River East Supplies Ltd, R (On the Application Of) v Crown Court at Nottingham

This is a judgment to which both members of the Court have contributed.

The claimant (‘River East’) seeks judicial review of a ruling by HH Judge Spencer QC sitting at Nottingham Crown Court, following which he issued a production order. The production order followed a request for legal assistance from the United States Department of Justice.

River East is an online pharmaceutical company responsible for the wholesale and retail supply of pharmaceutical products. At all material times, it was licensed by the Medicines and Healthcare Products Regulatory Agency (‘MHRA’) and the General Pharmaceutical Council.

According to River East, in 2011 it purchased a batch of 167 vials of Avastin (a cancer treatment) from CareMed (a regulated and licensed supplier of pharmaceuticals in Denmark) which appeared to be suspect. It informed CareMed about the suspect batch; it also informed the Swiss regulatory authorities (since CareMed had sourced the batch from a licensed Swiss wholesaler), as well as the Danish regulator and the MHRA. In February 2012, the MHRA informed the claimant that the testing of the drug had revealed that it was counterfeit.

The present proceedings arise out of an investigation being carried out by the United States authorities into what is said to be a deeper involvement of River East in the trading of suspect drugs.

Other than highlighting this difference, it is unnecessary to say anything further at this point about the underlying disputed facts.

On 24 March 2015, the first interested party, the Chief Constable of Nottinghamshire (‘the Chief Constable’), applied to Mansfield Magistrates’ Court for a search warrant pursuant to s.8 of the Police and Criminal Evidence Act 1984 (‘PACE 1984’), following a request for mutual legal assistance from the US authorities. The warrant was executed; and the lawfulness of both the warrant and its execution was subsequently challenged by River East. On 22 October 2015, the Chief Constable conceded that the application for the search warrant was defective, that the warrant itself was defective and that it should be quashed. On 26 November, a consent order was made by the Administrative Court quashing the warrant and declaring that the warrant and subsequent search were unlawful.

On 2 November, Detective Sergeant Gunn of the Nottinghamshire Police applied to the Crown Court at Nottingham for a production order pursuant to the request for mutual assistance. The application ran to 71 paragraphs over 14 pages. It set out the background to the criminal investigation being carried out in the United States by the Food and Drug Administration Office of Criminal Investigation (‘FDA’) in relation to what was said to be misbranded or unapproved new drugs in interstate commerce. It described the investigation in the United States into CanadaDrugs.com Limited Partnership, River East and various individuals for conspiring to distribute counterfeit, misbranded and unapproved prescription drugs, in particular, Altuzan and Avastin. The information in the application identified River East as routinely declaring the value of shipments at slightly less than $2,000 which was the threshold that would trigger a formal customs clearance. The application provided detail about the counterfeit Altuzan and Avastin and the involvement of named individuals and the material that was sought from River East. It set out the access conditions under ss.13 and 16 of the Crime (International Co-operation) Act 2003 (‘CICA 2003’), why the application complied with those conditions, that the request came from the UK Central Authority at the Home Office (‘UKCA’) and that the process under s.13(1) was satisfied. It also addressed the requirement for dual criminality.

It is unnecessary to set out further detail in the application since it is not part of River East’s argument that the application was deficient. However, it is important to note that a 46-page superseding indictment, dated 17 July 2015, was annexed to the application. This document sets out clearly the serious allegations being made against River East and the basis on which they are being made.

River East indicated that it wished to apply at an inter partes hearing in the Crown Court for an order requiring that the Chief Constable serve on the Court the US Letter of Request. Following this, the UKCA indicated that it wished to intervene in relation to the issue.

So far as the claim for judicial review is concerned, two issues arise. First, whether, on application for a Production Order pursuant to a Letter of Request for mutual assistance, the applicant is obliged to disclose (if necessary in redacted form) the Letter of Request itself (‘the first issue’)? Second, whether an order should be made where producing the documents may violate the privilege against self-incrimination (‘the second issue’)?

On 8 March 2016, the Judge heard submissions from the parties and, in a ruling dated 20 March, he concluded that in the circumstances of the case the applicant was not obliged to disclose the Letter of Request. Having referred to a number of cases to which we were also referred, he ruled that there was binding legal authority as to the usual confidential nature of international Letters of Request and the policy considerations which underlay the basis on which the domestic courts approached them. He therefore ruled that there was no obligation to disclose the Letter of Request to the Court, either in full or in a redacted form.

Mr Brodie QC submitted that it was a legal requirement that the UKCA disclose to the Court and to River East so much of the Letter of Request as was necessary to establish the grounds for the application. If there were information which went beyond what was necessary to establish the grounds, it could be redacted. The disclosure was necessary so as to place the Court in a position where it could comply with its obligation to ensure that the statutory requirements were met by independent examination of the relevant material; and so as to enable River East to make such submissions on the material as it wished to, thereby achieving procedural fairness.

He submitted that it is inherently unsatisfactory that an order should be made on the basis of the UKCA’s interpretation of the Letter of Request rather than the document itself; and that it was clear from a comparison of the application and the superseding indictment that there was material in the former that did not derive from the latter. He pointed out that the procedural history and the deficiencies in relation to the warrant gave rise to a justifiable concern about the danger of not disclosing the Letter of Request itself.

Mr Brodie recognised the policy interest in giving effect to requests for mutual assistance but submitted that requiring disclosure of those parts of the Letter of Request which identified the grounds for the Court Order avoided the need for interpreting the contents of a Letter of Request for the purposes of drafting an application and was likely to give rise to greater expedition in the process.

So far as confidentiality was concerned, he submitted that it was no part of River East’s challenge that confidential information should be disclosed and accepted that parts of the Letter of Request might be redacted.

He relied in support of some of these submissions on the decision of the Court of Appeal in National Crime Agency v. Abacha and others [2016] 1 WLR 4375.

In our view the authorities establish clearly that letters of request are confidential and are not disclosed as a matter of principle. In the similarly named but different case of R (Abacha) v. Secretary of State for the Home Department [2001] EWHC Admin 787 (Divisional Court) the claimant in the judicial proceedings complained of procedural unfairness relying on (among other matters) the respondent’s failure to disclose the terms of the Nigerian Government’s Request for Assistance. Tuckey LJ, giving the judgment of the Court, rejected this complaint. The process was not a trial and led only to the transmission of evidence whither it was to be assumed that the criminal defendant would have an opportunity to answer it. At [17], he stated:

… such requests are made by friendly, foreign countries with whom we have Treaty or other similar obligations of mutual co-operation. The expectation must therefore be that we will comply with the request unless there are compelling reasons for not doing so and that we will do so as quickly as possible. Any requirement for procedural fairness must be fashioned with those considerations in mind.

