exist and, in terms that the defendant might wish to avail himself of legal professional privilege, there was no express reference to the privilege against self-incrimination.

I have already said that, before the search commenced, P’s solicitor informed the Supervising Solicitor and the claimant’s solicitor that P was relying on the privilege. As I understand it, that was said without any reference being made to any particular document or electronic material which might be disclosed as a result of the search. At the same time P’s solicitor gave his counterparts a copy of the judgment in O Ltd v Z [2005] EWHC 238 (Ch) in which Lindsay J had in broad terms held on 23rd February 2005 that offending material discovered in similar circumstances might not have to be transmitted to the police if a claim to the privilege against self-incrimination had been properly made. P’s solicitor also informed them of P’s intention to apply to the court for the determination of the extent to which he was entitled to exert his privilege and, in consequence, to have the search order varied. Such an application was made on 12th October and was supported by a witness statement of P containing a statement of truth dated 14th October. Nonetheless P did permit the search to proceed.

The computers, on one of which the offending material was recorded, together with their associated electronic equipment, were then delivered to the Supervising Solicitor for his retention, pending determination of P’s right to invoke the privilege.

The matter returned to the court on 20th October before Mr Justice Mann when he made various orders as a consequence of which the computers were passed over to W for him to image them so that their contents could be analysed. W then imaged the computers in the course of which process the offending material emerged but that material and the computer recording it never left W’s possession, pending the hearing before the judge.

It was submitted to the judge that P had a choice whether to allow the search to proceed after his solicitor had notified those present that he was relying on the privilege. Similarly he had a choice whether to comply with the directions order of Mr Justice Mann. By permitting the search to proceed and by agreeing to an order the consequence of which was to hand over the relevant computer to W for imaging it was submitted that P lost the protection of the privilege. The judge did not accept this submission. He held that, so long as the offending material remained in the possession of the court through its officers, bound by their undertakings to the court to keep it confidential, the protection of the privilege, such as it was, was not lost. There has been no appeal from that part of the judge’s decision.

The fact that there has been no appeal on this question may be important. In another case a question could arise whether the privilege can be adequately claimed in the general way in which it was claimed in this case; it might perhaps be said that the correct way to claim the privilege would be to identify the particular computer which contained potentially incriminating material and argue the privilege question while the computer was in the custody of the Supervising Solicitor before it was passed to the computer expert for the purpose of imaging. If this were the correct way for privilege to be claimed, the practical problems adverted to later in paragraph 41 of this judgment would then be minimized.

One further relevant matter is that since the judge made his decision, the police have become aware of the offending material, executed a search warrant at W’s premises and have removed it into their custody. In those circumstances this court inquired of the parties whether any appeal was not now academic. Both parties urged this court that a question of principle had been raised which was by no means academic. In circumstances where there are potentially differing judgments at first instance, we think it must be in the public interest that those differences be resolved.

The judgment

The Submissions

Mr Sales began his response by submitting that the law in relation to the privilege against self-incrimination before the Human Rights Act was by no means so clear as the judge thought it was. The point raised by the present case was a point which could not have been raised before the establishment of the search and seizure jurisdiction in the Anton Piller case [1976] Ch 55. Rank made no decision about independent evidence because it was only concerned with the production of documents by way of discovery and the answering of questions by way of interrogatories. There was, in fact, never any difference between the civil law and the criminal law and the rationale for the privilege (viz the danger of abuse by prosecuting authorities and the unreliability of potentially false confessions) had no application to independent evidence. In these circumstances the judge was in any event right to have permitted W to disclose the offending material. If this was incorrect, then he supported the decision of the judge for the reasons that the judge gave.

Mr Bartley Jones objected strenuously to this change of approach by the Attorney-General pointing out that if the new submission were correct the matter had been put before the judge on a false basis. He accepted, however, that he was not placed in a position where he could not deal with the new submission and we have decided that in the light of both parties’ wish to treat this case as raising a question of principle, we ought to entertain the submission.

Privilege in the context of a search order

Lord Wilberforce thought that the risk of prosecution under the Copyright Act 1956 was minimal but reluctantly held (441E) that the supply of the information and production of the documents sought would tend to expose the respondents to a charge of conspiracy to defraud. It was for this reason that he therefore upheld the claim to privilege in respect of categories (1) and (3). But it was not suggested that the making of the search and seizure order was itself a breach of the privilege. Nevertheless if defendants were able to avoid answering questions or producing relevant documents, the order would have virtually no beneficial effect and within 4 months of the decision Parliament had stepped in to remedy the situation.

