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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Otl v P  EWHC 1226 (Ch) (26 May 2006)
Cite as:  Ch 549,  3 WLR 273,  4 All ER 311,  EWHC 1226 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
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THE SECRETARY OF STATE FOR THE HOME OFFICE
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THE ATTORNEY GENERAL
David Casement (instructed by Pannone LLP) for the Respondent
Richard Milne (instructed by T Sols) for the Secretary of State
David Perry (instructed by T Sols) for the Attorney General
Nick Caddick (instructed by T Sols) appeared as an Advocate to the Court
Hearing dates: 2nd Feb, 24th March, 11th & 12th April.
Crown Copyright ©
Mr. Justice Evans-Lombe :
"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
(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."
"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... "
"(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]"
"(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."
i) Before the search commenced P's solicitors informed the Supervising Solicitor and the claimant's solicitor that P was relying on his PSI without reference to any particular document or electronic material which might be disclosed as a result of the search at the same time giving them a copy of the judgment in the O Ltd case. He also informed them of P's intention to apply to the court for the determination of the extent to which he was entitled to exert his PSI and, in consequence, to vary the search order. Such an application was made on the 12th October and was supported by a witness statement of P containing a statement of truth dated 14th October. Nonetheless as in the O Ltd case P permitted the search to proceed.
ii) The computers, on one of which the offending material was recorded with their associated electronic equipment, were delivered to the Supervising Solicitor for his retention, pending determination of P's right to PSI.
iii) The matter returned to the court on the 20th October before Mr Justice Mann when he made the following directions:-
"3 The parties shall deal with the CDs DVDs and other electronic storage materials ("the Electronic Materials") retained pursuant to the order of the 10th October 2005 and listed in exhibit NCH1 to the report of Neil Clifford Howes "the Supervising Solicitor" in the manner set out in schedule 2 below or in such other manner as may be agreed between the parties.
4 Information contained in the Electronic Materials shall not be disclosed by the persons inspecting the same except as provided for in schedule 2 to any persons other than the court, the defendant and his professional legal advisors and the claimants professional legal advisors without the permission of the other party or of the court.
5 Nothing in the forgoing shall be considered to be an admission by the claimant that anything in the Electronic Materials is privileged or not relevant to this case or by the defendant that it is not privileged or relevant to this case, and the parties have permission to apply for further directions in relation to the manner in which the Electronic Materials may be dealt with without the need to show a change of circumstances."
Schedule 2 to Mr Justice Mann's order provided:-
"10 The Electronic Materials shall be retained in the custody of W save as set out below
11 W shall make a copy of each of the Electronic Materials which he shall retain pending further order of the court or agreement of the parties."
There then follow provisions for meetings and agreements as to how the contents of the computers should be displayed and divided up with the intention of removing and passing to the Claimant those contents to which he was entitled.
iv) In consequence of the order of Mr Justice Mann the computers etc were passed to W for him to image them so that their contents could be analysed.
v) W imaged the computers in the course of which process the offending material emerged but that material and the computer recording it never thereafter left his possession and no copies of its contents and, in particular, of the offending material, have ever left his possession or been disclosed by him to any of the parties or any third party.
i) The jurisdiction to make a search order is provided by section 7 of the Civil Procedure Act 1997. Sub-sections (1) and (7) of that section are set out later in this judgment. Search orders are enforceable by proceedings for contempt.
ii) It has been, at all material times, an offence to possess images such as those comprising the offending material in this case.
iii) PSI is a common law right but is a right which, by contrast with legal professional privilege is not absolute in the sense that it is open to the legislature, by statute, to derogate from it. See Brown v Stott  3 1 AC 681. Statute may do so expressly or by implication. Whether any individual statute has that effect is a matter of statutory construction for the court before which the issue arises. See per Lord Hoffmann in R v Hertfordshire County Council (ex-parte Green Environmental Industries Ltd)  2 AC 412.
iv) Where not so excluded the privilege confers an absolute protection on the party claiming it which a judge has no discretion to overrule. See per Lord Wilberforce in Rank Film Ltd v Video Information Centre & ors  AC 380 p441: where he says:-
"However, it is only too clear (and I deliberately use the language of reluctance) that supply of the information and production of the documents sought would tend to expose the respondents to a charge of conspiracy to defraud… A charge of conspiracy to defraud, so far from being as it sometimes is, a contrived addition to other charges, is here an appropriate and exact description of what was being done… Unless some escape can be devised from this conclusion, the privilege must inevitably attach."
Lord Wilberforce continues at page 442:-
"Mr. Nicholls was at pains to make clear that he was not, in these submissions, attempting to negate or undermine the privilege against self-incrimination. This has been too long established in our law as a basic liberty of the subject - in other countries it has constitutional status - to be denied. It has received modern recognition in section 14 of the Civil Evidence Act 1968 and in this House."