The Treaty with the Nigerian Government provided for the parties to exercise their best endeavours to keep the request and its contents confidential.

In R (Evans) v. Director of the SFO and others [2003] 1 WLR 299, the claimant had written to the respondent asking for a copy of the Letter of Request. The respondent had refused relying on article 7 of the Treaty between this country and the United States, see [7]. We consider this article later in this judgment. At [12] Kennedy LJ (with whom Pitchers J agreed) noted:

In my judgment … having regard to the Treaty obligations it is right to start from the position that the letter of request is not a disclosable document … but in some cases the requirements of justice may require more. They certainly did not do so in the present case.

In R (Energy Financing Team Limited) v. Bow Street Magistrates’ Court and others [2005] EWHC 1626 (Admin), [2006] 1 WLR 1316 at [17], Kennedy LJ repeated his view that this was the right approach.

In R (BSG Resources Limited) v. Director of the SFO and another [2015] EWHC 1813 (Admin) there was a challenge to the decision of the SFO refusing to disclose to the claimant or its advisers the content of Letters of Request from the Government of Guinea. At [34] Davis LJ said:

… it is well established that a letter of request is properly received by the receiving state as confidential. Indeed, it is easy to imagine in some circumstances whereby it could be damaging if the extent of the requesting state’s knowledge, or lack of it, were revealed. There may be some cases where the authorities are prepared to reveal the letters of request, but they are not invariably required to do so. In my view, there was no obligation on them to do so here and, as I have said, the claimant and its advisers and the recipients of the notices knew well what was going on and did not need more information.

In National Crime Agency v. Abacha (see above) the Court of Appeal, Gross LJ (giving the leading judgment) made clear that the starting point is that Letters of Request are confidential and are not disclose:.

47.

In my judgment, this appeal requires a careful balance to be struck between the strong and legitimate interest in the confidentiality of the Request and the obvious and fundamental importance of dealing justly with and between the parties in cases before the Court, in accordance with the overriding objective of the CPR. For my part, the correct balance in this case calls for a different answer in respect of the property ‘identified’ in the Request and the question of whether that property is ‘relevant property.’ My reasons follow.

48.

I accept that it is right to start from the position that letters of request such as the Request are confidential. Both the Treaty and the Guidelines are clear in this regard. This Court is of course anxious to assist the requests of friendly foreign countries for [Mutual Legal Assistance], both as a matter of comity and on the very practical basis that it is only by furnishing such assistance that international crime and large-scale corruption can be combated. In many cases, there will be very good reasons for maintaining the confidentiality of such requests; examples are readily to hand - such as national security (when it arises), investigations at an early stage, a proper reluctance to disclose what lines of inquiry are being followed and which individuals are under suspicion.

Having set out the starting point that the Letter of Request in that case was confidential, the Court went on to consider the particular features of the case it was dealing with: that the courts of England and Wales had to be satisfied as to the jurisdictional basis for making the particular order sought: the prohibition of dealing with property identified in the request, under s.447 of the Proceeds of Crime Act 2002, (see [5] and [49] to [51]). The Court therefore ordered the disclosure of a redacted version of the request showing the property which had been identified in the Letter of Request [53]. However, and despite a reference in a witness statement made on behalf of the NCA, which gave rise to an application under CPR Part 31.3(2), the Court refused to make any wider order for disclosure of the Letter of Request, see [56].

As indicated above, requests for mutual assistance from the United States are made under the Treaty on Mutual Legal Assistance in Criminal Matters, signed on 6 January 1994, as amended by Instrument dated 16 December 2004. Article 7 requires that the Requested Party shall on request keep confidential any information which might indicate that a request has been made or responded to.

The evidence in the present case was clear from the witness statement of Paul Crome, a solicitor and case-worker employed in the UKCA:

14.

Maintaining the confidentiality of [Letters of Request] is considered a key requirement in the operation of effective MLA arrangements. In particular, it prevents prejudice to the immediate investigation or trial which is the subject of the request for [Mutual Legal Assistance], and to any wider investigations and trials (whether in the UK, the requesting state, or a third country). Confidentiality also prevents the possibility of defendants building an understanding of cooperation arrangements (and investigative techniques) in cross-border investigations, and/or establish a ‘map’ of cooperation relations between countries, and ‘evidential safe-harbours’ where such cooperation is less effective.

…

16.

UKCA’s policy on maintaining the confidentiality of [Letters of Request] is … considered a critical feature of the UK’s ability to provide, and also by reciprocal arrangements to receive, effective [Mutual Legal Assistance].

…

24.

It is no exaggeration to say that if English law were to require disclosure of US [Letters of Request] as a matter of course, or if the starting-point to an application for [Mutual Legal Assistance] were to be that the [Letter of Request] were to be disclosed – subject only to an application to withhold or redact sensitive information – then the UKCA considers there to be a high risk of material damage to the UK’s relationship with the US in the [Mutual Legal Assistance] field, and perhaps beyond. The extent of the harm caused by such an approach with this key partner would be difficult to assess in advance.

These observations are consistent with a note from the US Department of Justice (‘DOJ’), which is recorded in the National Crime Agency v. Abacha at [44]:

1.

… The US DOJ does maintain that the document should not be disclosed, even though the factual information regarding the identification of assets is no longer confidential.

2.

The DOJ does not see disclosure of the letter, or any part of the document, as an issue to be decided solely on a case-specific basis, but as requiring consideration of, firstly, the need to safeguard the mechanism of mutual legal assistance generally as it exists around the world and, secondly, the need to protect executive state-to-state communications to the greatest extent possible.

3.

If voluntary disclosure was given by the US - where, on the basis of the facts of this case, no good reason exists - then it creates an uncomfortable precedent for the US, and for other states that use the mechanism.

In our view the principle is clear: the starting point is that the contents of a Letter of Request are not disclosed either to the court or to a party affected. The Court is dealing with an application for mutual assistance on the basis of an application which deals with the relevant statutory requirements which must be satisfied, and may append additional material (in this case the Superseding Indictment) in support of the application.

That the starting point may not be the end-point is also clear. As one would expect, there will be disclosure if the foreign state agrees to this, see R (van der Pijl) v. Crown Court at Kingston [2013] 1 WLR 2706 (Sir John Thomas PQBD and Wilkie J). In some cases, justice or principles of fairness may demand that information as to the nature of the criminal investigation be provided, see R (Evans) v. Director of SFO (above) at [12], and in others the nature of the application may indicate that further information is provided, see National Crime Agency v. Abacha (above).