Section 72 of the Supreme Court Act 1981 now provides:-

“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 or for the recovery of a related penalty –

(a)

from answering any questions 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 the 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 the recovery of any related penalty, be admissible in evidence against that person or (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 . . . . .”

This legislation applies only to prevent a claim to privilege arising from the requirement to comply with the terms of a search and seizure order in what may generally be called “intellectual property” cases. It is common ground that, if the privilege exists at all in relation to materials found in the course of the execution of a search and seizure order, the statute would not prevent a claim for privilege from being maintained. The question is whether the privilege does exist in relation to materials so found.

That question arises in the present case in relation to criminal material which can be imaged on a computer. It could equally arise in other contexts. Suppose the search order entitled a claimant and his solicitor to enter and seize fake handbags of a particular brand (eg Gucci bags) and it was discovered after they had been seized that one of the bags contained a cache of drugs or an illegal weapon, would the claimant or his solicitor or the Supervising Solicitor be entitled to inform the police? Might he not be bound to do so? Or can the defendant invoke the privilege against self-incrimination to stop such revelation? Similarly one could suppose a case where a solicitor executing a search order observed what appeared to be illegal drugs or an illegal weapon in the defendant’s house. A criminally pornographic image might be observable on the defendant’s computer or lying around in a printed form. Once again, does the fact that the solicitor has entered pursuant to a court order prevent him from telling the police what he has seen? One would think that all these questions should be answered in the same way and that the answer should be that the solicitor is, at least, entitled (if not actually obliged) to inform the police. If that is so, then the judge’s order in this case should be upheld.

In Istel v Tully [1993] AC 45, 53B Lord Templeman said that the privilege could only be justified on two grounds:-

“first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions”.

Nevertheless in order to achieve these aims the privilege is framed in wide terms. As Templeman LJ had earlier put it in Rank in the Court of Appeal [1982] AC at 419A:-

“in any legal proceedings a person, whether a party to the proceedings or not, cannot be compelled to answer any question or produce any document or thing if to do so would tend to expose him to proceedings for an offence.”

It is this formulation on which Mr Bartley Jones relies to submit that P cannot be compelled to condemn himself by producing the computer and risking the pornographic image being revealed to the police. But the width of this submission is misplaced. The order for the production of the computer and the imaging of what is contained on the computer is, by reason of section 72 of the Supreme Court Act 1981, an order in respect of which no complaint has been made. The result of the imaging is that material has been found which may be of relevance in criminal proceedings. It constitutes what the judge called “independent evidence” even though it is derived from P. The question, therefore, is whether the privilege can be invoked to prevent the disclosure of such independent evidence to the police, if such evidence has been discovered as the result of the exercise of legal process against a defendant.

Independent evidence

It is unnecessary to cite authority for the above propositions at any great length since the principle is well-known and long accepted. Thus in R v Warwickshall (1785) 1 Leach 263 Jane Warwickshall confessed to receiving stolen property. As a result of that confession, the property was found in her lodgings concealed in the sackings of her bed. The court refused to admit her confession because it had been obtained by promise of favour. But the court ruled that facts discovered as a result of her inadmissible confession could be proved if that could be done:-

“without calling in the aid of any part of the confession from which it may have been derived” (page 284).

The House of Lords came to the same conclusion in R v Sang [1980] AC 402, as did the European Court of Human Rights in Khan v United Kingdom [2001] EHRR 1016. In the Rank case itself Lord Fraser of Tullybelton [1980] AC at page 446E emphasised that all relevant evidence is admissible in a criminal trial subject to the trial judge’s discretion to exclude evidence unfairly obtained.

The distinction between admissions obtained in breach of a defendant’s right to remain silent and material which is obtained by the use of compulsory powers but which has an existence independent of the will of the defendant is, as mentioned above, recognised and approved in the jurisprudence of the European Courts of Human Rights. Thus in Saunders v UK the majority of the court said this:-

“68.

The court recalls that, although not specifically mentioned in article 6 of the convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention.

69.

The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contracting parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.”

