Otl v P

The issue with which this judgment is concerned arises from an application in an action in which OTL makes claims against P for breach of confidence and copyright infringement. As will be seen, however, the resolution of that issue has no significant bearing on the resolution of that action but nonetheless must be determined and raises important points of principle and procedure. As a result of co-operation between the parties it has been possible to produce a statement of relevant facts, substantially agreed, a copy of which I append to this judgment. To the extent that the parties have not been able to agree what actually occurred, which disagreements are identified in the text of the statement, I was satisfied that they did not affect the issues which I have to resolve and accordingly it was not necessary for me to embark on any fact finding process.

The relevant background facts may be briefly summarised in this way. On the 10^th October 2005 Mr Justice Peter Smith made a search order in these proceedings, on the application of the Claimant, of premises in the occupation of P. Later in this judgment I will set out the material provisions of the order which he made. Before the order was executed P obtained the advice of a solicitor who attended at the premises. That solicitor advised the parties and the Supervising Solicitor appointed pursuant to the order, that P would rely on his Privilege Against Self Incrimination (“PSI”) in respect of any material which the search disclosed. Subject to that indication, however, P permitted the search to take place. In the course of the search a number of computers and their associated electronic equipment were disclosed which the order required P to permit to be “imaged” so that information recorded on those computers which belonged to OTL could be identified. By reason of P’s invoking the protection of his PSI in respect of material produced by the search, the computers were placed in the custody of the Supervising Solicitor who passed them to W, appointed by the order as independent computer expert, for the purpose of imaging their contents. In the course of doing so W uncovered highly objectionable images of children (“the offending material”) recorded on one of them. It is an offence to be found in possession of such material. W is a retired police officer who, in the course of his police service, was a computer expert who, from time to time, was concerned in prosecutions for such offences. Offences of this type are graded in seriousness by reference to numerals 1 – 5, 5 being the most serious. It was W’s view that the offending material should be classified for seriousness as grade 4.

The matter first came before me as Applications Judge on the 2^nd February 2006 on the application of W, seeking directions from the court as to what he should do with the offending material which has been left in his possession. As a result of that hearing I made an order that W should retain it pending further order. I directed that P should be notified that I was considering whether I should direct that the offending material be passed to the police indicating, that if he objected to that course, I would give him an opportunity to make submissions to me as to why I should not do so. In due course P’s solicitors gave notice that he wished to take advantage of that opportunity. Because of the important issues raised I sought the assistance of an Advocate to the Court through the good offices of the Attorney General. Mr Caddick was appointed for that purpose instructed by the Treasury Solicitor. The matter returned before me on the 24^th March at a hearing attended by solicitors and counsel for P and by Mr Caddick at which I gave directions for a full hearing. Those directions included an approach to the Home Office with a view to the full hearing being attended by a representative of the prosecuting authorities. In due course Mr Milne, instructed by the Treasury Solicitor, was appointed to appear for the Secretary of State at that hearing which took place on the 11^th and 12^th April when Mr Casement appeared for P instructed by his solicitors. Prior to the hearings, OTL indicated that it wished to play no part in these proceedings, in the result of which it had no interest, but it has assisted, through its representatives, in the preparation of the statement of facts. W, who also assisted in the preparation of that statement, has played no active part in the proceedings but retains the offending material as a result of my order.

It is important to emphasise at the outset that P does not accept that he was responsible for the presence of the offending material on one of the computers produced as a result of the search and 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.

I return to the order of Mr Justice Peter Smith of the 10^th October 2005 which set in train the events with which this application is concerned. That order, having made provision for the search and appointed the Supervising Solicitor and the Independent Computer Specialist represented by W, under the heading “restrictions on search”, provided at paragraph 9 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 and a notification that it was made without notice to the defendant who had a right to apply to the court to vary or discharge the order.

On the 23^rd February 2005 Mr Justice Lindsay gave judgment in the case of O Ltd v Z [2005] EWHC 238. The facts of that case mirror almost precisely the facts of the present case save in the following important respects:-

In arriving at my conclusions in this case I have the benefit of the judgment of Mr Justice Lindsay in the O Ltd case in which, on substantially similar facts to the present case and where the issue was the same, he set out a comprehensive review of the relevant statutory provisions and the authorities. This relieves me of the task of attempting to do the same. Between paragraphs 25 and 53 inclusive of that judgment Mr Justice Lindsay sets out the relevant criminal legislation, the statutory provisions as to search orders and the authorities giving guidance on their use, article 6 and 8 of the European Convention on Human Rights and Freedoms and relevant authorities, and the cases which define the Privilege Against Self Incrimination in English common law and how that privilege is to be applied. I gratefully adopt these passages in Mr Justice Lindsay’s judgment. So that this judgment is comprehensible I repeat the following matters which Mr Justice Lindsay sets out in much greater detail:-

At paragraph 64 of his judgment Mr Justice Lindsay having reviewed various authorities concludes:-

“64

The better view of the authorities, taken as a whole and, again, as can be harsh on some facts, is that whether he knows of the privilege and whether or not it is mentioned or explained to him, he will be taken to have lost the privilege if he is not heard to claim it before (as the case might be) he answers the questions or produces the documents in issue.

65

But that, in this case, raises the question: produces the documents to whom? The Order here, as I have already mentioned in paragraph 8 (v) above, contemplated it being open to Z to gather together documents he believed to be privileged and for him to hand them to the Supervising Solicitor for him to assess whether they were privileged or not. If the Supervising Solicitor was in doubt, he was to exclude them from the Search and retain them in his possession pending further order of the Court. I have already referred also to undertakings given by the Expert. An argument can surely be raised that supply of documents to a Supervising Solicitor or to a person in the position of the Expert should not represent a loss of privilege.”

The judge, however, proceeded, on the authority, primarily, of the decision of the Court of Appeal in Den Norske Bank SA –v- Antonatos [1999] Q.B. 271, to conclude at paragraph 67:-

“… I thus take myself to be bound to hold that delivery to the Supervising Solicitor of the offensive material without any prior claim to the privilege would have caused Z to lose the privilege against self-incrimination.

68

If, therefore, supply of a document to a supervising solicitor can represent a loss of the privilege, at any rate if it is not then expressly claimed then, if anything, supply to the Expert was even more likely to cause a loss of the privilege as the Expert was not described in the Order as a repository for documents in respect of which privilege might be claimable and, for all that the Expert gave undertakings, the Expert's basic position was that of an expert whose services were to be paid for by the Claimants and who, rightly, feared that either possessing the offensive material or handing it back to Z could involve the commission of a crime. The Expert, even more than the Supervising Solicitor, who was at least contemplated by the Order as a proper retainer of documents, was a person who was likely to wish to pass the material on to some other.

69

Let it be supposed, though, that I am not bound by the Den Norske view and that I was thus free to adopt the earlier reasoning of Wilcox J in Warman International Ltd and Others –v- Envirotech Australia Pty Ltd and Others (1986) 57 ALR 253 at 266 where he said, of a prospective production of documents under a subpoena:-

“Production is to the Court. Unless and until the contents of the documents is made known to a person who is reasonably likely to use those documents for the purpose of a criminal prosecution, no self-incrimination can occur.””