In the present case, River East knows the nature of the criminal investigation, not least because it has the superseding indictment. In these circumstances, it does not found its argument on the grounds of any particular unfairness on the facts of the present case, but rather on a broader principle of fairness: namely, that it is wrong that the basis of the application for assistance should not be disclosed. Mr Brodie submits that the position is similar to the case of In re theapplication of Energy Venture Partners Ltd (U2014 0685), a ruling by his HH Judge McCreath in the Crown Court sitting at Southwark.

In that case, there was an application under ss.13 and 16 CICA 2003, as there was in the present case. The first issue to be determined was the submission of an interested party, Energy Venture Partners Ltd, that the material provided to the Crown Court on an application prepared by the police was insufficient to enable the Court to discharge its duties under CICA 2003 Act and s.9 and paragraph 2 of Schedule 1 of PACE 1984.

As Judge McCreath noted at §3.4;

Much of the evidence given by the officer will be in the nature of a summary of the base material. Some of it touches on matters of law, in particular, in relation to the dual criminality test, a pure question of law and accordingly a matter for determination by the judge and not the presenting officer.

He ruled that the proper approach was that the Letter of Request should be shown to the Court on the basis of limited dissemination (i.e. with a PII application).

We are not persuaded that the case supports Mr Brodie’s broad submission, even if it were binding on this Court. Plainly, if the court is determining an issue between two parties, it cannot do so on the basis of material that is only seen by one party, see R (British Sky Broadcasting Ltd) v. Central Criminal Court [2014] AC 885. The claimant in that case was challenging the production order on the basis that it could not do so unless it saw the material placed before the court by the police, see [20]. However, the Supreme Court drew a distinction between that situation and the position where a party adopts [28]:

… an ancillary procedure designed to ensure that relevant evidence is made available to the court in determining the substantive dispute.

In such a case the court will not be deciding any question of substantive legal rights as between applicant and respondent.

In the present case, HH Judge Spencer QC was not being asked to determine any issue between prosecution and defence on the basis of secret and undisclosed information. River East knows exactly what the Judge saw. Although its complaint is that the Judge did not see more, it does not suggest that the material provided to the Judge was insufficient to justify the grant of the production order. The application and the superseding indictment were available both to the Judge and to River East. These provided a detailed and comprehensive explanation of the investigation in the United States, and sufficient information to ground the order for production.

River East’s argument that the Judge should have been shown the Letter of Request, albeit subject to an admission that some of the material might be redacted, is to approach the issue the wrong way around. There is no right to require sight of a Letter of Request in the normal case and River East has not persuaded us that there is any proper basis for requiring the adoption of a different approach on the facts of the case.

Accordingly, we reject River East’s challenge in relation to the first issue.

Mr Brodie contended that Judge Spencer QC was wrong to order production of the requested documents, because production would infringe River East’s privilege against self-incrimination and that it had expressly asserted that privilege in order to oppose the making of the order.

That contention requires an analysis, unavoidably somewhat lengthy, of the nature and scope of the privilege against self-incrimination.

We start, as did Mr Brodie, with the well-known trilogy of cases in the House of Lords in which the privilege was judicially explored and applied to the facts in question. In Rio Tinto Zinc Corporation and othersv. Westinghouse Electric Corporation [1978] AC 547 a US corporation sought an order under section 2 of the Evidence (Proceedings in other Jurisdictions) Act 1975, giving effect to Letters of Request issued out of a United States District Court for, among other requests, production of documents that were alleged to be in the possession, custody or control of a group of English companies which had multinational activities. The extent to which the companies themselves may have created the documents sought is unclear from the report, but it is plain from the context that the documents existed ‘independently’ of the will of the companies in the sense that they were business records which had not arisen by virtue only of criminal or administrative investigations of suspected or possible wrongdoing on the part of the companies.

The proceedings were civil and the English companies resisted an order of production in reliance upon section 14 of the Civil Evidence Act 1968, which provides as follows:

(1)

the right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty – (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law.

Lord Diplock observed that this provision is ‘declaratory of the common law’, and that its purpose was to remove the doubt, raised by earlier, and not wholly consistent, authorities, as to whether the privilege against self-incrimination extended to offences under foreign law: p.636 D-F. The House of Lords unanimously held that the companies were entitled to claim the privilege since production of the documents would tend to expose them to fines under certain Articles of the European Economic Community Treaty (‘EEC Treaty’) that prohibited anti-competitive practices.

There was no specific argument in Rio Tinto that the privilege at common law did not extend to ‘independent’ documents, in the sense explained above. However, the argument undoubtedly proceeded on the assumption that the privilege did so extend, with the US corporation relying unsuccessfully on the contention that production of the documents would not perceptibly increase the risk of penal proceedings being brought against the English companies under the EEC Treaty.

Although Rio Tinto concerned a penalty that was held for the purposes of section 14 of the Civil Evidence Act 1968 to be a penalty provided for ‘by the law… of the United Kingdom’, it was common ground before us that where production of a document would tend to expose a person to proceedings for an offence in a foreign jurisdiction, the court had a discretion to refuse disclosure, and could then properly proceed on the basis that the risk of self-incrimination in foreign proceedings should be a bar to production to the same extent as would apply in respect of proceedings within the United Kingdom: Branniganv.Davison [1997] AC 238, applied in JSC BTA Bank v. Ablyazovand others [2014] EWHC 2788 (Comm.) at [113], with reference to R v. Khan [2007] EWCA Crim 2331 at [26]. We are prepared to proceed on that well recognised basis in the present case.

In the second case, Rank Film Distributions Ltd and others v. VideoInformation Centre [1982] AC 380, the plaintiffs, owners of copyright in particular films, obtained orders (‘Anton Piller’ orders; now Civil Procedure Act 1997 s.7; CPR r.25.1(h)), permitting them to enter the defendant’s premises and seize infringing copies of films, and requiring the defendants to give immediate discovery of relevant documents. It was held that the defendants were entitled to claim privilege from giving discovery, and the orders were varied so as to eliminate the risk of self-incrimination on a charge of conspiracy to defraud. Lord Fraser observed:

The principle itself is well established in English law. It is impliedly recognised by section 14(1) of the Civil Evidence Act 1968, and authority for its existence is to be found in Triplex Safety Glass Co. Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 K.B.395 and in Re Westinghouse ElectricCorporation Uranium Contract Litigation M.D.L. Docket No.235 (No 2) [1968] AC 547. The appellants do not dispute the existence of a privilege against compulsory self-incrimination by discovery or by answering interrogatories.

In the Rank Film case it seems again to have been assumed that the privilege extended to ‘independent’ documents, such as had been made the subject of the challenged Anton Piller orders. In the event section 72 of the Senior Courts Act 1981, enacted shortly after the successful appeal in Rank Film, expressly withdrew the privilege in cases concerned with infringement of intellectual property rights and passing off.