Later English decisions have also confirmed this distinction. In R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd [2000] 2 AC 412, 421G Lord Hoffmann said:-

“English law does not regard the use of evidence obtained in consequence of an involuntary statement in the same light as the admission of the statement itself.”

In Brown v Stott [2003] 1 AC 681 the Privy Council decided that the statutory provision that the keeper of a vehicle should give such information as to the identity of a person driving a car as a chief officer of police might require, did not infringe the privilege against self-incrimination. In the course of reaching his conclusions, Lord Bingham of Cornhill (pages 699-700) cited extensively from Saunders v UK including paragraphs 68 and 69 and observed (704D) that the constituent rights comprised “whether expressly or impliedly, within Article 6 are not themselves absolute”. The privilege against self-incrimination was one of the implied rights to which he was there referring.

The most directly relevant recent decision is that of the Criminal Division of this court in Attorney-General’s Reference (No 7 of 2000) [2001] 1 WLR 1879. In that case a bankrupt was obliged under section 296(1) of the Insolvency Act 1986 to deliver to the official receiver possession of his estate, books, papers and other records relating to his affairs. If he failed to do so, he would be in contempt of court and punishable with two years imprisonment. Shortly after being made bankrupt, the defendant was required to answer a preliminary questionnaire in which he said he had in the previous two years lost money in betting and gambling. He later, as he was required to do, delivered up six boxes of documents, including documents relating to his gambling activities. Those documents then formed the basis of a charge laid against him under section 362 of the Insolvency Act which provided that the bankrupt was guilty of an offence if he had in the two years before petition contributed to or increased the extent of his insolvency by gambling. The judge ruled that the admissibility of the documents would be a breach of Article 6 because he had incriminated himself when complying with the statutory requirements. The Crown appealed on the basis that the privilege against self-incrimination should not extend to pre-existing documents as distinct from statements made which might lead to such documents being discovered. There is thus a close parallel to the situation to the present case where the defendant has been obliged to part with documents and things (such as computers) in his possession. He cannot be forced to answer questions about the documents but can he prevent the documents themselves coming to the attention of the authorities?

In coming to its decision on the Attorney’s reference, the court cited Istel v Tully, the Green Environmental Industries case and Saunders v UK. It also referred extensively to the judgment of La Forest J in Thompson Newspapers v Canada (1990) 54 CCC(3d) 417, 508-520 in which that learned judge drew an express distinction between compelled testimony which would fall foul of the privilege and evidence deriving from compelled testimony which was evidence that existed independently of the compelled testimony and which would not fall foul of the privilege precisely because it was separate and independent. Relying on these authorities, this court concluded that the privilege was not an absolute privilege and did not extend to prevent the use of the documents revealed as a result of compliance with the requirement to hand documents and other things to the official receiver. This conclusion was then followed by the further decision of this court in R v Kearns [2002] EWCA Crim 748, [2002] 1 WLR 2815 paras. 48-52.

As against these authorities, Mr Bartley Jones submitted (1) that criminal cases were no safe guide to the content of the civil law and (2) that the width of the privilege in civil law was emphasised by the use of the word “or thing” as contained in the formulation of the principle by Templeman LJ in the Rank case and indeed in the statutory formulation contained in the Civil Evidence Act 1968 on which Templeman LJ had based his formulation.

As to the first submission, I would only say that it would be most surprising that a privilege designed to protect a defendant in circumstances where he might be facing criminal proceedings should vary in its content depending on whether the privilege were invoked in civil proceedings or in the criminal proceedings themselves. If anything one would expect the privilege to be less extensive rather than more extensive if it is invoked in civil proceedings. But there is, in truth, no warrant for suggesting that the rule is any different in civil proceedings from criminal proceedings.

As far as the second submission is concerned, it would suffice to say that this court is, in any event, bound by AG Ref No 7 since in that case the privilege was held not to extend to documents which were independent evidence and the same must apply to “things” which are independent evidence. But even if that were not so, it seems to me that Mr Sales was right to submit that the words “or thing” does not apply to a “thing” discovered in execution of a court order as distinct from a “thing” that is compelled to be produced. The privilege can be invoked to refuse to answer interrogatories or to refuse to disclose matters which are ordinarily discoverable; those matters may be documents or other “things”, but independent matters coming to light in the course of executing a proper order of the court are in an altogether different category.