Mr Justice Lindsay points to the fact that in the Warman case, as in the present case, a claim to PSI had been made before the subpoena was worked through.

Then resuming later in paragraph 69 Mr Justice Lindsay says this:-

“… Indeed [counsel for the Home Office] does not need to go as far as to say and does not say that the privilege was necessarily lost on the supply of the offensive material to the Expert; it was lost on the supply to the Expert without any prior or simultaneous claim to the privilege being asserted.

70

…The privilege, I hold, was lost by way of an objective look at Z’s behaviour; he handed the offensive material to the third party without claiming the privilege.”

I gratefully adopt Mr Justice Lindsay’s approach to the question of loss of PSI illustrated by the passages which I have quoted from his judgment in the O Ltd case. In the present case, of course, a claim to PSI was made before the search even started.

It was submitted to me that P had a choice whether to allow the search to proceed after his solicitor had notified those present that he was relying on PSI. 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 is submitted that P lost his PSI protection. I cannot accept this submission. 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 PSI was not lost.

The directions order of Mr Justice Mann was made with the evident intention of providing a means whereby the contents of the various computer discs, produced as a result of the search, could be imaged and analysed in the possession of the computer expert without the suspect losing the benefit of PSI which he had claimed. It must be possible to preserve PSI in respect of part of the material produced on a search which appears to have been what was sought to be achieved by this order.

It seems to me that there is everything to be said for a system for the enforcement of search orders, in which the supervising solicitor and computer expert (if any) appointed by the court act as a neutral repository for documents in which the respondent to the order can place material in respect of which he claims privilege without losing, in the case of PSI, the benefit of such privilege.

I come to this conclusion in the absence of any authority directly on the point and notwithstanding, as was held in the Den Norske ASA v Antonatos [1999] Q.B. 271case by the Court of Appeal, that putting material in respect of which PSI was claimed in the hands of the supervising solicitor or computer expert would be no protection against a demand to deliver up the material to the prosecuting authorities on warrant should they become aware of its existence. I do not read the passages cited at paragraph 67 of Lindsay J’s judgement in the O Ltd case from the judgments in the Den Norske case as a finding that delivery of potentially incriminating material to a Supervising Solicitor under a search order, without more, is sufficient to result in the loss of PSI. In agreement with the submissions of Mr Casement for P, I take the view that delivery up of potentially privileged material in those circumstances amounts to a delivery up to the court under compulsion of the search order, through officers or agents of the court, who have undertaken to preserve the confidentiality of that material. It seems to me that to find otherwise would mean that the court’s order which invited P to gather together material, which he claimed to be privileged from production, and to hand it to the supervising solicitor for the purpose of adjudicating whether that was so, has operated as a trap by falling into which P has lost the benefit of his claim to PSI.

It was submitted by Mr Caddick, as advocate to the court, that a suspect might lose his privilege by disclosure to the judge of the incriminating material even though that judge was in the process of deciding whether the suspect was entitled to PSI in respect of it. He did this on the authority of a passage in the judgment of Lord Bingham in Downie v Coe (the Times 28^th November 1997) in turn citing a passage in the judgment of Lord Denning in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC at page 574. I cannot accept this submission and do not think that the quotations have such effect.

As appears from the judgment of Mr Justice Lindsay in the O Ltd case at paragraph 59, and authority there cited, a court is not bound without more, by a claim to PSI by a party to litigation, see inter alia Triplex Glass Co v Lancegaye [1939] 2 KB 395 at 403. He must claim it by sworn evidence, see the Downie case itself, and that evidence must demonstrate a risk that the party’s PSI will be infringed by his being compelled to answer a particular question or produce material relevant to the particular litigation in progress. It seems to me that it will be almost inevitable that the judge, in the course of deciding whether the claim to PSI is made out, will acquire a good idea of the nature of the material sought to be disclosed and of the offence in respect of which that material may constitute evidence. It seems to me impracticable, and fundamentally unjust, that it should be possible to contend that, because the courts enquiry had proceeded beyond a certain point, the party whose claim to PSI was being enquired into should have lost its benefit. It must be borne in mind that a judge, conducting such an enquiry will usually do so sitting in camera and would be subject to the same duty to keep any information acquired confidential in the same way as any other of the court’s officers. In my view Lord Bingham and Lord Denning in the Downie and Rio Tinto cases, must have been speaking of the risk that the judge’s investigation of the possibility of an offence might indirectly bring that possibility to the attention of the prosecuting authorities.

In the present case it is accepted that “an objective look” at P’s behaviour shows that the offensive material has never passed out of the hands of either the Supervising Solicitor or the Computer Expert to any “person who is reasonably likely to use those documents for the purpose of a criminal prosecution”, within the words quoted from Wilcox J’s judgment in the Warman case, which, in my view, would include a person “who was likely to wish topass the material on to some other” see O Ltd at paragraph 68.

Mr Caddick also submitted to me that it was arguable that P had not effectively claimed PSI because the claim was made generally and not directed at particular material and because it was not supported by sworn evidence. I do not accept either of these submissions. I can see no reason why a claim to PSI should not be made in respect of all the material produced as a result of the execution of a search order and I can see considerable dangers in requiring a party claiming PSI to be specific as to where, amongst the material produced as a result of the order, the incriminating material is to be found. See per Lord Bingham in the Downie case where he says “it is quite plain that the Claimant does not have to give chapter and verse to show why disclosure or the answering of the question or interrogatory might incriminate him … to require him to do that might expose him to the very peril which the privilege exists to protect him”. In agreement with the submissions of Mr Casement it seems to me that the requirement is that the suspect give evidence upon oath, that he believes himself to be at risk of incrimination, when the matter is brought before a judge to determine whether that is in fact the case. In the present case P applied on the day of the search to vary the search order and gave a witness statement in support of that application, accompanied by a statement of truth two days later.

For these reasons and subject to the point with which I will shortly deal, I would hold that P effectively claimed PSI in respect of the material to be produced as a result of the execution of the search order, before the search started, and an objective consideration of the events occurring after the execution of that order does not result in the conclusion that he lost the benefit of it.

The point to which I now turn is directed, not to the existence of a right to PSI and its enforcement, but rather to what materials that right extends. In particular, whereas it is accepted that PSI applies to the oral statements of a suspect made under compulsion and to written material brought into existence by him, under compulsion, which tends to incriminate him, does it extend to material which constitutes freestanding evidence not brought into existence by him under compulsion and which could have come to public notice otherwise than as the result of the exercise of some statutory power to require disclosure enforceable by a court? The offending material in the present case is a good example of material of the latter type. It is the Attorney General’s submission that the IEA is available to me notwithstanding the earlier authorities such as the Rank Film case because, after the coming into force of the Human Rights Act 1998 on the 2^nd October 2000, it is open to a court to “modify” the ambit of the application of Domestic PSI so that it does not apply to such material.

