O Ltd and Z
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LINDSAY,Mr Justice Lindsay |
| Judgment Date | 23 February 2005 |
| Neutral Citation | [2005] EWHC 238 (Ch) |
| Court | Chancery Division |
| Date | 23 February 2005 |
[2005] EWHC 238 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindsay
Hearing dates: 2 nd and 3 rd February 2005
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.
| This judgment was handed down in private on Wednesday 23 rd February 2005. As the judgment deals with issues of some public importance the judge was of the view that it ought to be made public unless, within an extended period for an Appellant's Notice, such a notice was lodged by Z. It has not proved possible to bring the judgment to Z's notice as his whereabouts continue to be unknown. No Appellant's Notice has been lodged and the extended period has long since expired. The judgment is now made public but its anonymous form is continued. |
Mr Justice Lindsay
1. This case gives rise to serious questions as to “one of the inveterate principles of English law” – the privilege against self-incrimination – and the exercise of a Search Order obtained, as they are, with only one side being heard. In outline the facts are these: the Claimant, an employer, believing (rightly, as it transpired) that its former employee, the Defendant, had taken with him computer and other recorded material that belonged to it and which could be used by him to its disadvantage in its business, obtained a Search Order ex parte authorising a search to be made of the Defendant's home and of the computers and other recorded material at his home. In the course of the search, material was handed by the Defendant to the Computer Expert engaged in the search. When, later, the material was examined by the Expert, it was found (as no one except, if anyone, the Defendant, had any reason to expect) to include material completely irrelevant to the Claimant's claim, paedophile pornography of a serious nature. So serious is it that its mere possession can be a crime. The Expert invited the Court to give permission for that material to be handed to the relevant Prosecuting Authority. But the Defendant had never been told of the privilege against self-incrimination either by the words of the Search Order or by the Supervising Solicitor or how to exercise it and, in that the only privilege that was explained to him was a quite different one, he might well have thought that the privilege against self-incrimination was not open to him even had he otherwise been aware of it as a possibility. Moreover, to permit the use of the offensive material against the Defendant would be to allow the fruits of a Search Order made for one purpose – the fair protection of the Claimant's intellectual property rights – to be used for a quite different purpose, the incrimination of the Defendant. I have no reason to think this is the case here but what a weapon the Search Order could become in the hands of, say, a vindictive employer, even in cases where the crime was far less serious than here. In a sense, too, the Search Order could be said to have been excessive because, as it turned out, it required the disclosure of material that had nothing whatsoever to do with the Claimant's claims. In such circumstances what directions should the Court give to the Computer Expert, who wishes to give the offensive material to the Police?
2. I first heard argument in March 2004 and delivered a provisional judgment (“the 2004 Judgment”) in private. I held, for the reasons I then gave, that the offensive material was not at that stage to be disclosed to the Police but I described my judgment as provisional as I had heard no-one but the Advocate to the Court on the subject. The Claimant, by then, had gained as much as it was ever likely to do in its action against the Defendant and understandably had no wish to spend more on being represented in an argument as to issues which no longer concerned it. The Defendant did not choose to appear at all. The Police had not been invited to. However, as part of my provisional 2004 Judgment I made arrangements for the relevant Prosecuting Authority to be asked whether, in the light of my provisional view, it wished to intervene. The first indication was that it did so wish but, after taking Counsel's advice, it then indicated that it did not wish to intervene. However, a while later it was indicated that the Home Office itself might wish to intervene and, later still, I was told that the Home Office did wish to do so and I gave leave to that end. I have thus heard a much fuller argument now than I heard in 2004. Miss Lieven has appeared for the Secretary of State for the Home Department as Intervener and Mr Caddick as Advocate to the Court; I am very grateful to both. With only marginal differences between them they have both argued that the offensive material should be disclosed to the Police.
3. It may be that all this is of no practical significance. Although I cannot be sure where the Defendant now is, the best indications are that he has long since left the premises which were searched and, indeed, is out of the country. Moreover, the Search Order was made some 2 years or so ago. Even if the offensive material is handed to the Prosecuting Authority, there must be doubts as to whether any prosecution at all or at any rate any prosecution with a practical prospect of success could now be launched. However, as serious questions have arisen and as they may arise in other cases, I shall deal with the argument accordingly. Further, although both the 2004 and the present hearings have been in private, because of the seriousness of the issues raised I have thought it right that this present judgment should be made public in the anonymised form in which it is cast.
4. I shall first turn to the facts.
The facts
5. The Claimant, O Ltd, a company whose business is concerned with the development and sale of computer software, believed that its former employee, the Defendant, Z, had, on leaving its employ, wrongfully acquired or retained access to programs and other material the unlicensed use of which might seriously harm its business. It applied ex parte for, and obtained, a Search Order. The Order provided in the conventional way for the appointment of a Supervising Solicitor and that the Defendant was entitled to have the Supervising Solicitor explain to him what the order meant in everyday language. As computers were to be searched a computer expert (“the Expert”) from an experienced firm of Consultants was amongst the persons authorised by the Order to take part in the search. Because the search was to be for intellectual property, the Search Order, whilst making, as will appear, general provision for the Defendant gathering together any documents he might believe to be privileged and for his handing them to the Supervising Solicitor in order that that Solicitor might assess whether or not they were privileged, made no express reference to the privilege against self-incrimination as such or to any ability of the Defendant to gather together documents which he might believe to be self-incriminating. The words to that effect in the approved full form of Search Order at 25 PD 14 page 587 in the 2003 White Book were omitted, as the Note to that form suggests they should be. The full form, R 2 of September 2002, reads as follows:—
“11. Before permitting entry to the premises by any person other than the Supervising Solicitor, the Respondent 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 [incriminating or] privileged and hand them to the Supervising Solicitor for him to assess whether they are [incriminating or] privileged as claimed. If the Supervising Solicitor decides that any of the documents may be [incriminating or] 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.
12. If the Respondent 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.”
The Note referring to intellectual property cases reads:—
“References to incriminating documents should be omitted from orders made in intellectual property proceedings, where the privilege against self-incrimination does not apply – see paragraph 8.4 of the practice direction.”
That practice direction reads:—
“8.4 There is no privilege against self-incrimination in Intellectual Property cases (see the Supreme Court Act 1981, section 72) therefore in those cases any references to incrimination in the Search Order should be removed.”
6. Section 72 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.
(2) Subsection (1) applies to the following civil proceedings in High Court, namely –
(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;
(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and
(c) proceedings brought to prevent any apprehended...
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Table of Cases
...31, [2011] NLJR 552, [2011] All ER (D) 26 (Apr) 208 Norwood v United Kingdom (Admissibility) (2004) 40 EHRR SE 111, ECHR 262 O Ltd v Z [2005] EWHC 238 (Ch), [2005] All ER (D) 387 (Apr) 246 xxvi Cyber Crime: Law and Practice Oxford v Moss (1979) 68 Cr App R 183, [1979] Crim LR 119, Crown Ct ......
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