It may be pertinent to add that it must go without saying that any person legitimately on premises can inform the police about offending material which he observes there, see Bell Cablemedia Plc v Simmons [2002] FSR 34. That applies even to a person who only obtains entry by falsely representing that he is a bona fide client when he is in fact a private investigator instructed by a claimant who intends to apply for a search order at some date in the future. That is what happened in Chappell v UK (1990) 12 EHRR 1 where the claimant had arranged with the police that, if (as happened) the police obtained a search warrant and the claimant obtained what was then still referred to as an Anton Piller order, the orders should be executed simultaneously. The application was made to Whitford J who was informed of the police interest at the time when the order was applied for and was naturally concerned whether the privilege against self-incrimination might be infringed. He seems to have been satisfied (page 6) that the claimant’s undertakings in the order would deal with that matter satisfactorily. The European Court of Human Rights held that the order, as made, did not infringe the defendant’s Article 8 rights. There was some criticism of the fact that the warrants were simultaneously executed since it tended to obscure the fact that the defendant was entitled to refuse entry to the claimant’s solicitor and such simultaneous execution would not now occur. But there was no suggestion that the claimant had been wrong to involve the police in the first place or that the defendant was in any way prejudiced by the fact that the police had been informed of potential criminal activity in the course of the claimant’s attempts to protect his intellectual property rights. It would be odd if, in this case, P could be in any better position than Mr Chappell was in that case since, if it is permissible to inform the police about possible breaches of the criminal law in the future, it would be surprising if the police could not be informed of evidence that a crime had been committed.

I would, therefore, conclude in the present case that, although the offending material had to be disclosed to the Supervising Solicitor and the computer experts by virtue of the order originally granted by Peter Smith J, there is no privilege in the offending material itself which is material which existed independently of the order. This is essentially the position maintained by Professor Adrian Zuckerman in the first (2003) edition of his work on Civil Procedure, paras 17-9 to 17-13. These paragraphs are repeated in his second edition (2006) where he welcomes the decision of Evans-Lombe J in this case at para. 17-12A.

It follows that even before the enactment of the Human Rights Act 1998, there was no privilege in the material and there could be no bar to the disclosure of the material to the police if it is otherwise right to do so.

It is necessary to emphasise that the only issue before the judge and on this appeal is whether W should have the leave of the court to disclose the offending material to the police. It is in this context that I would hold that no privilege exists in the material itself which is itself “real” and “independent” evidence and is not itself “compelled testimony” from P. No application has ever been made to discharge or vary the original search and seizure order no doubt for the excellent reason that section 72 of the 1981 Act prevents any point of self-incrimination being taken so as to defeat the purpose of the order. If any such application had been made it would, no doubt, have been necessary to bear in mind the considerations borne in mind by Browne-Wilkinson V-C in Tate Access Floors v Boswell [1991] Ch. 512.

Discretion

This argument cannot be accepted. Even though the form of order referred only to legal professional privilege and made no mention of the privilege against self-incrimination, P’s solicitor knew all about O Ltd v Z and invoked the privilege on behalf of his client at the first possible moment. In those circumstances any trap was avoided and P was able to take all relevant steps which he was advised he should take.

Practical Considerations

Conclusion

I agree that the appeal should be dismissed.

In my judgment, there was no privilege because P was not ordered to produce incriminating material. As Longmore LJ has emphasised, the order for the production of the computer and the imaging of what is contained on the computer is, by reason of section 72 of the Supreme Court Act 1981, an order in respect of which no complaint has been made. I do not consider that the case is any different from the case in which the defendant has been ordered to give access to premises and, when his office is being searched, incriminating material is seen in the corner, or when counterfeit Gucci bags have been ordered to be produced and handed over and drugs are found in the pockets. I would add that I agree with what Longmore LJ has said about the unsatisfactory nature of the way in which privilege was claimed in this case.

I do not think that it is now necessary to rule on the wider question whether it is open to this court to find as a general rule that there is no privilege in respect of what has been described as pre-existing or independent material.

I accept that there is a powerful case in policy terms for there being no privilege with respect to disclosure of free-standing documents or other material not brought into existence under compulsion: see Professor Adrian Zuckerman, Civil Procedure, 2^nd ed. 2006, Chap 17.