To describe how this point emerged it is necessary to return to the history of the proceedings themselves. In his skeleton argument submitted for the purposes of the hearing on the 11^th and 12^th of April Mr Milne, for the Secretary of State, brought to my attention certain recent decisions, of the Court of Appeal in criminal cases, in which the issue was whether certain statutory powers to require a party to answer questions or produce documents, which subsequently came to be used in the prosecution of that party for an offence, constituted a breach of his right to a fair trial under Article 6 of the European Convention of Human Rights and Freedoms (“the Convention”). In the course of the hearing on the 11^th and 12^th April I put to counsel, that since under Article 6 jurisprudence it appeared that PSI did not apply to self standing evidence not created by the Respondent under compulsion, it could be successfully contended that PSI did not apply to such evidence where it was considering the application of Domestic PSI where the point arose in the course of the disclosure of documents in a civil action where no charge had been brought against the Respondent and, in consequence, Article 6 was not engaged. Because counsel were not ready fully to deal with this point, at the close of submissions I stood over judgment to give them an opportunity to make written submissions on the point after further research of the authorities. During that intermission, having been alerted by the Treasury Solicitor, the Attorney General intervened in place of the Secretary of State and submitted, through Mr David Perry, his own written submissions in support of the conclusion the possibility of which I had suggested. Mr Perry subsequently extended those submissions at my instigation.

The Attorney General’s submissions were circulated by him to the other parties for their comments in particular those of Mr Casement for P. At the hearing on the 11^th and 12^th of April Mr Casement appeared for P on legal aid. Most unfortunately, shortly after the hearing, P lost his legal aid certificate and has indicated that, although he no longer qualifies for legal aid, he is unable to afford legal representation. Notwithstanding this Mr Casement, in the best traditions of the Bar, has supplemented the very helpful submissions he made at the hearing with further written submissions, Pro-Bono, commenting on those of the Attorney General. I am very grateful to him. It is to be hoped that, if this matter goes further, it may be possible, by some means, to make financial provision so that P can be legally represented at any appeal.

The application of Domestic PSI to disclosure of documents and other material evidence in civil proceedings has been much criticised in decisions of the courts up to and including the House of Lords see, inter alia, the passage from the judgment of Lord Wilberforce in the Rank Film Distributors case which I have quoted above. Those criticisms are well summarised by Mr Adrian Zuckerman in his textbook on Civil Procedure (2003) starting at paragraph 17.8 as follows:-

“17.8

Although the law concerning intellectual property claims has been changed, as we shall presently see, the fact remains that the privilege against self-incrimination applies to documents and that it therefore tends to impede access to documents where the infringement of rights is of the most serious kind. Since the application of the privilege to civil litigation makes it difficult for victims of fraud and other crimes to obtain vindication, it is not surprising to find that the courts have expressed reservations about its operation in civil proceedings.

17.9

There are several reasons for suggestingthat the application of the privilege to the disclosure procedure is anachronistic and should be revised. First, production and disclosure are testimonial obligations only in a technical sense, because the evidential significance of pre-existing documents does not turn on what the person producing or disclosing them now says but on what they say for themselves. Indeed, where documents incriminating a defendant can, for example, be obtained without the defendant's assistance, they are perfectly admissible. Second, the privilege's rationale has no application to disclosure proceedings. Lord Templeman placed the contemporary justification for the privilege against self-incrimination in AT&T Istel Ltd v Tully on the basis that ‘it discourages ill-treatment of a suspect and second that it discourages the production of dubious confessions’." He observed that these considerations are of no relevance to civil proceedings. In the same case Lord Griffiths said:

“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.”

17.11

The application of the privilege to civil search orders is even more difficult to justify because it verges on the absurd. Suppose that the defendant has been running a fraudulent business using fraudulent invoices and accounts. The documents would be immune from disclosure and from seizure under a civil search order because they may assist the defendant's conviction for fraud. Yet, in criminal proceedings, a criminal search order can be obtained to seize evidence of fraudulent practice. Against a criminal search order the defendant has no privilege against self-incrimination because the execution of a criminal search order authorises the police to enter, search and seize without the suspect's consent and, therefore, imposes no testimonial obligation on the suspect. It would therefore appear that while the defendant is immune from a civil search order, lest incriminating documents be found which could later be used in criminal proceedings, he has no immunity in criminal proceedings from the forcible seizure of the same documents which, once in the hands of the police, would be admissible in evidence at the defendant's criminal trial.”

Then at paragraph 17.12 having pointed out that “Human rights jurisprudence offers little support for the application of the privilege to disclosure obligations”, Mr Zuckerman continues:-

“17.12

…It seems that the ECtHR does not view the disclosure and production of documents as coming under the privilege against self-incrimination. This was recognised by the Court of Appeal in A-G’s Reference (No 7 of 2000), where it was held that a legitimate objection may be made to evidence that a defendant has been forced to create by the use of compulsory powers. But if the evidence was already in existence and the only effect of the use of the compulsory powers was to bring such evidence to the attention of the court, then its production is consistent with the right to fair trial, because the existence and quality of such evidence are independent of any order to produce it that is made against the will of the accused person. Therefore the production of such pre-existing and “independent” evidence could not render a trial unfair and so breach art 6.

17.13

The courts have periodically urged Parliament to limit the effect of the privilege against self-incrimination in civil litigation. Judges have suggested legislation removing the excuse of self-incrimination from disclosure in civil proceedings, while at the same time rendering inadmissible in criminal proceedings self-incriminating information produced in civil disclosure. Unfortunately, there has been no legislative response to these recommendations. It would not be difficult, however, for the courts themselves to step into the breach. It should be explicitly held that since production of documents no longer involves any real testimonial obligation, the privilege does not apply to pre-existing documents. Essentially, this is already the position following A-G’s Reference (No 7 of 2000), mentioned above, which has been reaffirmed in [RV] Kearns.”

In Attorney General’s reference (No 7 of 2000) [2001] 1 WLR 1879 the issue referred to the Court of Appeal was “does 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 (the 1986 Act) of documents which (a) were delivered up to the Official Receiver under compulsion (pursuant to the duty imposed on the bankrupt by section 291 of the 1986 Act, which is backed by the contempt sanction in section 291(6) of the 1986 Act) and (b) do not contain statements made by the bankrupt under compulsion violate the bankrupt’s rights under Article 6 of the European Convention on Human Rights…?”

In that case a bankrupt had been charged with an offence under section 289 (a) of the Insolvency Act with materially contributing to his insolvency by gambling. Evidence of his gambling was to be found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs produced by Ladbrokes and a bookmaker’s schedule of gambling transactions. The bankrupt had not contributed himself to any of these documents. He was required to produce these documents to the Official Receiver under the provisions of section 291 of the Insolvency Act which carried with it the sanction of proceedings for contempt of court punishable with up to two years imprisonment under sub-section (6) of that section. He handed them over. The bankrupt successfully applied to the trial charge for a ruling that the documents were inadmissible because their admission would give rise to a violation of Article 6. The judge further ruled that their admission would not be fair and excluded them under section 78 of the Police and Criminal Evidence Act 1984. In consequence the judge directed a verdict of not guilty to be entered. The Court of Appeal disapproved the order of the judge and returned a negative answer to the question which had been posed.

The leading judgment of the Court of Appeal was given by Lord Justice Rose. At paragraph 34 he cites two paragraphs, 68 and 69 from the judgment of the European Court of Human Rights in Saunders v United Kingdom [1996] 23 EHRR 313. That case was concerned with the admissibility of evidence obtained from Mr Saunders under compulsory powers contained in the Companies Act 1985 relating to DTI enquiries. The passages cited read as follows:-

“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.”

