C Plc v P (Secretary of State for the Home Department intervening)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Evans-Lombe |
| Judgment Date | 26 May 2006 |
| Neutral Citation | [2006] EWHC 1226 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC05C02806 |
| Date | 26 May 2006 |
[2006] EWHC 1226 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Evans-Lombe
Case No: HC05C02806
Tony Peto, Robert Weekes (instructed by Miscon de Reya) for the Applicants
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: 2 nd Feb, 24 th March, 11 th & 12 th April.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Evans-Lombe
The issue with which this judgment is concerned arises from an application in an action in which C Plc 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 Claimants, 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 C Plc 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, C Plc 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...
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