The first point is that to deny privilege for such documents would be consistent with the rationale for the privilege. In A.T.& T. Istel Ltd v Tully[1993] AC 45 Lord Templeman said (at 53) that the privilege could “only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions.” See also Lord Griffiths (at 55); and R v Director of Serious Fraud Office, ex p Smith[1993] AC 1, 30 etseq, per Lord Mustill; R v Hertfordshire County Council, ex p Green Environmental Industries Ltd [2000] 2 AC 412, 419, per Lord Hoffmann.In Saunders v United Kingdom [1996] ECHR 19187/91, (1996) 23 EHRR 313, paras 68-69 the European Court of Human Rights linked the privilege in criminal cases with the need to avoid coercion or oppression, the importance of the presumption of innocence and the right to remain silent. See also for an exhaustive treatment of the possible policy reasons for the Fifth Amendment privilege Wigmore, Evidence (McNaughton rev 1961), vol 8, para 2251.

Secondly, there is considerable authority outside England for the view that the privilege applies only where the party is ordered to verify the material. According to Wigmore’s treatment of the Fifth Amendment privilege (rev ed 1961), vol 8, paras 2264(1), (2)), “… the production of documents … by a person … in response … to a motion to order production, or to other form of process relying on his moral responsibility for truthtelling, may be refused under the protection of the privilege. This is universally conceded. For … though [the documents may] be already in existence … still there is a testimonial disclosure implicit in their production … Furthermore it follows that documents … obtained from the person’s control without the use against him of process relying on his truthtelling are not within the scope of the privilege.”

Thus in United States v Hubbell, 530 US 27, 35-6 (2000) the Supreme Court referred to “the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the [Fifth Amendment] privilege,” but the Supreme Court went on:

“On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that ‘the act of production’ itself may implicitly communicate ‘statements of fact.’ By ‘producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic’ [citing United States v Doe, 465 US 605 at 613 (1984)].

Moreover ... when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents.”

In the High Court of Australia differing views were expressed on the application of the privilege in relation to pre-existing documentsin Environment Protection Authority v Caltex Refining Co Pty Ltd (1992-3) 178 CLR 477: compare pp 527-528, per Deane, Dawson and Gaudron JJ with p 499, per Mason CJ and Toohey J (dissenting on this point).

In Thomson Newspapers Ltd v Canada (Director of Investigation and Research) (1990) 67 DLR (4^th) 161, 252-253, La Forest J, asked, at p 254: “What prejudice can an accused be said to suffer from being forced to confront evidence ‘derived’ from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her?” His answer (at 254, 262) was:

“I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact … In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony … should in the exercise of the trial judge’s discretion be excluded since its admission would violate the principles of fundamental justice. …I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind...”

The European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313, para 69 (re-affirmed by the Grand Chamber in Jalloh v Germany, 54810/00, July 11, 2006, para 102)said:

“The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contracting parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant …”

It does not of course follow that, even if no privilege attaches to “independent” evidence obtained by compulsion, it would necessarily be admissible in evidence: cf section 78 of the Police and Criminal Evidence Act 1984; Thomson Newspapers Ltd v Canada (Director of Investigation and Research)(1990) 67 DLR (4^th) 161, 262, per La Forest J.

What of the position in England? In Re Westinghouse Uranium Contract[1978] AC 547 the letters rogatory from the United States court sought (inter alia) the production of documents according to a lengthy schedule alleged to be in the possession of the RTZ companies. The schedule of documents extended far beyond particular documents specified in the order, and included categories and classes of documents. The schedule did also list a number of particular and specified documents. These documents came into the possession of Westinghouse from an environmentalist group in September 1976 and were claimed to amount to hard evidence of a uranium producers’ cartel. It was said that some of these, on the face of the descriptions, or copies, or originals of them, might be in the possession of one of the RTZ companies or of a subsidiary over which they had power, and many of them appeared on the face of the description to be relevant to the existence or terms of a uranium cartel. It was held by the Court of Appeal and the House of Lords that production of the documents would tend to expose the RTZ companies to proceedings for the recovery of a penalty by the European Commission for breaches of European competition law.

Lord Wilberforce said (at 612): “…the tendency to expose to a penalty would be increased if the documents in question were to be validated and connected with the R.T.Z. companies by sworn evidence, as opposed to being, as they are now, pieces of paper found in a file.” Lord Dilhorne added, at 628, that the documents might well authenticate and support the information in the hands of the Commission, and might afford conclusive proof of a breach of the European competition rules and, when in possession of such evidence, the European Commission might decide to take action.