At paragraph 36 Lord Justice Rose cites the following passage from the judgment of the European Court of Human Rights in L v United Kingdom [2000] 2 FLR 322 at page 331D:-

“As held in Saunders v. United Kingdom ... the right not to incriminate oneself is primarily concerned with respecting the will of the accused person to remain silent and does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers and which has an existence independent of the will of the accused (e.g. documents, breath, blood, urine and tissue samples).”

At paragraph 37 Lord Justice Rose notes that a case in the Supreme Court of Canada Thompson Newspapers Ltd v Director of Investigation and Research (1990) 54 CCC 417 was cited in the Saunders case and he quotes extensively from the judgment of Justice La Forest at page 508 in that case. I set out below a passage from that quotation as follows:-

“there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could have been obtained only from the accused.

By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the ‘clues’ provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been."

38 Then just below e:

“... the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.

The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused."

39 At page 510c he said:

“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? 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.”

40 At page 518d Justice La Forest said:

“In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, 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 conclusion of the court is at paragraphs 57 to 59:-

“57

In our judgment, the answer to the question posed by the Attorney General is “No”. We say that for a number of reasons. First, there is no doubt, and indeed it is not disputed before this court, 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 different statutory contexts, made inroads upon that privilege.

58

So far as the English courts are concerned, there is, as it seems to us, no doubt that the documents to which we have referred would be regarded as admissible as a matter of law, subject of course to the trial judge's discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984.

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 European Court of Human Rights's judgment in Saunders’s case 23 EHRR 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 Thomson Newspapers case 67 DLR (4th) 161 which, via reference to the South African constitutional court's decision in Ferreira v Levin 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.”

The effect of these quotations from Justice La Forest’s judgment may be summarised thus: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, evidence which exists independently of the compelled statements could have been found by other means and its quality does not depend on its past connection with the compelled statement. Accordingly evidence of the latter type is in no sense “testimonial” and PSI ought not to attach to it.

In R v Kearns [2002] 1 WLR 2815 the Court of Appeal was considering a prosecution under section 354 (3) (a) of the Insolvency Act 1986 for failing without reasonable excuse to account for the loss of a sum of money being part of his property. It was argued at his trial that the sub-section constituted a contravention of the appellant’s right to a fair trial under Article 6 because it forced the appellant to give information to the Official Receiver, and if he failed to do so an offence was automatically committed. The section thus breached the appellant’s right amongst others against self incrimination. The Court of Appeal dismissed the appeal.

The leading judgment was given by Mr Justice Aikens. At paragraph 48 and following he makes reference to the case of Attorney General’s reference No 7. At paragraph 51 and 52 the judge analyses that decision, so far as relevant, in this way:-

“… The court came to the conclusion that the Saunders case, at paras 68 and 69, recognised a distinction between a statement of a defendant that had been made under compulsion and the production of pre-existing documents or other evidence under compulsory powers.

52

The court concluded (in paragraph 59) that this distinction was valid, jurisprudentially sound and should be followed. In the court's view legitimate objection might be made to evidence that a defendant had been forced to create by the use of compulsory powers. However if the evidence was already in existence and the only effect of the use of the compulsory powers was to bring such evidence to the attention of the court, then its production could not be so objectionable. That is because the existence and quality of such evidence are independent of any order to produce it that is made against the will of the accused person. Therefore the production of such pre-existing and “independent” evidence could not render a trial unfair and so breach article 6.”

As part of the Court’s conclusions the judge continues at paragraph 53 (4):-

“(4)

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.”

At paragraph 47 of his judgment Mr Justice Aikens noted a passage from the speech of Lord Hoffmann in the Hertfordshire County Council case at page 425 where he points out and approves a distinction drawn by the European Court of Justice in the case of Orkem v The Commission, between questions backed by compulsion but directed to factual information only, the answers to which were admissible, and questions “which were an attempt to force” Orkem to admit that it had taken part in price fixing, the answers to which were not.

In R v Hundal and Dhaliwal [2004] EWCA Crim 389 the Court of Appeal was considering a prosecution under section 11 of the Terrorism Act 2000 against two individuals who were said to be members of a proscribed organisation. Their car was searched at Dover under compulsory powers contained in paragraph 2 of schedule 7 of the Terrorism Act 2000 and incriminating material relevant to the charges was found. That material consisted of various documents, including an international Sikh Federation Membership card, a rubber stamp, headed notepaper, a 1996 diary, and a newspaper article relating to the ISYF. The Court of Appeal dismissing the appeal and following the Kearns case and Saunders case approved the passage at paragraph 53 in the judgment of Mr Justice Aikens in the Kearns case which I have quoted above.

It has to be accepted, as submitted by Mr Casement that none of the cases of Attorney General’s reference No 7,Kearns or Hundal were directly concerned with the application of Domestic PSI. They were each concerned with the admissibility in criminal proceedings of evidence gathered as a result of the exercise of compulsory powers granted by a statute the relevant provisions of which are to be construed as expressly or by implication derogating from the privilege. They were each concerned with whether the relevant statutory provisions offended Article 6 and the concept of PSI, which I will call “European PSI”, acknowledged as forming part of the rights comprised in Article 6 but which appears to have a more limited application than Domestic PSI. However it seems to me that in each case the court was concerned with the question of whether the statutory compulsory powers to gather evidence were proportionate to the social or economic problem with which the measure in question was intended to deal. In each case the fact that the court, following the Saunders case, could hold that the privilege did not apply to material comprising self standing evidence not brought into existence as a result of the exercise of compulsory powers, was an important factor in the decision of the court that the relevant legislation was Human Rights compliant.

The decision of the Court of Appeal in Attorney General’s reference No 7 is much more broadly expressed than in the other two cases which are more narrowly focussed on the compatibility of the statute giving compulsory powers to gather evidence, with Article 6. At paragraph 17.13 in the passage from his book which I have quoted above Mr Zuckerman appears to be expressing the view that this decision is authority for the proposition that Domestic PSI does not apply to self standing evidence. With respect I doubt that that can be the case in the light of the earlier decisions of the House of Lords in Rank and in AT & T Istel Ltd v Tully [1993] AC 45 a case which I will deal with in greater detail hereafter. The Rank case was cited in Attorney General’s reference No 7 but it was not mentioned in the judgments. The judgment does not chart a path as to how the authority of those cases, so far as the application of Domestic PSI is concerned, can be avoided. The IEA was available to the Court of Appeal who gave judgment on the 29^th March 2001 but the point does not seem to have been taken.

It was submitted by Mr Casement that it was a distinguishing feature of the ruling that PSI does not apply to self standing evidence that the authorities in which it appears are confined to criminal cases where the relevant statute either expressly or by implication derogates from PSI. I am unable to accept this submission. I can see no logic in the contention that a civil court, in applying PSI to materials produced in the course of disclosure should give it a wider ambit than the criminal court which would try the case in which that material would be evidence. It is also inconsistent with those authorities in which it has been held that PSI does not apply in cases where the court can be satisfied that disclosure of the relevant material will not in any way worsen the position of the party compelled to disclose it, see the AT & T Istel case.

