C Plc v P (Attorney General intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Lawrence Collins,Sir Martin Nourse |
| Judgment Date | 22 May 2007 |
| Neutral Citation | [2007] EWCA Civ 493 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: 2006 1364 A3 |
| Date | 22 May 2007 |
[2007] EWCA Civ 493
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
C Plc v P
Hon Mr Justice Evans-Lombe
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Lawrence Collins and
Sir Martin Nourse
Case No: 2006 1364 A3
EDWARD BARTLEY JONES Esq QC and DAVID CASEMENT Esq (instructed by Messrs Pannone LLP) for the Appellant
PHILIP SALES Esq QC and DAVID PERRY Esq QC (instructed by The Treasury Solicitor)
for the Intervenor/Respondent
Hearing dates: 7th, 8th March 2007
The Facts
On 10th October 2005 Mr Justice Peter Smith, on the application of claimants in intellectual property proceedings, made a search order in respect of premises in the occupation of P. Before the order was executed P, as the order permitted him to do, obtained the advice of a solicitor who attended at the premises. That solicitor advised the parties and the Supervising Solicitor appointed pursuant to the search order, that P would (inter alia) rely on his privilege against self incrimination in respect of any material which the search might disclose. 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 delivered up and “imaged” so that information recorded on those computers which belonged to the claimants could be identified. By reason of P's invocation of the privilege in respect of material which might be produced by the search, the computers were placed in the custody of the Supervising Solicitor who passed them to W, an employee of C Plc (who had been appointed by the order as independent computer experts) 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 the computers. 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 at least some of the offending material should be classified for seriousness as grade 4.
The matter first came before the court on the 2nd February 2006 on the application of W, seeking directions from the court as to what he should do with the offending material which continued to be in his possession. In due course Evans-Lombe J decided after hearing counsel for W, P, the Home Secretary and further counsel as an Advocate to the Court and after considering written submissions made on behalf of the Attorney General that the offending material should be handed to the police but on P's application he stayed that order pending an appeal for which he gave permission. At the hearing below P had the benefit of legal aid but his certificate has now been discharged and we were told that P had become bankrupt. In the light of the importance of the matter, his counsel below, Mr David Casement, has continued to act pro bono in the appeal. He has been led by Mr Edward Bartley Jones QC who is also acting pro bono. The court is greatly indebted to both of them and their solicitors who are also so acting for their public spiritedness. The only other party to the appeal now is the Attorney-General, who is represented by Mr Philip Sales QC.
Prior to the hearing below, the claimants indicated that they wished to play no part in these proceedings, in the result of which they had no interest, but they did assist, through their representatives, in the preparation of a statement of facts. Neither C Plc nor W, who have also assisted in the preparation of that statement, have played any active part in the proceedings but W retained the offending material as a result of the order of the judge.
It is important to emphasise at the outset that P does not accept that he was responsible for the presence of any offending material on the computers produced as a result of the search and he asserts that he was at all material times unaware of its presence. He asserts that he has a good defence to any charges brought against him as a result.
The search order was in common form but it is necessary to set out the salient paragraphs. It made provision for the search and appointed the Supervising Solicitor and the independent computer experts who have employed W. Under the heading “restrictions on search”, it then provided as follows:—
“9 The defendant is entitled to seek legal advice and to ask the court to vary or discharge this order. Whilst doing so he may ask the Supervising Solicitor to delay starting the search for up to two hours or such other longer period as the Supervising Solicitor may permit. However the defendant [P] must
(a) ….
(b) Not disturb or remove any listed items; and
(c) Permit the Supervising Solicitor to enter but not start to search.
10 Before permitting entry to the premises by any person other than the Supervising Solicitor the defendant may, for a short time (not to exceed two hours unless the Supervising Solicitor agrees to a longer period) gather together any documents he believes may be privileged and hand them to the Supervising Solicitor for him to assess whether they are privileged as claimed. If the Supervising Solicitor decides that any of the documents may be privileged or is in any doubt as to their status he will exclude them from the search and retain them in his possession pending further order of the court.
11 If the defendant wishes to take legal advice and gather documents as permitted, he must first inform the Supervising Solicitor and keep him informed of the steps being taken.”
Then under the heading “Delivery up of articles/documents” the order continues at paragraph 15:—
“15 The defendant must immediately
(a) Hand over to the claimant's solicitors the claimant's computer, mobile phone and printer which are presently located at [left blank] together with any necessary passwords and
(b) Hand over to the claimant's solicitors any of the listed items which are in his possession power custody or under his control, and
(c) Enable the contents of any computers, mobile telephones, memory cards, USB drives, printers, PDAs or any other memory storage devices or any hard disc integral to any such device at any of the premises (other than those devices already referred to at (a) which are to be handed over to the claimant's solicitors aforesaid) to be imaged by the Independent Computer Specialist and must provide all such assistance (including the provision of passwords) as may be necessary to enable such imaging to be performed…”
At schedule E the order specified undertakings to be given by the Supervising Solicitor to the court as follows:—
“(1) [undertakings with relation to service on the defendant] …
(2) The Supervising Solicitor will offer to explain to the person served with the order its meaning and effect fairly and in everyday language and to inform him of his right to take legal advice (such advice to include an explanation that the defendant may be entitled to avail himself of legal professional privilege and to apply to vary or discharge this order as mentioned in paragraph 23 above.) The Supervising Solicitor will retain in the safekeeping of his firm all items retained by him as a result of this order until the court directs otherwise.
(4) [An undertaking to report to the parties and the court]”
Schedule (F) of the order provides for undertakings to the court by the Independent Computer Specialist as follows:—
“(1) [an undertaking not to damage the defendant's computers in the course of imaging]
(2) The independent computer specialist will not publish or disclose the images made to any one other than the claimant without permission of the defendant or the court.
(3) The independent computer specialist will not disclose any materials obtained as a result of the search to any employees of the claimant other than Mr F save with the permission of (a) the Supervising Solicitor, or (b) the defendant, or (c) the Court.”
The order contained the usual penal notice indicating the consequences of failure to comply with it. It will be noted that, while the order referred to the possibility that privileged documents might exist and, in terms that the defendant might wish to avail himself of legal professional privilege, there was no express reference to the privilege against self-incrimination.
I have already said that, before the search commenced, P's solicitor informed the Supervising Solicitor and the claimant's solicitor that P was relying on the privilege. As I understand it, that was said without any reference being made to any particular document or electronic material which might be disclosed as a result of the search. At the same time P's solicitor gave his counterparts a copy of the judgment in O Ltd v Z [2005] EWHC 238 (Ch) in which Lindsay J had in broad terms held on 23rd February 2005 that offending material discovered in similar circumstances might not have to be transmitted to the police if a claim to the privilege against self-incrimination had been properly made. P's solicitor also informed them of P's intention to apply to the court for the determination of the extent to which he was entitled to exert his privilege...
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