That is an extreme case of the attempted production of documents pursuant to what Professor Zuckerman describes as a “testimonial obligation” (para 17.5), and which is within the privilege. As I have said, Wigmore (para 2264) says that the privilege attaches where the process relies on the person’s responsibility for truth telling even if the documents are already in existence. In the Westinghousecase the guilt of RTZ in the antitrust proceedings might have depended on whether incriminating documents existed.

InRank Film Distributors Ltd v Video Information Centre[1982] AC 380 the Anton Pillerorders required the alleged video pirates (1) to supply information; (2) to allow access for the purpose of looking for illicit copy films and allow them to be removed for safe custody; and (3) to disclose and produce documents. It was held that there was no privilege in relation to the films, for the reason given by the Court of Appeal, namely that Rank was simply vindicating its proprietary rights in the films themselves, and its right to recover its own property could not be defeated by a claim of privilege: at 416, per Bridge LJ. But the House of Lords held that the defendants were entitled to claim privilege in respect of the orders for provision of information and production of documents.

Rank Film Distributorswas also a case where there was a testimonial obligation. The order was for disclosure of information by the defendants of the identity of persons who had supplied illicit films or to whom they had been supplied, and for the production (verified by affidavit) of all invoices, labels, books of account, letters, lists or other documents within their possession, power, custody or control relating to illicit films supplied or offered by or to the defendants or to any business relating thereto ([1982] AC at 440). In effect, the defendants were being asked to swear whether they had documents incriminating themselves and to produce those documents.

So also in A.T.&T. Istel Ltd v Tully[1993] AC 45 the order involved a testimonial obligation. The action was for breach of fiduciary duty. The defendants had allegedly operated fraudulently a contract with a third party for their own benefit by double-charging, or by charging for services which had not been rendered, and then diverting the payments. The order was for disclosure of all dealings with the money and for production (verified by affidavit) of all documents relating to the payments ([1993] AC at 50-51). It was held by a majority (Lord Griffiths dissenting) that the privilege against self-incrimination was not available because Mr Tully’s position had been protected by a statement from the Crown Prosecution Service that it would comply with a provision in the order of the judge which prohibited in any criminal prosecution the use of the material disclosed.

Lord Templeman said (at 53):

“I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff’s property or money.”

Lord Griffiths associated himself with what Lord Templeman had said and added (at 57):

“I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the holder has committed a criminal offence. The contents of the document will speak for itself and there is no risk of the false confession which underlies the privilege against having to answer questions that may incriminate the speaker. The rule may once have been justified by the fear that without it an accused might be tortured into production of documents but those days are surely past and this consideration cannot apply in the context of a civil action.”

But they considered themselves constrained by the fact that Parliament had not gone so far as to curtail privilege in such cases.

This court is, of course, bound by these decisions, and I would hesitate at this appellate level to distinguish all three of the decisions of the House of Lords in Re Westinghouse, Rank Videoand A.T.&T. Istelon the basis that they involved a testimonial obligation to disclose and verify documents, and to hold that the principles enunciated in those decisions do not apply to the compulsory production of pre-existing documentary evidence. First, there is almost no trace of this distinction in the decisions, apart perhaps from Lord Wilberforce’s reference in Westinghouse(at 612) to the difference between the risk of self-incrimination in the case of the validation of documents by sworn evidence, on the one hand, and that in the case where the documents were simply “pieces of paper found in a file.” But Lord Wilberforce was only speaking of the risk of self-incrimination.

Second, to draw a distinction between the testimonial obligation to produce and verify, on the one hand, and to the obligation to produce pre-existing evidence would give not give any weight to the reference in section 14 of the Civil Evidence Act 1968 to the right of a person in civil proceedings to refuse to “produce any document or thing”, which has been said to be declaratory: Re Westinghouse Uranium Contract[1978] AC 547, 636, per Lord Diplock.

Third, it has been emphasised that inroads into the privilege are primarily matters for Parliament. In A.T.&T. Istel Ltd v TullyLord Templeman considered that the “proceedings are not precisely covered by any of the statutory relaxations of the privilege but they are similar to and analogous to situations in which Parliament has intervened,” but he recognised that Mr Tully would have been able to rely on that privilege (but only if compliance would provide evidence against him in a criminal trial) “having regard to the fact that Parliament has not abolished the privilege against self-incrimination” (at 55). So also in Re Arrows Ltd[1995] 2 AC 75, at 109, in a case involving the potential use in criminal proceedings of transcripts of an examination by liquidators, Lord Browne-Wilkinson said that only Parliament could weigh the conflicting public interests as between the demands of justice to the accused, the need to obtain the information for the purposes of civil proceedings, and the public interest in the successful prosecution of those guilty of fraud.