The third of the cases was A.T & T. Istel Ltd v. Tully [1993] AC 45, where the plaintiff, in an action for fraud and breach of trust, sought an order requiring the defendants to disclose information relating to dealings with certain assets and to produce copies of relevant documents. Referring to observations of Lord Mustill in R v. Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 32 B-C, Lord Templeman said:

Finally, Lord Mustill referred, at p.32B-C, to:

The desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are ‘voluntary.’

This is a powerful reason for the existence of the privilege against self-incrimination in certain circumstances. Indeed, in my opinion it is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves and it is fanciful to suggest than an order on Mr Tully to say whether he has received Abbey’s money and if so what has happened to that money could result in his ill-treatment or in a dubious confession. 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 (p.53 B-D).

Lord Templeman’s critique makes plain that the documents sought in Istel Ltd were “independent” in the relevant sense. This was also recognised by Lord Griffiths, associating himself with Lord Templeman’s criticisms, when he stated:

The privilege against self-incrimination is in need of radical reappraisal. It is however deeply embedded in English law and can only be removed or moderated by Parliament. As the speeches of your Lordships show Parliament has in recent years made many inroads into the privilege in a number of statutes. In civil actions, as this appeal demonstrates, the privilege can be claimed to thwart the claims of victims of fraud. 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 … (p.57F).

Lord Ackner observed:

I, of course, accept that if the privilege against self-incrimination is to be abolished or abridged, then this must be done by Parliament, as has occurred in a number of statutes … Your Lordships are not invited to abolish or abridge the privilege. It remains wholly intact ... (p.62E-F).

Lord Lowry, agreeing with Lord Templeman and Lord Ackner, said:

What one needs to recognise… is that the privilege against self-incrimination must prevail, unless it has been modified or abrogated by statute. And, even if one can see that the reasons which caused the principle to be adopted provide no logical justification for such an immunity as the privilege against producing incriminating documents which came into existence before any dispute arose, that immunity holds sway … (p.67E-F).

Lord Lowry here appears to be referring to the rationale for the privilege given by Lord Templeman when he said (at 53 B-C) that the privilege could only be justified on two grounds, first that it discouraged the ill-treatment of a suspect and secondly that it discouraged the production of dubious confessions. As Lord Lowry emphatically recognised, that rationale could plainly have no application to the production of ‘independent’ documents that were created before any crime was even suspected and that did not come into being only by virtue of any criminal investigation or proceedings. However, it does appear that in Istel Ltd the House of Lords proceeded on the assumption that the common law formulation of the privilege could not be fine-tuned by judicial development so as to accord under modern conditions with the real and only justifiable rationale for the privilege. Therefore they unanimously upheld the defendant’s claim to the privilege, but held (Lord Griffiths dissenting) that in the particular circumstances of the case the order for disclosure would not in fact create any real danger for the defendants of prejudice in criminal proceedings.

It is necessary to consider a number of domestic cases decided after the foregoing trilogy of appeals in the House of Lords. However, these later cases can be properly understood only by first explaining the important jurisprudence of the European Court of Human Rights in Strasbourg regarding Article 6 of the European Convention of Human Rights (‘the ECHR’). In Funke v. France (1993) 16 E.H.R.R 297 the Court held that Article 6(1) included the right of anyone charged with a criminal offence to remain silent and not to contribute to incriminating himself. The appellant had been convicted of failing to produce bank statements to the French customs authorities on request. The criminal proceedings for non-production were intended to compel him to co-operate in a prosecution to be brought against him for offences contrary to certain financial regulations. The Court held that the applicant had a right to refuse to incriminate himself, and that the provisions under the French customs code which in effect sought to compel the applicant to incriminate himself infringed his rights under Article 6. It can be seen that the documents sought in Funke were in the relevant sense ‘independent’.

In Saunders v. United Kingdom (1997) 23 E.H.R.R 313 the Court held that the use at the first Guinness trial (arising from criminal charges following a contested takeover in the 1980s) of statements obtained from the applicant by Department of Trade and Industry inspectors under their compulsory powers had deprived him of his right to a fair hearing under Article 6. The Court’s reasoning was as follows:

68.

The court recalls that although not specifically mentioned in Article 26 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 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 role 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.

In drawing the distinction between compelled statements and ‘independent’ material, the Court did not expressly record that the result in Funke could not be justified if that distinction were applied, but there can be little doubt that that is indeed the effect of the decision. Saunders was confirmed in terms by the Court in L v. United Kingdom (2000) 2 FLR 322 at 331. It was applied in Jalloh v. Germany (2007) 44 E.H.R.R 32, where illicit drugs swallowed by the applicant had been forcibly obtained by an emetic and produced in evidence at his criminal trial. The Court held that the drugs were real evidence and had an existence ‘independent’ of the applicant’s will, but the force used to obtain them in defiance of his will was significantly greater than the degree of compulsion normally required to obtain the types of material that exist ‘independently’. On that footing his rights under Article 6 had been violated. The test of ‘excessive’ compulsion is not without difficulty (cfR v. S and A [2008] EWCA Crim 2177); but for present purposes it is the affirmation of the distinction drawn in Saunders, referred to above, that is important.

JB v. Switzerland [2001] Crim LR 748 ECHR undoubtedly sits uncomfortably with Saunders and L v. United Kingdom. The Swiss taxation authority in that case had imposed fines on the applicant for a refusal to submit documents relating to investments that the applicant had failed to declare for tax purposes. The Court cited Saunders for the distinction described above, but then incomprehensibly found a violation of Article 6, without apparently noticing that the documents in issue fell into the first category (where the privilege against self-incrimination does not apply) rather than the second (where it does). JB should be contrasted with Allen v. United Kingdom (2002) 35 E.H.R.R. CD 289. The Court has also made the somewhat vague statement that any degree of compulsion must not be such as to destroy the ‘very essence’ of the privilege: Heaney and McGuiness v. Ireland (2001) 33 E.H.R.R. 12; applied in Shannon v. UK (2006) 42 E.H.R.R. 660; contrast Francis v. UK (2008) 46 E.H.R.R. 21.

The impact of Saunders on domestic law was considerable. Under domestic law a person may clearly claim the privilege in the course of civil and criminal proceedings in the strict sense, but questions have also from time to time arisen as to the application of the privilege in other contexts against certain agencies, such as the Director of the Serious Fraud Office, the Department for Business Enterprise, HMRC and liquidators of insolvent companies. The relevant context in these instances would not necessarily involve a criminal investigation or prosecution. Even if the privilege were not available or were excluded for policy reasons in domestic law (see paragraphs below), such non-availability or exclusion as such would not ordinarily be incompatible with Article 6, whose application is focussed on the risk of self-incrimination during criminal investigations or prosecution; see, for example, IJL, GMR andAKP v. United Kingdom (2001) 33 E.H.R.R. 11, where three of the other defendants in the Guinness trial claimed unsuccessfully that the compulsory questioning of them by DTI inspectors under section 434 of the Companies Act 1985 violated Article 6; applied in R v. Hertfordshire County Councilex parte Green Environmental Industries [2002] 2 AC 412.