In the absence of binding authority, and this area of the law is evidently replete with authority up to the highest level, I would adopt the approach of the Court of Appeal in Attorney General’s reference No 7 to the application of Domestic PSI and so confine its application to testimonial evidence, oral and written, and exclude it from application to self standing evidence not produced under compulsion. I would do so for the reasons set out in the judgment of Lord Justice Rose in that case in turn based on the reasons given by Mr Justice La Forest in the Canadian Supreme Court in the Thompson Newspaper case.

The question then becomes whether, in the present position of the authorities, I am able myself to direct that the offending material be passed by W to the police as I am urged to by Mr. Zuckerman and by the written submissions of the Attorney General. Mr. Zuckerman suggests that I am able to do this relying on the authority of Attorney General’s reference No 7 and R v Kearns. I have already expressed my doubts that this is possible. I turn therefore to the Attorney General’s submissions which, on this aspect of the case are to be found in the second set of written submissions, submitted by Mr Perry on behalf of the Attorney General. The effect of those submissions is summarised at paragraph 2.2 as follows:-

“(i)

Since the decisions of the House of Lords, such as AT & T Istel v Tully (supra), there have been three significant developments in English law. First, the enactment of the Human Rights Act 1998 (‘the 1998 Act’). Secondly, the decision of the Privy Council in Brown v Stott [2003] 1 AC 681. Thirdly, the decision of the Court of Appeal in Attorney General’s Reference no. 7 of 2000 [2001] 1 WLR 1879. The significance of these three matters is that the content of the privilege against self-incrimination has been subject to detailed scrutiny in the latter two cases, and in accordance with the decision in Saunders v United Kingdom (1996) 23 EHRR 313 it has been held that the privilege against self-incrimination in criminal proceedings does not apply to pre-existing documents. Since the privilege is an implied right under the Convention it is necessary to balance the rights and interests of others when considering the precise scope of its application. In this connection it is significant to note that the privilege against self-incrimination as guaranteed by Article 6 of the Convention applies as an implied right in both criminal and civil proceedings.

(ii)

The distinction that now exists between civil and criminal proceedings is, as Zuckerman notes, indefensible and absurd.

(iii)

The modification for which the Attorney General contends would conform to the requirements of the Convention in that it would properly strike a balance between the rights of the person asserting the privilege on the one hand and the rights and freedoms of others as guaranteed by the Convention, particularly the victims of crime, on the other. It would also reflect the point made by Zuckerman that the privilege as it applies to civil proceedings, properly understood, is a testimonial privilege which protected pre-existing documents because such documents were ordinarily produced pursuant to a subpoena duces tecum (literally, “under penalty, bring with you”, viz. to court…), the point being that the witness was in jeopardy of a penalty for failing to comply if he failed to appear and bring the specified documents or records. The situation of a witness is quite distinct from that of a person found to be in possession of incriminating material.

(iv)

So far as the rights and freedoms of others are concerned, the position under the Convention is that positive obligations may be imposed on the state so as to protect the Convention rights of those who may be affected by criminal conduct.

(v)

Thus the modification to the privilege against self-incrimination for which the Attorney General contends would not infringe the rights of a potential defendant in criminal proceedings to a fair trial under Article 6 of the Convention and it would also properly take into account the rights and freedoms of others.”

As noted by Mr Casement in his comments on Mr Perry’s first set of submissions, he starts by accepting that as the law stood up to the coming into force of the Human Rights Act 1998 IEA was contrary to authority and, secondly, that, as illustrated by the passage from the judgement in the Saunders case which I have set out above, Domestic PSI had a wider ambit than European PSI in the sense that it applied to any evidential material produced by a party to civil litigation under compulsion including self standing evidence not the product of that party’s intention. It is the fundamental submission of the Attorney General that it is now open to the court by its judgment to “modify” the ambit of Domestic PSI so as to make it accord with European PSI. It is open to the court to do this, indeed, as a public authority, it is under a duty to do this, because of a positive obligation on States as parties to the Convention to have regard to the wider interest of the public, in particular, to the public’s right to be protected by the State from the effects of crime by an efficient criminal justice system. Those public rights fall to be balanced by the court against the right of P to a fair trial under Article 6 should the emergence of the offending material into public knowledge, including the knowledge of the police, lead to his prosecution. The result would be that Domestic PSI would be limited so as to permit the court to direct that the offending material to be handed over to the police and P be left to rely on section 78 of the Police and Criminal Evidence Act 1984 to protect him from any perceived unfairness at trial.

It seems clear from the authorities cited by Mr Perry that the Convention, in appropriate circumstances, operates to impose on the authorities of signatory States a positive obligation to ensure, by appropriate measures, that the public are able to enjoy their Convention rights freely and in safety. Thus in Osman v The United Kingdom the Human Rights Court (“the HRC”) was considering a case where one of two applicants was wounded in a shooting incident which resulted in the death of his father, the husband of the other applicant. They claimed compensation for the state’s failure to protect the life of the second applicant and his father and to prevent harassment of their family under Article 2 the right to life. The material part of the HRC’s judgment reads as follows:-

“(b)… The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. [115]…

(d)

Where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their abovementioned duty to prevent and suppress offences against the person, it must be established to the Court’s satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

In Z v United Kingdom [2001] ECHR 29392/95 the HRC was considering a case where, over a number of years parents had ill-treated their 4 children and kept them in a state of utter degradation. The proceedings were brought under Article 3, the right not to be subjected to inhuman and degrading treatment. The report reads at paragraph 69 and following as follows:-

“I. Alleged violation of Article 3 of the Convention

69.

The applicants alleged that the local authority had failed to protect them from inhuman and degrading treatment contrary to Article 3 of the Convention which provides:

 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

70.

The Commission in its report found unanimously that there had been a violation of Article 3 of the Convention. It considered that there was a positive obligation on the Government to protect children from treatment contrary to this provision. The authorities had been aware of the serious ill-treatment and neglect suffered by the four children over a period of years at the hands of their parents and failed, despite the means reasonably available to them, to take any effective steps to bring it to an end.

71.

The applicants requested the Court to confirm this finding of a violation.

72.

The Government did not contest the Commission’s finding that the treatment suffered by the four applicants reached the level of severity prohibited by Article 3 and that the State failed in its positive obligation under Article 3 of the Convention to provide the applicants with adequate protection against inhuman and degrading treatment.

73.

The Court re-iterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A v the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, para 22). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge”

In X and Y v The Netherlands [1986] 8 EHRR 235 the HRC was dealing with a case where a parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested the court to direct that proceedings be brought. The appeal was dismissed partly on the ground that although the girl was incapable of making the complaint herself, no one else was entitled to complain on her behalf. Amongst other Articles the claim was brought under Article 8 the right to private and family life. The HRC held that there had been a violation of Article 8 because no prosecution could be instituted for a sexual assault upon the mentally handicapped applicant because of a “procedural obstacle which the Dutch legislature had apparently not foreseen”, that obstacle being the Dutch law provision which meant that, although the applicant was unable herself to present her case in court due to her mental handicap no one else was entitled to complain on her behalf. At paragraph 27 the report reads:-

“27.

The Court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated.”