Is the position affected by Attorney-General’s Reference (No 7 of 2000)[2001] EWCA Crim 888, [2001] 1 WLR 1879? In that case documents had been delivered up to the Official Receiver pursuant to compulsory powers in section 291(1) of the Insolvency Act 1986. The documents formed the basis of a charge laid against him under section 362 of the Insolvency Act 1986 which provided that the bankrupt was guilty of an offence if he had in the two years before petition contributed to or increased the extent of his insolvency by gambling.

The question for the court was whether the use by the Crown, in the prosecution of a bankrupt for an offence under Chapter VI of Part IX of the Insolvency Act 1986 of documents, which (a) were delivered up to the Official Receiver under compulsion (due to section 291 of the 1986 Act, backed up by the contempt sanction in section 291(6)) and (b) did not contain statements made by the bankrupt under compulsion, violated the bankrupt’s rights under Article 6 of the Human Rights Convention.

Counsel for the Attorney General argued that the insolvency regime provided by Parliament made it plain that it was Parliament’s intention that the privilege against self-incrimination should not extend to pre-existing documents as distinct from statements which might lead to the discovery of such documents, and that in view of Saunders v United Kingdomthat result was compatible with the Human Rights Convention: paras 19-24.

The court concluded (at para 57) that the answer to the question was no. The first reason was that “there is no doubt … that the privilege against self-incrimination is not absolute and in English law Parliament has, for a variety of reasons, in a whole range of statutory contexts, made inroads into that privilege.”

As I understand it, this passage is saying that any privilege had been removed by the Insolvency Act 1986 provisions in question, although there was no elaboration of this conclusion by reference to the statutory provisions. The court then went on to consider “whether, in deference to the Strasbourg jurisprudence, this court should give a different answer to that which the English courts and the will of Parliament otherwise suggest” (para 59). The answer it gave was that Saunderswas jurisprudentially sound, for the reasons given by La Forest J in Thomson Newspapers Ltd v Canada (Director of Investigation and Research)(1990) 67 DLR (4^th) 161, which was available to the European Court of Human Rights in Saunders. In my judgment the decision is that the effect of the Insolvency Act 1986 was to remove any privilege which might have existed in a way which was compliant with the Human Rights Convention.

R v Kearns[2002] EWCA Crim 748, [2002] 1 WLR 2815 was a case which turned on the conclusion that the obligation of disclosure under section 354(3)(a) of the Insolvency Act 1986 did not amount to an infringement of Article 6 of the Human Rights Convention. The statement at paragraph 53 of the judgment that the English and Strasbourg cases were authority for the proposition that privilege does not attach to the compulsory production of documents which have an existence independent of the will of the suspect was obiter.

Attorney-General’s Reference (No 7 of 2000) and R v Kearns therefore are cases which are solely concerned with the question whether in a particular statutory context the privilege has been abrogated or limited by legislation, and whether that legislation is compatible with the Human Rights Convention: see also Brown v Stott [2003] 1 AC 681 (PC). Consequently, although Attorney-General’s Reference (No 7 of 2000) and R v Kearns are plainly illustrative of a reluctance to afford privilege in cases of independent evidence, they are not binding authority for a limitation on the privilege at common law.

I would add that I have no doubt that Saunders v United Kingdom, paras 68-69 and Kay v Lambeth London Borough Council[2006] UKHL 10, [2006] 2 AC 465 cannot be used to justify departure from any principle laid down by the House of Lords in Rank Film Distributors Ltd v Video Information Centre[1982] AC 380. It is one thing to say that a rule which requires production of independent evidence is Convention-compliant and quite another to use the Convention to abrogate a rule which might otherwise grant a privilege against production of such evidence. It is beyond doubt that the domestic law of a Convention State may give greater rights than the Convention requires. In my judgment Kay v Lambeth London Borough Council cannot be used to abrogate rights of the individual which would otherwise exist under English law.

I agree with the judgment of Lord Justice Longmore.