Nonetheless, as Saunders showed, the use in criminal proceedings of material obtained by statutory compulsion in the course of non-criminal proceedings would be likely to infringe the privilege against self-incrimination under Article 6. Accordingly, section 59 of, and schedule 3 to, the Youth Justice and Criminal Evidence Act 1999 inserted ‘use immunity’ provisions in eleven specific statutes and four orders concerned with fraud-related or similar investigations.

It is notable that those ‘use immunity’ provisions provide immunity only for answers and statements made in response to compulsory questioning under the relevant powers. They do not restrict the use of pre-existing documents disclosed under compulsion. It is difficult to resist the inference that Parliament enacted the provisions on a clear understanding that, on the best interpretation of the Strasbourg jurisprudence, the privilege against self- incrimination under Article 6 did not extend to ‘independent’ documents. Had Parliament considered that the privilege against self-incrimination under Article 6 did extend to the kind of documents actually in issue in Funke and JB, the ‘use immunity’ would surely have been made more extensive in scope, so that that kind of document also could without question be obtained by statutory compulsion so long as it was not used in any subsequent criminal proceedings.

In any event the issue just discussed arose immediately in Attorney General’s Reference (No 7 of 2000) [2001] EWCA Crim 888; [2001] 1 WLR 1879; [2001] 2 Cr App.R.19 (Rose LJ, Rougier and McCombe JJ), where a bankrupt delivered up to the Official Receiver various documents relating to his affairs leading up to the bankruptcy. Failure to comply with the obligation to make such delivery would have been punishable as a contempt. He was subsequently prosecuted for an offence under the Insolvency Act 1986 of materially contributing to his insolvency by gambling. The trial judge had ruled the documents inadmissible on the ground that their admission would violate Article 6.

The Court of Appeal (Criminal Division) held, first, that so far as domestic law was concerned the documents in issue ‘would be regarded as admissible … subject only to the trial judge’s discretion to exclude under section 78 of PACE 1984. Although the Court did not refer to any specific authority, the conclusion that the common law privilege against self-incrimination (however extensive it might be) was in the particular context excluded by Parliament followed inexorably from such cases as Bank of England v Riley [1992] Ch 475, In re London United Investments PLC [1992] Ch 578, and Bishopsgate Investment Management Ltd v. Maxwell [1993] Ch 1.

The Court of Appeal then went on as follows:

59.

The question which next arises is 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. It seems to us that the distinction made in paragraphs 68 and 69 of the EuropeanCourt of Human Right’s judgment in Saunders’s case 23 E.H.R.R. 313, between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. We say this for the reasons advanced in the judgment of La Forest J in the ThomsonNewspapers case 67 DLR (4^th) 161 which, via reference to the South African constitutional court’s decision in Ferreira vLevin 1996 (1) SA 984, was before the European Court in Saunders’s case. In our judgment, there is nothing in any of the speeches in Brown v Stott [2001] 2 WLR 817 which contradicts this conclusion. The Privy Council were seeking to limit the scope of the privilege against self-incriminating statements and pre-existing documents revealed by compelled statements were outwith their consideration.

60.

If and in so far as there is a difference of view in the European Court of Justice between Funke’s case 16 E.H.R.R. 297 on the one hand and Saunders’s case 23 E.H.R.R. 313 and L v United Kingdom [2000] 2 FLR 322 on the other, the approach in the Saunders and L cases commends itself to this court. It is, as it seems to us, a matter not merely of interest but of significance that Judge Martens, dissenting in Saunders’s case, was of the view that the majority decision in that case was diverting fundamentally from the previous approach of the court in Funke’s case.

As we noted earlier, the Court of Appeal’s conclusion accorded with what we believe was Parliament’s understanding of the best interpretation of the scope of the privilege against self-incrimination under Article 6 of the ECHR.

R (Bright) v. Central Criminal Court [2001] 1 WLR 662 (Divisional Court) concerned the interpretation and application of section 9 of, and schedule 1 to, PACE 1984. The members of the Court (Judge LJ, Maurice Kay and Gibbs JJ) expressed different views on a number of points that determined the actual outcome of the case before them, but we focus specifically on the treatment by the Court of the privilege against self-incrimination.

Maurice Kay J referred to the relevant jurisprudence and to the observations of Lord Hoffmann in Ex parte Green. He concluded as follows (at 694 C):

…at the point when the judge in the Central Criminal Court was considering this [that is, the making of a production order in respect of “special procedure material” as defined by section 14 (1) of PACE 1984], and more, there was no question of the making of a production order contravening Article 6 (1).

We understand this to mean that the subject of the order was not at that particular stage of the criminal investigation a ‘person charged with a criminal offence’, and Article 6 (1) was therefore simply not engaged. The use of material produced under compulsion at any subsequent criminal trial would nonetheless engage Article 6, (see above).

However, Maurice Kay J also held that the making of an order ‘does not fly in the face of the privilege against self-incrimination’ (p.694 C), ‘nor did it offend the privilege against self-incrimination in domestic law’ (p.694 G). He referred in that context to the fact that Parliament had laid down a detailed code for controlling the circumstances in which the relevant production order could be made, and pointed out that there was no exception for material which might incriminate the person subject to the order. Production orders were ‘more tightly controlled by the access conditions and by the exercise of judicial discretion at the higher level’ (p.694 D).

Maurice Kay J did not agree with the analysis of Judge LJ that the subject of the order was compelled to hand over any material, for he could simply give access to it in a way similar to that open to a person who was subject to a search warrant under section 8 of PACE 1984 (p.694 E-F).

Gibbs J agreed (at p.696 A-B) with Maurice Kay J to the extent that he concluded that section 9 of PACE 1984 included the power for the Crown Court to make production orders which actually or potentially infringed a person’s right against self-incrimination. Judge LJ (at p.683 E - 685 B) dissented on this issue, being of the view that section 9 of, and schedule 1 to, PACE 1984 did not provide sufficient authority to compel the production of documents or the giving of access to material which might incriminate the subject of the order.

All three members of the Divisional Court did, however, agree that in deciding whether to grant or to refuse a production order, a judge had an ‘overarching discretion’, and that in any event in the exercise of such discretion a judge had to have regard to the human rights and fundamental freedoms of the persons against whom the order was sought (see Lord Judge at p.685 B, Maurice Kay J at p.691 H - 692 A, and Gibbs J at p.697 B-C).