Then at page 443 Lord Wilberforce stated that the protection of PSI extended to material which might:-
"Set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character."
v) A judge in Civil Proceedings must give effect to the privilege in appropriate circumstances notwithstanding that in subsequent Criminal Proceedings the relevant material might be excluded, e.g. under section 78 of the Police and Criminal Evidence Act 1984.
vi) As the passage which I have quoted from Lord Wilberforce's judgment in the Rank case makes plain and from other authorities, the English common law right to PSI ("Domestic PSI") has hitherto been held to extend, beyond a right to refuse to answer questions tending to incriminate to which an answer would otherwise be compellable, but also to incriminating material of whatever nature, but of which documents and electronic records are good examples, the production of which would otherwise be compellable.
Because no claim to PSI was made by the Respondent to the search order in the O Ltd case before the search started, in the course of which the offending material in that case was passed to the independent computer expert for imaging, Mr Justice Lindsay was able to find that the suspect had lost his PSI and so he could direct the offending material to be handed over to the police. See paragraph 53 of his judgment. In that case a claim to PSI was made by the Respondent but only after the offending material had been discovered by the computer expert and after the adjourned return date of the application for the search order, see paragraphs 21 and 22 of the judgment.
"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."
"… 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.
"… 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.
The Independent Evidence Argument ("the IEA")
"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 suggesting that 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."
"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."
"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."
"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)."
"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  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 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."
"(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."
"(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  1 AC 681. Thirdly, the decision of the Court of Appeal in Attorney General's Reference no. 7 of 2000  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.
"(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. …
(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."
"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:
[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture] "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"
"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."
"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. "
"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:"
"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."
"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"."
"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…"
" 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."
i) The current apparent anomaly between the scope of the privilege in civil proceedings and the scope of the privilege in criminal proceedings would disappear. As the pre Human Rights Act law stood a suspect could not resist the production of material comprising free standing evidence of possible guilt seized in a search by a constable under section 19 (3) of the Police and Criminal Evidence Act 1984 whereas he could resist production to a search order under section 7 of the Civil Procedure Act 1997 on grounds of PSI.
ii) It puts an end to what appears to be an irrational difference between the scope of Domestic PSI and European PSI as recognised to form part of the rights comprised in Article 6 by Convention jurisprudence.
iii) It would remove or certainly reduce the anomalies in the application of Domestic PSI presently imposed on disclosure in civil proceedings of which complaint has been made in such cases as AT & T Istel v Tulley.
iv) The potential offence revealed by the offending material is serious enough having regard to the inhuman treatment of children which its production must have involved. In the course of the hearing on the 11th and 12th April I put to counsel the more extreme example of the discovery in the course of the execution of a civil search order of a substantial bomb with evidence that it was imminently about to be used to terrorise the public. In theory, at least, if the pre HRA situation survives the court would be powerless to do other than hand the bomb back to the Respondent to the search order in whose possession it had been found.
The effect of precedent
"… 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  QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council  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:  UKHL 23,  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."
Relevant Statutory Provisions
"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.
"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."
"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…. "
"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."
"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. "
"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 within section 72 of the Supreme Court Act 1981."
"…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."
"…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."
"… reform… is still needed in several aspects such as … the illogicality of protecting pre-existing documents…"
"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."
"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."
""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.]"
"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."
"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) The decisions of the House of Lords, the Rank Film case and the AT & T case, and of the Court of Appeal, the Den Norske case and earlier cases which would otherwise bind me, where handed down before the coming into force of the Human Rights Act on the 2nd October 2000. The decisions of the House of Lords were handed down before that Act was passed. In none of those cases was a Convention point taken. Although Attorney Generals Reference No 7 and Reg v Kearns are referred to in the judgment of Mr Justice Lindsay in the O Ltd case it is clear that the IEA was not raised before him.
ii) The enactment of the Human Rights Act fundamentally altered the legislative circumstances after those decisions of the House of Lords and the Court of Appeal. I refer back to paragraph 71 to illustrate this point. It seems to me to be highly likely that had the case for modification of Domestic PSI, for which the Attorney General contends, been available to the House of Lords in the Rank Films and AT &T cases they would have accepted it with open arms.
iii) There appears to be almost universal disapproval of the way in which Domestic PSI operates on the procedure for disclosure in civil cases. I repeat the earlier passage in this judgment where I set out the perceived advantages, urged on me on behalf of the Attorney General, of a decision to modify the privilege.
iv) It is arguable that the decision of the Court of Appeal in Attorney Generals Reference No 7, in which the Rank Film case is cited, is authority, binding upon me in favour of the IEA
The Implied Undertaking