In the very recent case in the House of Lords of Leeds City Council v Price and Ors as yet unreported but in respect of which the decision was handed down on the 8^th March 2006, the respondents to the appeal are recorded in the speech of Lord Bingham at paragraph 32 as placing reliance on three principles which guide the Strasbourg Authorities in their administration of the Convention. The first two are not relevant for the purposes of this judgment. The third principle is described by Lord Bingham as follows:-

“So too is the third principle, that inherent in the whole of the Convention is a search for balance between the rights of the individual and the wider rights of the society to which he belongs, neither enjoying an absolute right to prevail over the other. It is unnecessary to cite authority for propositions so well established and understood. ”

An example of this balancing process is to be found in the decision of the Judicial Committee of the Privy Council in Brown v Stott [2003] 1 AC p 861. In that case the Judicial Committee were considering a case where a motor car had been driven by a driver under the influence of alcohol above the legal limit. At the driver’s trial for the relevant offence evidence was introduced of an admission by the defendant that he had been driving the vehicle at the relevant time as a result of the exercise of compulsory powers under section 172 (2)(a) of the Road Traffic Act 1988. The defendant argued that it was contrary to Article 6(1) of the Convention for the prosecution to rely on an admission obtained under compulsory powers and in consequence there had been breaches of the devolution legislation with consequences it is not necessary to describe. In his speech at page 704 of the report Lord Bingham, having noted that Article 6 contained no express right to PSI, which is not to be found elsewhere in the Convention, is recorded as saying this:-

“Thus the right we have to consider in this case is an implied right. While it cannot be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied.
The jurisprudence of the European court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention:”

At page 708 of the report Lord Steyn is recorded as saying:-

“The European Convention requires that where difficult questions arise a balance must be struck. Subject to a limited number of absolute guarantees, the scheme and structure of the Convention reflects this balanced approach. It differs in material respects from other constitutional systems but as a European nation it represents our Bill of Rights. We must be guided by it. And it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights. This contextual scene is not only directly relevant to the issues arising on the present appeal but may be a matrix in which many challenges under the Human Rights Act 1998 should be considered.

The present case is concerned with article 6 of the Convention which guarantees to every individual a fair trial in civil and criminal cases. The centrality of this principle in the Convention system has repeatedly been emphasised by the European court. But even in respect of this basic guarantee, there is a balance to be observed. First, it is well settled that the public interest may be taken into account in deciding what the right to a fair trial requires in a particular context.”

At page 719 of the report Lord Hope is recorded as saying:-

“It is important therefore to distinguish between those Convention rights which are to be regarded as absolute and those which are not. The scheme of article 6, as Starmer, European Human Rights Law (1999), pp 118-119, para 3.88, has explained, is that the rights listed in articles 6(2) and 6(3) which are supplementary to article 6(1) are not intended to be an exhaustive list of the requirements of fairness in criminal proceedings. Those which are listed in article 6(3) are described as minimum rights. Once the meaning of those rights has been determined, there is no room in their case for any implied modifications or restrictions. But the European court and the European Commission have interpreted the article broadly by reading into it a variety of other rights to which the accused person is entitled in the criminal context. Their purpose is to give effect, in a practical way, to the fundamental and absolute right to a fair trial. They include the right to silence and the right against self-incrimination with which this case is concerned. As these other rights are not set out in absolute terms in the article they are open, in principle, to modification or restriction so long as this is not incompatible with the absolute right to a fair trial. As Starmer, European Human Rights Law, p 182, para 4.75, has observed, where express restrictions are provided for by the Convention there is no room for implied restrictions. But where the European court has read implied rights into the Convention, it has also read in implied restrictions on those rights.

The test of compatibility with article 6(1) which is to be applied where it is contended that those rights which are not absolute should be restricted or modified will not be satisfied if the modification or limitation "does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved “: Ashingdane v United Kingdom 7 EHRR 528, 547, para 57. In Sporrong and Lönnroth v Sweden 5 EHRR 35, 52, para 69 the court referred to the striking of a fair balance "between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights”.”

It was submitted by Mr Casement for P that section 11 of the Human Rights Act 1998 precludes modification of Domestic PSI as contended for by the Attorney General because to do so in the manner suggested will diminish the ambit of an existing common law right by removing from its application a substantial amount of the material to which the common law, as it stood at the coming into force of the Human Rights Act, would have applied the privilege.

Section 11provides:-

“11.

A person’s reliance on a Convention right does not restrict-
(a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom…”

I accept Mr Perry’s submission that section 11 is not intended to determine the content of any particular right or freedom and must be read in conjunction with the requirements under the Act for public authorities to act compatibly with Convention rights. To give section 11 the construction for which Mr Casement contends would confer on Domestic PSI the status of an absolute right which authority shows it does not have. Once it is conceded that Domestic PSI is not an absolute right, the requirement that the courts must give effect to that right compatibly with the Convention means, that in any particular case, the right of the individual seeking the protection of PSI must be balanced against the countervailing rights of the public at large, in this case to be protected from the effects of crime.

The concept of “modification” of established rules of substantive and procedural law so as to make them human rights compliant is familiar to those who practise in the human rights field. In his speech in the Leeds City Council case at paragraph 40 Lord Bingham describes the process confronting the courts in that case in the following terms:-

“ 40. Reference has already been made to the duty imposed on United Kingdom courts to take Strasbourg judgments and opinions into account and to the unlawfulness of courts, as public authorities, acting incompatibly with Convention rights. The questions accordingly arise whether our Domestic rules of precedent are, or should be modified; whether a court which would ordinarily be bound to follow the decision of another court higher in the Domestic curial hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the Court in Strasbourg.”

To a puisne judge of the Chancery Division, or certainly this judge the idea that his judgment may “modify” the right to a privilege described by Lord Wilberforce in his speech in the Rankcase as “too long established in our law as a basic liberty of the subject… to be denied” is somewhat alarming. I have however come to the conclusion, subject to the question of precedent with which I will now deal, that this is an appropriate case for that to be done. It seems to me that the public’s right under Articles 2, 3 and 8 to be protected from the effect of criminal activity when balanced against P’s right to Domestic PSI, which would otherwise operate to prevent me from directing that the offending material be passed to the police, requires me to modify P’s right so as to enable the material to be so transferred. I am reinforced in arriving at that conclusion to know that it will be open to P to apply to the trial judge, at any prosecution of him for the offence of possession of such material, to exclude it as evidence under section 78 of the Police and Criminal Evidence Act 1984. I am further reinforced in arriving at that conclusion by the following considerations:-

In the Leeds City Council case the House of Lords, in arriving at its conclusion, was confronted with a conflict between one of its own decisions and a later ruling of the HRC in Strasbourg, see paragraph 40 of the speech of Lord Bingham set out above. At paragraph 43 and following Lord Bingham having stated that the doctrine of stare decisis in our law is necessary in order to achieve a degree of certainty as to its application, said this:-

“… That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.

44.

There is a more fundamental reason for adhering to our Domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the Domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.

45.

To this rule I would make one partial exception. In its judgment on the Leeds appeal, paragraph 33, the Court of Appeal said:

“In D v East Berkshire Community NHS Trust [2004] QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 could not survive the introduction of the Human Rights Act 1998. This was, however, because the effect of the Human Rights Act 1998 had undermined the policy consideration that had largely dictated the House of Lords decision. Departing from the House of Lords decision in those circumstances has attracted some academic criticism. It remains to see whether this will be echoed by the House itself.”