Although there was, as mentioned, reference in Bright to the relevant Strasbourg jurisprudence, there was no explicit consideration by any member of the Court of whether the privilege against self-incrimination at common law extended to ‘independent’ material.

Bright was not referred to in the next important case of C Plc v. P [2007] EWCA 493 [2008] Ch 1, which Mr Evans QC, on behalf of the Chief Constable of Nottingham Police, submits expressly excludes such material, a conclusion of the Court of Appeal that he maintains is binding on this Court.

In that case a defendant in intellectual property proceedings in the Chancery Division had delivered up pursuant to a search order a computer upon which were found indecent images of children. The legal issue was whether the defendant was entitled to rely upon the privilege against self-incrimination so as to prevent the transmission of the offending material found on the computer to the police, who would be very likely to begin criminal proceedings against the defendant. All three members of the court held that the defendant was not entitled to rely upon the privilege against self-incrimination, but the analysis of Longmore LJ, with whom Sir Martin Nourse agreed, differed in an important respect from that of Lawrence Collins LJ (as he then was).

Longmore LJ referred (at [16]) to the judge at first instance having described the relevant material as ‘independent evidence’, that was:

…evidence that came into existence independently of (and usually prior to) any compulsory discovery process.

Longmore LJ stated that the distinction between admissions obtained in breach of a defendant’s right to remain silent and material which was obtained by the use of compulsory powers, but which had an existence independent of the will of the defendant, was recognised and approved in the Strasbourg jurisprudence. He referred to Saunders and to the observation of Lord Hoffmann in Ex parte Green and continued (at [30]) by stating that ‘the most directly relevant recent decision is that of the Criminal Division of this Court in Attorney General’s Reference (No 7 of2000), in which’:

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 (at [31]).

That summary was uncontroversial, but Longmore LJ a little later (at [34]) stated, perhaps more controversially:

… this court is, in any event, bound by Attorney General’s Reference (No 7 of 2000) … since in that case the privilege was held not to extend to documents which were independent evidence …

…

37.

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.

38 … it is in this context that I would hold no privilege exists in the material itself which is itself “real” and “independent” evidence and is not itself “compelled testimony” from [the defendant] …

In these passages, Longmore LJ was saying that at common law the privilege against self-incrimination did not extend to ‘independent’ material, and also that the Court of Appeal had already held that to be the law in AttorneyGeneral’s Reference (No 7 of 2000). With great respect, it is difficult to extract the latter proposition from the reasoning of the Court of Appeal in the criminal appeal. The Court there appeared to proceed on the basis that, first, in the relevant context (insolvency procedures) Parliament had by necessary implication excluded reliance on the common law privilege, howeverextensive its scope might have been; and secondly that the bankrupt had to provide the specified information which, on being disclosed, was, subject to the normal safeguards, admissible at any subsequent criminal trial. It was, therefore, unnecessary for the Court of Appeal in the criminal appeal to determine the parameters of the common law privilege, and it did not appear to do so. The Court, however, had to decide whether use in a criminal trial of the material that had been disclosed under statutory compulsion was compatible with Article 6. It was in that context that the Court, following in particular Saunders, held that the use of ‘independent’ material did not infringe the accused’s rights under Article 6. The analysis of Attorney General Reference(No 7 of 2000) by Lawrence Collins LJ in C Plc appears to us to be correct.

Longmore LJ in his judgment also set out a narrower ground for dismissing the appeal. In his view, there was a distinction between things which a person was compelled to produce and things, for example, drugs in a counterfeit ‘Gucci’ bag, or an illegal weapon that was not within the strict scope of a search warrant. The privilege would not extend to the latter type of thing. This narrower ground was accepted by the other members of the Court of Appeal, but it is perhaps not without its own difficulties. At common law the privilege against self-incrimination has traditionally been treated as available both in regard to requests that, if answered, would incriminate directly and also to those that, if answered, might do so indirectly, by forming part of a line of enquiry leading to the obtaining of evidence against the person. Such indirect incrimination was recognised as long ago as 1832 in the classic statement of Lord Tenterden CJ in R v. Slaney (1832) 5 C& P 213. On that traditional understanding, it might well be argued that the defendant in C Plc could with some justification have sought to invoke the privilege to resist production of the computer in question, knowing that it contained images that would be revealed and that might then lead to police interest.

Mr Brodie did not seek to argue before us that this narrower ground was the ratio of the decision in C Plc. In our view, he was right not to do so. Longmore LJ stated his conclusion (at [36] and [38]) on the broader ground cited above, with the result that Lawrence Collins LJ felt it necessary to explain at considerable length why in his view it was not necessary to rule ‘on the wider question whether it is open to this court to find as a general rule that there is no principle in respect of what has been described as pre-existing or independent material’, [45].

The headnote of the Law Reports states the ratio broadly and correctly as follows:

…at common law the privilege against self-incrimination did not extend to documents or things which had an existence independent of the will of the person relying on the privilege.

As already noted, Lawrence Collins LJ felt unable to accept the broad ratio adopted by the majority of the Court of Appeal. Having considered in some detail the ‘trilogy’ of House of Lords cases, he found, first, no trace of the relevant distinction in the decisions; secondly, to draw such a distinction between the testimonial obligation to produce and verify and the obligation to produce pre-existing evidence would be difficult to reconcile with the terms of section 14 of the Civil Evidence Act 1968; and thirdly, it had been emphasised by the House of Lords that inroads into the privilege were primarily matters for Parliament.

Permission to appeal the decision in C Plc to the House of Lords was granted, but the case was compromised and no appeal was pursued.

We believe that we have correctly identified the ratio of the majority of the Court of Appeal in C Plc, as set out above. Mr Brodie accepted that if the ratio of C Plc were binding on this Court, his claim cannot succeed. He relies upon an alleged infringement of East River’s privilege against self-incrimination in respect of documents that are subject to the challenged production order and which are clearly ‘independent’ within the meaning of the ratio. However, he submits that C Plc was wrongly decided, that the majority ratio was given per incuriam, and that this Court should follow instead the ‘trilogy’ of House of Lords cases earlier mentioned.

We do not accept that the majority ratio in C Plc is not binding on this court.

We were referred to the celebrated authority of Young v. Bristol Aeroplane [1944] KB 718, in which Lord Greene MR summarised the relevant exceptions to stare decisis so far as the Court of Appeal was concerned. The Court of Appeal is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; and the Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, for example, where a statute or rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.

Lord Greene MR almost certainly intended to confine the first exception mentioned to cases in which a decision of the Court of Appeal is thought to have been impliedly overruled by a later decision of the House of Lords. That inference is supported by Young’s case itself, and Williams v. Glasbrook Bros [1947] 2 All ER 884. In Young’s case the court was invited to refuse to follow its decision in Perkins v. Hugh Stevenson & Sons Ltd [1941] 1 KB 718 because it was inconsistent with an earlier decision of the House of Lords, but Lord Greene MR stated (at p.722) that the ‘conclusive answer’ to that submission was that the decision in question had been cited in Perkins. Elsewhere in the judgment Lord Greene MR spoke of the exception ‘comprising the class of case where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords’ (emphasis added). The word ‘subsequent’ was omitted in Lord Greene’s summary of his conclusions and in the headnote in most of the reports (but not by the Law Journal report). However, in Williams v. Glasbrook Bros he emphasised that the exception was confined to subsequent House of Lords’ decisions, and statements in the House of Lords itself support that interpretation of the rule; by Lord Buckmaster in English Scottish andAustralian Bank v. Commissioners of Inland Revenue [1932] AC 232, at 242; see also Lord Simon of Glaisdale in Miliangos v. George Frank (Textiles) Ltd [1976] AC 443 at 479.

As to per incuriam, the leading statement of the principle is probably that of Lord Evershed MR in Morelle Ltd v. Wakeling [1955] 2 QB 389 at 406:

As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence.

In Rickards v. Rickards [1990] Fam 194 Lord Donaldson MR recognised that a ‘manifest slip or error’ might justify an exception to stare decisis, especially in the context of procedural questions involving jurisdiction, and where it was most unlikely that any appeal would be taken to the House of Lords.

The ‘trilogy’ of House of Lords cases relied upon by Mr Brodie were not of course subsequent to C Plc. Nor were the members of the court unaware of those cases, for the appellant relied strongly upon them and Lawrence Collins LJ in his dissent held that they precluded any modification of the principle as expressed in them. Finally, it appears at the least highly doubtful whether C Plc would be treated as having been decided per incuriam on the basis that it involved a ‘manifest slip or error’ of the kind envisaged in the classic statement of Lord Evershed MR in Morelle Ltd and recognised by Lord Donaldson MR in Rickards v. Rickards. For these reasons this Court is in no position to say that C Plc was decided per incuriam.

In that context, it is important to note that the Court of Appeal (Criminal Division) has subsequently endorsed the ratio of C Plc in R v. S(F) [2008] EWCA Crim 2177. In that case the police seized from the defendants’ computer material some of which contained encrypted files which could not be accessed without the relevant encryption keys. The defendants were served with notices, under the Regulation of Investigatory Powers Act 2000, compelling them to disclose the encryption keys. The defendants refused to comply and were charged under the 2000 Act. They applied to stay the charges on the ground that the requirement to provide information infringed their privilege against self-incrimination and contravened Article 6 of the ECHR. Lord Judge CJ, giving the judgment of the court, stated the applicable legal principle, as follows:

18.

The first question which arises in an individual case, however, is not whether the statutory exceptions to the principle against self-incrimination properly apply, but whether the principle itself is engaged at all. The European court in Saunders v United Kingdom 23 E.H.R.R. 313 explained, at para 69, that:

The right not to incriminate oneself … 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.

The principle that evidence existing independent of the will of the suspect does not normally engage the privilege against self-incrimination is clearly established in domestic law. It was applied in Attorney-General’s Reference (No 7 of 2000) [2001] 1 WLR 1879; R v Kearns [2002] 1 WLR 2815 and R v Hundal [2004]2 Cr App R 307 where the court cited, with approval, the judgment of Aikens J in R v Kearns [2002] 1 WLR 2815, para 53 that:

There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances.”

The same reasoning was applied in C plc v P (Attorney General intervening) [2008]Ch I and was addressed but not decided in R (Malik) v Manchester Crown Court [2008] 4 All ER 403, in which the ratio of the decision in C plc v P [2008] Ch I was applied.

Applying that principle, the Court held (at [20]) that the encryption key itself existed independently of the defendant’s will, and, even if knowledge of the key might engage the privilege, it would be open to the trial judge, in appropriate circumstances, to exclude evidence of the means by which the prosecution gained access to the encrypted (and putatively incriminating) material, [24].

Only if we were wrong to treat the ratio of C Plc as binding on us, would it be necessary for us to consider whether Parliament had in the present context abrogated the privilege.

We noted earlier the many instances where statutory provisions were judicially interpreted as having, expressly or by necessary implication, overridden the common law privilege against self-incrimination, and the need for Parliament, in the light of Saunders, to amend domestic law so as to permit certain agencies to continue to obtain information by compulsory questioning. We have also referred to Bright where a majority of this Court held that section 9 of, and schedule 1 to, PACE 1984 in effect abrogated the common law principle against self-incrimination. These of course are the very statutory provisions at issue in the present claim.

However, as Mr Brodie pointed out, there is a tension between the majority conclusion in Bright and the later decision of this Court in Malik v. Manchester Crown Court [2008] EWHC1362 (Admin). In that case the Chief Constable of Manchester sought from the Crown Court a production order of certain ‘excluded material or special procedure material’, under paragraph 6 of schedule 5 to the Terrorism Act 2000. The material was alleged to be necessary for the purposes of terrorist investigations under the legislation.

Dyson LJ (as he then was), giving the judgment of the court, noted (at [75]) that the provisions under scrutiny in Bright were not materially different from the provisions referred to above. However, apparently differing from the majority in Bright, the Court concluded that Parliament had not excluded the common law privilege of self-incrimination:

73.

There is no doubt that compliance with an order which requires a person to produce to the police material in his or her possession where the first and second access conditions are satisfied may disclose that the person has committed on [sic.] offence contrary to s.19 or 38B of the 2000 Act. It is open to Parliament to abrogate the privilege against self-incrimination. It is convenient to start with the question whether, on the assumption that there were circumstances in which compulsory disclosure would infringe the privilege against self-incrimination, para 6 has ousted that privilege. In our judgment, it has not. Clear language (express or by necessary implication) would be required to show that Parliament intended to abrogate such a fundamental principle of the common law: see, for example, R. v Secretary of State for the Home Department Ex p. Simms [2000] 2 A.C 115 at 131F, per Lord Hoffmann. There is no such language. The express exclusion of items subject to legal privilege (paras 6(1)(b) and 8(1)(a)) do not carry with it the necessary implication that the different privilege against self-incrimination was not to be excluded. Nor do we accept that para.8(1)(b) is a clear indication of an intention by Parliament to override the privilege against self-incrimination. The privilege against self-incrimination is not aptly described as a “restriction on the disclosure of information imposed by statute”: it is not an imposed “restriction on the disclosure of information” at all.