When that case reached the House, no criticism of the Court of Appeal’s bold course was expressed, the House agreed that the policy considerations which had founded its decision in X v Bedfordshire had been very largely eroded and it was accepted that that decision was no longer good law: [2005] UKHL 23, [2005] 2 AC 373 paras 21, 30-36, 82, 119, 124-125. The contrary was not suggested. But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in paragraph 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course is not permissible save where the facts are of that extreme character.”

Section 14 (1) of the Civil Evidence Act 1968 PSI is referred to in the following statutory provisions which provides as follows:-

“14 (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; and

(b)

shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the husband or wife of that person to proceedings for any such criminal offence or for the recovery of any such penalty.”

The remaining sub-sections of section 14 contain nothing further which is of relevance.

Section 31 of the Theft Act 1968 provides:-

“A person shall not be excused, by reason that to do so may incriminate that person or the wife or husband of that person of an offence under this Act--(a) from answering any question put to that person in proceedings for the recovery or administration of any property, for the execution of any trust or for an account of any property or dealings with property; or (b) from complying with any order made in any such proceedings; but no statement or admission made by a person in answering a question put or complying with an order made as aforesaid shall, in proceedings for an offence under this Act, be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the wife or husband of that person.”

Section 72 (1) of the Supreme Court Act 1981 provides as follows:-

“72 (1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person, or his or her spouse, to proceedings for a related offence for the recovery of a related penalty –

(a)

from answering any question put to that person in the first-mentioned proceedings;

(b)

from complying with any order made in those proceedings.”

Section 7 of the Civil Procedure Act 1997 provides, so far as material:-

“7 (1) The court may make an order under this section for the purpose of securing in the case of any existing or proposed proceedings in the court-

(a)

The preservation of evidence which is or may be relevant or

(b)

The preservation of property which is or may the subject matter of the proceedings or as to which any question arises or may arise in the proceedings…

(7)

this section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty…. ”

Section 7 provides the compulsory powers relevant to this case. It seems to me that, whereas these statutory provisions govern the application of PSI in certain circumstances, they were not intended to, and do not, define its ambit so as necessarily to include in the privilege free standing evidence. The words “produce any document or thing” in section 14 of the Civil Evidence Act 1968 are capable of referring either to material produced by a witness under compulsion or material amounting to free standing evidence.

It was Mr Casement’s submission that the Hertfordshire County Council case was another example, similar to the Rank Film case, of the House of Lords finding that PSI applied to self standing documentary evidence not created by the respondent but produced under the compulsory powers relating to disclosure. The relevant material is described at page 418 of the report by Lord Hoffmann as follows:-

“The request asked for particulars of all persons, companies or hospitals which had supplied clinical waste to Green; of the persons who carried waste on its behalf; of the staff which it employed in handling clinical waste at the two sites which had been found; of the companies which had employed Green to dispose of clinical waste; of the supplier or hirer of the trailers it had used; of the keepers of any vehicles used to collect waste from the producers; of the locations of any other sites used by Green and of three bins which had been seen on one of the sites but were no longer there.”

The relevant statutory power to compel disclosure in that case is contained in section 71 (2) of the Environmental Protection Act 1990 which, relevantly, provides:-

“For the purpose of the discharge of its functions under this Part—…

(b)

a waste regulation authority

may, by notice in writing served on him, require any person to furnish such information specified in the notice as the …authority… reasonably considers…it needs, in such form and within such period following service of the notice as is so specified. ”

The “person” spoken of in sub-section (b) is not required to deliver up documents or articles but to answer questions, possibly in writing. It follows, it seems to me, that the answers given by that person are a classic example of “testimonial evidence”, without more, potentially covered by PSI. As noted above Lord Hoffmann went on to find that nonetheless the respondents were bound to give the information requested because that information was confined to simple fact.

It follows that the most recent House of Lords decision on this point is the AT &T Istel case in which the decision was handed down in July 1992. the background of the case is set out in the headnote as follows:-

“In 1988 the second plaintiff company, then in the control of the first and second defendants, entered into a contract with a health authority for the supply of computer services. After the first plaintiff had purchased the entire shareholding of the second plaintiff, they learned of allegations that the contract with the health authority had been operated fraudulently. In proceedings against, inter alios, the first and second defendants for damages for fraud and breach of trust the plaintiffs obtained, from Buckley J., an order ex parte requiring both defendants to disclose information relating to dealings with certain assets and to produce copies of documents in respect of such dealings. Paragraph 33 of the order prohibited the use of the material so disclosed in the prosecution of either defendant. On the application of both defendants Wright J. set aside the order in so far as it related to such disclosure on the ground that it infringed their privilege against self-incrimination. The Crown Prosecution Service were informed of Buckley J’s order and of the plaintiffs’ intention to appeal from the decision of Wright J., and were asked whether they wished to intervene or make representations in the appeal. By a letter dated 23 October 1991 they stated that they did not intend to intervene or be heard and that, since the paragraph applied only to disclosure by the defendants in compliance with the order it would not prevent them from using any material which they had already obtained or which they might obtain independently. The Court of Appeal dismissed the plaintiffs' appeal from Wright J’s order, holding that it was not open to the court to devise protection in substitution for the defendants' privilege against self-incrimination, and that the plaintiffs' claim was neither proprietary nor withinsection 72 of the Supreme Court Act 1981.”

The speeches of their Lordships proceed on the basis that all the material requested which would include self standing evidence was potentially subject to PSI. However the House of Lords found that because of the arrangement with the prosecuting authorities the defendants were in no danger of being prosecuted for any offences in respect of which the requested material might serve as evidence for the prosecution and so the defendants should make the disclosure sought. However their Lordships, on the way to their conclusion, mounted a critique of the application of PSI to disclosure in civil proceedings.

In his speech Lord Templeman stated at page 53:-

“…the privilege can 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. Neither of these considerations applies to the present appeal. 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… I regard the privilege … 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 at page 57 noted:-

“…the privilege…is in need of radical reappraisal. It is however deeply embedded in English law and can only be removed or moderated by Parliament… [which] has in recent years made many inroads into the privilege in a number of statutes. In civil actions… 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.”

Lord Lowry at page 69 said:-

“… reform… is still needed in several aspects such as … the illogicality of protecting pre-existing documents…”

In Re Arrows Ltd No 4 [1995] 2 AC 75 the House of Lords was dealing with a case where the Court of Appeal had allowed an appeal from the judge who had directed that the transcripts of examinations of a director of an insolvent company under section 236 of the Insolvency Act 1986 on an undertaking by the director of the Serious Fraud Office that the transcripts would not be used save in the circumstances specified in section 2 (8) of the Criminal Justice Act 1987. The effect of the order of the Court of Appeal was that the transcripts should be made available to the director without condition. The House of Lords dismissed the appeal. Lord Browne-Wilkinson gave the leading speech. At page 96, having referred to the Rank Film and AT &T Istel cases and to Article 6 of the Convention as a example of the international acceptance of the principle of PSI he said:-

“The inevitable effect of a witness in civil proceedings claiming the privilege against self-incrimination is to deprive the opposite party and the court of evidence relevant to the dispute under consideration. Until recently, this has not given rise to much litigation. But the recent upsurge of financial fraud, particularly in relation to companies, has raised in an acute form the conflict between the witness's basic right to rely on the privilege on the one hand and the public interest in successfully pursuing and recovering the fruits of such fraud.”

Then at page 109 he continues:-

“Only Parliament can 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 (including investigatory proceedings) and the public interest in the successful prosecution of those guilty of fraud.”

The evidence in question in the Arrows case was, of course, testimonial evidence to which the IEA would not apply. It is however the most recent decision of the House of Lords cited to me where their Lordships highlight the difficulties in the application of PSI to the disclosure of documents in civil proceedings but accept that the only solution is fresh legislation. It is of interest, however, to compare the balancing process spoken of by Lord Browne-Wilkinson in 1995 in the passage at page 109 of the report which he confines to Parliament with the similar balancing process spoken of by the Privy Council in the Brown v Stott case in 2003 and which is assigned by them to the courts.

The relevant decisions of the House of Lords were given well before the passing of the Human Rights Act 1998, indeed, probably before that measure was seriously proposed.

The most recent decision of the Court of Appeal which is potentially inconsistent with the submissions of the Attorney General is the Den Norske Bank case in which judgment was given on the 7^th April 1998. In that case the Court was considering a claim by a bank to recover the proceeds of bribes given to him in the course of the bank’s business and damages for frauds against the bank. In the course of those proceedings the bank obtained a freezing injunction over the assets of the defendant. At page 277 Lord Justice Waller sets out the relevant parts of paragraph 3 of that order. The defendant was required to inform the bank’s solicitors in writing:-

““as soon as reasonably practicable of all his assets and of the specific assets, whether in or outside England and Wales …. or whether held by him legally or beneficially or held by him through nominees or otherwise howsoever, and of the specific assets, giving the value, location and details of all such assets and specific assets and (in the case of the specific assets) to the best of his knowledge and belief what has become of them, including without limitation details of all bank accounts including the name or names in which the account is held, the name of the bank, building society or other entity, the address of the relevant branch and the number of the account controlled by [D.A.] or to which [D.A.] is a signatory and details of all interests held by [D.A.] in any company, ship or partnership or joint venture relating to the companies, ships and individuals named in annexes C and D to this order.”

The paragraph further states:

“The first defendant [D.A.] may be entitled to refuse to provide some or all of this information on the grounds that it may incriminate him. In the event that [D.A.] claims to be entitled to the benefit of such privilege, he must provide such allegedly privileged information to the supervising solicitor who will hold such information to the order of the court.”

In schedule 4 the supervising solicitor undertook to explain to D.A. the effect of the order including his entitlement to avail himself of the privilege against self-incrimination. The order also provided that "the information must be confirmed in an affidavit which must be served on the plaintiff's solicitors within seven days after this order has been served on [D.A.]”

It seems to me that the form of paragraph 3 is similar in effect to the request for information made in the Hertfordshire County Council case the written answer to which would constitute testimonial evidence by the defendant. Accordingly it seems to me that the Defendant could have refused to answer it on grounds of PSI today regardless of whether the IEA is correct or not.

The judge at first instance in charge of the case went on to direct cross-examination of the defendant on his answers and that examination took place. In the course of that examination the defendant asserted PSI in answer to a number of the questions. The judge required him to answer. The matter came before the Court of Appeal on appeal from that ruling. The Court of Appeal allowed the appeal in part ruling that the defendant should not be required to provide answers to questions which sought to establish his receipt of money from a client of the bank and the amount received.

The leading judgment was delivered by Lord Justice Waller. The judgment deals with the effect on PSI of the handing over of documents to the Supervising Solicitor. It is not clear from the report what documents were handed over but it seems likely that they constituted that part of the written answer to the request made under paragraph 3 of the order which the defendant was refusing to answer on grounds of PSI. Be that as it may at page 289 of the report Lord Justice Waller having quoted from the judgment of Cockburn CJ in Reg v Boyes says:-

“Thus, it is not simply the risk of prosecution. A witness is entitled to claim the privilege in relation to any piece of information or evidence on which the prosecution might wish to rely in establishing guilt. And, as it seems to me, it also applies to any piece of information or evidence on which the prosecution would wish to rely in making its decision whether to prosecute or not.”

It is possible that, insofar as that passage in Lord Justice Waller’s case is to be read as covering free standing evidence, it is obiter, as being not necessary for his decision, because the documents in question did not fall within that classification.

The other aspect of the case which is of relevance for present purposes is that passage in Lord Justice Waller’s judgement under the heading “unsatisfactory nature of the rule allowing privilege to be claimed.” Where he says :-

“One must start by expressing sympathy for all those involved in the procedure summarised above, not least the judge. So far as the bank were concerned they had a strong prima facie case that D.A. had taken bribes and been a party to a fraud, and utilised front companies to disguise the whereabouts of the spoils. They thought and think they are being frustrated in their attempts to discover what bribes D.A. did receive, and if he did receive them where the moneys went, and/or where the money is now. So far as D.A. was concerned there was, as the judge found, a risk of him being prosecuted in a criminal court for corruption. If only Parliament had done that for which there has been a need now for far too long, of extending the policy underlining section 31 of the Theft Act 1968 to criminal offences more generally, the above sorry saga might never have needed to unfold in the way it did.”

I return to the passage in the speech of Lord Bingham in the Leeds City Council case. It does seem to me that it is at least strongly arguable that this is the exceptional case which fits into the “partial exception” spoken of by Lord Bingham. I do so for the following reasons:-

As Lord Bingham indicates two courses are open to me the first, if satisfied that the case falls within Lord Bingham’s “partial exception”, to decide the case by directing delivery of the offending material to the police, staying the order pending an appeal for which I would give permission. The second course is to decline to make that order, give permission to the Attorney General to appeal by-passing the Court of Appeal if appropriate permission is given, so that the matter can be dealt with by the House of Lords who are able to depart from their own decisions.

After some hesitation I have come to the conclusion that subject to the question of the implied undertaking to keep confidential material produced in the course of disclosure in civil actions, with which I will shortly deal, I should take the former course and hold that this is a case where the court can modify the application of Domestic PSI so as to exclude from its ambit material constituting free standing evidence which was not created by the respondent to the search order under compulsion.

In his judgment in the O Ltd case between paragraphs 72 and 85 Mr Justice Lindsay sets out the authorities which govern the circumstances in which a civil court may release material obtained as a result of disclosure from the implied undertaking of the parties to litigation to keep such material confidential to the proceedings. I gratefully adopt that passage in Mr Justice Lindsay’s judgment. My conclusion that the public interest in the prosecution of crime which leads me, in the balance that must be taken between that interest and the interest of P to a fair trial, to come down in favour of the public interest must carry with it the parallel conclusion that I should release the implied undertaking so that the offending material be passed to the police: se in particular the judgment of Lord Justice Swinton Thomas in Re C (a minor) [1997] FAM 76 CA.

I will make an order directing W to pass the computer and associated electronic materials on which the offending material is stored to the appropriate police authority.

I will give P permission to appeal and stay this order pending the reasonably urgent prosecution of such appeal. I am aware of the domestic situation of P which makes it of importance that circumstances of this case are investigated as soon as possible by the police.