Mr Evans QC urged us, with considerable force, to follow, if it were necessary to our decision, the majority in Bright. He drew attention to the fact that an express purpose of PACE 1984 was to regulate the obtaining of evidence likely to be of substantial value to the investigation of criminal offences and the use of such evidence in criminal prosecutions, and submitted that the successful invocation of the privilege was likely to impede significantly the achievement of the legislative objectives. That had been a cardinal factor in the many cases where Parliament was taken to have abrogated the common law privilege by necessary implication. Dyson LJ in Malik (at [78]) did recognise that:

… the automatic and absolute application of the privilege against self-incrimination in all cases where an application is made for a production order under schedule 5 would substantially weaken the schedule in relation to journalist material and that cannot have been what Parliament intended when enacting the provision.

Furthermore, he submitted that schedule 1 was not concerned with testimonial evidence or the right of an accused person to answer questions, which were matters that were subject to detailed rules in other parts of PACE 1984 and in Codes of Practice issued under PACE 1984. Mr Evans also submitted that allowing a person to rely upon the principle against self-incrimination in respect of production orders led to legislative incoherence under PACE 1984. It was common ground that the privilege could not be invoked to resist the operation of a search warrant (which represented a more severe intrusion into individual liberty and privacy), but the necessary conditions to justify a production order were materially the same, save that issue of a search warrant in addition required evidence that, in effect, material would otherwise be at risk of destruction, disposal or concealment. In short, if Bright were correct, the potentially more invasive procedure under a search warrant would carry less statutory protection than the less intrusive procedure for a production order.

However, for the reasons already given we believe that it is not necessary for use to resolve the apparent tension between Bright and Malik in the respect identified.

In Malik the Court did also address the question whether the privilege against self-incrimination was a right which can in principle be invoked in relation to pre-existing documents which are ‘real’ and ‘independent’ evidence and are not ‘compelled testimony’. The Court referred to C Plc and to Bright, and to a number of Strasbourg decisions, saying, in respect of the latter:

77… They are somewhat problematic and we find it difficult to extract from them a clear statement of principle as to whether the privilege against self-incrimination applies to pre-existing documents. We are inclined to accept the submissions of Mr Eadie that they seem to indicate that the privilege against self-incrimination protected by Art.6 is in play even where the potential for self-incrimination derives from pre-existing documents.

As far as we are able to ascertain, this is the only statement by an English court that casts doubt upon the proposition that Article 6 is not concerned with material that is ‘independent’. The case law is otherwise consistently, and strongly, in favour of that proposition: see Attorney General’s Reference (No7 of 2000) at paragraphs 59-61; C Plc, at [34] and [36], Lawrence Collins LJ, who dissented from the broad ratio adopted by the majority, appears nonetheless to have proceeded on the same interpretation of the Strasbourg jurisprudence: see [46], [52-5]); R v. S(F) at [18], a case decided after, and with reference to, Malik. Furthermore, exclusion of ‘independent’ material appears to accord with the approach in other jurisdictions; see Attorney General’s Reference (No 7 of 2000) at [37]-[40], and C Plc at [48]-[51]. Academic commentators have also argued that the relevant exclusion is supported by principle and policy: see, for example, Zuckerman on Civil Procedure, 2nd edition (2006), chapter 17. In our view, for the reasons stated earlier, it does also appear that Parliament legislated on that understanding of the Strasbourg jurisprudence.

In Malik the court went on to say that ‘in view of the uncertain state of the law’ the preferred approach for a Circuit Judge to adopt (at any rate until the House of Lords has resolved the appeal in C Plc) is:

…to treat the privilege against self-incrimination as an important factor to be taken into account when exercising the discretion in respect of pre-existing documents ([78]).

With great respect we do not believe, particularly in the light of R v. S(F), a decision of the Court of Appeal after Malik, that the law is uncertain as to the proper extent of the privilege against self-incrimination at common law: the privilege, on the best view of existing and binding authority, as well as in accordance with principle and policy, does not apply to ‘independent’ documents. On that basis, no question of the exercise of judicial discretion would arise. To state the obvious, Judge Spencer QC could not lawfully decide that a person should be relieved of a statutory obligation to produce material on the ground of a common law principle against self-incrimination that had no application at all to the kind of documents which were sought by the order.

For completeness, we would add that we were not impressed by the argument that, if an exercise of discretion had been called for, the Judge in this case exercised his discretion unlawfully. The fact is that River East did not advance before the Circuit Judge any developed case that, having regard to specifically identified circumstances and considerations, he should decline to make the order. Dyson LJ in Malik emphasised that if a claimant wanted to rely on the privilege against self-incrimination it was incumbent on him to raise that issue before the judge, see [70]. In the present context, if reliance on the exercise of discretion was to be invoked, an issue must be raised specifically identifying what are alleged to be the relevant circumstances and considerations. In default of such a presentation before the Judge, it would be wrong for this Court to determine, on a claim for judicial review, that the Judge erred in law by making the order that he did.

In any event we are far from satisfied, on the material that we have seen, that, taking account of the factors set out by Dyson LJ at [79]-[94] of Malik, any putative discretion could lawfully have been exercised in the Claimant’s favour.

Finally, on this aspect, we might express some reservations regarding the desirability of a discretion of the nature under consideration.

In this branch of the law there is a recognised, overarching necessity, grounded in public policy, not only for fairness, but importantly for simplicity, expedition and efficiency (see earlier in this judgment). It seems to us at first sight that the existence of a discretion of the kind envisaged could well put at risk the achievement of these important public policy objectives. On a contested application the Circuit Judge would be likely to be confronted with rival contentions, supported by potentially voluminous material and legal authority, and might well have to immerse himself in the merits of the underlying criminal investigation or enquiry to an extent that Parliament was unlikely to have intended. This would also have serious cost and resource implications and the potential for unacceptable delay is obvious. That is even without having regard to the potential for judicial review claims in this Court.

It is perhaps also relevant to mention legal certainty. One of the advantages of the common law privilege against self-incrimination (whether or not including ‘independent’ material) is that it is a relatively clear ‘bright line’ rule that is comparatively easy for citizens, their legal advisers and judges both to understand and to apply to the circumstances of a particular case. At the margin there is of course scope for contention, for example, whether on our understanding of the scope of the privilege, a document or thing should be considered ‘independent’. However, the scope for serious dispute is limited. If there were a discretion of the kind under consideration, and the exercise of that discretion turned upon the matrix of complex factors set out in Malik, the legal position would pose a real challenge to the confident prediction of the outcome, and the results themselves might be difficult to reconcile, creating charges of inconsistency and unfairness.

We stress that these final observations represent only our preliminary thoughts on this issue. We heard no detailed argument and we have not found it necessary to give any definitive view.

It is useful to draw together our conclusions as follows:

For the reasons set out above, we dismiss River East’s claim.